being an injury which he suffers in common with other citizens.1 But the owner of the fee of a canal has been held entitled to damages where a railroad was laid upon its location.2

Measure of Damages for Injuries to Land-owners caused by the Use of the Highway for a Railroad. Where compensation is allowed to a land-owner for an authorized use of the highway by a railroad company, he is entitled to damages for the deterioration of his property, and the interruption of his business during the construction. But damages are recoverable only for injuries which are direct and immediate, to the exclusion of those which are suffered by the whole community. The damages are assessed in the special proceeding on the basis of a compliance with the law, not including damages for breach of duty or negligence.5 Where the road has been constructed in an improper manner upon a street, the land-owner has been held entitled to recover in an action the difference between the value of his property with the road as constructed, and its estimated value with the road properly constructed."

Obstruction of Highways lawful only when, and to the Extent, authorized by Statute. — The right to obstruct highways, to place rails and other erections upon them, or to use them for other purposes than travel, exists only under statutes, which confer the authority expressly or by clear implication; and the right cannot, without a practical necessity, be implied, to the extent of a serious interference with the public right of passage, from a gen

1 Brainard v. Missisquoi R. Co., 48 Vt. 107.

2 Lafayette, M., & B. R. Co. v. Murdock, 68 Ind. 137. But see ante, p. 233.

8 St. Louis, V., & T. H. R. Co. v. Capps, 67 Ill. 607, 72 Ill. 188; Chicago, B., & Q. R. Co. v. McGinnis, 79 Ill. 269; St. Louis, V., & T. H. R. Co. v. Haller, 82 Ill. 208; Grand Rapids & I. R. Co. v. Heisel, 38 Mich. 62; Jeffersonville, M., & I. R. Co. v. Esterle, 13 Bush, 667; Hegar v. Chicago & N. R. Co., 26 Wis. 624; Gear v. C. C. & D. R. Co., 39 Iowa, 23, 43 Iowa, 83; Kucheman v. C. C. & D. R. Co., 46 Iowa, 366.

Proprietors of Locks & Canals v. Nashua & L. R. Co., 10 Cush. 385; Boston & W. R. Co. v. Old Colony R. Co., 12 Cush. 605; Parrott v. Cincinnati, H., & D.

R. Co., 10 Ohio St. 624; Atchison & N. R. Co. v. Garside, 10 Kan. 552, 567; Stone v. Fairbury, P., & N. W. R. Co., 68 Ill. 394. See Nicholson v. New York & N. H. R. Co., 22 Conn. 74.

5 Gear v. C. C. & D. R. Co., 43 Iowa, 83, 39 Iowa, 23; ante, Chap. VII. p. 179. 6 Cadle v. Muscatine W. R. Co., 44 Iowa, 11.

7 Commonwealth v. Erie & N. E. R. Co., 27 Pa. St. 339; Phillips v. Dunkirk, W., & P. R. Co., 78 Pa. St. 177; AttorneyGeneral ". Lombard & S. Streets Pass. R. Co., 10 Phil. 352, 32 Leg. Int. 238; State v. Hoboken, 6 Vroom, 205; State v. Vt. Cent. R. Co., 27 Vt. 103; Virginia & T. R. Co. v. Lynch, 13 Nev. 339; Atlantic & P. R. Co. v. St. Louis, 3 Mo. App. 315, 66 Mo. 228. See ante, Chap. VII. p. 155.

eral grant to construct a railroad between certain termini.1 The right, however, to occupy the highway to the extent of a reasonable necessity is often implied.2 The right to cross or pass along a highway does not include the right to build permanent structures upon it, or to use it for a freight yard, or any exclusive purpose, but is limited to a reasonable use by crossing, passing, and repassing, consistent with the earlier public right.3 The power to establish a railroad in a public street includes the power to make a turnout, so as to communicate with a station on the street. The company may use the highway for making up trains and shifting cars; but such use of the highway can be made only to a reasonable extent, and in a manner consistent with other lawful modes of using it. It may stop its cars temporarily in the highway, in which its tracks are laid, for lading and unlading freight, where this can be done without serious interference with the ordinary uses of the highway."

Liability for Nuisances on the Highway. The company is liable. as for a nuisance for using steam power on a highway without legal authority;7 crossing it in a manner not allowed by statute, or without complying with the conditions precedent; neglecting to keep bridges in repair; or to provide a draw in a bridge, when so required by law; 10 delaying unreasonably either to remove obstructions which it was authorized to create temporarily,

1 Long Branch Com'rs v. West End R. Co., 2 Stewart (N. J.), 566; Little Miami R. Co. v. Greene County, 31 Ohio St. 338; Louisville & N. R. Co. v. State, 3 Head, 523; Eyler v. County Com'rs, 49 Md. 257. The right to build a railroad orer highways authorizes a crossing at a level, or running lengthwise on them. Gear v. C. C. & D. R. Co., 43 Iowa, 83.

