growing necessities of dense population and of congested business. Following this inevitable enlargement of street uses for public purposes, the courts have taken a broader view of street uses than was demanded in the earlier cases, and have generally held that the legitimate public uses of a municipal highway are not limited to such uses as must have been in actual contemplation by the dedicator, but are to be extended to all such public uses as are not destructive of, or inconsistent with, the uses so originally contemplated. The sound logic of this view is, that the preservation and maintenance of the original purpose and benefits of the dedication, does not require a restriction to such uses as were originally contemplated, but only that no new use shall be allowed that will destroy or impair the uses originally contemplated.

It is very clearly to be seen that the rule of restriction-the old rule, if I may so call it-while it preserves to the public all of the benefits originally contemplated by the dedication, stands in the way of making new and necessary uses of the highway that do not come within the original contemplation. It is just as clearly to be seen that the new rule, if I may so term it, preserves to the public just as fully all the benefits originally contemplated by the dedication, and at the same time sanctions and fosters the additional public uses that grow out of the necessity of the situation. The former rule is narrow and restricted; the latter is broad and comprehensive, as all rules should be that concern the public welfare.

This gradual development of the law is not at all exceptional; it is a natural process. However erratic and disorderly the course of legislation may be, the laws that rest upon principle, and that embody doctrines, are evolved by an orderly sequence of events coincident with the progress of social and business conditions. Herbert Spencer says that the growth and adaptation of the law is brought about mostly by small accumulated changes, the unprompted workings of organized society-much as towns and cities have insensibly grown up-to meet the growing wants of a progressive humanity.

It may safely be assumed, I think, that the primary purpose, and perhaps the only purpose in actual contemplation in the dedi

cation of land for a highway was the surface use thereof. But, as I have said, this has been found to be only a partial view of the authorized uses of a municipal highway. Lewis, Em. Dom., 182, says:

"While the purpose of streets is primarly for public travel and transportation, yet in populous districts it has been the immemorial custom to employ them for other purposes of a public nature which, though having little or no connection with the use or improvement of the street as a highway, are not inconsistent with such use. Out of this usage has grown up a rule that streets in cities and villages may be used for various incidental purposes.

The Supreme Court of Minnesota, dealing with the construction of a telephone line along the side of a country highway, has this to say upon the subject I am considering. I read from Cater v. Exchange Co., 60 Minn., 539, 543, 545, Judge Mitchell delivering the opinion:

"The question then is, what is the nature and extent of the public easement in the highway? If there is any one fact established in the history of society and of the law itself, it is that the mode of exercise of this easement is expansive, developing and growing as civilization advances. In the most primitive state of society the conception of a highway was merely a footpath. In a slightly more advanced state it included the idea of a way for pack animals, and next a way for vehicles drawn by animals constituting, respectively, the 'iter,' the 'actus' and the 'via' of the Romans. And thus the methods of using public highways expanded with the growth of civilization until today our urban highways are devoted to a variety of uses not known in former times and never dreamed of by the owners of the soil when the public easement was acquired. Hence, it has become settled that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterward be discovered and developed in aid of the general purpose for which highways are designed. And it is not material that these new and improved methods of use were not contemplated by the owner of the land when the easement was acquired and are more onerous to him than those then in use.

"Another proposition which we believe to be sound is that the public easement in the highway is not limited to travel or trans

portation of persons, or property in movable vehicles. This is doubtless the principal and most necessary use of highways, and in a less advanced state of society was the only known use, as the etymology of the word 'way' indicates, and the courts, which as a rule are exceedingly conservative in following old definitions, have often seemed inclined to adhere to this original conception of the purpose of the highway, and to exclude every form of use that does not strictly come within it, but it is now universally considered that urban highways may be used for constructing sewers and laying pipes for the transmission of gas, water and the like, for public use. Some courts put this on the ground that these uses are merely incidental to, and in aid of, travel on the streets. Other courts put it on the ground that such uses are contemplated when the easement in urban ways is acquired, but not in the case of rural highways. But it seems to us that neither of these reasons is either correct or satisfactory. The uses referred to of urban streets are not in aid of travel, but are themselves independent and primary uses, although all within the general purpose for which highways are designed. Neither can a distinction between urban and rural ways be sustained on the ground that such uses were contemplated when the public easement was acquired in the former, but not when the easement was acquired in the latter. As a matter of fact, most of these uses were unknown when the public easement was acquired in many of the streets in the older cities. Indeed, many of what are now urban highways were merely country roads when the public acquired its easement in them, and doubtless many highways that are now merely country roads will in time become urban streets. When such changes occur, will the abutting owners be entitled to new compensation before the public can build sewers or lay water or gas pipes in those streets?

