cessfully contended that the grant of a franchise would not carry with it, even without special provision, the power to perform such work and to dig such trenches as would be indispensable for the construction of its line of road? Clearly not; the reason being that the work is a mere incident to the completion of the purpose for which the charter was granted, and upon which the very existence of the corporation would depend. Just as a cable is indispensable for the running of such a road, so is water required to produce the propelling power used by steam railroads. The one is no more necessary to the successful operation of the first than is the latter indispensable to the other. This being so, and the lessor of the Illinois Central Railroad Company being expressly vested with all requisite powers, privileges and franchises, and these, in turn, by the broad and general provisions of its lease contract, being transferred to the Illinois Central Railroad Company, and the power of the legislature to grant the franchise being unquestioned, we see no escape from the conclusion that such railroad company is strictly within its rights in laying the proposed water main over its right of way, whether the same traverses private property, or crosses the public streets of a municipality, through which, by legislative enactment, its lessor acquired the right to construct and maintain its line of road. Especially where, as in the instant case, the right to so cross the streets was asserted and exercised by the railroad company long prior to any express legislative grant to the municipality of power to "regulate the crossings of railways," and such use has been acquiesced in and tacitly acknowledged by the municipal authorities and the citizens continuously and uninterruptedly for nearly half a century: See Smith on Municipal Corporations, sec. 1309e; Chicago v. Union etc. Co., 164 Ill. 224, 45 N. E. 430, 35 L. R. A. 281. Under these circumstances, the fact that the Illinois Central Railroad Company is a foreign corporation 295 is of no importance. It is not compelled to resort to the power of eminent domain. It is but exercising a right already acquired by its lessor, and to which it has been expressly subrogated.

We do not here decide whether, under section 17 of our constitution, the construction across the streets of such water main would or would not entitle the abutting owners on the streets to recover compensation. That is not the case here. The municipality has no such title to the fee of the streets as entitles it to claim compensation from a railroad company or other

corporation which by virtue of a legislative franchise occupies a portion of the public streets for crossing: City of Meridian v. Western Union Tel. Co., 72 Miss. 912, 18 South. 84, 29 L R. A. 770; Randolph on Eminent Domain, secs. 297-365; People v. Kerr, 27 N. Y. 188.

We recognize the well-established distinction between cases of longitudinal occupancy of streets and cases where the highways are simply crossed in the construction of the line of railroad, but that distinction, as we understand this record, is not brought into question in this case. The only taking of the streets of the city of Canton is by the crossing by the tracks of the railroad, and this power, in our judgment, was expressly granted to the lessor of the Illinois Central Railroad Company, by any just interpretation of the various legislative acts of incorporation hereinbefore referred to.

The remaining question in the case is of easy solution. It is a well-established principle of equity jurisprudence that any unauthorized occupancy of a street constitutes a nuisance, which can by equity be enjoined or prohibited. But here there is no unauthorized occupancy of the public streets of the city of Canton, and no proof that their free use will be permanently interfered with, or that any irreparable damage will be inflicted, and hence there is no ground for the interposition of the restraining hand of a court of equity: Faust v. Passenger Ry. Co., 3 Phila. 166; Danville etc. R. R. Co. v. Commonwealth, 73 Pa. St. 38. Under the facts of this record, all that is sought by the Illinois 296 Central Railroad Company is the temporary and partial obstruction of the streets for the short time required for the laying of the water main. This it has the right to do, and this power is expressly recognized as a general proposition as appertaining to all railroad corporations by section 3555 of the Code of 1892. For all damages proximately resulting from such laying of the water main and the digging of the trench, the railroad company, by express statutory provision, would be responsible: Elliott on Roads and Streets, secs. 809-882.

For these reasons, we are of the opinion that the bill of complaint herein states no proper cause for injunction, and, upon the facts disclosed, the decree of the chancellor dissolving the injunction was correct and is affirmed.

WHITFIELD, C. J., Concurring. The facts in this case necessary to the view I take are these: The Illinois Central Railroad Company, finding a more constant and ready supply

