AUTHORITY ΤΟ RAIL WAY IN PUBLIC STREET NOT NEW TAKING. A the southern portion of the city, which street-car line was to be operated by horse-power. Upon this state of case appellant claims that, as the fee to the land constituting the yard was in it, constructing, maintaining, and operating the street-car line would constitute such additional taking, or damage to the land, as would require the right of way therefor to be condemned by the right of eminent domain. This question has undergone thorough and critical examination in the supreme and appellate courts of several of the States, and it seems that with the exception of one adjudicated case, they all agree that the construction and operation of a horse railway on the public streets of a city, by authority from the city government, is not such new or additional burden imposed upon the land as would entitle the owner of the fee to compensation therefor, or that it would amount to such taking, or damage, as would require a condemnation of the right of way. Att'y-Gen. v. Metropolitan R. R. Co., 125 Mass. 515; Hobart v. Milwaukee City R. R. Co., 27 Wis. 198; Eichils v. Evansville Street R. R. Co., 78 Ind. 296; s. c., 5 Am. & Eng. R. R. Cas. 274; Hinchman v. Peterson Horse R. R. Co., 2 C. E. Green, N. J. Eq. 75; Brown v. Duplessis, 14 La. Ann. 842; Elliot v. Railroad Co., 32 Conn. 579; Market Street R. R. Co. v. Central R. R. Co., 51 Cal. 583; Railroad Co. v. Cumminsville, 14 O. St. 523; Cooley's Con. Lim. 687. In the case of Craig v. Rochester, etc., R. R. Co., 39 N. Y. 405, which was by a divided court, the contrary doctrine was announced. It was maintained by a majority of the court that the construction and operation of a horse railway along a public street did constitute such additional burden as entitled the owner of the land to compensation. But Mr. Justice Mason, in a dissenting opinion, cites cases to show that the holding by a majority of the court was in conflict with previous decisions of the supreme court, and also the court of appeals of New York. WAY IN PUBLIC Undoubtedly the proposition previously announced is sustained by reason and the great weight of authority. But it is asserted STREET RAIL that by reason of the peculiar wording of our ConstituNotion the authorities elsewhere have no application here. The provision is as follows: "No person's property shall be taken, damaged, or destroyed for, or applied to, public use without adequate compensation being made." By reference to the cases cited it will be seen that some of them proceed upon the basis that the construction of a street railway along a public street works no injury to the owner of the fee. No damage, it seems to us, could be inflicted upon the owner of the fee by adding this additional mode of conveyance to those already in use upon the street, and especially where the track is properly constructed so as to occasion no special injury to others. Streets are acquired, established, and maintained for the accom modation and convenience of the inhabitants of the city and the general public, and, however acquired, whether by purchase, condemnation, dedication, or prescription, it is that they may be used for the convenience of the public, by the ordinary and usual modes of conveyance operated upon such streets, chief among which is the street railway. With us the city authorities have the power to consent that the streets of the city may be used to a reasonable extent by street-railway lines. Const., art. 10, sec. 7; City R. R. Co. v. Gulf City R. R. Co., Galveston Term, 1885. But, aside from the questions considered, it is asserted by appellant that the operation of the proposed street-car line across the yard at that point would greatly inconvenience its use of the sidings and track there; that in making up trains and switching cars from one point to another upon the yard, the passing street-cars would at times necessarily impede such movements. It must be remembered that Jennings' avenue is a public street running across the yard of appellant, and constantly used by the public as such, in and by all the usual and ordinary modes of conveyance, and doubtless the passing wagons, drays, omnibuses, and other vehicles interfere with the operations of the company upon the sidings and track at that point as much as from passing street cars. As long, however, as the street remains a public thoroughfare, appellant would not be heard to complain of such inconvenience, because these are the ordinary and usual modes of conveyance used by the public. So it may be replied the street railway is included among the usual modes of conveyance along the streets of the city; and although in some respects inconvenient, this must, in the interest of the general public, be acquiesced in by all parties. As was remarked in H. & T. C. R. R. v. Wilson, 2 Texas Law Review, 194: "It is a mistake to suppose that railway companies have the exclusive right to public crossings. There the duties of the company and public are reciprocal, and the right of each restricted by the public necessity and convenience." Our conclusion is that the inconvenience resulting to appellant from passing street cars would not constitute grounds for an injunction. IT IS IMMATERIAL Again, it is asserted by appellant that such use of Jennings' avenue across the yard would greatly interfere with, and practically prevent, necessary and contemplated improvements by appellant, such as a round-house, machine-shops, coal-chute, etc. Assuming that Jennings' avenue was not a public thoroughfare passing across the yard, then, in any pro- USE OF IMPROV ceeding of the City Council to establish such thoroughfare across the yard, these necessary and contemplated improvements might be considered as good grounds of defence, or might perhaps be good grounds for an injunction. Railroad Co. v. Williamson, 91 N. Y. 552; s. c., 14 Am. & Eng. R. R. Cas. 34; Application of City of Buffalo, 68 N. Y. 167; Mil. R. R. Co. v. City, 23 MENTS. Minn. 167. Here, however, the street is and has been, according to the finding of the court, for a long time an established public highway, and recognized as such by appellant in the construction of its track and sidings. Now, as long as it remains a public highway, it is not perceived on what principle appellant would have the right to interfere with it as such by the erection of the proposed improvements. The public could not be deprived of the use of the street by the erection of such improvements, and while it remains an open and established public street it may be used by the street cars as well as other vehicles. Our conclusion is that there is no error in the judgment of the court below, and that it ought to be affirmed. Affirmed. See Randall v. Jacksonville Street R. R. Co., 17 Am. & Eng. R. R. Cas. 184; Mahady v. Bushwick R. R. Co., 14 Ibid. 142. TRUSTEES OF THE CINCINNATI SOUTHERN R. R. Co. 2. HAAS et al. (42 Ohio State, 239.) In proceedings authorizing municipal corporations to appropriate private property (Rev. Stats. § 2232 to § 2261), the failure of the corporation to pay for and take possession of the same within six months after the assessment of compensation shall have been made is no bar to a new proceeding under the statute by the same corporation, after the expiration of the six months for the appropriation of the same property for the same public use. Rev. Stats. § 2260. ERROR to District Court of Hamilton county. W. T. Porter for plaintiff in error. Long, Kramer & Kramer, and A. G. Huston for defendants in error. JOHNSON, C. J.