BrkweR, C. J.
The initial and important question is wliether a cable tramway is within plaintiff’s exclusive grant of a right to build, erect, and operate horse railways. If tlie grant were made to-day it could not seriously be contended that it was so included. There is such a clear and recognized distinction between horse railroads and cable roads that, applying the ordinary rules for the construction of legislative grants, neither kind of road would be included within a grant of the other. The contention, however, is that at the time of this grant cable roads were practically unknown; tliat the only known form of street railways was the horse railway; that the terms “street railroad” and “horse railroad” were in common parlance used to describe the same thing; that in construing the grant we aro to place ourselves back to the time at which it was made, and these terms “horse railroad” and “street railroad” being thou used interchangeably for the same thing, we are to suppose that the legislature meant by the use of one term all that it would have meant by the use of the other, and that therefore all that would to-day be included within either term was within the scope of the grant. The rule for the construction of legislative grants is well settled. They are to be construed against the grantee and in favor of the public; and nothing passes unless it is obvious that the intent was that it should pass. 1 do not mean that they are to bo construed technically and narrowly so as to defeat the very purposes of the grant, but that, giving to language its ordinary meaning, nothing will be included unless obviously witbin the scope of such meaning.
In Perrine v. Chesapeake & Delaware Canal Co., 9 How. 172, Chief Justice Taxey says, at page 192:
[328]*328“The rule of construction in cases of this description is this, that any ambiguity in the terms of the grant must operate against the corporation and in favor of the public; and the corporation can claim nothing that is not clearly given by the law. We do not mean to say that the charter is to receive a strained and unreasonable construction, contrary to the obvious intention of the act. It must be fairly examined and considered, and reasonably and j ustly expounded.”
This rule of construction against the grantee, which applies in all legislative grants, obtains with the greater force in a case libe the one at bar, where the grant claimed is not merely the right to do something, but of a right to exclude all the rest of the public from doing that thing. He who says that the state has given him a franchise, a right to do that which without that franchise he could not do, will be compelled to show that the franchise, the right-Qlaimed, is within the terms of his grant. Múch more strenuous must be the demand upon him for clear and explicit language in his grant when he claims that a part of it is not merely the franchise, the right to do, but also the right to exclude all others of the public from exercising the same right, and the state, as the representative of the public, from according the same right to another. Jackson Co. Horse Ry. Co. v. Rapid Transit Co., 24 Fed. Rep. 306; Proprietors, etc., v. Wheeley, 2 Barn. & Adol. 793. See, also, Charles River Bridge v. Warren Bridge, 11 Pet. 422, in which Mr. Chief Justice Taney, speaking for the court, uses this language;
“Is there anything in our local situation, or in the nature of our political institutions, which should lead us to depart from the principle where corporations are concerned? Are we to apply to acts of incorporation a rule of construction differing from that of the English law, and by implication make the terms of a charter in one of the states more unfavorable to the public than upon an act of parliament framed in the same words would be sanctioned in an English court? * * * We think not; and it would present a singular spectacle if, while the courts in England are restraining within the strictest limits the spirit of monopoly, and exclusive privileges in the nature of monopolies, and confining corporations to the privileges plainly given to them in their charter, the courts of this country should be found enlarging these privileges by implication, and construing a statute more unfavorably to the public and the rights of the community than wo"’11 be done in a like case in an English court of justice.’’'
Now, placing ourselves back at the time of this grant, what should be attributed to the legislature as its intent? It may be assumed that the only form of street railway in practical use was the horse railway, and that in common parlance the two terms were often used interchangeably. Is it probable that it intended to foreclose the public in advance from all the benefits of possible inventions and discoveries in the matter of street railway travel, and give them to this grantee? or did it not rather intend that its grantee should take that complete and single thing known as a horse railway, with all of which it was familiar, and retain for the public all of the unknown possibilities of invention and discovery in reference to modes of street railway travel? Did it intend to give .that which it knew nothing of or only that which it knew? It seems to me that the mere stating of the question suggests the inevitable answer. Indeed, assuming the con[329]*329ditions to bo all as stated, if the legislature had used the words “street railway,” instead of the term “horse railway,” a very pertinent question would arise whether it intended to grant an exclusive right to any other than that form of street railway, to-wit, horse railway, with which it was familiar. Wo are hound to assume that the legislature is dealing with the known and not with the unknown, and that when it grants a franchise it only intends to grant that of which it has knowledge; and it is unreasonable to lay stress on the form of language or the words used for the sake of broadening an intent so as to include things not then known. A case most apt and pertinent to this line of thought is that of Bridge Proprietors v. Hoboken Co., 1 Wall. 1,16. In that case the legislature of New Jersey had given the plaintiff the right to build a toll-bridge, with a provision that no other bridge should be built witbin certain limits for a period of 99 years. ^Subsequently tbe defendant, within the time limited, was proceeding to construct a railroad bridge within the prescribed limits, and this construction was sought to be enjoined by the plaintiffs as an invasion ot their franchise. The court of errors and appeals of New Jersey denied the injunction, and on appeal to the supreme court of the United States its ruling was affirmed. In the opinion of the court, Mr. Justice Miller uses this language:
“It does not follow that when a newly-invented or discovered thing is called by some familiar word which comes nearest to expressing the new idea, that the thing so styled is really the thing formerly meant by the familar word. Matters most intimately connected with the immediate subject of our discussion may well illustrate this. The track on which the steam cars now transport the traveler or his property is called a road, somet imes, perhaps generally, a railroad. The, term < road ’ is applied to it, no doubt, beca use in some sense it is used for the same purpose that roads had been used.
