
    The People ex rel. The Third Avenue Railroad Co., App’lts, v. John Newton as Commissioner of Public Works of New York City, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed February 8, 1889.)
    
    
      1. New York city—Street railroad—Third Ave. R. R. Oo.—Charter DOES NOT ALLOW BUILDING SUBTERRANEAN PASSAGE IN STREET FOR cable—Laws 1850, chap. 140.
    The relator was incorporated in 1853 under the general railroad act (Laws of 1850, chap. 140), and thereafter received by assignment the “Van Schaick grant,” which was based upon a resolution of the aldermen of the city of New York, passed on the 18th day of December, 1853. The resolution authorized relator “ to lay a double track for a railroad ” in certain streets in the city of New York. On an application for a mandamus to compel the commissioner to allow relator to make excavations along its route for the purpose of laying cables in each track as motive power for its cars," Seld, that a permanent structure below the surface was not covered by the grant for a track to be placed on the surface, with a temporary opening for its necessary foundation. That the occupation of the street by the proposed structure of the relator was not within the right acquired by the resolution on Van Schaick’s contract, as confirmed by the act of 1854. Earl, Peckham and Gray, JJ., dissent.
    3. Same—Power of, over streets of city.
    The streets in the city of New York are so regulated and controlled by statute that the fee is in the corporation of the city, in trust that the same be kept open for the public. Subject to that obligation and the easement belonging to the abutting owner, it can be deprived of no use of its surface, or the soil beneath or the air above it, save by its own consent or the action of the legislature, and may retain the exclusive use and have protection against interference with either to the same extent that a private person might if he owned the fee.
    3. Streets and highway—Railroad has no right to interfere with except by statute.
    Without legislative authority, a railroad corporation has no right to interfere with any public road or street.
    4. Grants to corporations—Construed against corporations.
    Whenever privileges are granted hy the legislature, and the grant comes under review in the courts, such privileges are to he strictly construed against the corporation and in favor of the public, and nothing passes hut what is granted in clear and explicit terms.
    Appeal from an order of the supreme court, general term, first department, reversing an order of the special term granting a motion for a peremptory writ of mandamus.
    
    The relator, in 1853, became the owner of a street surface railroad with two tracks, and since that time has operated it with horses. In May, 1887, it applied to the supreme court at special term for a mandamus directing the Commissioner of Public Works of the city of New York to grant a “ permit and authority to begin immediate excavations along its route for the purpose of laying cables in each track as motive power for its cars.” The writ was granted by the special term of the supreme court, but npon appeal the order was reversed and the application denied by the supreme court, general term, first department. The relator appeals to the court of appeals. The material facts are stated in the opinion.
    
      John E. Parsons, for app’lts; James C. Carter, for resp’t.
    
      
       Affirming 16 N. Y. State Rep., 86.
    
   Danforth, J.

It is not essential to a proper treatment of this appeal to determine whether the relator is tied down to a particular method of operating its road, whether its cars may be drawn or propelled, nor whether if motion is to be given by traction, the pulling shall be done by horses as at present, or by some other power, animal, mechanical or vaporous.

These questions admit of much argument and possibly some doubt. But if it should be conceded that its cars may be towed by cable, we should be as far from the solution of the controversy between the parties as if we had not been appealed to. It is our province to determine whether a public officer has mistaken his duty in omitting to obey the direction of a private corporation in regard to the management of streets entrusted to his care, and whether the court below in refusing to vindicate the corporation has misconstrued the grant by which the relator obtained the franchise under which it seeks to justify this application.

The governing principles in such a case are:

First. The relator must show a clear legal right to the writ. Morthorst v. N. Y. C. R. R., 66 N. Y., 609; People ex rel. Slavin v. Wendell, 71 id., 171.

Second. Whether it is entitled to have the thing done may be inquired into both by the party moved against, and by the tribunal applied to. People ex rel. Freer v. Canal Appraisers, 73 N. Y., 443.

Third. The terms of the grant conferring the right which is asserted, are to be strictly construed, and the privileges it confers cannot be extended by inference; if there is any ambiguity, it must operate against the company, the general rule being that the grant shall be construed most strongly against the party claiming under it and every reasonable doubt resolved adversely to it.