"It seems to us that a limitation of the public easement in highways to travel and the transportation of persons and property in movable vehicles, is too narrow. In our judgment public highways, whether urban or rural, are designed as avenues of communication, and if the original conception of a highway was limited to travel and transportation of property in movable vehicles, it was because these were the only modes of communication then known; that as civilization advances, and new and improved methods of communication and transportation are developed, these are all in aid of and within the general purpose for which highways are designed. Whether it be travel, the transportation of persons and property, or the transmission of intelligence, and whether accomplished by old methods or by new ones, they are all included within the public 'highway easement,' and impose no additional servitude on the land, provided they

are not inconsistent with the reasonably safe and practical use of the highway in other and usual and necessary modes, and provided they do not unreasonably impair the special easements of abutting owners in the streets for purposes of access, light and air. It is impracticable, as well as dangerous, to attempt to lay down, except in this general form, any rule or test of universal application as to what is or what is not a legitimate 'street or highway use.' Courts have often attempted to do so, but have always been compelled, by the logic of events, to shift their ground."

I read from the opinion of Judge Peckham in Re City of Yonkers, 117 N. Y., 564, 573:

"If the land in question be as claimed-a public street in the city of Yonkers-then that city has the right, as an incident to its jurisdiction over its streets and highways, to lay down a sewer therein in accordance with its by-laws and regulations. To put a sewer in a public street in a city is simply to use the street in a manner which is necessiarily incident to the use for which streets are opened and laid out in cities. It is a part of the purpose in view when land is taken or dedicated for use as a public street in a city, that it shall be used not only for the purposes of mere passage and repassage, but for all incidental purposes, including the building of sewers therein, as may be necessary, appropriate and usual for the proper enjoyment of such street."

To the same effect I cite, but do not read, Van Brunt v. Flatbush, 59 Hun., 192 (13 N. Y. Supp., 545); McDevitt v. Gas Co., 160 Pa. St., 367 (28 Alt. Rep., 948); Mordhurst v. Traction Co., 163 Ind., 268 (71 N. E. Rep., 642); Cumberland Tel. & Tel. Co. v. Averitt, 120 Ky., 34 (85 S. W. Rep., 204); State v. Potter, 47 N. Y., 375, 380; Lewis, Em. Dom., 182-186; Carli v. Street Ry. & Transfer Co., 28 Minn., 373, 376 (41 Am. Rep., 290); Hays v. Telephone Co., 21 C. C., 480.

In harmony with this expansive doctrine as to street uses, the Legislature and the municipal council have conferred upon this defendant authority, so far as authority can be conferred, to do what the defendant threatens to do. Section 1536-100, Revised Statutes, empowers municipal corporations to grant by ordi

nance:

"The use of its streets, avenues, alleys, lanes and public places, to lay pipes, conduits, manholes, drains and other necessary fix

tures and appliances, under the surface thereof, to be used for supplying such municipality and its inhabitants with steam or hot water, or both, for heat or power purposes, or both."

In the differentiation and distribution of municipal powers, the municipal code provides that:

"The powers of council shall be legislative only, and it shall perform no administrative duties whatever." Section 1536-618, Revised Statutes.

And it provides that:

"The directors of public service shall be the chief administrative authority of the city." Section 1536-675, Revised Statutes.

The city ordinance grants to the light company the right to construct and maintain pipes and conduits in certain streets for steam and hot water lines, and provides that the work shall be done upon permits issued by, and to the satisfaction of, the board of public service. And it further provides that wherever it is feasible or desirable, in the opinion of said board, to have the pipes and conduits laid between the curb line of the roadway and the building or lot line, they shall be so laid.

The answer avers that the board of public service has directed the company to lay its pipes where it is now laying them and proposes to lay them.

The power of the Legislature and the municipal council to apthorize such use of the streets is fully recognized in Kumler v. Silsbee, 38 Ohio St., 445. Judge Okey says in the course of his opinion, page 447:

"A statute granting authority to lay pipes, for the purposes specified, in the streets of municipal corporations, would be clearly authorized by the general grant of legislative power; and where a statute does not impinge upon any constitutional inhibition, the Legislature is the sole judge as to the form it may be made to assume."

And where the municipal council has a discretion and judg ment to be exercised, as to when and where and how a street use shall be exercised, its judgment is final. It can not be reviewed or modified by the courts.