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dents occasioned by the obstruction of the view along its railroad, at the crossing of a highway, by means of the abutments of the new railroad of the other corporation. In considering the right of one company to condemn and use the property of another company, it makes no difference as to which is the elder company. If the elder company has exercised its power to condemn property for its right of way, and has constructed and is operating its road, that does not withdraw its property from the equal power of condemnation of its right of way, for a crossing, to be enjoyed in common by a junior company. The right to cross is equal, and does not arise out of purchase. When the younger corporation has acquired its right of property in common with the older in a crossing, they become joint and equal owners, bound by mutual obligations to each other and to the public to so use this common right as to do no unnecessary harm to the other or to the public. It may be provided that all railroad crossings shall be made, kept up, and watchmen maintained at the joint expense of the companies, without regard to the priorities of either in the location and construction of its road. The elder company does not possess any paramount or vested privilege to operate its road over that of the younger.
Nor can it impose all the burdens of maintaining this crossing upon the road last constructed. When the appropriation is made, paid for, and put to the new use, both companies stand on a perfect equality as to the rights and privileges in the use of the crossing.
§ 45. Condemnation of property devoted to another public use. - Land already taken by the exercise of eminent domain for a public use, and actually used for that purpose, may be taken by legislative authority for other public
1 Massachusetts R. R. v. Boston R. R., 121 Mass. 124; Lake Shore R. W. v. Cincinnati R. W., 30 Ohio St. 601; Old Colony R. R. v. Plymouth, 14 Gray, 155. ? Lake Shore R. W. v. Cincinnati R. W., 30 Ohio St. 604.
uses. When so taken, it is presumed that the former use has ceased, or become detrimental, or relatively of less importance. It is not essential that the use for which the property is last taken should be different from the use to which it was first devoted. A turnpike may be condemned for a public highway, and a portion of a railroad may be condemned for the use of another railroad. It is not presumed that roads will be laid lengthwise of a right of way, unless it is shown that no other practical route could be had. An express legislative authority is generally requisite, except where the proposed appropriation would not destroy or greatly injure the franchise, or render it difficult to prosecute the object of the franchise, when a general grant would be sufficient. Railroads entering towns are subject, under the general authority given to towns and counties, to have roads and streets laid across their tracks. The franchise is taken subject to any inconvenience that may arise from such opening. Railroads and canals? must allow improvements subsequently authorized to cross or tunnel their rights of way, on reasonable terms and proper compensation. A franchise which is subject to forfeiture is valid until forfeited by some action on the part of the state, and the property of such corporation is still protected by the constitution, and must be paid for according to its proper value. 10
1 Miller v. Craig, 11 N. J. Eq. 175.
Barber v. Andover, 8 N. H. 398.
6 Hannibal v. Hannibal R. R., 49 Mo. 480; Enfield Bridge Co. v. Hartford R. R., 17 Conn. 40; New Orleans v. United States, 10 Pet. 662; Philadelphia R. R. v. Philadelphia, 9 Phila. 563; Little Miami R. R. v. Dayton, 23 Ohio St. 510.
' Ilinois Canal v. Chicago R. R., 14 N. 314.
• Richmond R. R. v. Louisa R. R., 13 How. 71; Northern R. R. v. Concord R. R., 27 N. H. 183; Brooklyn Central R. R. v. Brooklyn City R. R., 33 Barb. 420.
• Glover o. Powell, 10 N. J. Eq. 211.
§ 46. Express legislative authority. — To take property already appropriated to another public use, the act of the legislature must show the intent so to do by clear and expres; terms, or by necessary implication, leaving no doubt or uncertainty respecting the intent. " It must also
appear by the act that they recognize the right of private property, and mean to respect it.” ? An act which provided for assessment of damages to land-owners in laying out roads does not indicate a right to take an easement or franchise which the legislature had previously given, such as laying out a road on a turnpike,' or across a public park.“ Authority to flow land does not include authority to flow a public road. Under a general act authorizing the layingout of a turnpike, such turnpike could not be laid out the whole length of a railroad. Without special authority, a reservoir cannot be established so as to cover public streets.8 A general authority to lay out a railroad does not authorize a location over land already devoted to another railroad, or public use. The act must be distinct on that point,' unless the route specified necessarily crossed another railroad, turnpike, or canal,10 when the right to cross would arise by necessary implication." General authority delegated to
1 The State v. Noyes, 47 Me. 189; Worcester R. R. v. Railroad Commissioners, 118 Mass. 561 ; Proprietors of Locks v. Lowell, 7 Gray, 223; Boston Water-Power Co. v. Boston R. R., 23 Pick. 360; West Boston Bridge v. Middlesex, 10 Pick. 270; Bridgeport v. New York R. R., 36 Conn. 255; Matter of Ninth Avenue, 45 N. Y. 729; Manhattan Co., ex parte, 22 Wend. 653; Commissioners of Central Park, 63 Barb. 282; Hickok v. Hine, 23 Ohio St. 523; Hatch v. Cincinnati R. R., 18 Ohio St. 92; Matter of City of Buffalo, 68 N. Y. 167; Milwaukee R. R. v. Faribault, 23 Minn. 167.
