empowering Congress to fix the status of legitimacy for citizens of the United States, and as the citizens of each State are entitled, under the Constitution, to all the privileges and immunities of citizens of the several States, a citizen who by a lawful marriage contract is made legitimate and capable of inheriting real estate under the laws of Pennsylvania, must be legitimate and capable of inheriting real estate under the laws of New York. New York has the right to determine who shall be lawful heirs under her laws of succession, and in what manner the estates of any of her deceased intestate citizens shall descend and ascend, but she has no right, as a member of the Union, to judicially reopen a question of legitimacy once settled by the laws of a sister State, for the question is res adjudicata under the Constitution of the United States, which is the supreme law of the land, any thing in the laws or Constitutions of the States to the contrary notwithstanding.

We deem it conclusive, therefore, that New York must recognize and enforce the rights of inheritance granted the appellant by the status of legitimacy established by the laws of the sister State, under the marriage contract of his parents in that State.

The child is legitimate in the sister State, and entitled under the Constitution to all the immunities of that status in New York, he is therefore legitimate in New York, and therefore a lawful heir to real estate under the laws of intestate succession.

The dangers apprehended here and elsewhere from the recognition of the status of legitimacy, conferred by a sister State under the Constitution, or by a foreign State under the common law of christendom and the comity of nations, based on a lawful marriage contract, as recognized by Christian civilization, are rather imaginary than real, and the principles adduced by Mr. Justice Blackstone in support of the vain and aristocratic pretensions of the English law on this subject, are far more theoretical than practical; for where illegitimate children are begotten, the question of legitimating them by a subsequent marriage is not considered, and probably not in one instance out of a million do the parties have any knowledge of their right to legitimate their bastard offspring by a subsequent marriage, where such right exists by law.

It is also the declared policy of this State to encourage the marriage of persons who have begotten illegitimately; for such a marriage settles a case of bastardy under our statutes, and legitimates the offspring if it be still unborn.

It cannot be doubted, we think, that if a mother and father should move from this State to the sister State, and become citizens of that State, and enter into a lawful marriage contract there for the express purpose of legitimating a child already born, the status of legitimacy conferred by the laws of that State would render the child not only legitimate in this State, but in every State of the Union, under the provisions of the Constitution. On the other hand, also, if they had entered into a lawful marriage in this State and subsequently moved to the sister State, such marriage would not legitimate their child, under the laws of that State and the provisions of the Constitution, for the lex loci of New York would govern the status of legitimacy and a remarriage in the sister State would be necessary to legitimate the child.

The recognition of the status of legitimacy conferred on the appellant under the laws of the sister State would not militate against the soundest principles of public policy, which demand that whatever will correct the wrong done innocent children and society, and whatever leads to the creation of the family recognized by the common law of Christendom, and the principles of Christian civilization, should be not only countenanced but encouraged by the law of the land. ZIBA HAZARD POTTER. ITHACA, N. Y.

CONSTITUTIONALITY OF PILOT LAWS OF NEW YORK.

SUPREME COURT OF THE UNITED STATES, JANUARY 10, 1881.

WILSON, Plaintiff in Error, v. MCNAMEE ET AL.

The provision of the pilot laws of the State of New York entitling a pilot to compensation upon tendering his services to a vessel from a foreign port bound to the port of New York without a pilot, is not in violation of the Federal Constitution, and a tender made at sea fifty miles from shore cannot be objected to on the ground that it is outside of the jurisdiction of the State named. error to the Court of Appeals of the State of New York. The opinion states the case.

SWAYNE, J. The defendant in error tendered his services as a licensed Sandy Hook pilot to conduct the schooner E. E. Racket by way of Sandy Hook to the port of New York. The tender was made at sea about fifty miles from that port. The vessel was from a foreign port, sailing under register, and drew nine feet of water. The master refused to accept the services of the pilot, and came into port without one. The pilot demanded the compensation allowed by the local State law upon the tender being made. Payment was refused and this suit was thereupon instituted by the defendant in error in the District Court of the city of New York for the First Judicial Circuit. That court gave judgment in his favor. The case was thereupon removed by appeal to the proper Court of Common Pleas, and subsequently to the Court of Appeals of the State. Those courts successively affirmed the judgment.