2 Long Branch Com'rs v. West End R. Co., 2 Stewart (N. J.), 566.

3 Allegheny v. Ohio & P. R. Co., 26 Pa. St. 355; Commonwealth v. Erie & N. E. R. Co., 27 Pa. St. 339; Gahagan v. Boston & L. R. Co., 1 Allen, 187; State r. Vt. Cent. R. Co., 27 Vt. 103; Lackland v. North Mo. R. Co., 31 Mo. 180; Chapman v. Oshkosh & M. R. R. Co., 33 Wis. 629, 638; State v. Morris & E. R. Co., 1 Dutcher, 437, 3 Zab. 360; Higbee v. Camden & A. R. Co., 4 C. E. Green, 276; Tennessee & A. R. Co. v. Adams, 3 Head, 596. See Hall v. Brown, 54 N. H. 495, 58 N. H. 93.

4 New Orleans & C. R. Co. v. New Orleans, 1 La. An. 128; Knight v. Carrollton, 9 La. An. 284.

5 Gahagan v. Boston & L. R. Co., 1 Allen, 187; State v. Vt. Cent. R. Co., 27 Vt. 103; State v. Morris & E. R. Co., 3 Zab. 360, 1 Dutcher, 437. See Clark v. Fry, 8 Ohio St. 358, 373.

6 Mathews v. Kelsey, 58 Me. 56. But see State v. Morris & E. R. Co., 1 Dutcher, 437, 3 Zab. 360.

7 State v. Tupper, Dudley (S. C.), 135; Jones v. Festiniog R. Co., L. R. 3 Q. B. 733.

8 Wellcome v. Leeds, 51 Me. 313; Commonwealth v. Nashua & L. R. Co., 2 Gray, 54.

9 Penn. & O. R. Co. v. Graham, 63 Pa. St. 290.

10 Commonwealth v. New Bedford Bridge, 2 Gray, 339; Commonwealth v. Nashua & L. R. Co., 2 Gray, 54.

or to substitute a new highway for an existing one, which it has occupied with its works. Neither the use of steam power on the highway, nor the placing of gates at crossings for public safety, is a nuisance when authorized by statute.2

The right to maintain a nuisance in the highway cannot be acquired by prescription; 3 but a city or town may be estopped by acts and acquiescence from setting up that the use of public grounds for a railroad is unauthorized.4

Mode of Crossing. The right to a location across a highway carries with it the right to lay as many tracks as are essential to the convenient transaction of the company's business; and, while leaving it safe and convenient for travellers, to alter the surface to the extent necessary for properly laying and using them. The right to cross the highway does not authorize an appropriation of any part of it, or a material interference with public travel.6

The election of the company to cross under or over a highway, when the power of choice is conferred by statute, is not, when made in good faith, subject to judicial control; nor is the decision of a board or tribunal, which is authorized by statute to determine the mode of altering the highway, open to review by the court. The statute may, by implication, authorize a change in the mode of crossing, -as from one at grade to one by tunnel.9

Diversion of Highways.

The right to divert a highway is not easily implied. It is not inferred from a right to change its grade

8 Philadelphia, W., & B. R. Co. v. Maryland, 20 Md. 157; Little Miami R. Co. v. Greene County, 31 Ohio St. 338; Pettis v. Johnson, 56 Ind. 139; Bay State Brick Co. v. Foster, 115 Mass. 431. See Haskell v. New Bedford, 108 Mass. 208; West v. Louisville, C., & L. R. Co., 8 Bush, 404.

Chicago, R. I., & P. R. Co. v. Joliet, 79 Ill. 25; Chicago & N. W. R. Co. v. People, 91 Ill. 251.

5 Commonwealth v. Hartford & N. H. R. Co., 14 Gray, 879.

6 Little Miami R. Co. v. Greene County, 31 Ohio St. 338; ante, Chap. VII. p. 155. Whether in a particular case it can cross longitudinally, or only at right angles, see Long Branch Com'rs v. West End R. Co., 2 Stewart (N. J.), 566.