Nothing is to be taken as conceded but what is given in unmistakable terms, and, as was said in Langdon v. The Mayor (93 N. Y., 145), “whatever is not unequivocally granted is deemed to be withheld,” nothing passing by implication. The affirmative must be shown. The court is not to search for any hidden meaning (Auburn, etc., Pl'k R'd Co. v. Douglass, 9 N. Y., 444; Langdon v. Mayor, supra), and coming directly to the case in hand, “Whenever it has been considered necessary or proper to allow a highway or street to be used to any extent for-the purpose of a railroad, the right has been conferred in express terms.” Davis v. The Mayor, 14 N. Y., 519. And it is well-settled that without legislative authority, a railroad corporation has no right to interfere with any public road or street.

In the present case the relator’s claim, as described in its petition, stands upon a resolution of the aldermen of the city of New York, passed on the 18th day of December, 1852, and called by the relator the “ Yan Schaik Grant,” by which privileges were conferred on the relator’s assignors, and afterwards confirmed and made effective, • as it is , claimed, by the legislature. Laws of 1854, chap. 140; Laws of 1860, chap. 10.

The relator was incorporated in 1853, under the general railroad act (Laws of 1850, ch. 140), and thereafter received by assignment from the persons named in the resolution, the grant which, as the petition asserts, “constitutes its right to own and operate a railroad ” over the route in question. Its franchise of being a corporation, therefore, was derived from the act of 1850, and its powers and privileges as such are limited to those defined in that act, and the resolution already referred to. By the resolution it was authorized “ to lay a double track for a railroad ” in certain streets in the city of New York, under the direction of the street commissioner, upon condition, among others, that it should keep in good repair the space between the tracks, and a space two feet each side of the same in each street in which the rails are laid, and also that the tracks be laid upon, a good foundation, with a rail even with the surface of the streets; portions of the road to be completed within a time specified, and a certain other portion, “ as fast as the Third avenue should be graded and in a proper condition to lay rails thereon.” There was a further condition that _no steam power be used on any part of the road for propelling cars. The relator, in 1853, and immediately on receiving this grant, complied with its conditions, and laid its rails upon the surface of the streets through which it was authorized to operate, and adopted the system of traction by horses as a means of furnishing motive power for the running of its cars, and has, in that manner, continuously operated its road to the present time. It is obvious that the charter, as thus analyzed, contemplates only a road whose operations by way of structure or otherwise, shall be limited to the surface of the roadway. It gives no right to open or excavate, or use below its existing surface. The general railroad law (Laws of 1850, ch. 140) gives no authority for the construction of street railroads (sec. 28, sub. 5), but if any right is gained by an organization under that act, the company is, by its provisions, required after construction to restore the street touched by them “ to its former state, or to such state as not unnecessarily to have impaired its usefulness.” The only disturbance of the street, therefore, which is allowed by the charter or the statute, is the tempo- - rary excavation required for imbedding the ties and stringers which support the track and rails, and when they are put in place the work of restoration leaves the surface of the street unbroken, the passage way even and the substructure solid. Such is the road which the relator is authorized to construct, and which it did construct.

In February, 1887, however, with no additional power or grant from the legislature or the municipal authorities, it resolved, in the language of its directors, “to adopt and,” as they say, “ did adopt the cable system as a means of furnishing a motive power for the operation and running of cars along its route.” We are not informed of the component parts of that system. But the relator in order to carry forward its scheme, as disclosed by the action of its directors, demanded from the commissioner a permit, as something to which it was of right entitled, to make immediate excavations in and at frequent intervals of space across the public streets through its entire route. No license or word of permission to do so can be found in the charter. The road was completed. The relator had then no right to again disturb the surface of the streets, except for necessary repairs and replacing of its ties and rails as occasion might require for the proper maintenance of its road. That power it had — no more. It now, however, asserts a legal right to make excavations, not for any of .the purposes of its track or roadway, or the foundation of either, but for the purpose of laying a cable in each track between the present rails as motive power for its cars by the agency of steam from stationary engines. A mere statement of the proposition should be a sufficient answer to the claim. To open a city street for the construction of a surface railroad track, or its reparation, and to open that street for the introduction of a power, to operate the road, would seem to be separate and distinct things. In the first the excavation ends with the construction, the material of the street is replaced, or in lieu of it some other substance which restores the surface to its original unbroken condition and usefulness, and leaves all below the surface to such uses as the municipality may require.

In the other case, as the record discloses, the cable requires a conduit of mason work, the necessary excavation for which on a straight stretch of road, without curves, is six feet wide and from four to five feet deep ; where there is a double track there must be two of these trenches, and at intervals of thirty-five feet along the whole distance they must go still deeper for drainage,, and where there are curves the width of the excavation must be at least from twelve to fifteen feet; at a corner the pit ■will be thirty feet in width, and at the engine houses, whence the cable extends to the conduit in the street, it will be necessary to excavate the entire street from the engine-room out to and beyond the track furthest from it.

