Kinsey v. Union Traction Co.

Jordan, J. Appellant, as plaintiff below, on July 28, .4903, commenced this action against appellees, the Union — 564 — Traction Company, the Indiana Traction Company, the Indianapolis Northern Traction Company, the Indianapolis Traction & Terminal Company and the Indianapolis Street Railway Company. These parties demurred separately and severally to the complaint on the ground of insufficiency of facts. The court sustained the demurrers, to each of which rulings appellant excepted, and declining to plead further, judgment was accordingly rendered against her. She appeals, and relies for reversal upon the alleged erroneous rulings of the court in sustaining the demurrers in question. By her complaint she alleges that she is, and for five years last past has been, the owner in fee simple of the following described real estate, to wit: Lots fifty-five and fifty-six in Ovid Butler’s addition to College Corner, all of which real estate is situated in the city of Indianapolis, Marion county, Indiana; that this real éstate, for a distance of seventy feet, fronts and abuts, at the corner of Fifteenth street, upon College avenue, a public street in said city, and runs thence west one hundred sixty feet to an alley; that plaintiff owns, as a part of her said real estate, the fee simple of the ground in front of her premises extending to the center of said College avenue; that for the past five years plaintiff has had upon the front part of her lot, and within sixty feet of the center of said avenue, a frame house consisting of fifteen rooms, constructed and used by her and her family as a dwelling during all of said time, her family so occupying the same consisting of herself and husband, with their children and small grandchildren; that ‘ ‘ on April 7, 1898, the defendant Indianapolis Street Railway Company was organized as a street railway corporation, under the laws of the State of Indiana, for the purpose of owning and operating a street railway in the city of Indianapolis; that in' said year it obtained a franchise for thirty years, and entered into a contract with the city of Indianapolis, for the construction of said railway, and the carriage of passengers thereon over the streets of said city, including said College — 565 — avenue; that in pursuance thereof, it entered upon and has since owned and operated, until thé transfer of its said system to the defendant Indianapolis Traction & Terminal Company, a double track, electric, street railway over and upon said avenue, one track being laid upon each side of the center thereof, together with a system of iron. poles, with crosspieces and wires strung thereon, placed at one side of said avenue; that, by the terms of its said franchise and contract, said Indianapolis Stre.et Railway Company was forbidden to haul freight over its said lines in said city, and was required to permit the use of said lines and tracks by any incorporated interurban railroad company, upon the oonsent of the city thereto; that subsequently, upon August 4, 1902, the defendant Indianapolis Traction & Terminal Company, a corporation organized under the laws of the State of Indiana, received from said city a similar franchise, and entered into a similar contract; that upon said last-named date the defendant Indianapolis Northern Traction Company, claiming to be a corporation organized under the laws of the State of Indiana, obtained from said city a franchise and entered into a contract, by which it was permitted for thirty years to run its interurban ears over the railroad track of said Indianapolis Street Railway Company, including the track on said College avenue, along and in front of plaintiff’s'said real estate, with the right to run passenger-, baggage-, express- and freight-cars-thereon, for the carriage of passengers, baggage and freight; that upon said date said Indianapolis Northern Traction Company entered into a contract with said Indianapolis Street Railway Company; whereby said Indianapolis Street Railway Company agreed that said Indianapolis Northern Traction Company should have the right to 'run its said passenger- and freight-cars over its track in said College avenue and other streets of said city of Indianapolis, to the terminal station in the center of the business district of said city; that upon August 4, 1902, said defendant Union — 566 — Traction Company, claiming to be a corporation organized under the laws of the State of Indiana, obtained from said city a franchise and entered into contracts with said city and said Indianapolis Street Railway Company, similar to those of said Indianapolis Northern Traction Company; that at the time of entering into snch contracts, said Union Traction Company was the owner of, and engaged in operating, an electric railway for the carriage of freight and passengers from the city of Marion, through the cities of Alexandria and Anderson, and through many other cities and towns, a distance of eighty miles, to the city of Indianapolis, and from the city of Elwood, through the cities of Alexandria and Anderson, a distance