Arnold, C. J.,
delivered the opinion of the court.
Whether the abutting owner of land on a public street has such interest in the street as to require condemnation, or his consent, before the street can be lawfully used by a railroad company for constructing its track and operating its trains on the street, and to enable him to recover compensation for injuries sustained on account of the street being used for such purpose, is an open question in this state. There was some consideration of the subject in Danna[285]*285her v. The State, 8 S. & M. 649, and in N. O., J. & G. N. R. R. v. Moyer, 39 Miss. 374, but the question was not decided in either case.
In a few states, notably in Pennsylvania, such right in the attingent owner, is denied ; but generally, there is a juster appreciation and better definition of private rights and interests, in regard to the matter.
It is obvious, that the right of the adjacent owner to the free use of the street on. which his property is located, imparts value to the property, and that 'to deny or restrict his use of the street, by unusual, dangerous, and permanent obstructions and appliances placed in the street, would seriously affect the value and enjoyment of his property. While the general public might be benefited by the existence of such obstructions and appliances, the adjoining owner-might be greatly damaged, if not ruined by them, if the law afforded him no remedy. Of such disadvantages, if any, as may result from the use of the street by the public, in the manner in which public streets are ordinarily used, he could not complain; but it seems clear, that the construction and operation of a railroad in the street, in front of his property, without his consent, and without his being compensated, would be an invasion of his legal rights. This conclusion follows inevitably, unless railroads are among the objects for which public streets are originally designed. Can railroads be said to be among such objects ?
A street is a public thoroughfare or highway, established for the accommodation of the public generally, in passing from place to place, and for such other incidental uses as are ordinarily made of' public streets, such as laying drains, sewers, gas and water pipes, and the like. ’ Public streets are for the use and benefit of all, and no one has any exclusive rights and privileges therein. They are free to all upon like conditions, and subject to use by any means of’ locomotion which is not destructive of the common uses and ordinary methods of travel. If this is true, a railroad does not fall within the purposes for which public streets were originally established, and the occupation of a public street by a railroad is an ad[286]*286ditional servitude on the land, and a perversion of the street from its original purposes. The introduction of a new motive power, would not perhaps, be material; but a railroad requires a permanent structure in the street, the use of which is private and exclusive. It confers upon an individual or corporation, -rights and privileges in the street, which are incompatible with those of the public and of adjacent proprietors. To hold that a railroad is one of the legitimate uses of a public street, leads to the inconsistency, that the street may be monopolized by a corporation or an individual and filled with parallel tracks which would practically exclude all ordinary travel, and still be said to be devoted to the ordinary uses of a public street. Lewis on Eminent Domain, § 111; 1 Hare Const. Law 362 ; Cooley’s Const. Lim. 678.
“ When the owner of a tract of land lays the same out into lots and streets, and sells the lots, the purchasers of such lots acquire as appurtenant thereto a private right of way and access over the streets. This private right arises without any express grant and in the absence of any statute. The law presumes that the parties had in mind the advantages to be derived from the use of the proposed streets, and implies a right to such use as a part of the grant. If several persons, owners of distinct parts of a tract, should join in laying the same out into lots and streets, the result would be the same. The law would imply the grant of mutual easements of way and access, appurtenant to the respective lots, in the absence of any statute or express mention of such easements. These private rights or easements are the presumed, as well as the real consideration for the grant or dedication of a part of the tract to public use. If instead of making a gift of the streets to the public, the proprietors should voluntarily grant the streets for a consideration agreed upon and paid by the public, it would still be true in fact, and therefore presumed in law, that, in fixing the consideration to be paid, the parties contemplated the advantages to be derived from the use of the streets. That is, the consideration to each proprietor, would be the right to make use of the streets in connection with his lots, and a certain sum of money paid. Lewis on Eminent Domain, § 114. If the streets are established by the [287]*287exercise of the right of eminent domain, the effect, in principle, should not be different. Lewis on Eminent Domain, § 114.
The laying out of a public street creates two co-existent rights— one, belonging to the public, to use and improve the street for the ordinary purposes of a street — the other, to the abutting owner, to have access to and from his property over the street, and to make such use of the street as is customary and reasonable. Both, are valuable, and the one is as inviolable as the other. It would be as unjust and unwarranted for the public to use and appropriate the street, so as to impair or destroy the rights of the abutting owner, without his consent and without compensation, as it would be for him, by a like course of conduct, to impair or destroy the rights of the public.
