The power of a municipality to reduce street railway fares is subject to limitations ; (1) that there is reasonable need on the part of the public of lower rates ; (2) that the rates fixed by the ordinance are not unrea sonable in view of all the conditions ; Mil waukee Elec. Ry. & L. Co. v. Milwaukee, 87 Fed. 577. See the important case of Cent. T. Cc, of New York v. R. Co., 82 Fed. 1, as to the constitutionality of an act regulating fares, and the case contra, on the same act, of Indianapolis v. Navin, 151 Ind. 139, 47 N. E. 525, 51 N. E. 80, 41 L. R. A. 337.
The right of way is generally obtained by the exercise of the right of eminent domain. This can only be done in strict conformity to the charter or grant; 4 Engl. Railw. Cas. 235, • 513, 524 ; State v. R. Co., 6 Gill (Md.) 363. In this country, in many cases, the provisions of the charter enable com panies to obtain land by purchase ; Hatch v. R. Co., 25 Vt. 49. The company may enter upon lands for the purpose of making pre liminary surveys, by legislative permission, without becoming trespassers, and without compensation ; Cushman v. Smith, 34 Me. 247 ; Polly v. R. Co., 9 Barb. (N. Y.) 449 ; but compensation must be made or secured be fore the permanent occupation of the lands. See Graham v. R. Co., 27 Ind. 260, 89 Am. Dec. 498. A company may not take land for speculation, or to prevent competition ; Rens selaer & S. R. Co. v. Davis, 43 N. Y. 137. It may make any use of the land acquired for the right of way, which contributes to the safe and efficient operation of the road, and which does not interfere with the ,rights of property pertaining to the adjacent lands; Elyton L. Co. v. R. Co., 95 Ala. 631, 10 South. 270. See EMINENT DOMAIN. The right of way of a• railroad is the entire strip or tract it owns, or is entitled to use for railroad pur poses, and not any specific or limited part thereof upon which its main track or other specified improvements are located ; St. Louis, K. C. & C. R. Co. v. R. Co., 217 U. S. 253, 30 Sup. Ct. 510, 64 L. Ed. 752 ; id., 152 Fed. 849, 81 C. C. A. 643. It has been said to be an easement ; Louisville & N. R. Co. v. Maxey, 139 Ga. 541, 77 S. E. 801; Mahar v. R: Co., 174 Mich. 138, 140 N. W. 535.
In construing the nature of the estate or in terest condemned by railways under the vari ous eminent domain statutes, the American courts arrive at three different results: (1) That the right acquired is an absolute fee ; (2) that it is a fee conditioned on the con tinuance of the user, with a reversionary in terest over on abandonment ; and (3) that it is essentially like an easement in gross ; Pra ther v. Tel. Co., 89 Ind. 501; Currie v. Tran
sit Co., 66 N. J. Eq. 313, 58 Ad. 308, 105 Am. St. Rep. 647 ; Pittsburgh, Ft. W. & C. R. Co. v. Peet, 152 Pa. 488, 25 At'. 612, 19 L. R. A. 467.
Where by condemnation proceedings a rail road company acquired the right to enter up on and occupy the plaintiff's land for railway purposes, and later granted to the defendant the privilege of erecting poles and wires on its right of way for purposes not primarily concerning the railway business, it was held that the plaintiff could maintain trespass against• the defendant telephone company ; Pittock v. Tel. Co., 31 Pa. Super. Ct. 589; 20 H. L. R. 501.
Railroad corporations possess the powers conferred upon them by charter and such as are fairly incidental thereto ; and ,they can not, except with the consent of the state, dis enable themselves from the discharge of their functions, .duties, and obligations. The gen eral rule is that a contract by which a rail road company renders itself incapable of performing its duties to the public, or con tracts beyond the scope of its powers, cannot be rendered enforcible by the doctrine of es toppel; but where the subject-matter is not foreign to the purposes of its creation, a con tract embracing whatever may be fairly re garded as incidental to the things authorized, ought not, expressly prohibited, to be held to be ultra vireo; Texas & P. R. Co. v. Gentry, 163 U. S. 364, 16 Sup. Ct. 1104, 41 L. Ed. 186.
Theo construction and operation of a part of its road proves an acceptance of its char ter where no particular mode of acceptance is designated ; St. Joseph & I. R. Co. v. Sham baugh, 106 Mo. 557, 17 S. W. 581.
The company may lay their road across a highway, but not without making compensa tion to the owner of the fee for the addition al servitude thus imposed upon the land ; Chase v. R. Co., 26 N- Y. 526 ; Stetson v. R. Co., 75 El. 74 ; Southern P. R. Co. v. Reed, 41 Cal. 256; 1 Exch. 723.