of seventy miles, to the city of Indianapolis, and from the city of Muncie, through the city of Anderson, a distance of sixty miles, to said city of Indianapolis; that the track and right of way of said Union Traction Company extended only to the corporation line of said city of Indianapolis, and its cars then, under and pursuant to said contracts, ran upon and over the tracks of said Indianapolis Street Railway Company, entering College avenue at Pall creek, about Thirtieth street, and running over said avenue a distance of about two miles, and then over other streets, about two miles, to the terminal station, in the center of said city. It is further alleged that the track of said Union Traction Company is laid with heavy “T*’ rails, weighing from seventy to ninety pounds per yard, the same being fully as heavy as the rails of the ordinary steam railroad, and of the same pattern and shape; that the tracks on College avenue, are of the same kind and size, and the rails thereof were especially laid of this kind and weight in order that the large cars of said interurban companies might be run thereon; that the ears of said Union Traction Company and its successors are, and ever since its operation have been, about sixty feet in length, weigh about sixty-four thousand pounds, and are placed upon — 567 — heavy trucks, to which eight heavy iron or steel wheels are attached; that said cars have a seating capacity of sixty passengers, and are as large as, and heavier than the ordinary railroad passenger-cars, and often carry from one hundred to oné hundred fifty passengers; that the great majority of the passengers carried by said cars into the city of Indianapolis are persons who come from points outside of Marion county, and at least one-half of them are carried from points at least forty miles distant from said city of Indianapolis; that under the schedule which has been maintained by said Union Traction Company and its successors, up to this time, one regular passenger-car arrives at Indianapolis each hour from 6 o’clock a. m. to 12 o’clock p. m., and one passenger-car leaves said city each hour from 5 o ’clock a. m. to 11 o ’clock p. m.; that in addition thereto four other regular passenger-cars leave said city of Indianapolis and four regular passenger-ears arrive at said city over said road each day between 7 o ’clock a. m. and 11 o ’clock .p. m.; that, in addition to this, extra and special passenger-cars are run over said road into and from said city of Indianapolis; that in addition thereto, said Union Traction Company and its successors run, and since said August 4, 1902, have continued to run, into and from said city of Indianapolis, upon each day, many cars devoted exclusively to the hauling of freight to and from points ten to eighty miles distant from said city, the greater portion of such freight being hauled to and from points distant forty miles or more from said city; that each of said cars is and has been run over said College avenue, along and in front of said property owned by plaintiff; that by the terms of said franchise and contracts with said city, there is no limitation upon the number of cars or trains, nor the size of the trains for freight or passengers, which may be run in said city by said traction companies or their successors; that at least eight of said scheduled cars of said Union Traction Company and its successors, running in and — 568 — out of said city of Indianapolis each day, make no stop to take on or let off passengers between the city of Indianapolis and the city of Muneie, except at Anderson; that said cars run over a part of College avenue, and over other streets in the most thickly populated parts of the city of Indianapolis, along all of which streets there is a house upon every forty-foot lot, and said cars, in the course of their passage from their entrance on College avenue to the terminal station, cross at least fifty intersecting streets, and said cars make but one stop between the starting point and the corporation line of such city to take on or let off passengers; that the other passenger-cars of said Union Traction Company or its successors, running into said city of Indianapolis, over said streets, do not stop within said city at the street crossings to receive local passengers desiring to be transported to other points within the limits of said city, although frequently requested to do so by persons standing on the farther street crossings, those being the proper crossings at which the street-cars are required to stop for passengers, and the crossings at which, under its franchise, said interurban cars are required to stop when they do stop within said city to receive or let off passengers; that said cars and trains of said Union Traction Company and its successors are and have been continuously run at a rate of speed varying outside of the city of Indianapolis from thirty to sixty miles per hour; that said ears have frequently run and still continue to run over fifty miles per hour; that in said city there is no limitation upon their speed under the terms of their