So that, it appears that the abutting owner has special interests and rights in a public street, which are valuable, and indispensable to the proper and beneficial enjoyment of his property. His right to use the street as a street, is as much property as the street itself, and neither the public, nor a corporation, nor an individual, can lawfully deprive him of it, against his will, without compensation. If the street is needed for the purposes of a railroad, or for any other purpose inconsistent with the ordinary uses of a public street, the rights and interests of the abutting owner must be obtained, with his consent, or by the exercise of the right of eminent domain, as in other cases of taking private property for public use. Haynes v. Thomas, 7 Ind. 38; Tate v. O. and M. R. R. Co., Ib. 479; Crawford v. The Village of Delaware, 7 Ohio St. 460 ; B. and M. R. R. Co. v. Reinhackle, 15 Neb. 279 ; Lahr v. Met. El. R. R. Co., 104 N. Y. 268.
If the rights of the abutting owner may bo taken from him without his consent, or without compensation, “ a system has been inaugurated,” said the court of appeals of New York, “ which resembles more nearly legalized robbery, than any other form of acquiring property.” Lahr v. Met. El. R. R. Co., 104 N. Y. 268, 291.
The weight of judicial authority, undoubtedly is, that where the public have only an easement in the street, and the fee of the soil of the street is. retained in the abutting owner, under the constituí [288]
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Arnold, C. J.,
delivered the opinion of the court.
Whether the abutting owner of land on a public street has such interest in the street as to require condemnation, or his consent, before the street can be lawfully used by a railroad company for constructing its track and operating its trains on the street, and to enable him to recover compensation for injuries sustained on account of the street being used for such purpose, is an open question in this state. There was some consideration of the subject in Danna[285]*285her v. The State, 8 S. & M. 649, and in N. O., J. & G. N. R. R. v. Moyer, 39 Miss. 374, but the question was not decided in either case.
In a few states, notably in Pennsylvania, such right in the attingent owner, is denied ; but generally, there is a juster appreciation and better definition of private rights and interests, in regard to the matter.
It is obvious, that the right of the adjacent owner to the free use of the street on. which his property is located, imparts value to the property, and that 'to deny or restrict his use of the street, by unusual, dangerous, and permanent obstructions and appliances placed in the street, would seriously affect the value and enjoyment of his property. While the general public might be benefited by the existence of such obstructions and appliances, the adjoining owner-might be greatly damaged, if not ruined by them, if the law afforded him no remedy. Of such disadvantages, if any, as may result from the use of the street by the public, in the manner in which public streets are ordinarily used, he could not complain; but it seems clear, that the construction and operation of a railroad in the street, in front of his property, without his consent, and without his being compensated, would be an invasion of his legal rights. This conclusion follows inevitably, unless railroads are among the objects for which public streets are originally designed. Can railroads be said to be among such objects ?
A street is a public thoroughfare or highway, established for the accommodation of the public generally, in passing from place to place, and for such other incidental uses as are ordinarily made of' public streets, such as laying drains, sewers, gas and water pipes, and the like. ’ Public streets are for the use and benefit of all, and no one has any exclusive rights and privileges therein. They are free to all upon like conditions, and subject to use by any means of’ locomotion which is not destructive of the common uses and ordinary methods of travel. If this is true, a railroad does not fall within the purposes for which public streets were originally established, and the occupation of a public street by a railroad is an ad[286]*286ditional servitude on the land, and a perversion of the street from its original purposes. The introduction of a new motive power, would not perhaps, be material; but a railroad requires a permanent structure in the street, the use of which is private and exclusive. It confers upon an individual or corporation, -rights and privileges in the street, which are incompatible with those of the public and of adjacent proprietors. To hold that a railroad is one of the legitimate uses of a public street, leads to the inconsistency, that the street may be monopolized by a corporation or an individual and filled with parallel tracks which would practically exclude all ordinary travel, and still be said to be devoted to the ordinary uses of a public street. Lewis on Eminent Domain, § 111; 1 Hare Const. Law 362 ; Cooley’s Const. Lim. 678.
“ When the owner of a tract of land lays the same out into lots and streets, and sells the lots, the purchasers of such lots acquire as appurtenant thereto a private right of way and access over the streets. This private right arises without any express grant and in the absence of any statute. The law presumes that the parties had in mind the advantages to be derived from the use of the proposed streets, and implies a right to such use as a part of the grant. If several persons, owners of distinct parts of a tract, should join in laying the same out into lots and streets, the result would be the same. The law would imply the grant of mutual easements of way and access, appurtenant to the respective lots, in the absence of any statute or express mention of such easements. These private rights or easements are the presumed, as well as the real consideration for the grant or dedication of a part of the tract to public use. If instead of making a gift of the streets to the public, the proprietors should voluntarily grant the streets for a consideration agreed upon and paid by the public, it would still be true in fact, and therefore presumed in law, that, in fixing the consideration to be paid, the parties contemplated the advantages to be derived from the use of the streets. That is, the consideration to each proprietor, would be the right to make use of the streets in connection with his lots, and a certain sum of money paid. Lewis on Eminent Domain, § 114. If the streets are established by the [287]*287exercise of the right of eminent domain, the effect, in principle, should not be different. Lewis on Eminent Domain, § 114.
