Fed. Rep. 267, 269. The objection of plaintiff's counsel to the clanse of the order, as originally drawn, which required the receiver to execute wupersedeas bonds in cases which he appealed, is sustained, and that clause will be stricken out.
WILLIAMS 11. CITY ELECTRIC STREET
COircutt Oourt, E. D. A.rkatnsas. Maroh 26, 1811O.}
1. 'l'he difference between' railroads for general traffio and street railroads consists in their use, and not in their motive power. A railroad, the rails of whioh are laid ,to ,conforlU to ,the grade and surface!>f the street, and whiohis otherwise oonstructedso that the publio is not excluded,from' the use of any part of the street as ,apUblio way; whioh runs at a moderate rate of speed, compared to the speed of traftl,c railroads; whioh ,carries no freight, put only passengers; from one part ofa thiokly populated distriot to another in a town or city, and its suburbs, and for that , 'se rn,Dsits oars at sbQrt iPte,rval,s,', sto, , ! , pu,r Pll "pping at the street orossings to receive · "all-dll,i.scharge its a streey railroad, whether, ,the oars are propelled , , 'bY' animal at meclianio8l power. ' ','" -: ,' "
S'rREET RAILROADS. ,
2. S.ul'E-MOTIVliiPOWER-MUNIOIPAL CORPORATIONS.
a oity, is its charter to contract for the of raUroads, it may authorlze suoh railroads to be operated by aDlmal or meohanlCal .' 'PoWer. " .
, ,,' T,he operation of a railroad by mechanio8l.power when authorized by taw, , ' oDa 'publio street, is not 'additional servitude or burden:on land already dedi"ooted or cO,ndemnedto tile use of a publip stroot, and is therefore not a taking- of private property, but is a mod,ern and improved use, only, of the street asa publio highway, and affords til" baa 'owner 'of the abutting property, though he may own , the fee, bftne street, no legal ground of complaint.
" (Synabus by the OO'Wrt.)
::,',InEquity. On bill,fof no injunction against the operation of a street raIlroad with steam "' ' '8(Lm W. Williams;rorpla,intiff. ' .': Jolvn,B. Joines and JOh"f J,1. lIoore, for defendant.
':bALDWELL, J. A of the state of Arkansas providing fOf, the qrgapizationand defining the powers of municipal corporations prQvic;les
',,"Sec. 754. They shallbave power to provide for lighting the streets' andal. oft,he city by gas or andtp auth,orize the gas-' wo.tks and ofstreet railroads.' Sec. 7551 For the purpose of provldulg water, gas; or'street rlfilroads, the -mayor and council may contract with any person oil: to construct aM operate the same, and may grant to such, person or:compafny, for the time which may be agreed upon, the exclusive pri,vilege of. using the streets. andaljeys of such city for such purpose or ])ig., ' . On the 6th day of DePenlber, 1887, the city of Little Rock,.acting, on the ,authority of theabov&oql;1oted sections of its charter, entered hlto a cpntta'ct l indue forrnj' with' the defendant, by the terms of whioh the! defenc;l.\Ultwas ,graIlted the'rig_ht tocpustruct,maintaiu, and operate" On
WILLIAMS' 11. CITY ELECTRIC STREET RY. Co.
