Pierce v. Drew.

recognized by the legislation of Congress, the decisions of the United States courts, and of many of the States of the Union. So far as known to us, it has not been held otherwise anywhere. U. S. Sts. of July 1, 1862; March 3, 1863; July 2, 1864; July 24, 1866. Pensacola Telegraph v. Western Union Telegraph, 96 U. S. 1.

No right is given these companies to use the highways at their own pleasure, or to compel in all cases, as the plaintiff suggests, locations therein to be given them by the municipal authorities. The second section of the statute is to be construed with the third section, and shows an intention that a legally constituted board shall determine not only where, but whether, there can be a location which shall not incommode the ordinary public ways, with full power to revise its own doings, and to correct any errors which the practical working of the arrangements may reveal. Young v. Yarmouth, ubi supra.

But as even if the legislature has the right to authorize the erection of telegraph poles along a highway, as a public use thereof, appropriate safeguards must be provided for any rights of property belonging to individual owners which may be taken or invaded, there remain these inquiries for our consideration: First, whether the statute does provide any compensation to the owner of the fee for this new use of the highway; second, whether he is entitled to such compensation; third, whether the owner of property near to, or abutting upon, the highway is entitled to any compensation therefor other than such as the act provides.

The fourth section provides for damages which may be sustained by owners of land near to or adjoining a highway or road along which lines are constructed by the company." It is limited to these, and cannot be extended to those who are the owners of the fee in the highway or road itself. Nor does the twelfth section, as the defendants contend, make any provision for them. This simply enacts that, "when an injury is done to a person or to property by the posts, wires or other apparatus of a telegraphic line, the company shall be responsible in damages to the party injured." But the concluding clause of the section, by which it is provided that "the city or town shall not, by reason of any thing contained in this chapter or done thereunder, be discharged from its liability, but all damages and costs recovered against a city or town on account of such injury shall be reimbursed by the company owning the posts, wires or other apparatus," indicates clearly that the liaVOL. XLIX-2

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bility of the company provided for under this section is for injuries occasioned by defects or obstructions in the way which its structures may cause. This section was not in the statutes of 1849, chapter 93; its first clause was added to the legislation on this subject by the statutes of 1851, chapter 247, section 2, and the remaining clause was subsequently added by the statutes of 1859, chapter 260, sections 1, 2, it may fairly be presumed in view of the decision in Young v. Yarmouth, ubi supra, made in 1857.

As the chapter does not, in our opinion, provide for damages to the owner of the fee in the highway by reason of the erection of the telegraphic posts and apparatus, it is to be determined whether such a use of the highway creates a separate and additional burden, requiring an independent assessment of damages, for which the owner of the land was not compensated when the highway was laid out, and thus whether the omission of the act to provide for this compensation renders it unconstitutional.

It is to be observed, that for more than thirty years, the right to appropriate highways to this public use, without any compensation to the owners of the fee therein, has been asserted; that the statutes in regard to it have more than once been expounded by this court, without any apparent doubt of their validity; and that up to the present time, no suggestion has ever been made that the rights of such owners were in any way invaded. If the argument that these owners are entitled to compensation be correct, the estates of thousands have been wrongfully used while they were either ignorant of their rights or submissive to injustice; and in the meantime costly telegraphic structures have been erected, and the whole business of the State has accommodated itself to this system of the transmission of intelligence. After so long a practical construction by the legislature and the courts, and after so widely extended an acquiescence by parties whose estates or interests therein are directly affected, it would require a clear case to justify us in setting aside such a statute as unconstitutional, even if it be true, as it certainly is, that no usage for any course of years, nor any number of legislative or judicial decisions, will sanction a violation of the fundamental law, clearly expressed or necessarily understood. Packard v. Richardson, 17 Mass. 122, 144.; Commonwealth v. Parker, 2 Pick. 550, 557; Holmes v. Hunt, 122 Mass. 505. No right to take the private property of the owner of the fee in the highway is conferred by this act; all that is given is the right to use land,

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by permission of the municipal authorities, the whole beneficial use of which had been previously taken from the owner and appropriated to the public. It is a temporary privilege only which is conferred; no right is acquired as against the owner of the fee by its enjoyment, nor is any legal right acquired to the continued enjoyment of the privilege, or any presumption of a grant raised thereby. Pub. Stats., ch. 109, § 15. The discontinuance of a highway would annul any permit granted under the statute, and no incumbrance would remain upon the land.