None of these things are required for the construction of a street surface railroad; none of them pertains even to its operation. They relate to some act or thing to be done below the surface. Moreover, the entire surface is never to be restored, a slot opening from one-half to five-eighths of an inch will remain through the entire length of each track, an opening sufficient to receive the calk of a horseshoe and be the occasion of injury; to receive water and communicate frost to the water of gas pipes or other pipes in the neighborhood of the trenches. Other consequences follow. It is enough, however, that the slot furnishes an obstruction to the usual and ordinary use of the street for traffic and travel, whether the horse moves along or across the track, as he may lawfully do.

In the case of the People v. The Com'rs of Public Works of the City of New York (98 N. Y., 6) we held that no interference with the streets of the city, however slight, could be allowed in the absence of unmistakable Mnguage from the legislature permitting it. Yet it is the privilege of interference by excavation in those streets in the manner I have described which the relator claims as a right. It alone was the subject of its application to the commissioner, and his refusal to suffer it is the only ground upon which • the writ of mandamus was invoked, and if this appeal succeeds, the only command which can follow is that the relator be permitted to go on and make that excavation. There is no other question at issue. The city has as much and the same right to deny this • use of its streets as a private owner would have to dispute the use of his property. 78 N. Y., 524. Whence, then, does the relator derive the reason for its contention ?

I have examined with the greatest interest and care the •elaborate, and upon other points instructive brief of the learned counsel for the relator, but find nothing in it to answer the question I am now considering and which was forcibly presented by the learned judge at general term, and in the most explicit terms, in behalf of the respondent upon this appeal. We are referred to no express words conferring the power sought to be exercised, nor to any words in the grant or the act of 1850, from which, if the law permitted it, an inference to that effect could be drawn by the exercise of the greatest ingenuity.

On the contrary, every word and condition is against it. I do not think that the general railroad act (Laws of 1850,. chap. 140) has any application to the relator’s road. If it had, it is difficult to see any reason for the provisions of the act of 1854 (chap. 154), relative to the construction of railroads in cities, or the act of 1860 (chap. 10), relative to railroads in the city of New York, or many subsequent ones relating to the same matter. But assuming that it does apply, we are referred only to so much of it as declares (§ 28, subd. 7) that every corporation formed under its provisions shall have power “to take and convey persons and property over its railroad by the power or force of steam, or of animals, or by any mechanical power, and to receive compensation therefor.”

What has that to do with the question I am discussing, viz., the right of the relator to first excavate, and then build in the streets of the city the structure already described, without the consent of the city and without compensation to it ? I am quite unable to gather any intimation of a permission to the relator to go under or beneath, or to break into the streets even, except for the necessary purpose of laying its tracks. The act (1850, supra), whatever else may be said of it, relates entirely to a surface road, and might as well be invoked as authority for tunneling the streets for the passage of the relator’s horses attached by machinery to cars, as for trenches for a cable. The shaft would differ in size only. Nothing of the kind is permitted.

By the act of consolidation relating to the city of New York (Laws of 1882, chap. 410), it is provided that the common council shall have power, among other things, to regulate the opening of street surfaces, the laying of gas and water mains, the building and repairing of sewers and the erecting of gas lights ” (§ 86, subd. 5). They may also regulate the use of the streets for telegraph posts and “other purposes” (§ 86, subd. 8), among which, when duly authorized, would doubtless come the one proposed by the relator, and by section 322, a removal of a pavement or of a street surface for any purpose is forbidden until a permit is first obtained from the department of public works. The exercise of this care and authority involves judgment and discretion on the part of the city officers. As construed by the relator, its grant requires the abrogation of these pówers and duties and their surrender into the hands of a private corporation. A demand so extraordinary and subversive of necessary municipal control should be yielded to only when required by the explicit direction of the legislature. We are referred to none.