The plaintiff in error thereupon brought the case before us by this writ of error for review.

The only point argued here was the validity of the pilot law of New York with reference to the Constitution of the United States.

At the close of the opening argument of the learned counsel for the plaintiff in error, we announced that the affirmative of the question thus presented was so well settled by the repeated adjudications of this court, that we had no desire to hear the counsel for the defendant in error upon the subject.

Thereafter, the counsel who had been heard submitted a memorandum, in which he called our attention particularly to the tenth point of the brief of the plaintiff in error, namely, that the tender took place outside of the jurisdiction of the State of New York." He added: "This question has never yet been passed upon by this court in either of the other pilot cases." Our opinion will be confined to that subject. There are several answers to the suggestion.

1. The objection does not appear to have been taken in the Circuit Court, and cannot, therefore, be considered here. Everett v. Elliott, 21 Wall. 537.

2. A vessel at sea is considered as a part of the territory to which it belongs when at home. It carries with it the local legal rights and legal jurisdiction of such locality. All on board are endowed and subject accordingly. The pilot, upon his boat, had the same authority from the laws of New York to tender and demand employment, and the same legal consequences under the circumstances, followed the refusal of the master as if both vessels had then been infra fauces terra, where the municipal jurisdiction of the State was complete and exclusive. The jurisdiction of the local sovereign over a vessel and over those belonging to her, in the home port and abroad on the sea, is according to the law of nations the same. Dana's Wheat., p. 169, § 106; 1 Kent's Com. 27; Vattel, Book 1, ch. 19, § 216; 2 Rutherford's Inst., B. 2, ch. 9, §§ 8 and 19. The principle here recognized is, of course, subject to the paramount authority of the Constitution and

laws of the United States over the foreign and interState commerce of the country, and the commercial marine of the country engaged in such commerce, and subject also to the like power of Congress "to define and punish piracies and felonies committed on the high seas and offenses against the law of nations." See Ex parte McNeil, 13 Wall. 240.

Speaking of the universal law of reason, justice and conscience, of which the law of nations is necessarily a part, Cicero said: "Nor is it one thing at Rome and another at Athens, one now and another in future, but among all nations it is, and in all time will be, eternally and immutably the same." Lactantius Inst. Div., Book 7, ch. 8.

3. Conceding that the pilot laws of the several States are regulations of commerce, Mr. Justice Story said: "They have been adopted by Congress, and without question are controllable by it." 2 Story on Const., $ 1,071.

Chief Justice Marshall, in Gibbons v. Ogden, said: "When the government of the Union was brought into existence, it found a system for the regulation of pilots in force in every State. The act which has been mentioned adopts this system, and gives it the same validity as if its provisions had been specially made by Congress." 9 Wheat. 207. The long-continued silence of Congress, with its plenary power, in the presence of such legislation by the States concerned, is in itself an implied ratification and adoption, and is equivalent in its consequences to an express declaration to that effect. Atkins v. Disintegrating Co., 18 Wall. 306.

The several acts of Congress bearing on the subject are fully referred to in Ex parte McNeil, supra. In that case, and in the earlier and more elaborate case of Cooley v. Wardens of Philadelphia, 12 How. 299, this subject, in all its aspects, was so fully considered that further remarks on the present occasion are deemed unnecessary.

company were to pay a tax to the city, not exceeding an amount specified in the act. The company was also empowered to construct or purchase suitable vehicles for the transportation of passengers and property over the railroad, and was authorized to demand and receive for such transportation such sums as it should think reasonable and proper, not exceeding, however, a certain sum fixed by the act for each trip of a passenger. The act also gave the company an action against any person who should "willfully or maliciously impair, injure, destroy or obstruct the use of said railroad," and permitted the recovery of three times the | damage sustained by the company. The company was also empowered to borrow the money necessary to build or equip said road, and to secure the payment thereof by a mortgage on the “road, lands, privileges, franchises and appurtenances of or belonging to said corporation."