said contracts and franchise, nor by any city ordinance, and said cars frequently run at from twenty to thirty miles per hour along said College avenue and in front of the property of said plaintiff; that the schedule time of running their passenger-cars from the terminal station in the city of Indianapolis to the terminal station at Anderson, a distance of forty miles, varies from one hour and twenty-five minutes to one hour and — 569 — forty minutes; that the schedule time of said cars from the terminal station in the city of Indianapolis to the terminal station at Muncie varies from two hours to two and one-half hours; that about one-third of the cars make the runs in the shorter time; that said cars ordinarily make the schedule time; that said passenger-cars of said Union Traction Company and its successors are and have been provided with baggage compartments, in which trunks and the ordinary baggage of travelers are carried, together with water-coolers and closets; that at this time, and as said road has thus 'far been run, it usually runs one passenger-car at a time, but frequently, when the travel is heavy and for excursions, trains consisting of three or more cars are run over said road and over said College avenue and other streets of said city of Indianapolis.” It is further alleged that freight-trains consisting of three ears have been run by said traction company over said College avenue every day, at various times during the day; that said traction company charges a graduated scale of prices according to the distance traveled, except that in the city of Indianapolis, for such local passengers as may be able to obtain passage on its cars, a straight cash fare of five cents is charged, without any right of transfer; that said traction company and its successors do not operate a street railway in said city of Indianapolis and have never so operated; that its cars and railroad system are not intended to accommodate the local traffic within the city, but its road, system and cars are constructed for,and intended to accommodate travelers to and from points beyond the city; that such road, as constructed and operated, is and always has been a commercial road; that the road outside of the city of Indianapolis is not built upon the highway, but is constructed upon a separate right of way purchased by the Union Traction Company, and runs for the greater part of its line parallel with and adjacent to the right of way of the Cleveland, Cincinnati, Chicago & St. Louis Railway — 570 — Company, which operates a steam railroad; that said railroad is operated as a direct and active competitor of said steam railroad, for the carriage of passengers and freight from the cities of Muncie, Marion, Alexandria and Anderson to the city of Indianapolis, and its cars now carry, and for the last twelve months have been carrying, at least one-half the travel between these points; that the Indianapolis Northern Traction Company was organized for the benefit of and by the managers of the Union Traction Company, for the purpose of constructing, owning and operating an electric railroad for the transportation of freight and passengers between the city of Indianapolis and the cities of Noblesville, Tipton, Elwood, Logansport, Kokomo and various intermediate towns and cities, reaching points one hundred miles distant from the city of Indianapolis; that its track has not yet been completed and its road is not yet in operation, but both the road and track are now, in process of construction, and will be completed and in operation on or before January 1, 1904; that it is proposed to be made, and will be made in its construction, equipment and manner of operation, similar to that of the Union Traction Company and its successors, save and except that its ears will be heavier and capable of carrying more passengers and freight and of running at a higher rate of speed; that ears and trains to be run over its road will be run in the same manner, for the same purpose, with the same frequency, and with the same stops as said Union Traction Company’s cars and trains, have been and are now operated; that on September —, 1902, said Indianapolis Street Railway Company transferred to said Indianapolis Traction & Terminal Company all of its rights, franchises and systems of said railway and tracks, and since said time the Indianapolis Traction & Terminal Company has been in full possession and control thereof; that said company will, unless prevented by" injunction, permit the proposed use of its tracks within said city by said Union Traction — 571 — Company and the Indianapolis Northern Traction Company, and their successors and assigns; that on June —, 1903, said Indianapolis Northern Traction Company and .said Union Traction Company entered into an agreement of consolidation, for the purpose of uniting both of said systems of railroad into one road, under the name of the Union Traction Company of Indiana, by the terms of which contract all rights and franchises of each of these companies were to be vested in the consolidated company; that there.upon said