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BrkweR, C. J.
The initial and important question is wliether a cable tramway is within plaintiff’s exclusive grant of a right to build, erect, and operate horse railways. If tlie grant were made to-day it could not seriously be contended that it was so included. There is such a clear and recognized distinction between horse railroads and cable roads that, applying the ordinary rules for the construction of legislative grants, neither kind of road would be included within a grant of the other. The contention, however, is that at the time of this grant cable roads were practically unknown; tliat the only known form of street railways was the horse railway; that the terms “street railroad” and “horse railroad” were in common parlance used to describe the same thing; that in construing the grant we aro to place ourselves back to the time at which it was made, and these terms “horse railroad” and “street railroad” being thou used interchangeably for the same thing, we are to suppose that the legislature meant by the use of one term all that it would have meant by the use of the other, and that therefore all that would to-day be included within either term was within the scope of the grant. The rule for the construction of legislative grants is well settled. They are to be construed against the grantee and in favor of the public; and nothing passes unless it is obvious that the intent was that it should pass. 1 do not mean that they are to bo construed technically and narrowly so as to defeat the very purposes of the grant, but that, giving to language its ordinary meaning, nothing will be included unless obviously witbin the scope of such meaning.
In Perrine v. Chesapeake & Delaware Canal Co., 9 How. 172, Chief Justice Taxey says, at page 192:
[328]*328“The rule of construction in cases of this description is this, that any ambiguity in the terms of the grant must operate against the corporation and in favor of the public; and the corporation can claim nothing that is not clearly given by the law. We do not mean to say that the charter is to receive a strained and unreasonable construction, contrary to the obvious intention of the act. It must be fairly examined and considered, and reasonably and j ustly expounded.”
This rule of construction against the grantee, which applies in all legislative grants, obtains with the greater force in a case libe the one at bar, where the grant claimed is not merely the right to do something, but of a right to exclude all the rest of the public from doing that thing. He who says that the state has given him a franchise, a right to do that which without that franchise he could not do, will be compelled to show that the franchise, the right-Qlaimed, is within the terms of his grant. Múch more strenuous must be the demand upon him for clear and explicit language in his grant when he claims that a part of it is not merely the franchise, the right to do, but also the right to exclude all others of the public from exercising the same right, and the state, as the representative of the public, from according the same right to another. Jackson Co. Horse Ry. Co. v. Rapid Transit Co., 24 Fed. Rep. 306; Proprietors, etc., v. Wheeley, 2 Barn. & Adol. 793. See, also, Charles River Bridge v. Warren Bridge, 11 Pet. 422, in which Mr. Chief Justice Taney, speaking for the court, uses this language;
“Is there anything in our local situation, or in the nature of our political institutions, which should lead us to depart from the principle where corporations are concerned? Are we to apply to acts of incorporation a rule of construction differing from that of the English law, and by implication make the terms of a charter in one of the states more unfavorable to the public than upon an act of parliament framed in the same words would be sanctioned in an English court? * * * We think not; and it would present a singular spectacle if, while the courts in England are restraining within the strictest limits the spirit of monopoly, and exclusive privileges in the nature of monopolies, and confining corporations to the privileges plainly given to them in their charter, the courts of this country should be found enlarging these privileges by implication, and construing a statute more unfavorably to the public and the rights of the community than wo"’11 be done in a like case in an English court of justice.’’'