The company thus incorporated shortly afterward built a railroad through some of the streets of Camden, in substantial accordance with the requirements of the act above referred to. It has since built other roads or branches through other streets in Camden, under the powers given by the above-mentioned act or supplements thereto. It has continued to operate the railroads so built ever since.

In October, 1876, the Camden IIorse Railroad Company filed a bill in the Court of Chancery against the Citizens Coach Company, setting out the facts of the incorporation and organization of the horse railroad company above stated, and the construction of its railroads. The bill charged that the defendant therein had been incorporated on July 29, 1876, under the general law of this State, entitled "An act concerning corporations," approved April 7, 1875, for the purpose of carrying passengers and property in and about Camden, for compensation, and that it had continually, since its organization, made use of the railroads of the

A. C. Scovel, for appellant.

D. J. Pancoast and P. L. Voorhees, for respondent.

MAGIE, J. An act of the Legislature, approved March 23, 1866 (P. L. of 1866, p. 640), created the Camden Horse Railroad Company, with a capital stock of $50,000, and the privilege of increasing the same to $100,000. The company was, by that act, empowered to construct, use and maintain a railroad over certain streets in Camden, the tracks to be of the width of the wagon track then established by law, and to be laid level with the surface of the streets and in conformity with the grades then or thereafter established. Upon the requirement of the city council of Camden, the

its coaches upon and along the railroad track, to the obstruction and hindrance of the use of the railroad by its owner, the complainant. The bill also distinctly alleged that the complainant was entitled to the exclusive use and enjoyment of said railroad, as against the said coach company or any other person seeking to use the same in the business of transporting persons or property. The prayer of the bill was that the coach company should be enjoined from using with its coaches, in the pursuit of its business of carrying passengers in and about the city of Camden, the railroad of the complainant.

The Citizens Coach Company, the defendant, filed its answer to this bill, denying that it had made such continuous or obstructive use of the complainant's railroad as was charged, and further denying the right of complainant to the exclusive use and enjoyment of the railroad in the transportation of passengers.

Upon the issue thus formed proofs were taken, and upon the pleadings and proofs the chancellor concluded that the complainant was entitled to relief, and an injunction was decreed, restraining the defendant from using with its coaches, in the pursuit of its business of carrying passengers in and about the city of Camden, the railroad of the complainant, in competition with the complainant in its business of carrying passengers and property thereon, and from obstructing or hindering complainant in the use of its railroad tracks. The decree further provided, however, that it was not to be construed as restraining defendant from using the tracks incidentally to the use of the street."

From that decree the Citizens Coach Company has appealed to this court, and now contends not only that the evidence in the cause did not justify the court below in holding that it was using the railroad tracks obstructively, but that no right exists in the railroad company to exclude its coaches from the use of the

railroad track, although engaged in carrying passengers for hire in competition with the railroad company.

rails not adapted to, but destructive of, the ordinary public use of the highway by the usual vehicles of travel thereon. The noise, the danger, the obstruction of its road-bed, all combine to make the use of the highway by such a railroad incompatible with its general use as a public highway. In such a case, then, the railroad becomes a manifest burden on the soil additional to that originally imposed by the public

But the main question in this case is presented by the other contention of the appellant. It is a question of very great importance, not only to the parties to this cause and those interested in them as stockholders or otherwise, but also to the stock and bondholders of the numerous horse railroad companies organized and operated in this State under grants substantially similar to that in question in this case. It requires the consideration and determination of the nature and extent of the rights acquired by a horse railroad company under such legislation as appears in this case, with respect to the public highways on which the rails of its track are laid.

The question of the rights of such a company with respect to the owners of the land under the highway on which the track is laid has been the subject of much judicial consideration. The question has arisen upon the demand of the land-owner to be awarded compensation for the occupation of his land by the railroad. He has contended that such an occupation of the public highway imposed upon his land a burden greater than that which it sustained before, and which amounted to a taking of his land or some interest therein for which he was entitled to compensation. On the other hand, the railroad companies have contended that the occupation of the highway by the track and its use by the cars was no other or different use than that public use to which the highway was originally devoted.