consolidated Union Traction Company of Indiana took possession, control and management of the franchises, property and railway system of each of said companies, whether the same were constructed or in process of construction, and thenceforth continued in control and management thereof until July —, 1903, when all the rights, property, franchises and railroad systems of said consolidated companies were transferred and leased to the Indiana Union Traction Company, a company organized under the laws of the State of Indiana, on June 1, 1903, for the purpose of purchasing, leasing, constructing, owning and operating an electric railroad system extending from the city of Indianapolis into and through all the county seats in the State of Indiana except two; that it is the object and purpose of said Indiana Union Traction Company to own and operate such a railroad system from Indianapolis to and through all counties in Indiana north of Marion county; that it proposes and will connect the present Union Traction Company’s constructed system and the Indianapolis Northern Traction Company’s system, noyr under construction, with systems extending into each and all of said counties, and run the cars therefrom and carry passengers and freight into and out of the city of Indianapolis, over said College avenue and along and in front of plaintiff’s property in said city, and thence along other streets to its terminal station therein, under and by virtue of said franchises and contracts held by said Indianapolis — 572 — Northern Traction Company and said Union Traction Company,- that the Indiana Union Traction Company has already under construction different systems of roads extending from the city of Ft. Wayne, Indiana, westward and southward from the city of South Bend, Indiana, and from the city of Chicago, Illinois, eastward and southward, which it proposes to and will complete and consolidate with or transfer to said Indiana Union Traction Company, and operate the same in connection with its present system and run its cars and carry freight and passengers into said. city ' of Indianapolis and out of said city along and over said College avenue tracks along and in front of plaintiff’s property, by virtue of said franchises and contracts held by said Indianapolis Northern Traction Company and said Union Traction Company; that said Indiana Union Traction Company has continued to and does now operate said railroad with the same equipment and in the same manner as the same was operated by the Union Traction Company; that the Indiana Union Traction Company, as the successor to the rights and franchises of said Indianapolis Northern Traction Company and the Union Traction Company, under and by virtue thereof, proposes to and will shortly construct and place in operation over said College avenue and on said road large and heavy sleeping-cars for the use of travelers between the city of Indianapolis, Indiana, and the city of Chicago, Illinois, and other 'distant points in other states; that the number and size of the cars'to be run over said College avenue will continue to increase as the business develops and the system of railroad proposed is completed,* and the systems in connection therewith will be continually extended so as to reach other and more distant points outside of the city of Indianapolis; that the freight business of said road will also increase and the number and size of the freight-trains to be operated on said road will become larger; that said road and systems of roads now in operation by said Indiana Union Traction — 573 — Company and the proposed extension thereof will not be, nor will they constitute, a street railway, but will be a commercial railway, competing with steam railroads for both passengers• and freight for long and short distances; that the running of said interurban ears and trains over and along said College avenue, in front of the plaintiff’s premises, causes the ground to vibrate and shake the houses situated thereon, and thereby has caused the plastering on plaintiff’s said dwelling-house to crack and fall off, and has caused the picture frames hanging upon the walls of the house to fall to the floor; that said noise disturbs the rest and breaks the sleep of plaintiff and her family; that, by reason of the large size of the cars and the noise made by them in running over said road, horses hitched in front of her dwelling become frightened and break loose, and the street is thereby rendered dangerous to all persons traveling thereon; that, in addition to the noise created, the cars also stir up “whirl-winds of dust,” which are carried into plaintiff’s house, and into other houses situated along said street, and damage and injure the furniture and carpets of her said house, and cause much additional labor to be expended in order to keep her said dwelling clean; that the interurban cars which are run over and upon said street are twice as heavy and large as the cars that are ran over the street railroad of said city of Indianapolis; that the use of said College avenue, as herein shown, has rendered it unsafe