-This question not only involves, but depends upon, the construction of section 2260 of the Revised Statutes, which reads as follows: $2260 R. S. OHIO HIBIT "When a municipal corporation makes an appropriation of land for any purpose specified in this chapter, and fails to DOES NOT PRO pay for or take possession of the same within six months SECOND after the assessment of compensation shall have been made, as hereinbefore provided, the right of the corporation to make such appropriation on the terms of the assessment so made shall cease and determine; and any lands so appro CONDEMNATION. priated shall be relieved from all incumbrance on account of the proceedings in such case, or the resolution of the council making the appropriation; and the judgment or order of the court directing such assessment to be paid shall cease to be of any effect, except as to the costs adjudged against the corporation." Keeping in mind the fact that private property, though in violate, is always subservient to the public welfare, such a construction is to be avoided as will release this private property from its liability to be taken for public use if the necessity ever arises. Section 2260 in express terms provides that in case of failure for six months to pay the compensation assessed, the right of the corporation to take the property on those terms shall cease, the lands shall be released, and the judgment or order shall no longer have any effect, except as to costs, etc. By the very explicit terms of this section, the former proceedings are to have no other effect than as a judgment for costs. Any other construction would forever release this property from subserviency to this public use, however great the emergency. The same principles that would govern if this was a municipal corporation control the case in behalf of the plaintiff. The record contains no intimation that the failure to take the property under the former assessment was for the purpose of getting it at a lower rate. For aught that appears, there was no objection to the amount of the former assessment, and that the failure to then pay may have arisen from other causes. The suggestion therefore that this is simply a device to harass the property-owner and get the property at a lower price is dehors the record, and the remarks of counsel as to want of good faith are not in point. We hold therefore that, upon the case as made, the former proceedings are no bar. Judgment reversed and cause remanded. SUPERIOR SHORT LINE R. R. Co. v. LARSON. (Advance Case, Wisconsin. September 22, 1885.) A single notice that several persons whose lands have been taken for a railroad appeal, severally and each for himself, from the award of damages made to each of them by the commissioners of appraisal is sufficient. The owner of several lots or parcels of land taken for a railroad, and for which damages have been awarded separately, may take a single appeal from the whole award, and a notice stating generally that he appeals from the award is sufficient. APPEAL from circuit court, Douglas county. S. F. White and Champ Green for respondent, John P. Larson. C. L. Catlin for appellant, Superior Short Line R. R. Co.. TAYLOR, J.-This is an appeal from an order of the circuit court refusing to dismiss the appeal in the action. The respondent undertook to appeal from the award of the commissioners appointed by the circuit court to fix the compensation and damages to be awarded the owners of the lands taken by said railway company for the construction of its railroad in the city of Superior, and other places in Douglas county. FACTS. It appears from the records in this case that the commissioners were appointed on the petition of the railway company; that the respondent was named as one of the owners of lands proposed to be taken for the purposes of said company, and in regard to which the commissioners made their award; that before the respondent gave the notice of appeal below set forth, the award of said commissioners had been duly returned to and filed in the office of the clerk of the circuit court of said county, to wit, on the twentyninth day of May, 1884; that in said petition the said respondent was named as the owner of lots 1, 2, 3, 4, and 5, in block 91, in Superior City, and also as the owner of lots 1 and 2, and the south 35 feet of lot 3, in block 92, in said city; that said railway company sought to acquire a right of way, 26 feet in width in Fifth Street, in said city, adjacent and in front of said first-named lots; that said .company also "sought to acquire a right of way in and to those parts of the last-named lots included between lines parallel with one on each side of, and each distaut 15 feet from, the centre line of the railway of said company, as the same is surveyed, located, and now constructed across said lots; and it further appears that separate awards were made to the said respondent, Larson, upon each of the eight lots above described, for the value of the part of each lot taken, and the damage to the remainder of the lot by reason of such taking. It also appears that John Peterson, Anthony Gallagher, and Charlotte Coburn had no interest in the lots so alleged to belong to said Larson, and that said parties were each the separate owners of other lots in said city of Superior, parts of which were sought to be taken by said railway company for the use of said company, and in regard to which separate awards were also made to said Peterson, Gallagher, and Coburn. After the filing of the report of said commissioners with the clerk of said circuit court, and on the twenty-seventh day of June, 1884, the respondent, by his attorney Champ Green, filed in the office of |