A similar question had arisen in the earlier periods of the history of railroads designed to be operated by steam power. With a limited and imperfect knowledge of the extent of development to which such roads were destined to attain, or with an exaggerated or distorted view of their character as public highways, it was long contended that such railroads might occupy the soil of ordinary public highways without making compensation to the land-owner. Much difference of judicial opinion and decision may be found on this subject. In this State, in the case of Morris & Essex R. Co. v. Newark, 2 Stockt. 352, Chancellor Williamson expressed the opinion that the Legislature might authorize a railroad operated by steam to be laid on the public highway, and that if the occupation did not entirely destroy the use of the highway in the ordinary mode, it was not such a taking of private property as required compensation to be made. On the other hand the Supreme Court, about the same time, in the case of Starr v. Camden & Atlantic R. Co., 4 Zab. 592, held that the owner of land under a public highway taken by a railroad operated by steam was entitled to compensation. The cases of Hetfield v. Central R. R. Co., 5 Dutch. 571, and Morris & Essex R. Co. v. Prudden, 4 C. E. Gr. 386; S. C., 5 id. 530, indicate that the view taken by the Supreme Court is correct. And the reason is pointed out by Chancellor Green in the case of Hinchman v. Paterson H. R. Co., 2 C. E. Gr. 75, with his usual perspicuity and breadth of view. And considering the developments of the railroads of the country, it is now perfectly obvious that the use of a public highway longitudinally by a railroad operated by steam is a use entirely inconsistent with and destructive of the public use to which the highway was originally devoted. The rate of speed at which such roads are operated is dangerous to the public who would otherwise use the highway. It makes use of

pensation must be made. The question may be considered as set at rest now, in favor of the above views, by a decided weight of authorities to be found collected in 1 Redf. on Railw. (5th ed.), 314 et seq., and

notes.

It is obvious, however, that an ordinary horse railroad in occupying a highway with its track and making use of it with its cars produces a different result from that produced by such an occupation and use by a railroad operated by steam. By legislative direction, the track of the horse railroad is required to be (as in this case) so constructed not only as not to interfere with or prevent the passage of other vehicles, but to be adapted to such passage both across and along the rails. The cars are drawn by animals such as usually draw the vehicles used on public highways. They carry along the highway such passengers as otherwise would be obliged to pass over it on foot or in other vehicles, and do so with no more injury in the way of noise, jar or disturbance than would be occasioned by the passage of other vehicles. The use, if it be novel and peculiar in its form, is but a modification of the original use to which the highway was devoted when it became a highway. The burden imposed thereby upon the land-owner, so far as the use of his property is concerned, is identical in kind and no greater in degree than was originally imposed on the land when the highway was opened. Such was the view taken by Chancellor Green in the case of Hinchman v. Paterson H. R. Co., above cited, and he consequently held that the occupation of a street by a horse railroad was not such a taking of property as would entitle the owner to compensation. This view was mentioned with approval by Chief Justice Beasley in State v. Laverack, 5 Vr. 201, and by Chancellor Zabriskie in Jersey City & Bergen R. Co. v. Jersey City & Hoboken R. Co., 5 C. E. Gr. 61, 66, and was followed by the present chancellor in Paterson & Passaic H. R. Co. v. Paterson, 9 C. E. Gr. 158.

I do not hesitate to adopt this view, sanctioned by such authorities and so reasonable in itself, and to conclude, that so far as the owner of land under a highway is concerned, the use of the highway by legislative sanction by a horse railroad is not inconsistent with the public use to which the highway was originally devoted, and is not an additional burden imposed on the land, but only a variation or modification of the public right and easement originally acquired. Consequently such owner has no right to claim compensation for such occupation of the highway.

While this view has been adopted by many courts, it has also been controverted by judges of repute, nd the decisions are consequently very conflicting. No good purpose will be served by a critical examination of the cases in this opinion. It is sufficient to say that when analyzed, the difference between the cases seems to arise from the different views entertained by the judges in respect to the practical question as to how far the use of the highway by the railroad is incompatible with the use to which the highway was originally devoted. And it may be remarked that when a conclusion different from that to which I have arrived has been reached, dissenting opinions have been expressed by judges whose opinions are entitled to respect. See 39 N. Y. 404. The cases may be found collected in I Redf. on Railw. (5th ed.) 317, and notes. In the late case of Att'y-Gen. v. Metropolitan R. Co., 125 Mass. 515,

the Supreme Court of Massachusetts reach a conclusion in accord with that to which we have arrived.