The laying out of a public street creates two co-existent rights— one, belonging to the public, to use and improve the street for the ordinary purposes of a street — the other, to the abutting owner, to have access to and from his property over the street, and to make such use of the street as is customary and reasonable. Both, are valuable, and the one is as inviolable as the other. It would be as unjust and unwarranted for the public to use and appropriate the street, so as to impair or destroy the rights of the abutting owner, without his consent and without compensation, as it would be for him, by a like course of conduct, to impair or destroy the rights of the public.
So that, it appears that the abutting owner has special interests and rights in a public street, which are valuable, and indispensable to the proper and beneficial enjoyment of his property. His right to use the street as a street, is as much property as the street itself, and neither the public, nor a corporation, nor an individual, can lawfully deprive him of it, against his will, without compensation. If the street is needed for the purposes of a railroad, or for any other purpose inconsistent with the ordinary uses of a public street, the rights and interests of the abutting owner must be obtained, with his consent, or by the exercise of the right of eminent domain, as in other cases of taking private property for public use. Haynes v. Thomas, 7 Ind. 38; Tate v. O. and M. R. R. Co., Ib. 479; Crawford v. The Village of Delaware, 7 Ohio St. 460 ; B. and M. R. R. Co. v. Reinhackle, 15 Neb. 279 ; Lahr v. Met. El. R. R. Co., 104 N. Y. 268.
If the rights of the abutting owner may bo taken from him without his consent, or without compensation, “ a system has been inaugurated,” said the court of appeals of New York, “ which resembles more nearly legalized robbery, than any other form of acquiring property.” Lahr v. Met. El. R. R. Co., 104 N. Y. 268, 291.
The weight of judicial authority, undoubtedly is, that where the public have only an easement in the street, and the fee of the soil of the street is. retained in the abutting owner, under the constituí [288]*288tional guaranty of private property, a steam railroad cannot be lawfully constructed and operated thereon, against his will, and without compensation. Lewis on Eminent Domain, §§ 113, 115; 1 Hare on Const. Law 362; Mills on Eminent Domain, 2d ed., § 204; 2 Dillon Mun. Corp., 3d ed., § 725.
A distiction is made by some of the authorities, in cases where-the fee in the soil of the street is in the public — the state, county, or city — and where it remains in the abutting owner ; and in the first-case, the right of the abutting owner to compensation is denied, and in the latter, it is recognized and allowed. We perceive-no well-founded difference in principle, in such distinction. If the fee is in the public, it is held in trust,.expressly or impliedly, that the land shall be used as a street, and it cannot be applied to any other purpose, without a breach of trust.. It is only where the fee is in the public, free from any trust or duty, that it may be disposed of for any purpose that the public may deem proper. Whether the abutting owner has simply an easement in the street, while the fee is in the public or in some other owner, or whether he has both the fee and an easement, he is equally entitled to require, that nothing shall be done in derogation of his rights. 1 Hare on Const. Law 370, 375; Lewis on Eminent Domain, §§ 114, 115 ; Barney v. Keokuk, 94 U. S. 324; R. R. Co. v. Schurmeir, 7 Wall. 272; Story v. N. Y. El. R. R. Co., 91 N. Y. 123; 1 Rorer on Railroads 524. Haynes v. Thomas, 7 Ind. 38 ; Anderson v. Turbeville, 6 Coldw. 150; S. C. R. R. Co. v. Steiner, 44 Ga. 546 ; Crawford v. The Village of Delaware, 7 Ohio St. 460.
It is apparent, that there is difference between the ordinary horse-railway and the ordinary steam railway, with reference to their use of a public street, but whether the difference, is only one of degree,, we are not called upon to decide in this case.
Judgment reversed, demurrer overruled, and cause remanded.
Note. — When' the opinion in this case was announced Judge Campbell stated' that, as the railroad in this instance connected distant points and merely passed through the city of Vicksburg, using the street for its track, he concurred in the fesult; hut that in case of a railroad within a city, constructed and used as an Ordinary street railway, possibly a different question would arise-^-a question not involved by the facts of this case and, therefore, not decided.