struction and operation of a street railroad, the consent of the owners of one-half in value of the property bounded on that portion of a street or highway upon which it is proposed to construct or operate such railroad must first be obtained, it is not sufficient that the consent of the owners of one-half in value along the entire line of railway be obtained, but it is necessary to obtain the consent of the owners of one-half in value on each street upon which it is proposed to construct such railway." In Ohio, under a law which requires the consent of the majority of the abutting owners, counting by the front foot, it is held that in such a case an applicant for a franchise must obtain such consent, though he states in his application that he only proposes to use the tracks already laid, and does not intend to lay any additional track.78 Where, in case of failure to obtain the consent of the abutting owners to the construction of a street railway, the company makes application to the court for the purpose of obtaining consent, as prescribed by statute, to be in lieu of that of the abutting owners, it is held to be no defense to such proceeding that permission has not yet been obtained of the local authorities or the railroad commissioners.79 The requirement that the consents of abutting owners must be obtained to the construction of a street railway is not complied with by the procuring by an individual of such consents, and the subsequent assignment by him to the company, but they should be given directly to the company.80 Where the holder of the legal title in land gives his consent to the construction of a street railway in front of 77 Hilton v. Thirty-fourth St. R. Co., 1 How. Pr. (N. S. [N. Y.]) 453. Under the statute of this State it is provided that the consent of the owners of one-half in value of the property must be obtained, the value to be ascertained by the assessment-roll of the city, village or town in which it is situated. If the consent necessary cannot be obtained, then the company may apply to General Term of the Supreme Court for the appointment of three commissioners to determine whether such railway should be constructed. Wells on 78 Sanfleet v. Toledo, 10 Ohio C. C. 460. 79 Re Buffalo Tract. Co., 25 App. Div. (N. Y.), 447, 49 N. Y. Supp. 1052, affd., 155 N. Y. 700, 50 N. E 1115. So Geneva & W. R. Co. v. New York Cent. & H. R. R. Co., 24 App. Div. (N. Y.) 335, 48 N. Y. Supp. 842. the property, such consent is not affected by a subsequent admission, by such person, that the deeds to him are only mortgages, and his interest is merely that of mortgagee in possession.81 An executor or trustee, holding the legal title to property, may sign consent; and it is not necessary to recite in the consent that such person holds either the legal title or power of sale.82 Again where consent is given by an abutting owner to the construction of a street railway, a condition attached thereto, as to the time of the commencement and completion of the road, will not operate as a limitation upon the city council in acting upon such consent, being of effect only as between such owner and the company." 83 In Massachusetts it is held that even though the statute may prohibit a certain use of public grounds, and such prohibition may constitute a contract between the State and the city, yet consent of the inhabitants of a city to such use will operate as a waiver of the statutory provision." 84 So the owner of a corner lot, which is situated opposite the outer curve of a proposed street railway, where it is intended to make a turn in the tracks, is an abutting owner within the meaning of the Constitution or statutes of the State requiring the consent of the propertyowners. 85 And where the proposed line of a street railway passes in front of a county courthouse, it is held that it is necessary to obtain the consent of the board of county commissioners to the use of the street in front of such courthouse.86 But it is not necessary to enter such consent in the journal of the board.87 A provision of an act that the consent of property-owners shall be obtained "as provided by law," does not conflict with a constitutional provision that where an act makes an existing law a part thereof, such law must be inserted in 81 Sea Beach R. Co. v. Coney Island & G. E. R. Co., 22 App. Div. (N. Y.) 477, 47 N. Y. Supp. 981. 82 State, Hutchinson v. Belmar, 61 N. J. L. 443, 39 Atl. 643, affd., 62 N. J. L. 450, 45 Atl. 1092. 83 Hamilton, Jones v. C. & H. Elec. St. R. Co. (C. P.), 5 Ohio N. P. 457, 9 Ohio C. P. Dec. 174. 84 Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610. 85 Sea Beach R. Co. v. Coney Island & G. E. R. Co., 22 App. Div. (N. Y.) 477, 47 N. Y. Supp. 981. 86 Nearing v. Toledo Elec. St. R. Co., 9 Ohio C. C. 596, 3 Ohio Dec. 516. 87 Nearing v. Toledo Elec. St. R. Co., 9 Ohio C. C. 596; 3 Ohio Dec. 516. the act.88 In New Jersey, before obtaining permission from the authorities of a borough to construct a street railway upa its streets, it has been held only necessary to procure and Ele the consent of the requisite proportion of abutting owners within the borough, though part of the road is outside the bor ough limits and beyond its jurisdiction.89 Again the fact that an ordinance granting the right to a street railway to construc its line upon streets of the municipality was invalid, will n prevent consents of abutting owners, which were made a part of the application for such ordinance, from being used to ob tain the passage of a second ordinance, provided such consents have not been withdrawn.90 It is also necessary to obtain the consent of the abutting owners to the construction of a telegraph or telephone line, although these companies may, in the exercise of the right of eminent domain, obtain the right to construct their lines on the streets where such consent is refused."