of water necessary to the convenient and efficient operation of its railroad as a common carrier, contracted with the Canton Cotton Warehouse Company for such supply. The said railroad company's water station was about seventeen hundred feet south of the Canton Cotton Warehouse and Ice Factory, and the railroad runs through Canton north and south. The railroad proposed to lay a subsurface water pipe, within the one hundred feet constituting its right of way, from the railroad's water station to a point opposite the ice factory, and from that point to lay pipes on the ice factory's grounds. The channel for the pipes was to be eighteen inches wide by two feet deep. Two of the streets of the city-Peace street and Fulton street cross the railroad from east to west. Peace street is sixty feet wide, and Fulton street forty feet wide. The Canton Cotton Warehouse Company and Ice Factory and Water Plant is a private corporation. In other words, the waterworks plant does not belong to the city. It was, of course, necessary in 297 laying this water pipe to cross Peace and Fulton streets. The city filed this bill enjoining the laying of this pipe on the following grounds: 1. That the Illinois Central Railroad Company acquired the right of way, under its lease, through the charter of the New Orleans, Jackson and Great Northern Railroad Company, to the town of Canton (that is to say, to the southern boundary line of the corporation), and that the right of way north from the Canton corporation line was acquired under the charter of the Mississippi Central Railroad Company, which charter provided for a right of way northward from the city of Canton. The contention of the city on this point was that as the right of way under one charter was to the city line on the south, and under the other from the city line north, therefore the railroad had no right of way through the city. There are two answers to this: First. The third section of the charter of the New Orleans, Jackson and Great Northern Railroad Company, approved March 11, 1852, provides: "Sec. 3. Said company is hereby invested with all the rights and powers necessary for the construction, repair and maintenance of railroad through this state, and may purchase such land and material for the same as they may consider necessary." The charter of the Holly Springs Railroad Company, which was made part of the original Mississippi Central Railroad Company charter, which belonged to the consolidated company, the Chicago, St. Louis and New Orleans Company, provides in its eleventh section: "Whenever, in the construction of the said

railroad, it shall be necessary to cross or intersect any established road or way, it shall be the duty of said president and directors so to construct said railroad across any road already, or hereafter to be established by law, so as not to impede the passage or transportation of persons or property thereon; and when it shall be necessary to pass through land of any individual, it shall also be their duty to provide a proper wagon way across said railroad from one part of the land to another." The right of way through the state of Mississippi, 298 of course, conferred the power to acquire the right of way through the streets of any city in the state along the charter route. We all agree that there is nothing in this contention. The second ground for the bill was that the laying of this pipe under the surface of the streets was an additional servitude, which the railroad company could not impose without the consent of the city; but it is obvious, from the authorities cited in the brief of counsel for appellee, that this, if so, could only be complained of by an abutting owner, and this bill is filed by the city alone. The rights of no abutting owner are involved here. The third ground for the bill was that there was a corrupt agreement between the Canton Cotton Warehouse Company and the railroad to use the railroad's right of way for a private purpose—that is, to enable the Canton Warehouse Company to sell its water in disregard, as alleged, of the police power of the city over its streets. And complaint is made about the rate at which the water is sold. But the chief ground presented in the argument here was that the railroad company could not cross with its right of way these two streets without the consent of the city, nor lay said water pipes within the right of way without said consent. So far as the right of way is concerned, we have already pointed out that the lessor of the Illinois Central Railroad Company was granted the right of way through and across these streets by charter given by the legislature. Having obtained legislative grant, it was unnecessary to get consent from the city, since the legislative power in that respect is paramount. And secondly, if there had been no legislative grant, there had been forty years' occupation and use of the right of way across these streets, and that conferred a valid prescriptive right: Louisville v. Louisville Water Co., 105 Ky. 754, 49 S. W. 766, cited in the exhaustive note to Asher v. Hutchinson W. L. & P. Co., 61 L. R. A. 76.

The only real question in this case for decision is this: Did the grant of the right of way, or the acquisition of the right

299 of way by forty years' use, confer upon the railroad the right to lay the water pipes set out in the testimony, under the ground forming part of the right of way, where the pipes would run under the streets in question, of the city of Canton? The injunction is based upon the proposition that to permit the railroad to dig up the surface of these two streets crossed transversely by the railroad right of way, so as to lay these pipes underground, beneath the surface of the streets, is an interference with the use of these streets as streets. It is, of course, true that the city of Canton has full power to control its streets and their use by reasonable police regulations. Power of cities in this regard is very large. On the other hand, the railroad company has a right of way over these streets, and the grant of the right of way must carry with it every such use of the incidents of the right of way as will reasonably facilitate the efficient operation of the railroad, which use does not also interfere with the use of the streets by the city as streets for the passage over them by persons riding, driving or walking, or which does not interfere with their use as streets for other proper purposes, and which use does not also interfere with the property rights of abutting owners: See the authorities collated in note to Asher v. Hutchinson etc., 61 L. R. A. 77, 78.

There are some principles which are, of course, plain: 1. That the city has the amplest power to control its streets for the good of all its citizens. 2. That the only party who can recover damages of the railroad for putting an additional servitude on these rights of way is the abutting owner: See authorities in brief of counsel for appellee. The city has no right to damages in such case. 3. That the railroad grant of right of way over the streets of the city does not authorize it to interrupt or in any manner interfere with the use of the streets as streets. They may construct any necessary and proper buildings on their right of way: Gudger v. Richmond etc. R. R. Co., 106 N. C. 581, 11 S. E. 515, 43 Am. & Eng. R. R. 300 Cas. 606, and note. But whether they can lay pipes underneath the surface of streets is not, of course, determined by their right to erect buildings on their right of way, where their right of way does not cross streets. 4. But it is also clear that whatever use of the ground beneath the surface of the streets, essential to the efficient operation of the railway, may be fairly included within the grant of the right of way itself, as incident thereto, is a use to which the railroad company has a right. Take the concrete case. What the railroad wants is