On the contrary the- streets in the city of New York are so regulated and controlled by statute that the fee is in the corporation of the city, in trust indeed that the same be kept open for the public. But, subject to that obligation and the easements belonging to the abutting owner, it can be deprived of no use, of its surface, or the soil beneath or the air above it, save by its own' consent or the action of the legislature, and may retain the exclusive use and have protection against interference with either to the same extent that a private person might if be owned the fee. But if the appellant’s claim is good this is all lost. If the relator may occupy so much of the space under the surface of the street, as is iioav intended, why may it not. occupy to the same depth under the entire surface of the street from curbstone to curbstone, nay, even to the inner edge of the sidewalk; and if to the depth now claimed, why not still deeper to the entire exclusion of its use for the various purposes to which the city authorities now in fact apply the streets, and such other purposes as the necessities of a city demand and the invention of its people supply, and thus the grant of an easement upon the surface of the street be so expanded as to take in whatever may be below its surface.

That the present claim is for a road,.as to one part surface, and to another part subteranean, will not, even if successful, conclude the relator from going deeper and putting the whole underground, or even from laying a new track beneath, still retaining the one upon the surface.

It is claimed, however, that under the general grant of the act of 1850 (sec. 28, supra) cable power may be used, and it is shown that at about the time of the passage of the resolution of the common council, it was publicly known that cars were in some cases moved by cable. The affidavits in this case disclose that fact; but they also state that the cable system then in use was made effective by “cables fastened to the end of the car and running along the surface of the road between the rails,” with power supplied by a stationary engine. Should such a contrivance be resorted to by the relator, its maintenance would be less astonishing and more plausible than is the assertion of the present claim. Yet it would be inadmissible.

Such a device, however, does not concern the system which the relator now seeks to apply. The inquiry in such a case would also be pertinent, why, if such was the intent of legislation as early as 1850, it should be thought necessary in 1866, for the legislature to pass an act (Laws of 1866, chap. 697), supplementary to that of 1850, authorizing the formation of companies to construct, maintain and operate a railway for the conveyance of persons, etc., “ by means of a propelling rope or cable attached to stationary power,” but giving no authority expressly or by implication to do the things now sought for by the relator.

My conclusion is that a permanent structure below the surface is not covered by the grant for a track to be placed on the surface, with a temporary opening for its necessary foundation, and hence that the occupation of the street by the proposed structure of the relator is not within any right acquired by the resolution on Van Schaick’s contract, as confirmed by the act of 1854, and that if allowed it would be subversive of the rights of the city. This view of the relator’s case makes it unnecessary to inquire whether the declaration contained in the grant, that “no steam power be used on any part of the road for propelling cars,” operates as a prohibition against the system sought to be introduced by the relator, and for which alone excavations are necessary.

I am not much impressed by the argument of the appellant that the public "welfare and comfort requires an assent to the relator’s.demand. That is a question, however, to be addressed to the legislature, or the city authorities, or both. There is no reason to depart from the general doctrine already adverted to, that whenever privileges are granted by the legislature, and the grant comes under review in the courts, such privileges are to be strictly construed against the corporation and in favor of the public, and that nothing passes but what is granted in clear and explicit terms. Rice v. Railroad Co., 1 Black, 358.

It was applied in this court in the case of People v. Comrs. of Public Works, already referred to, where an application was made for a mandamus requiring a permit t» be given to enable the trustees of the Brooklyn bridge to enter upon certain streets for the purpose of laying the foundation for columns necessary for the completion of that great public work according to the plans adopted. The writ was granted, but on appeal to this court the order was reversed upon the ground that the Commissioners of Public Works had no authority to grant the required permit, and that the court below erred in allowing the mandamus.

In replying to the consideration addressed to us, as to the many and obvious advantages of the completed work to the two cities and their inhabitants, we held that courts were not at liberty to consider the benefits arising from the plan of the relators, or the necessity and importance of carrying it into effect for the benefit of the public, and that such consideration should have no place in determining questions of the character of the one now before ns. We also said that the streets of New York * * * must remain and be used as such, and for no other purpose, until otherwise directed by legislative enactment, and that without this, no authority exists for their invasion.

It is possible that such a change in the character of the street as the relator proposes to make, would be, as it claims, a public benefit, but the privilege to make it will be followed by great private advantage, and it may be that the city will obtain compensation for granting it. The opportunity to do so should not be taken from it, nor the violation of rights which belong to the public, justified upon a forced and unnatural construction of words which, of themselves-have no such consequence.