and unsuitable for the ordinary travel thereover, etc. The complaint then proceeds to show in what manner said street will be rendered unsafe, etc. It is further alleged that the use of said street by these interurban cars greatly interferes with and prevents the comfortable enjoyment by plaintiff of her said home, and causes continual annoyance, alarm and danger; that it has damaged her said real estate and diminished the value thereof $1,000; that the Indiana Union Traction Company as — 574 — serts and claims the right to run over said College avenue, fey virtue of said franchises and contracts of said Union Traction Company and said Indianapolis Northern Traction Company, all of said cars and trains of its present and future system as herein set forth, and the asserting of such claim and right increases the damages to plaintiff’s property and has diminished its value at least $500 and stands and continues as a constant menace against her property, and prevents, and will prevent, the sale of the same for its fair value; that the operation on said College avenue of that part of the system which will come from the Indianapolis Northern Traction Company’s road, as the same is now in process of construction, will very largely add to and increase the discomfort of plaintiff and her family, and will cause additional damage to her said property and diminish the value thereof in the sum of $1,0.00; that the operation of the proposed system of road over said avenue, as the same will be by said Indiana Union Traction Company completed within the next three years, will add still further to the discomfort of plaintiff and her family and the danger to them, and will very largely increase the damage to her said property and will still further diminish the value thereof in the sum of $2,500; that plaintiff has never consented to the use of said College avenue, nor any part thereof, by any of said companies for the operation of said interurban cars thereover; that no damages have ever been assessed or paid her for said use; that the companies so using the same have not, nor do they claim to have, any right to such use, other than such as they have acquired through said franchises from and contracts with the city of Indianapolis, to none of which plaintiff was a party and to none of which she gave her consent; that the present and proposed use of said College avenue in front of plaintiff’s said lot by the Indiana Union Traction Company constitutes an additional servitude and easement upon her “said property, which neither-the public nor the city ©f Indianapolis, nor any of said defend — 575 — ant companies, is entitled to hojd and use without just compensation. Both the present use and the proposed rise are wrongful and without right, and they constitute a cloud upon plaintiff’s title to her said real estate; that she has already been damaged thereby in the sum of $2,000, for which sum she demands judgment. She also prays a decree that none of said defendants' has any right to operate its said cars over and along the street in front of her said lot, save and except that of the Indianapolis Street Railway Company and the Indianapolis Traction and Terminal Company to operate and run a street-car system along same. She further demands the quieting of her title against any right or claim of any other of the defendants, their successors and assigns to run their said cars along said street until they shall have caused her damages -to be assessed, as required by law, and she further prayb that they be forever enjoined from so doing and asserting any right to do so, and for all other proper relief. 1. Appellees herein have filed an answer to appellant’s assignment of errors, by which they (1) deny the errors alleged; (2) set up, and allege in bar of her right further to maintain this appeal, that on March 27, 1905, after the submission of this cause, she sold and conveyed to a person named the real estate described in the complaint; that since said date she has had no interest or title in or to said premises. In support of this- answer counsel for appellees argue that under the facts therein alleged appellant is shown to have no interest in the subject-matter in controversy, and that the appeal should be dismissed. The argument advanced is that the action is to secure an injunction, with an incidental claim for damages, and that inasmuch as appellant’s claim for an injunction is personal, therefore it terminated when she sold and transferred the real estate in question. As we view the complaint, its principal theory is for damages arising out of the alleged wrongs of appellees; the — 576 — injunction being sought to prevent or restrain the continuation of these wrongs in the future until her damages can be assessed and tendered. It is true that, by selling and conveying away all her title and interest in the property described in the complaint, she, in the event the judgment below should be reversed, will be barred from securing an injunction to prevent the damages or wrongs in the future in respect to such premises. But certainly such conveyance