! So the following instruction was held correct: "The fact that a road is a public road or highway does not authorize the digging of holes for the purpose of erecting telegraph posts, and the erecting of posts, and the establishing a telegraph line over the lands of a person, without his consent, although the same may be erected or done on that part of his premises which is used as a public road.92 The English Telegraph Act of 1863,93 by which telegraph and telephone companies are re quired to obtain the consent of any landowner, or person liable for the repair of any road or street over which it desires to construct its line, does not include a tramway company, which is obliged to keep that part of the road on which its track is situated in repair; and a telegraph or a telephone company, desiring to construct its line on a public road, occupied by a tramway company, upon which such obligation rests, need 88 Re Buffalo Traction Co., 25 App. Div. (N. Y.) 447, 49 N. Y. Supp. 1052, affd., 155 N. Y. 76, construing N. Y. Laws 1896, c. 649, § 1; N. Y. Const., art. 3, § 17. 89 State, Hutchinson v. Belmar, 61 N. J. L. 443, 39 Atl. 643, affd., 62 N. J. L. 450, 45 Atl. 1092. 90 Sanfleet v. Toledo, 10 Ohio C. C. 460. 91 See chapter on Eminent Domain. 92 Western Un. Teleg. Co. v. Williams, 86 Va. 696, 11 S. E. 106, 3 Am. Elec. Cas. 184. 93 Act of 1863, § 13. 94 not obtain the consent of such company. An abutting owner, who has consented to the construction of a telegraph line in front of his property, and has designated where the poles should be erected, and such designation has been strictly followed by the company, which has also strung part of its wires, is estopped from objecting to the completion of the line, and may be enjoined from any interference therewith.95 Again the delegation of control over the streets granted in Illinois to municipalities is limited by the requirement that consent must be obtained of the abutting owners before a municipality may grant the right of the use of the street to any electric, cable, or other railway.96 By statute in New Jersey electric light, heat and power companies are given full power to use streets and highways for the purpose of erecting poles to sustain necessary wires, but must first obtain the consent in writing of owners of the soil.97 - $ 373a. Consent of abutting owner Contract for in violation of public policy-Street railway. In a case in New Jersey the question of the validity of a contract entered into by a street railway company with an abutting owner to procure his consent to the construction of the line in front of his premises is considered. It appeared in this case that under a statute the consent of a certain proportion of the property owners was essential,98 and that the street railway company and an abutting owner entered into a contract under which the latter gave his consent upon condition that he should have an option to purchase a certain amount of stock and bonds of the company at a low figure. The owner then gave his consent but 94 Bristol Tramways & C. Co. v. National Teleph. Co., 68 L. J. Ch. (N. S.) 566. 95 Western Un. Teleg. Co. V. Bullard, 67 Vt. 272, 5 Am. Elec. Cas. 102, 31 Atl. 286. 96 Beeson v. Chicago, 75 Fed. 889, 12 Nat. Corp. Rep. 608, 28 Chic. Leg. News, 367. 97 Laws of N. Y., 1896, c. 189, §§ 1, 2 and 3, pp. 322, 323. 98 N. J. Act, April 21, 1896 (P. L. p. 329), providing that the permission of the governing body of the municipality is a prerequisite to the construction of a street railway and that that body is without legal power to grant permission until there is filed with its clerk the written consent of the owners of at least one-half in amount of lineal feet of property fronting on the highway through which permis sion to build the railway is asked. the company refused to perform its part of the contract and an action was brought by the former to recover damages for breach of such contract. The court, however, decided that the contract was in violation of the public policy declared by the statute and was invalid and unenforceable. It was said by the court in reaching this conclusion: "Abutting owners have a certain relation to the public streets in front of their property, which, while it is subordinate to the public easement, yet places them on a footing unlike that of the rest of the community. Because of this relation, special advantages and disadvantages accrue to them from street railways, and the legislative design clearly was that, unless it should be rendered probable that these advantages would exceed the disadvantages with regard to any proposed street, the railway should not be there laid. This probability was to be indicated by the consent of the owners of at least one-half of the abutting land. For the decision of the matter thus contemplated, the Legislature treated these owners as a class, every member of which had similar interests to subserve; interests that were in some degree common to all. Properly to meet the confidence thus reposed, it was incumbent on each member to bear in mind and be influenced by these common interests only, so that his judgment would be as fair toward his neighbor as it was toward himself. To permit any one of the class to barter for private and exclusive gain this power over the concerns of his fellows, would be subversive of the benign purpose of the legislature in delegating it. We think the contract set up by the plaintiff violates the public policy declared by the statute now under consideration, and is therefore not enforceable.99 § 373b. Right of abutting owner to withdraw consent.Where an abutting owner has given a valid and binding consent to the construction of an electrical line in the street in front of his property it constitutes so far as he is concerned, a valid grant to construct and operate the line, and the consent so given cannot be withdrawn by him at will without the consent of the other parties unless there is a reservation to him of the right to withdraw it or they are for some reason invalid.' So 99 Montclair Military Academy v. North Jersey St. Ry. Co., 70 N. S. L. 229, 57 Atl. 1050, per Dixon, J. 1 Paige v. Schenectady Railway Co., 178 N. Y. 102, 70 N. E. 213. |