I cannot close this opinion in more appropriate words than those used in King v. Ward (4 Adol. & EL, 384), and applied in Davis v. The Mayor (14 N. Y., 525), in both of which cases an argument similar to that of the relator, was advanced, and in the first case answered by the declaration of Denman, Oh. J., that “ no greater evil can be conceived than the encouragement of capitalists and adventurers to interfere with known public rights from motives of personal interest, on the speculation that the changes made may be rendered lawful by ultimately being thought to supply the public with something better than what they actually en-enjoy. There is no practical inconvenience in abiding by the opposite principle, for daily experience proves that great and acknowleged public improvement soon leads to a corresponding change in the law, accompanied, however, with the just condition of being compelled to compensate any portion of the public which may suffer for their advantage.”

The order of the court below should be affirmed, with costs.

Roger, Ch. J., Andrews and Finch, JJ., concur; Earl, J., reads for reversal; Peckham and Gray, JJ., concur.

Earl, J.

(dissenting).—The sole question for our determicase Company has the right to substitute for horses the cable system, for moving its cars over its road. This right is disputed by the defendant, representing the city of New York.

On the 1st day of January, 1853, the city granted to Van Schaick and others, whom we will call the projectors, the right to lay a double track for a railroad in certain described streets in the city of New York, and in the grant it was provided that “no steam power be used on any part of the road for propelling cars.” In the agreement, at the time entered into between the projectors and the city, it was stipulated that they might incorporate themselves under the general railroad act, and thereafter they were incorporated under the name of the Third Avenue Bailroad Company.

The grant to the projectors, and through them to the Third Avenue Bailroad Company, was confirmed by chapter 140 of the Laws of 1854, and chapter 10 of the Laws of 1860. Under its grant and charter the company laid down a double-track railway upon the surface of the streets described, and its cars have hitherto been moved by horses. It is now proposed by the company to move its cars by means of cables passing under the surface of the streets between the rails of each track, which cables are to be operated by a stationary steam engine, located upon the private property of the company outside of the street lines. It is contended on behalf of the defendant that the stipulation in the grant that “no steam power be used on any part of the road for propelling cars ” forbids the moving 6f cars by cables thus operated.

We are of opinion that that stipulation would not he violated by the substitution of the cable system. It is clear that the parties had in mind the movement of cars upon the railway tracks by steam power propelling locomotive engines thereon, and the purpose was to guard against the annoyance and danger which might be produced in the streets by the operation of such engines.

There was at that time in this country no railroad operated by what is now known as the cable system, and it could not have been within the contemplation of the parties to condemn or prohibit the operation of this railroad in that way It is not the stipulation that no steam power should foe used for “ propelling the cars,” but it is that no steam power should be used “on any part of the road,” clearly having reference to the movement of cars by locomotive steam power applied upon the road itself. Steam, as a motive power, was not prohibited; but its use upon the road was prohibited. With that exception the projectors were left with the right to adopt any safe, practical system, for moving their cars. There was no apparent reason for forbidding the use of a stationary steam engine, to be operated upon private property by means of which the cars in the streets could be moved without any noise or annoyance of any kind. The immediate power which moves the cars under the cable system, is the moving cable attached to the cars. It is true that the steam communicates power to the cable; but it is the cable power that moves the cars. In a remote sense it may be said that it is the power of steam that moves the cars, and in a still remoter sense it is the heat that produces the steam which furnishes the power, and so causes may be traced back in endless succession constantly approximating the first cause. But in construing this agreement, we must hold that the parties had in mind the proximate, immediate cause, and not the remote one, and that what was intended was the prohibition of the operation of locomotive steam engines upon the streets in the city.

But this company had not only all the powers conferred upon it by its contract with the city, but all the powers conferred upon it by the general railroad act of 1850, except as its powers were limited and restricted by its agreement with the city. By subdivision 7 of section 28 of the general railroad act, every corporation formed thereunder was authorized to take and convey persons and property on its railroad by “ the power or force of steam, or of animals, or by mechanical power.” That section clearly confers the' power to operate this railroad by the cable system. The cable, as applied to the cars, is a mechanical power, and it is moved by the power or force of steam; and hence if the right of this company depended upon that section alone, there could be no question that it would have the right to move its cars by means of the cable system. Its right under that section is modified only by the stipulation in the agreement, that “ no steam power be used on any part of the road.”

Hence whether we test the rights of the company by its grant or by its charter, or by both combined, we find no prohibition against the use" of steam power communicated by a steam engine located upon private property outside of the limits of the streets.

It is also argued that the railroad company has no right to substitute the cable system because that would subject the streets to an additional burden, not contemplated by the agreement between it and the city. There is nothing in that agreement, or in the general railroad act which forbids it to increase the burden to which any street was at first subjected. It could from time to time change the mode of constructing its tracks, the shape of its rails and the number of cars which it would move through the streets. It was not limited merely to the construction of a “ double track for a railroad upon the surface of the streets.”