In Chase v. Sutton Manuf. Co., 4 Cush. 152, 167, it is said by Chief Justice SHAW, "that where, under the authority of the legislature, in virtue of the sovereign power of eminent domain, private property has been taken for a public use, and a full compensation for a perpetual easement in land has been paid to the owner therefor, and afterward the land is appropriated to a public use of a like kind, as where a turnpike has by law been converted into a common highway, no new claim for compensation can be sustained by the owner of the land over which it passes.' The case itself goes further than the illustration used by the chief justice. It related to a claim made by an owner in fee of land which had been taken by a canal company by statutory authority, for the purpose of a navigable waterway, which company had been permitted by statute to sell its property to a railway company; but although the two modes of transportation were entirely different, the validity of the act was sustained, and the claim of the landowner for further compensation disallowed.

"It is well settled," says Mr. Justice GRAY, in Boston v. Richardson, 13 Allen, 146, 160, "that when land, once duly appropriated to a public use which requires the occupation of its whole surface, is applied by authority of the legislature to another similar public use, no new claim for compensation, unless expressly provided for, can be sustained by the owner of the fee."

When land has been taken or granted for highways, it is so taken or granted for the passing and repassing of travellers thereon, whether on foot or horseback, or with carriages and teams for the transportation and conveyance of passengers and property, and for the transmission of intelligence between the points connected thereby. As every such grant has for its object the procurement of an easement for the public, the incidental powers granted must, be so construed as most effectually to secure to the public the full

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enjoyment of such easement. Commonwealth v. Temple, 14 Gray, 69, 77.

It has never been doubted, that by authority of the legislature highways might be used for gas or water pipes, intended for the convenience of the citizens, although the gas or water was conducted thereunder by companies formed for the purpose; or for sewers, whose object was not merely the incidental one of cleansing the streets, but also the drainage of private estates, the rights of which to enter therein were subject to public regulations. Commonwealth v. Lowell Gas-Light Co., 12 Allen, 75; Attorney General v. Metropolitan Railroad, 125 Mass. 515, 517; s. c., 28 Am. Rep. 264; Boston v. Richardson, ubi supra.

The

Nor can we perceive that these are to be treated as incidental uses, as suggested by the plaintiff, because the pipes are conducted under the surface of the travelled way, rather than above it. rights of the owner of the fee must be the same in either case, and the use of the land under the way for gas-pipes or sewers would effectually prevent his own use of it for cellarage or similar purposes.

When the land was taken for a highway, that which was taken was not merely the privilege of travelling over it in the then known vehicles, or of using it in the then known methods, for either the conveyance of property or transmission of intelligence. Although the horse railroad was deemed a new invention, it was held that a portion of the road might be set aside for it, and the rights of other travellers, to some extent, limited by those privileges necessary for its use. Commonwealth v. Temple, ubi supra; AttorneyGeneral v. Metropolitan Railroad, ubi supra. The discovery of the telegraph developed a new and valuable mode of communicating intelligence. Its use is certainly similar to, if not identical with that public use of transmitting information for which the highway was originally taken, even if the means adopted are quite different from the post-boy or the mail coach. It is a newly discovered method of exercising the old public easement, and all appropriate methods must have been deemed to have been paid for when the road was laid out. Under the clause to regulate commerce among the States, conferred on Congress by the Constitution of the United States, although telegraphic communication was unknown when it was adopted, it has been held that it is the right of Congress to prevent the obstruction of telegraphic communica

Pierce v. Drew.

tion by hostile State legislation, as it has become an indispensable means of intercommunication. Pensacola Telegraph v. Western Union Telegraph, ubi supra.

No question arises as to any interference with the old methods of communication, as the statute we are considering, by section 8, guards carefully against this by providing that the telegraphic structures are not to be permitted to incommode the public use of highways or public roads. We are therefore of opinion that the use of a portion of a highway for the public use of companies organized under the laws of the State for the transmission of intelligence by electricity, and subject to the supervision of the local municipal authorities, which has been permitted by the legislature, is a public use similar to that for which the highway was originally taken, or to which it was originally devoted, and that the owner of the fee is entitled to no further compensation.

There remains the inquiry, whether there is any objection to the statute because it does not provide a sufficient remedy for the owners of property near to or adjoining the way, who may be incidentally injured by the structures which the telegraph companies may have been permitted to erect along the line of the highway and within its limits. Such remedy is given by section 4 as the legislature deemed sufficient. We should not be willing to believe that the land owner thus injured would be without remedy, if the company failed to pay the damages lawfully assessed under this section, while it still endeavored to maintain its structures; but the only compensation to which. such owner is entitled is that which the legislature deems just, when it permits the erection of these structures. The legislature may provide for compensation to the adjoining owners, but without such provision there can be no legal claim to it, as the use of the highway is a lawful one. AttorneyGeneral v. Metropolitan Railroad, ubi supra.

The clause in the Declaration of Rights which provides that "whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor," is confined in its application to property actually taken and appropriated by the government. No construction can be given to it which can extend the benefit of it to the case of one who suffers an indirect or consequential damage or expense by means of the rightful use of property already belonging to the public. Callender v. Marsh, 1 Pick. 418, 430.