Morris v. Montgomery Traction Co.

143 Ala. 246

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

HARALSON, J.

“Streets and highways are dedicated to the use of the traveling public, and street railways, which are for the purpose of facilitating travel, impose no additional burden upon the abutting owner, and are a public use.” If they create noise, dust and vibrations, and are attended with some inconvenience and even danger to life and property, so do other vehicles of travel and trade. They are legitimate uses within the original dedication of streets for the benefit of the public. — Joyce on Electric Law, § § 278, 341.

“A street surface passenger railway constructed at street, grade in the usual manner and operated by animal power (or by electricity) is not per se a public or private nuisance, nor is it a new servitude imposed upon the land for which the owners of the fee are entitled to compensation.” — Booth on Street Railways, § 82. Such a use by the ordinary electric railway, with the usual means by which it is operated, is but an improved method, of using the street for public travel; and there is no limit to the use of a public street for the purposes of travel thereon, so long as such use does not interfere unnecessarily with the ordinary modes of travel and is no substantial impairment of private rights of property. — Nellis on Street Surface Railroads, p. 135; B. T. & Co. v. S. B. T. & T. Co., 119 Ala. 144; Baker v. S. S. & S. R. Co., 135 Ala. 552; Rafferty v. C. T. Co., 147 Penn. 579.

In the Alabama- cases cited, followed by the very sat-is factory opinion of the court below found in the transcript, every principle involved in this case, has been thoroughly considered and decided; and it is unnecessary to here repeat what was there said.

There was no error in sustaining the demurrer to the bill and'the motion to dismiss it for want of equity.

Affirmed.

McClellan, C. J., Dowdell and Denson, J.J., concur.