will not operate to prevent her from recovering under her complaint any and all damages to which she is shown under the law and the facts to be entitled, and which had accrued by reason of the wrongful acts of appellees at the time she instituted this action. By the conveyance of the property she did not divest herself of the right to recover such damages. Ft. Wayne, etc., Traction Co. v. Ft. Wayne, etc., R. Co. (1908), 170 Ind. 49. The rule is well settled that a complaint which at least states one complete and sufficient cause of action will repel a demurrer addressed to the entire pleading. If there is one complete right of action shown under the facts alleged, the plaintiff must of necessity be entitled to some recovery, and if so entitled her complaint cannot be said to be deficient on demurrer. Therefore, if, under the facts alleged by appellant in her complaint, she is entitled to a part of the relief which she demands, the pleading, under the rule to which we have referred, is sufficient on demurrer, and will serve to present for review upon its merits the question involved in this action. Owens v. Lewis (1874), 46 Ind. 488, 15 Am. Rep. 295; Douglass v. Blankenship (1875), 50 Ind. 160; Bonnell v. Allen (1876), 53 Ind. 130; Bayless v. Glenn (1880), 72 Ind. 5; Baddeley v. Patterson (1881), 78 Ind. 157; Bennett v. Gaddis (1881), 79 Ind. 347; Decker v. Gilbert (1881), 80 Ind. 107; Boyd v. Olvey (1882), 82 Ind. 294; Binford v. Johnston (1882), 82 Ind. 426, 42 Am. Rep. 508. It follows that appellees’ verified answer to the assignment of errors is not sufficient to bar appellant from fur — 577 — ther prosecuting this.appeal. We now pass to a consideration of the cause on its merits. Counsel for appellant argue that the interurban railroad involved in this appeal is clearly shown, by the facts explicitly alleged in the complaint in regard to'its character, mode and methods of operation, not to be a street railroad, but a commercial railroad, engaged in the transportation of passengers and freight between the city of Indianapolis and the cities and towns mentioned in the complaint; that the location and operation of this road over and upon the public street upon which appellant’s property abuts, creates and imposes a new or additional servitude or burden, and, therefore, under the facts, she is entitled to invoke the protection of §21, article 1, of the Constitution of this State, which declares that “no man’s property shall be taken by law without .just compensation; nor, except in case of the State, without such compensation first assessed and tendered, ’ ’ and also to the protection of the 14th amendment to the federal Constitution, which prohibits the state from depriving any person of property without due process of law. The well-settled and unqualified rule in this State is that the owner of land abutting upon a public street or highway owns the land in fee to the center of the street, burdened only by the easement' of the public thereon. This right or ownership of the abutter is, in the strictest sense, under the rule affirmed in this State, recognized as property, of which such abutting owner cannot be deprived without just compensation. City of LaFayette v. Nagle (1888), 113 Ind. 425, and authorities cited; Terre Haute, etc., R. Co. v. Scott (1881), 74 Ind. 29; Terre Haute, etc., R. Co. v. Rodel (1883), 89 Ind. 128, 46 Am. Rep. 164; Board, etc., v. Indianapolis Nat. Gas Co. (1893), 134 Ind. 209. The abutting owner, in addition to his fee simple title, has, distinct from the public in general, special interests or rights in the street or highway lying in front of his prem — 578 — ises. Such interests or rights include that of ingress and egress. Of these special rights or interests the abutter cannot be deprived except upon appropriation by the State to public use, and then only upon payment of a just compensation. Indiana, etc., R. Co. v. Eberle (1887), 110 Ind. 542, 59 Am. Rep. 225; Decker v. Evansville, etc., R. Co. (1893), 133 Ind. 493; Common Council, etc., v. Croas (1855), 7 Ind. 9; Kincaid v. Indianapolis Nat. Gas Co. (1890), 124 Ind. 577, 8 L. R. A. 602, 19 Am. St. 113; Lostutter v. City of Aurora (1891), 126 Ind. 436, 12 L. R. A. 259. The cardinal question, however, with which we have to deal in this case, is real and practical. It is one to be determined, not upon any mere theory or fiction, nor upon the imaginary railway which counsel for appellees apparently have constructed in their argument, but upon the facts alleged in the complaint. Reduced to a simple proposition, it is: Does the railroad of appellees create or constitute a new or additional burden or servitude upon the street in question to that of the public easement therein? Or, in other words, is the location and operation of this railroad along and upon the street upon, which appellant’s property abuts such a new use or appropriation of land as will, in the absence of her consent, or condemnation proceedings, entitle her to sue for and recover damages which she has sustained? It is the settled law in this State that a “steam railroad,” which