The discussion so far may seem, perhaps, to be somewhat beside the real question in this case. But its applicability will be recognized when it is understood that it is insisted that the conclusion to which we have arrived compels us to adopt a view of the case adverse to the claim of the appellee. It is insisted that if the property owner be not entitled to compensation on the ground that the burden on his land is not increased by the use of the highway by a horse railroad, but that such use is a mere modification of the public easement before taken, then it follows that the public right must continue and remain, as before, open to every person. It is claimed that a use of the highway which would exclude in whole or in part a portion of the public is incompatible with such use as the highway was originally devoted to, and therefore that it cannot be consistently held that any exclusive rights are vested in horse railroad companies.

I am unable to see any force in this objection. When a highway has been once taken for public use, the owner of the land retains his title to the same, subject to the public easement. That public easement vests in the public. How far it extends it is not necessary now to inquire. Whether it gives power for the laying of underground or the building of elevated railroads, need not be considered. It is sufficient to consider the easement as one of a right of passage over the same by the public. This right, however, the Legislature may, it is well settled, control. It may control the road for the public use; it may regulate the public use. Thus, it will be conceded, changes of the grade of highways may be made by the public authorities, and the land-owner is entitled to no compensation or redress, however injurious or destructive such changes may be, unless under the provisions of such a statute as exists in this State. Rev. 1009. The public may, without further compensation, lay sewers in the highway. Stoudinger v. Newark, 1 Stew. Eq. 446. Waterpipes, it seems, may be laid within the highway as part of the original burden, at the legislative will. Jersey City v. Hudson, 2 Beas. 420. And in the wellconsidered case of Wright v. Carter, 3 Dutch. 76, the Supreme Court, Chief Justice Green delivering their opinion, held that the Legislature might authorize a turnpike company to take a public highway and construct its turnpike thereon, without making compensation to the land-owner whose lands were thus appropriated. The act, which was the subject of consideration in that case, provided for the vacation of the public highway by surveyors of the highways, and it appeared in the case that it was so vacated for the purposes of the turnpike. It also appeared that the turnpike company were authorized to charge tolls for all persons travelling thereon. But the court held that the public easement originally acquired over the land was not thereby discharged, and although transferred to a private corporation authorized to exact tolls from travellers and empowered to exclude all who did not pay toll to them, remained yet the same public easement, and was not an additional burden on the land for which compensation could be required. This decision it is unnecessary to vindicate or support in this court, because, although the case of Wright v. Carter was afterward reversed (no opinion appearing in the reports), it is understood that the reversal was upon other grounds, and that the opinion of the court below on the point in question was approved. 3 Dutch. 685, note; State v. Laverack, 5 Vr. 207; Freeholders v. Red Bank Turnpike Co., 3 C. E. Gr. 93. But I think the decision may well be vindicated upon plainest principles. The public easement requires for its beneficial use the making and maintenance of a roadway. The Legislature, representing the public, may well determine whether this shall be done by the public and at

its expense, or by a private corporation. In the latter case it may give to such corporation a right to exact reasonable tolls, to remunerate it for its outlay and labor. The object is not the benefit of the private corporation. That is merely incidental. The real design is the public good in the use of the public highway. If that can be best served, in the judgment of those representing the public, by making a turnpike thereon, it may properly be done. Manifestly, then, no additional burden is thereby imposed on the land-owner. See, also, Benedict v. Goit, 3 Barb. 459.

I do not perceive, therefore, that the use of the highway by a horse railroad company, if held to be exclusive of its use to some extent by others, is thereby an additional burden on the land. Nor can I see any inconsistency in holding that the land-owner is not entitled to compensation, although the use is more or less exclusive. Such use is in fact but a modification of the original public use, established by the representatives of the public, to serve the public purposes in the transportation of passengers upon the highway. It is for the Legislature to decide if this is a judicious and proper mode of use for the public good. If it is so considered, then the Legislature may authorize it, and may limit and control other public uses of the highway for that purpose. So long as the use made is of the same kind as that to which the land was originally devoted, the owner cannot complain of any modifications or limitations of it.