7 People v. New York Cent. R. Co., 74 N. Y. 302, 12 Hun, 195; Struthers v. Dunkirk, W., & P. R. Co., 87 Pa. St. 282; ante, Chap. VII. p. 149; post, Chap. IX. p. 255.

8 Waterbury v. Hartford, P., & F. R. Co., 27 Conn. 146.

9 Central R. Co. v. State, 8 Vroom, 220.

at a crossing.

The diversion cannot be justified on the ground of mere economy in construction, but only on the ground of necessity or public convenience. When the right to divert exists, it must be exercised reasonably, with due regard to the convenience and safety of travellers upon the highway.3

Duty to restore the Highway to its Original Condition. The laying of a railroad across highways often requires excavations and erections, and a greater or less change in the surface. The duty, however, to restore the highway as far as may be to its former condition, and to erect and maintain structures necessary for such restoration, is presumed to be incumbent on the company, even without any express requirement imposed by statute.

The duty to restore it to its former condition so as not to interfere materially with its usefulness, and to make the crossing safe and convenient for the public, is usually imposed by statute. It is a continuing duty, and binds other corporations which succeed to the ownership or possession of the railroad. It is to be substantially rather than literally performed. Whether it is to be performed with reference to the growth of the community, so as to require improvements and alterations adapted to the increased use of the highway, is a question to be determined by the terms and intent of the statute. Its performance may be

1 Warren R. Co. v. State, 5 Dutcher, R. Co., 35 Wis. 679; People v. New 353.

2 Norwich & W. R. Co. v. Killingly, 25 Conn. 402; Greenwich v. Easton & A. R. Co., 9 C. E. Green, 217; Queen v. Wycombe R. Co., L. R. 2 Q. B. 310; Fenwick v. East London R. Co., L. R. 20 Eq. Cas. 544; Attorney-General v. Ely, H., & S. R. Co., L. R. 4 Ch. App. 194, L. R. 6 Eq. Cas. 106; Pugh v. Golden Valley R. Co., L. R. 12 Ch. Div. 274; ante, Chap. VII. p. 203.

3 Veazie v. Penobscot R. Co., 49 Me. 119; Potter v. Bunnell, 20 Ohio St. 150; Louisville & N. R. Co. v. State, 3 Head, 523.

4 Northern Cent. R. Co. v. Baltimore, 46 Md. 425; Eyler v. County Com'rs, 49 Md. 257; Indianapolis & C. R. Co. v. State, 37 Ind. 489, 502.

5 Gear v. C. C. & D. R. Co., 43 Iowa, 83; Hamden v. New Haven & N. Co., 27 Conn. 158; Roberts v. Chicago & N. W.

York Cent. & H. R. R. Co., 74 N. Y. 302, 12 Hun, 195; Wasmer v. D. L. & W. R. Co., 80 N. Y. 212.

6 Wellcome v. Leeds, 51 Me. 313; Central R. Co. v. State, 3 Vroom, 220; Chicago, R. I., & P. R. Co. v. Moffitt, 75 Ill. 524; Eyler v. County Com'rs, 49 Md.

257.

7 People v. Chicago & A. R. Co., 67 Ill. 118; Little Miami R. Co. v. Greene County, 31 Ohio St. 338; Wasmer v. D. L. & W. R. Co., 10 N. Y. Week. Dig. 100, 80 N. Y. 212.

8 Little Miami R. Co. v. Greene County, 81 Ohio St. 338; Roberts v. Chicago & N. W. R. Co., 35 Wis. 679.

9 Burritt v. New Haven, 42 Conn. 174; State v. New Haven & N. Co., 45 Conn. 331; Manley v. St. Helens, C., & R. Co., 2 Hurl. & N. 840. The company is not bound to erect screens or guards between its railroad and a highway, unless the

enforced by mandamus,1 or in equity, and its breach is punishable by indictment.3

The company is sometimes authorized to substitute a new highway for the old one, and it is a question of statutory construction whether it must open the new road for use before occupying the old one.1

Legislative Power over Highways. · The legislature, unless restricted by the State Constitution, may even, without the consent of a municipality, and without allowing it compensation, authorize railroads to be laid in its highways. If the city or town is deemed the owner of the fee, it holds the interest as trustee of the public, without title to compensation as a proprietor. The statute, however, may require the consent of the municipality.

Limitations of Power of Municipal Corporations over Highways. – A municipal corporation cannot, by virtue of its ordinary powers, confer a franchise on individuals or a private corporation to lay

statute imposes the duty. Coy v. Utica A. R. Co. v. Adams, 3 Head, 596; Perry & S. R. Co., 23 Barb. 643.