Now, placing ourselves back at the time of this grant, what should be attributed to the legislature as its intent? It may be assumed that the only form of street railway in practical use was the horse railway, and that in common parlance the two terms were often used interchangeably. Is it probable that it intended to foreclose the public in advance from all the benefits of possible inventions and discoveries in the matter of street railway travel, and give them to this grantee? or did it not rather intend that its grantee should take that complete and single thing known as a horse railway, with all of which it was familiar, and retain for the public all of the unknown possibilities of invention and discovery in reference to modes of street railway travel? Did it intend to give .that which it knew nothing of or only that which it knew? It seems to me that the mere stating of the question suggests the inevitable answer. Indeed, assuming the con[329]*329ditions to bo all as stated, if the legislature had used the words “street railway,” instead of the term “horse railway,” a very pertinent question would arise whether it intended to grant an exclusive right to any other than that form of street railway, to-wit, horse railway, with which it was familiar. Wo are hound to assume that the legislature is dealing with the known and not with the unknown, and that when it grants a franchise it only intends to grant that of which it has knowledge; and it is unreasonable to lay stress on the form of language or the words used for the sake of broadening an intent so as to include things not then known. A case most apt and pertinent to this line of thought is that of Bridge Proprietors v. Hoboken Co., 1 Wall. 1,16. In that case the legislature of New Jersey had given the plaintiff the right to build a toll-bridge, with a provision that no other bridge should be built witbin certain limits for a period of 99 years. ^Subsequently tbe defendant, within the time limited, was proceeding to construct a railroad bridge within the prescribed limits, and this construction was sought to be enjoined by the plaintiffs as an invasion ot their franchise. The court of errors and appeals of New Jersey denied the injunction, and on appeal to the supreme court of the United States its ruling was affirmed. In the opinion of the court, Mr. Justice Miller uses this language:
“It does not follow that when a newly-invented or discovered thing is called by some familiar word which comes nearest to expressing the new idea, that the thing so styled is really the thing formerly meant by the familar word. Matters most intimately connected with the immediate subject of our discussion may well illustrate this. The track on which the steam cars now transport the traveler or his property is called a road, somet imes, perhaps generally, a railroad. The, term < road ’ is applied to it, no doubt, beca use in some sense it is used for the same purpose that roads had been used. Bur until the thing was made and seen no imagination, even the most fertile, could have pictured it from any previous use of the word ‘road.’ So we call the inclosure in which passengers travel on a railroad, a coach; but it is more like a bouse than a coach, and is less like a coach than are several other vehicles which are randy if ever called coaches. It does not therefore follow that when a word was used in a statute or contract seventy years since, that it must be lie Id to include everything to which the sáme word is applied at the present day. For instance, if a Philadelphia manufacturer had agreed with a company seventy years ago to furnish all the coaches which might be necessary to transport passengers between that city and Baltimore for a hundred years, would he now be required by his contract to build railroad coaches? or, if a company had then contracted with the government to build and keep up good raid sufficient roads to accommodate mails and passengers between those points, for the same time, would that company be bound to build railroads under that contract? Yet the structure which the defendants propose to build over the Hackensack is not more like a bridge of tlic olden time than a railroad is like one of its roads, or a railroad coach is like one of its coaches. It is not then a necessary inference that because, the word ‘ bridge ’ may now be applied by common usage to the structure of the defendants, that it was therefore Hie thing intended by the act of 1790. ”
In other words, as a railroad bridge was unknown at the time of tho grant, the supreme court held that it was not included within the exclusive franchise; it was something not thought of by the legislature, and [330]*330was therefore not within the limits of the exclusive grant. That case is even stronger than this, for a railroad bridge is certainly one form of a bridge, and therefore within the very letter of the grant, but a cable road is not one form of a horse railroad, and not within the strict words of the grant. Bridge Co. v. Railroad Co., 6 Paige, 564; Thompson v. Railroad Co., 3 Sandf. Ch. 625; McRee v. Railroad Co., 2 Jones, Law, 186; Saginaw Gas-light Co. v. Saginaw, 28 Fed. Rep. 529.
Even in a case in which the rigorous rule of construction of grants does not apply, and suppose the term “horse railway” had been used in an ordinary contract between private parties at the date of this grant, it is very doubtful whether that term would be construed as intending anything more than what is now known as technically and strictty a horse railway. Suppose some individual had contracted with this plaintiff immediately after this grant to construct tracks for its cars during the entire life-time of the grant, at so much per lineal yard, would that contract be held to bind him to the construction of the more expensive track of the cable tramway? I think it would be difficult to answer this question in the affirmative, and for the obvious reason that that which is not within the thought of the parties is not within the scope of the contract. A cable road is not more different from a horse railroad than a steam railway is from an electric railway, and yet would it be seriously contended that, if at the date of this grant the plaintiff had received a like grant of an exclusive right to construct and operate a steam railroad between Omaha and Lincoln, that exclusive right would prevent the construction of an electric railway between the two places? Would a grant to construct even a street railway carry with it the right to construct and operate an elevated road?