Let us next inquire what rights a horse railroad company acquires by the legislation with respect to other persons making use of the highway in passing and repassing thereon, Are its rights merely those of passage back and forth upon the rails which it has been permitted to lay upon the public highway? Or has it the power of excluding others from the use of its rails, and if so, how far does that power extend?

The grant in this case must be conceded to be of a franchise. It includes the right to lay down tracks, to run carriages thereon, to carry passengers, and to exact tolls. Such a grant must be construed as giving all the powers reasonably necessary to accomplish the manifest object. Morris & Essex R. Co. v. Sussex R. Co., 5 C. E. Gr. 542. That it contains no word of exclusion is not of consequence, for the grant of a franchise, by its intrinsic force, is exclusive against all persons but the State. Raritan & D. Bay R. Co. v. Delaware & R. Can. Co., 3 C. E. Gr. 546, 572. As was well said by Chief Justice Shaw in Commonwealth v. Temple, 14 Gray, 76, "The accommodation of travellers, of all who have occasion to use them, at certain rates of fare, is the leading object and public benefit for which these special modes of using the highway are granted, and not the profit of the proprietors." profit to the proprietors is a mere mode of compensating them for their outlay of capital in providing and keeping up this public easement." "Every such grant must, therefore, be held to carry with it all incidental rights which are necessary to its full use and beneficial enjoyment. When the grant has for its object the procurement of an easement for the public, the incidental powers must be so construed as most effectually to secure to the public the full enjoyment of such easement."

"The

Upon such grounds horse railroad companies have been held to have certain exclusive rights, because the exercise of such rights is plainly necessary to the existence and beneficial use of the railroad. Thus a horse car is held to be entitled to the exclusive use of its track, so that another vehicle in meeting it, is, contrary to the usual rule of the road, required to give way and entirely remove from its track. A similar rule is adopted when the horse car overtakes a vehicle proceeding in the same direction, or encounters a vehicle lawfully stopping in the street to deliver goods, etc. Commonwealth v. Temple, ubi sup. ; State v. Foley,

31 Iowa, 527; Hegan v. Eighth Ave. R. Co., 15 N. Y. 380, and other cases cited in the chancellor's opinion.

It has also been held that a horse railroad company may exclude from its tracks the cars of another horse railroad company, though given authority to use such tracks by the Legislature, unless compensation is required to be made. Jersey City & Bergen R. Co. v. Jersey City & Hob. R. Co., 5 C. E. Gr. 66; S. C., 6 id. 550; Brooklyn Cent. R. Co. v. Brooklyn City R. Co., 32 Barb. 358; Metrop. R. Co. v. Quincy R. Co., 12 Allen, 262. Now the use of one railroad by the cars of another company may be objectionable, because it is probable, and almost certain, that such use would be incompatible with its full use and enjoyment by the company that laid it. But it is not difficult to conceive of cases where it would be quite possible to run cars on other railroads, at least for short distances, without interfering with the regular use of the road by the owners. And so in the cases last cited, the ground of the decision has been, not that there was an interference with the full use of the railroad, but that there was such an occupation of the property and franchise of the railroad company as was manifestly a taking or appropriation of property for which compensation might be required, and must be provided. Such was the view taken by Chancellor Zabriskie in the case in 5 C. E. Gr. 66, above cited. The iron rails of the railroad laid in the street he held to be the property of the railroad company, not abandoned to the public or to every use by those passing over the street. Such use as was incidental and occasional was held to be justified by an implied permission arising from the mode in which the track was required to be laid. But such use was held not to include the use of the track for a competing traffic by the regular running over the rails of cars or carriages adapted to the track and operated by a rival company. When that case came into this court by appeal, no dissent was expressed from the views of the chancellor. The decision here virtually conceded their correctness, so far as the right of compensation was dependent on a franchise and property in the railroad. But this court held that compensation for the appropriation of the property had been substantially provided for in the legislative scheme. See 6 C. E. Gr. 557.