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 plairitiff, ,that it herestr8.ined from using said track to run cars over it by any sort of power, or means oflocomotion. '1 Tbeplaintiff's contention that the sections of Mansfield's Digest above ql10tedmust be restricted in theiJ; operation to street railroads propelled hy animal power, and that street railroads propelled by steam, or other mechanicafpower, fall within the following provisiopsof Mansfield's Digest,in the chapter entitled Railroads:" "Sec. 5468. Any right of way heretofore. granted by the city council oiany eity of the 'or,st or second class. or the town council of any incol'porated town, to any railroad company. through the of such cjty or town. with right to establish and maintain depots and other improvements. ,aod .facilities thereto, shall be valid and binding. Sec. 5469" The,' Qity, councq of any city of the first or aecond class, and the town council of' any Irlcorpora.ted'town, shall hereafter' have power to grant to any railroad company the right of way through the streets of sucll City or town. with the right to establish and maintain depots; and other ,necesllary improvements, :in,' connection therewith. Sec. 5470. If ,anr property is illjured thereby, the PllI1Y shall be liable for such ,and the same s4all be in the tnlinner provided by law for assessing damagps for the the right of way throl1gh lands. Sec. 5471. It shall require the written consent :of two-thirds of the property in vahle <>n said street or streets; and. to arrive said: value. the last assessment of said oJl"said6treet or;streets ;8lJall determine the value of each/l6p"rate lot or parcel ,Qil,land theteon. Act March 1. " The difference between street railroads and railroads for general traffic is well understood. The differencecoIlsists in theil' use, and not in their motive power.· A raHroad"the rails of.which are laid, to ,conform. to the grade and surface of the street, and which is otherwise con$trutited so that the pu'blic is nQtexcluded fronl the use of any part,onthestreet as a public way; which rUll$ at a moderate, rate of speed,' eomparea' to the speed oftrafficrailronds;whichcarries 'no freight,butJonly from one'part of a thickly populated,district to 'a;uotherj'iw a town:0t tbatpnrpbserunslits:cnrsat.,ghpwmWtMals,
FJIlDERAL' ,REPORTER', ivoL
the' street. crossings to :and dischargeits.:passenge'rs,-. iSi8l.street cars'arepropelledby animal or. mechanical,. power. The propelling power of: suoh a road may be animal,. steam, electricity, cable;, engines" or, OOlp pressed airjallofwhichi motors hl);ve' been, ,and are ·now. in: use for the 'purpose of 'propeUingstreet-cars. Encyc1op. ,Britannica, (9th Ed.)ti'b."TramwBy." .Doubtless, .other methods of propelling. the. of street railroads will be. discovered and applied. The legislaturehllving, empo,wered the' city ,to' authorize the construction of street r.ailll()ads,witholltqualification or restriction as to the :motive powel: to, be ,used. on such .roads,the dty had the undoubted l!ightto authorize,· animal.or .mechanical power· to beused!os motors on Buohroads. Sectiolls .M68-5471,:Mansf. Dig., relate:to railroads for traffic, and not ,to street· railr<:>ads, whether· propelled: by animal Qrmechanical power.' It would bea.uselessconsumption of time to <lite authorities to show that it would, be competent for the .city, under its oharter,to authorize the construction:and operation, on the streets of the city, Of a street railroad propelled. by ,a'nimal power,.without providingfor compensation to the.abuttillg10t-ownersj but the learned counsel (of. the plaintiff insists that the rule iSdilitfelentwherethe propelling power is steam. The distinotion ,attempted to be dfawnbetween animal and mechanical.power, asa'pplied to:streetlrailroads, is not sonnd. The niotor is not the ,criterion·.· It is the use of the street, and the mode of tbat use. A street railroad propelled by animal power might be so con. structed and operated as to be a public nuisance, and render its owners liable, to thoseinjunld cl)Dstruction,andoperation. The same, is true ofastreet railroad operated ;by mechanical power. It ,may and'operatedas"tobe a publio nuisance,but the use a .by not 'per-8e g pr.operty !(lill.,¥:e,.',It a n .. ()r t',h.e abU,",th".n though the street. AS ,v:este<iin It is common knowledge that .steam ID0wrSI for operatfng street raill'Qads,are nowoon'st.rtlcted ·to:emitso little gas('18team, or smokej and make so little noise, thatthey do complaint to paSthe as and as q? WIth greater flndprecI&lQn; Suc,b l.D use In Cltl.lfS ,and their <1:ulbsFin thiscountr.y and in EngJll,nd · Encyclop. pBritannica, (9th E<h) .,,,The operati0n of a streetil'liilrJ0ad by 8U'chsteltffii motbrsj when authorized by law, on a public street, is not an additional servitude or 'burden Jill tbe,landalready dedicllted,orcondeJDQed to the use ora ptlblic street, -and:istherefore not a taking·ofprivatepllo.perty, but is a modern .and. a.mprt:>veGl:,ulile, only, of ,tbestreet,as and..affords· to,the abuttingpropertyowner;-;Jhpugh hemtty ,own the. fel),of: the. stJ:eet,.lilo ofcompJoint. ,Brigg8 V. Ratlrcrtd 363, 10 Atl:. ,N,ewdJ.v. N,,·W;. Rep.8&9j People, v. Ke:tr, 27 Nil, ¥ .,204,.,. Butasteammotor 'may be .ofsuch consftuotion i or operated in such a way a$' to!oreate injury, of the owners ofabutting property; and where thaqs'the casetbe legislative
RocK1 &M;R. CO.t/;Si'; LOUis, :1.')1.1. &: S. RY. CO.