It also had authority to operate and was bound to operate the railroad when constructed and that authority implied the right to operate its road by any customary, usual and proper methods and to subject the streets to such burdens as are necessary for that purpose. The only limitation upon its right is that no steam power shall be used on any part of its road,‘and subject to that limitation it has the right to operate its road upon the surface of the streets by any usual, customary or proper method, and for that purpose to interfere with the soil beneath the surface of the streets so far as may be necessary, provided the streets be left in such a condition as answer the public use to which they are devoted as streets. The language used in the contract and in the general railroad act was framed in an age of great enterprise and of rapid advance in science and mechanism, and was purposely made broad and comprehensive so that new and improved inventions for moving cars might be brought into use.

It is true that in the construction of a cable road in a street, there is more disturbance of and interference with the soil of the street than in the construction of a railroad to be operated by horses. But the disturbance and interference are not much greater, and after the cable road has been completed, the surface of the street is for every street purpose in as good condition as the surface of a street upon which a horse railroad is operated; and, indeed, the burden upon the street is less, as there are no horses attached to the cars, and they therefore occupy less space, produce less annoyance and less incumbrance upon the street than cars operated by horses. So far as there is interference with the soil below the surface of a street, it is not perceived that it can produce any serious mischief or harm to any interests or rights. So far as it may interfere with gas or water pipes or other appliances or structures beneath the surface of the streets, they are to be replaced or moved or put in position at the expense of the railroad company; and the papers show clearly that it is a mere matter of expense, and that all these things can be done so that no damage or mischief will come to any private or public right or interests in the streets. Still, further, no serious harm can come from the adoption of the cable system, because it is provided by the order of the special term that the work shall be done and subject to the super•vision of the commissioner of public works, who may appoint inspectors of the work, to be paid by the company, and that the work be carried on in conformity with such reasonable rules and regulations as the commissioner may establish in relation to doing the work, and subject to such orders and directions as he may give in relation to the manner of conducting the work, and the interference with and disturbance of sewers and water pipes, and the repavement and restoration of surface of the avenues and streets in which such work shall be done. It is also provided in the agreement between the projectors and the city, which is binding upon the company, that the cars should be run under such prudential directions as the “common council and the street commissioners may from time to time prescribe; and provided, also, that the said parties shall in all respects comply with the directions of the common council in the building of the said railroad and in any other matter connected with the regulation of said.railroad;” and that the railroad tracks should be laid upon a good foundation, with a grooved rail, or such other rail as should be approved by the common council and the street commissioners.

Thus a large power of regulation and control of the railroad and its operation is reserved by the common -council; and in the order of the special term and in the contract there is ample power, even without application to the legislature, to guard against injury to any public or private interests by the substitution of the cable system as desired by the company. But if there is a lack of power in the common council of the city to protect the city and the public, and to secure for them such rights and privileges as under the circumstances should properly belong to them, there is ample power in the legislature by amendment or alteration of the company’s charter to accomplish such ends.

Streets are primarily for public use, and are devoted to travel and the transportation of persons and property; and it has frequently been held that a street railway is not inconsistent with such public use but in aid thereof. By the substitution of the cable system, the streets would not be devoted to another or different public use, but to the same public use, to wit: the operation of a street railway. Newell v. The Railway Co., 35 Minn., 112. The fact that the company has hitherto used the power of horses for moving its cars does not forbid the substitution of some other power. A railroad company has at all times the option to change the motive power used for moving its cars, and that option is not lost by its exercise once or oftener. McCartney v. Railroad Co., 112 Ill., 611.

It is immaterial for the present purpose that the right to substitute the cable system is a very valuable one to the company, for which it could afford to pay if it did not already possess it. If it has the right, it may exercise it, subject to such restrictions, regulations, limitations and burdens as the common council and the legislature may legally and constitutionally impose.

It is certainly a consideration entitled to some weight that a majority*of the owners of property along the line of this railroad, who are most interested in its operation, and would be most annoyed and injured by the substitution of the cable system, if there should be any increased annoyance or injury therefrom, favor the substitution.

We are, therefore, of opinion that the relator has the right to substitute the cable system as proposed by it for the movement of its cars in the place of horses, and that the order of the general term should be reversed and that of the special term affirmed, with costs.

Peckham and Gray, JJ., concur.  