2 Shaw, C. J., in Boston R. R. v. Salem R. R., 2 Gray, 1. 3 Barber v. Andover, 8 N. H. 398. • West Boston Bridge v. Middlesex, 10 Pick. 270. 6 Wellington, petitioner, 16 Pick. 87. 6 The Commonwealth v. Stevens, 10 Pick. 247. ? Bridgeport v. New York R. R., 36 Conn. 255. 8 Manhattan Co., ex parte, 22 Wend. 653. 9 Housatonic R. R. v. Lee R. R., 118 Muss. 391. 10 Tuckahoe Canal v. Tuckahoe R. R., 11 Leigh, 42. 11 The State v. Easton R. R., 36 N. J. L. 181; Morris R. R. v. Central R. R.,
a city council cannot be exercised in the condemnation of property of the state devoted to public purposes. If the powers of the subsequent charter can, by reasonable intendment, be exercised without the appropriation of property already actually held and used for another public use, it must be done. The legislature is not presumed to have abandoned the former use, and turned over the property to the later use, without clear and unmistakable expression of that intention. Lands held for purposes of public parks, reservoirs,' or institutions 4 for the blind cannot be taken for railroad purposes, even though the railroad company was authorized to take for its route all lands necessary belonging to the state.
Under a general authority to condemn lands for streets, a street may be laid out across a railroad, but not longitudinally on the railroad track. Under general laws, property cannot be taken where the appropriation will destroy or impair the exercise of the franchises of another corporation, unless the power to take is given in express terms, or arises from a necessary implication. The right to lay a street across a railroad track arises from a necessary implication. Under the condemnation of a right to cross, nothing is acquired but a mere right of way, and the place of crossing will remain in common use of the parties for the exercise of their several franchises. But where the use for which the condemnation is prosecuted is of such a character as necessarily to require for its enjoyment the exclusive possession and occupation of the premises, it is manifest the condemnation will be utterly futile, unless it may operate also to extinguish the right of the corporation, whose title is condemned, to use the lands for its corporate purposes. The power to invade the privileges of a corporation in such a manner will not be inferred from a naked grant of the power to condemn.'
31 N. J. L. 205; Baltimore Turnpike v. Union R. R., 35 Md. 224; Atlantic R. R. v. Mann, 43 Ga. 200; Newcastle R. R. v. Peru R. R., 3 Ind. 464.
1 Mayor v. Central R. R., 53 Ga. 120.
In the case Matter of the City of Buffalo,” the definition of implication is given, and the construction which must be placed on statutes claimed to confer power by implication. The court say: “An implication is an inference of something not directly declared, but arising from what is admitted or expressed. In determining whether a power generally given is meant to have operation upon lands already devoted by legislative authority to a public purpose, it is proper to consider the nature of the prior public work, the public use to which it is applied, the extent to which that use would be impaired or diminished by the taking of such part of the land as may be demanded by the subsequent public use. If both uses may not stand together, with some tolerable interference which may be compensated for by damages paid ; if the latter use, when exercised, must supersede the former; it is not to be implied from a general power given, without having in view a then existing and particular need therefor, that the legislature meant to subject lands devoted to a public use already in exercise, to one which might thereafter arise. A legislative intent that there should be such an effect will not be inferred from a gift of power made in general terms. To defeat the attainment of an important public purpose to which lands have already been subjected, the legislative intent must unequivocally appear. If an implication is to be relied upon, it must appear from the face of the enactment, or from the application of it to the particular subject-matter of it, so that, by reasonable intendment, some especial object sought to be attained by the exercise of the power granted could not be reached in any other place or manner.” The City
1 New Jersey R. R. v. Long Branch Commissioners, 39 N. J. L. 28. 2 68 N. Y. 167.