,to' roM be no jttstifiCiLtiohof the lInisance'!'lf, :howeVe,r, the rOll'd, the use ()f"the. motors genertilly use4 on strllet ralIroadl;l, smoke, gas, and steam, and ,thenoiee produced by blast,'a.renq,greater than neCessarily attend the operation of 8uchmotors Slupplied with, the,improved appliances a.nd cdntrivancesincommon use, then the :pHtintiff , has nogroJjndOfco01plliintat law orin equity. Whether the d:efendroad is ornot,"sooperated" decided, becaQse, any event,' the plliintiff, on the facts of the Case; is not !i!ntitled to an, injtinction,but her remedy, if any ,she,has,is at law. Osborne v. Railroad Co., 35, Fed. Rep', 84,'37 Fed. Rep. 830., The injunction is refused, and 'the billdish'lissed, without prejudiooto the plaiutiff's right to sue at law. . .:,.,
ST;LouIs,I. M. &
'j;.. ; . " : ' " ; : .. , .': " '. ': " . ;' . . .... ',: . , ,.: · .
, . .'A· Conn 'of' eqU1ty has either at oommon or under tp.e interstate . oo:liimerce act, to oompel;arailroSd comp$ny to. enter intio Sf oobt,ract With! a.other , company for a joint thro\1g11 joinUhrough rol1$ing pf ·ireightamd· paBllen·
Q4»Lrt;) "" ',,'
"i": niaterialaUegation$ in·;the plaintiff's bill are. that.....
"The Little Rock & MemphIs ltailroad Company is engageii operating ,thetaUTOJld bAtween the ciJ;ie$ of.Memphis,.in the state of and. Lit. ·. ,That its ip. ,thetrllnIlPl>rtation \if and freight f.. om points ea.stof . river. and southern P?iij.tS!hl the states kansas. Texas. and elsewtlel.'e, anti' in tbereverse directIOn; The St. Louis, 'Iron'Yoontain &. Soutbetn'RailwaY'(}ompany, a corpotationcreated by tlie laws of.Arltansas, andaninhabiJiilnt'ofsaid district; operates luoail.road from the city, pi St. I,oQis. in the lltate, of Millsqqri, passing through ,the Little of boundary the ,statcs()f Arit Jj.1akesc!'>nnection with systems of raU,J:03dS ,in Texas. , 'The the Hot Springs Railroad Companyis ene gaged in operating It,ntilroad in'Jthestate of Arkansas froth Malvern. on' :tIle line of the st. Louis, Iron Mountain"·&Southern Railway,:to Hot Springs. ,Sai<lHot Springs Railroad Is a corporation created by the laws of 'Arkaillias,a'ntl'ls::an inbabittintof sJtid' district. Said St. Louis, !ton Mountain & SotithernRailway islone: of,the'largest of' the road operated by your orator,con'trlbutingo dUl'ing'tM half year endl'ilg'3'une'.sO, 11:l88, 3,387 pRssengers.or whom'}, 591; Of neatly half;· came ti pon t hrougMiekats over the ''Little' Rock & Rail'toadand the St. Louis, Iron Mountain :& 'South,ern Rail wa"With'a traffic equal in' the opposite The said St. La'itls, Iron .MoUI!tain & S\)U'therfl Rail way is the mOR11l\pOroratotrt'he' exchange of 'duriIigthe the,St. 'siX'rriohthil 'e:OOrngJune 80,1888, iimuunting to 11,139., In