Page:Harvard Law Review Volume 4.djvu/272

2S6 HARVARD LAW REVIEW, In New York the question arose with reference to the use of the cable as the motive-power in a case in which it was one of the conditions of the grant that no steam should be used, and the court held that the franchise did not include the right to excavate and use the streets for a cable road.^ The use of the overhead system of electric wires presents some different questions from the use of steam motors or cables. It involves some obstruction of the streets by the poles and wires, and the alleged interference with the working of the telephone. The poles must be set up either along the sidewalk or in the middle of the street, and the wires must be strung along, and in some places across, the street. Jt is strenuously objected that the placing of the poles in the soil of the street is a taking of private property, and that even if the fee of the street is in the city, it is an interference with the easement of the abutting owner and his right of access. It must be borne in mind that the question is not whether the poles interfere with public travel and thus constitute a pubHc nuisance. This is a question to be decided by the Legisla- ture. If the Legislature decides that the interests of public travel are subserved by having the poles in the streets, then the public have no ground for complaint. The only question now is whether the private rights of the abutter are affected ; whether it is a private nuisance to him, and whether his lands are taken or his rights on the street infringed. In deciding this question it is to be remem- bered that the land used is a pubHc street, and that whether the fee is in the abutting owner or in the public, the whole beneficial use of the land is in the pubHc for the purposes of a street. For those purposes it belongs wholly to the pubhc ; and so long as it is used for those purposes, it does not belong to the individual at all. The abutter retains only his easements of light and air and access, and these are property rights ; and for the loss of these, it has been recently decided in the New York Elevated Railroad cases he is entitled to compensation.^ It would seem to follow from this that if the use of cars for local travel, propelled by elec- tricity, is a proper use of the street as such, then the occupation 1 People V. Newton, 112 N. Y. 396 (1889). 2 Story V. N. Y. Elev. R.R. Co., 90 N. Y. 122 ; Lahr v. Metrop. Elev. R.R. Co., 104 N. Y. 268; Pond V. Metrop. El. R'y Co., 112 N. Y. 186; Haynes v. Thomas, 7 Ind. 38; Crawford v. Delaware, 7 Ohio St. 459 ; Stack v. East St. Louis, 85 111. ■t^'] ; and many other cases. See also an article on the Elevated Road Litigation, by Edward A. Hib- bard, 4 Harv. Law Review, 70.