In a general view of the subject nothing more is practicable than a mere indication or illustration of the tendency of the deci sions which must be resorted to and exam ined for application to a special case. City streets are legitimately used, from necessity, for sewers and drains; Cone v. City of Hart ford, 28 Conn. 363 ; Leeds. v. City of Rich mond, 102 Ind. 372, 1 N. E. 711; Traphagen v. Mayor, etc., of Jersey City, 29 N. J. Eq.
206; White v. Corporation of Yazoo City, 27 Miss. 357 ; water pipes ; Crooke v. Water Works Co., 29 Hun (N. Y.) 245 ; gas pipes, as a practical necessity, in cities, are not questioned but indirectly sanctloned ; Story v. R. Co., 90 N. Y. 161, 43 Am. Rep. 146 ; Tompkins v. Hodgson, 2 Hun (N. Y.) 146. See City of Boston, v. Richardson, 13 Allen (Mass.) 146, 160. As to steam railroads, from a great conflict of decisions (difficult if not impossible to reconcile), it would seem to be the best opinion that it is not a legiti mate use of the street ; see Rand. Em. Dom. § 405 ; Lewis, Em. Dom. § 111, with notes citing the cases at large ; a horse railway is almost universally held to be a proper use of streets ; Rand. Em. Dom. § 402 ; Lewis, Em. Dom. § 124; the only substantial dissent being in New York ; Craig v. R. Co., 39 N. Y. 404 ; unless the fee is in the public ; Kel linger v. R. Co., 50 N. Y. 206. See Cincin nati & Spring Grove Ave. St. Ry. Co. v. Vil lage of Cumminsville, 14 Ohio St. 523; Ho bart v. R. Co., 27 Wis. 194, 9 Am. Rep. 461. With respect to electric railways in cities, the doctrine of "the right of the public to use the streets by means of street cars" was said to be "now so thoroughly settled as to be no longer open to debate," and it was extended to the poles and wires of the new system; Halsey v. Ry. Co., N. J. Eq. 380, 20 At]. 859 ; and see Detroit City Ry. v. Mills, 85 Mich. 634, 48 N. W. 1007 ; Koch v. Ry.- Co., 15 Md. 222, 23 Atl. 463, 15 L. R. A..377; Far rell v. R. Co., 61 Conn. 127, 23 Atl. 757 ; Raf ferty v. Traction Co., 147 Pa. 579, 23 At]. 884, 30 Am. St. Rep. 763; but not along a country road; Pennsylvania R. Co. v. Rail way, 167 Pa. 62, 31 Atl. 468, 27 L. R. A. 766, 46 Am. St. Rep. 659. See Rand. Em. Dom. § 403. Electric light poles are usually treat ed as proper, on the same basis as the older lamp posts ; Johnson v. Electric Co., 54 Hun
469, 7 N. Y. Supp. 716; but not telegraph and telephone poles, according to the weight of authority ; Pacific Postal Tel. Cable Co. v. Irvine, 49 Fed. 113 ; Western Union Tel. Co. v. Williams, 86 Va. 696, 11 S. E. 106, 8 L. R. A. 429, 19 Am. St. Rep. 908; Taggart v. R. Co., 16 R. I. 668, 19 Atl. 326, 7 L. R. A. 205 ; St. Louis v. Tel. Co., 148 U. S. 92, 13 Sup. Ct. 485, 37 L. Ed. 380; though in some cases it is held otherwise, and of these the leading case considered the subject within the principle of Callender v. Marsh, 1 Pick. (Mass.) 418; the opinion of the court and the dissenting one of two judges present the two views of the question very fully ; Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7. See also Julia Bldg. Ass'n v. Tel. Co., 88 Mo. 258, 57 Am. Rep. 398.
In the cases relating to the use of streets and highways a great diversity of decision is occasioned by the distinctions drawn between the rights of an abutting owner who has the fee and one owning merely an easement of access over a street of which the soil belongs to the public. The question is fur ther complicated by the varied application of the doctrine that an owner whose land was taken for a street or highway is presumed to anticipate the future uses to which it may be put both over and under the surface. The confusion of the decisions is well stated by a writer on the subject: "Laying aside constitutional and statutory declarations of liability for consequential injuries we find the fol lowing anticipations imputed to one whose land is affected by a street easement. In every state except Ohio he anticipates that he may be obliged to enter his house by a second-story window when the grade is raised, or by a ladder when the grade is lowered. In New York he does not foresee any improved method of transportation from the horse car to the electric motor ; but in Pennsylvania he anticipates all methods. The Massachusetts man seems to be the only one who has clearly antici pated the telegraph and telephone. Judged by results there is no working rule of general applica tion deducible from a presumed anticipation of fu ture use." Rand. Em. Dom. § 414.