Now if a railroad company have a property in their track laid in the highway, and in their franchise of operating it for tolls, which entitles them to compensation for the use of it by a rival car company, on what substantial ground can it be denied the same right when a like use is made of its track by coaches or omnibuses of competing companies? It is true that there may be a vast difference in the degree to which a railroad company would be interfered with, whether the interference proceeds from use by cars or by coaches capable of being turned off the track; but so far as the property and franchise are concerned, the interference is identical in kind. The use in each case is equally an appropriation of property, which its owner may resist unless compensation be provided for him.

It is urged, with great force, that there is an implied permission to use the rails thus laid on a public highway, to every one lawfully passing over the public road in the prosecution of a lawful business, and who do not directly interfere with the passage of the cars. It may be conceded that by the legislative requirement that the rails should be laid and maintained on the level of the road and of the width of the ordinary wagon track, and by the company's acceptance of such terms in the grant, some permission to use the rails is implied. It is a permission not emanating from the company, nor is it revocable by it. It arises from the nature of the grant, and the conditions under which the track is allowed to be laid. So far as its use by persons driving for pleasure, on journeys or in ordi

nary traffic, is concerned, such an implication may well arise. Such use is in no way inconsistent with the grant to the company, and is not destructive to its business. It does not affect the company's rights or franchise. It may wear its rails, but that is part of the compensation the company gives the public for its rights. But the implied permission now discussed must not be extended further than is consistent with the purpose and design of the grant to the company. That purpose was to serve the public by a use of the public highway for public travel, whereby a cheap, convenient and regularly-recurring mode of carriage should be provided for all passengers. For that purpose all the powers of the company were given. Undoubtedly a correlative duty devolved on the company to lay its track and to run its cars for the benefit of the public. Under such circumstances, the laying of the rails must be considered a permission to use them only so far as such use is consistent with the grant and its purpose. Clearly the railroad has not become part of the street. The sills, ties and rails are laid on the street, but they are not part of it. They constitute a part of the machinery for the transportation of passengers, and although placed on the street, no more become part of it than the cars or carriages placed on the rails. Brooklyn Cent, R. Co. v. Brooklyn City R. Co., ubi sup. Retaining thus its property, no permission to use it will be implied, if the use is inconsistent with the grant and its purpose. And there can be no question but that its use for a business competitive with that for which the company was created is inconsistent with the grant, and tends to thwart its purpose and to destroy the usefulness of the company to the public. Permission for a use inconsistent with the grant will not be implied. On the contrary, the implication is of an exclusion of such use.

The conclusion then is that the horse railroad company, the complainant below, acquired, by the grant contained in the charter, a franchise and property in its tracks when laid, which is exclusive of the use thereof by other persons or companies, in competition with it in the business of carrying passengers for hire.

The cases cited in the opinion of the chancellor indicate an almost universal acquiescence in this conclusion, wherever this question has been raised. In addition to those cases, there may be cited the case of Buffalo R. Co. v. Leighton, in which, upon a state of facts indentical with this case, Chief Justice Sheldon, of the Superior Court of Buffalo, at June term, 1880, restrained the defendant from using the tracks of the plaintiff's railroad in the business of carrying passengers in vehicles of any description. The whole subject is admirably summed up in a report to the Legislature of Massachusets, made in 1865, and to be found in 1 Redf. on Railw. 328.

Upon such a conclusion being arrived at, it is quite manifest that the decree below must be sustained. Such an inference with a franchise granted by the State, and exclusive in its character, as is proved to have occurred in this case, may be restrained by injunction. Raritan & D. B. R. Co. v. Delaware & R. Can. Co., 3 C. E. Gr. 546.

It may be further remarked that any possible right which the coach company may have to the incidental use of the rails in the use of the street, has been preserved by the decree and injunction. No appeal was taken on the part of the complainant below, and I have thought it unnecessary to consider the question presented by this limitation.

BEASLEY, C. J. The object of the bill exhibited in this case is to prevent the use and obstruction of the complainant's horse railroad, in the city of Camden, by the Citizens Coach Company, the appellant in this court.

I have had no difficulty in settling in my own mind