My conclusion from these considerations is that the term “horse railway ” was not used in this grant as significant of any other form of street railway than that which is now known, strictly speaking, as a horse railroad; nor is this conclusion shaken by the argument made by plaintiff as to the inference from the two provisions in the charter prohibiting the running of locomotives or cars propelled by steam, or the cars of any other railroad coffipany, on the tracks of plaintiff. These two prohibitions are part of one sentence; and it seems to me all that can be inferred from them is an extra precaution on the part of the legislature to guard against the possibility of the Union Pacific Railway Company, or any other railway company, running its cars over the tracks of plaintiff. It has not the disjunctive force of granting to the plaintiff a monopoly of every form of street-railroad transportation except that of cars drawn by engines. Further, it is worthy of notice that the title of the act giving plaintiff its charter, which may be presumed to express somewhat the intent of the legislature, is that of “An act to promote the building of horse railways,” etc. This seems to intensify and strengthen the argument iioretofore made as to the intent of the legislature; for can it be that the legislature intended to promote all speculative enterprises in street railway travel b3' giving the exclusive franchise thereof when as yet nothing was known as to the possibilities of improvement? I think I need [331]*331add nothing more on this branch of the ca.se. Of course the conclusion thus reached makes equally against any claim of the plaintiff under the act of 1875, for horse railways are all for which any exclusive right is given under that act.
1 think little need be said as to the claim made under the act of June 7, 18(57; for, oven if it be conceded that the grant of the plaintiff of all (ho power and authority incident to railroad corporations within the territory or under the laws thereof gave them any other right or privilege than was then given to railroad corporations by the laws of the territory, and that it operated as a float to grasp every right, franchise, and privilege; that might he given to railroad corporations by any law during the life-time of the plaintiff; and, further, that it was of such potency that, having once seized upon such right or privilege, it held it in its grasp notwithstanding the repeal of the act, giving it to ordinary railroad corporations, — yet by it nothing was appropriated by the plaintiff except that which was germane and pertinent to its existence and its functions. Now, obviously section 75, quoted supra, has application simply to railroads between two cities or towns, and not to any ordinary street railroad within city lindls; it speaks of the places named as termini, and excludes rival roads parallel with the one road for a distance of five miles on each side. Obviously this is a provision which has no application or pertinency to a mere street railroad within a city. This conclusion disposes of the principal question in the case, and compels me to deny the claim of the plaintiff to an exclusive right to all street railroads in the city of Omaha, and an absolute injunction against the defendant.
A further question is made under section 21 of the hill of rights of the constitution of 1875, which reads: “The property of no person shall be taken or damaged for public use without just compensation therefor.” I had occasion, in the recent case of McElroy v. City of Kansas, 21 Fed. Rep. 257, to consider the scope of a constitutional provision of this nature, and T need add nothing here to what was then said. I have no doubt of its application, and .1 think that the plaintiff shows a case which calls for the enforcement of that provision. But I do not agree with plaintiff in its contention that, because of this provision and its application to tiie ease at bar, an absolute injunction should go. The Nebraska constitution differs from that of Missouri in this: that the latter provides that no appropriation or entry shall he allowed until such compensation has been paid, while the former ends with the simple provision requiring compensation. The premises which are occupied, to-wit, the streets of Omaha, are promises within the control of the state; and, when the state authorizes their occupation, the fact that damage may ensue to some individual property does not justify an absolute injunction. All that the courts may fairly do is to compel payment of such damages, and to restrain occupation of the streets until or unless such damages are paid.
My Brother Dundy wisely, as I think, dissolved the temporary injunction on the defendants giving a bond in the sum of $200,000 to answer for all damages done to the plaintiff. How should those damages [332]*332be ascertained? The court might doubtless send the matter to a jury, or permit the plaintiff to maintain an ordinary action at law, holding this case to abide the result of that action, or it may appoint commissioners to assess those damages. I think the latter the true method,— one most likely to result in awarding full compensation to the plaintiff, which, of course, it is entitled to receive. I do not mean that the plaintiff is entitled to compensation for any injury which may result from the mere fact of competition, but there are at least two matters which are clearly proper matters of consideration in estimating the plaintiff’s damages : First, the inconvenience and annoyance which results from the crossing of plaintiff’s tracks by the track of the defendant; second, the interruption of access to plaintiff’s cars by the track and cars of defendant between its track and the sidewalk. Perhaps there may be other matters, but I do not now attempt to determine. I think the matter of damages should be referred to a commission of three gentlemen, one of whom should be a man of experience in the operation of street railroads, one a civil engineer, and the other, so to speak, a representative of the public, — some business man of the city of Omaha.
The decree, therefore, which will be entered, will be for the appointment of such a commission to ascertain and report the damages sustained by the plaintiff, and continuing the case for further order and final decree until after the report of such commission.