at the present date is regarded by the courts and text-writers as a “commercial railroad,” in distinction of a street railway, more especially for the reason that it carries both passengers and freight between towns and cities within or without the State, is, when operated over and along the public streets of a town or city, an additional burden or servitude upon such streets. Terre Haute, etc., R. Co. v. Scott, supra; Terre Haute, etc., R. Co. v. Rodel, supra; Chicago, etc., R. Co. v. Whiting, etc., St. R. Co. (1894), 139 Ind. 297, 26 L. R. A. 337, 47 Am. St. 264. — 579 — It is equally well settled that a street railway does not constitute a new use or additional burden upon the public streets over which it is operated. Eichels v. Evansville St. R. Co. (1881), 78 Ind. 261, 41 Am. Rep. 561; Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., supra. These well-established propositions are conceded by counsel for the respective parties herein, and are in accord with the great weight of authority. Originally, many of the higher courts of sister states, influenced by the view as then entertained, that a steam railroad was nothing more than an improved highway, held that it did not constitute an additional servitude when run over and upon the public streets and highways. This holding, however, after further and more careful consideration, was found to be untenable, and thereupon these courts, for a while at least, appear to have adhered to the opposite and extreme view, and held that all railroads must equally be regarded as an additional burden upon the fee of the abutting owner. It was.at last, with much doubt, dissents and conflicting opinions, that the courts of this country yielded, and gave sanction to the doctrine that an urban or street railroad, propelled by animal power, was not a new and additional burden on the streets of a city. In fact this court, in Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., supra, was not unanimous in the view that the location and operation of a street railroad upon public streets was not an additional burden upon the fee of the owner. The question arises, how is the line of demarcation to be drawn between urban or street railroads, which do not constitute an additional servitude, and those which do? In Mordhurst v. Ft. Wayne, etc., Traction Co. (1904), 163 Ind. 268, 66 L. R. A. 105, 103 Am. St. 222, this court, by Dowling, J., said: “The dedication of a street must be presumed to have been made, not for such purposes and usages only as were known to the landowner and platter at the time of such dedication, but for all public purposes, — 580 — present and prospective, consistent with its character as a public highway, and not actually detrimental to the abutting real estate.” Let us ascertain, in the light of the authorities, the character and purpose of an urban or street railroad, which, as they declare, does not constitute a new or additional servitude upon public streets over which such road is operated. The authorities upon this question are in substantial harmony in holding that it is not the use of any particular motive power which distinguishes a street railway from a general traffic- or commercial railroad. Prom among the many authorities we cite the following: Williams v. City Electric St. R. Co. (1890), 41 Fed. 556; Louisville, etc., R. Co. v. Louisville City R. Co. (1865), 63 Ky. 175; Carli v. Stillwater St. R., etc., Co. (1881), 28 Minn. 373, 10 N. W. 205, 41 Am. Rep. 290, 3 Am. and Eng. R. Cas. 229; Funk v. St. Paul City R. Co. (1895), 61 Minn. 435, 63 N. W. 1099, 29 L. R. A. 208, 52 Am. St. 608; Chicago, etc., R. Co. v. Milwaukee, etc., Electric R. Co. (1897), 95 Wis. 561, 70 N. W. 678, 37 L. R. A. 856, 60 Am. St. 137; Zehren v. Milwaukee Electric R., etc., Co. (1898), 99 Wis. 83, 74 N. W. 538, 41 L. R. A. 575, 67 Am. St. 844; Schaaf v. Cleveland, etc., R. Co. (1902), 66 Ohio St. 215, 64 N. E. 145; Rische v. Texas Trans. Co. (1901), 27 Tex. Civ. App. 33, 66 S. W. 324; Hanna v. Metropolitan St. R. Co. (1899), 81 Mo. App. 78; Malott v. Collinsville, etc., Electric R. Co. (1901), 108 Fed. 313, 47 C. C. A. 345; Grand Rapids, etc., R. Co. v. Heisel (1878), 38 Mich. 62, 31 Am. Rep. 306; Chicago, etc., R. Co. v. West Chicago St. R. Co. (1895), 156 Ill. 255, 40 N. E. 1008, 29 L. R. A. 485; White v. Northwestern, etc., R. Co. (1893), 113 N. C. 610, 18 S. E. 330, 22 L. R. A. 627, 37 Am. St. 639; Eichels v. Evansville St. R. Co. (1881), 78 Ind. 261, 41 Am. Rep. 561; Harvey v. Aurora, etc., R. Co. (1898), 174 Ill. 295, 51 N. E. 163; Hartshorn v. Illinois Valley Traction Co. (1904), 210 Ill. 609, 71 N. E. 612; South, etc., R. Co. v. Highland Ave., etc., R. Co. (1898), — 581 — 119 Ala. 105, 24 South. 114; Thompson-Houston Electric Co. v. Simon (1890), 20 Ore. 60, 25 Pac. 147, 10 L. R. A. 251, 23 Am. St. 86; Diebold v. Kentucky Traction Co. (1903), 117 Ky. 146, 77 S. W. 674, 63 L. R. A. 637, 111 Am. St. 230; Wilder v. Aurora, etc., Traction Co. (1905), 216 Ill. 493, 75 N. E. 194; Linden Land Co. v. Milwaukee Electric R., etc., Co. (1900), 107 Wis. 493, 511, 83 N. W. 851; Abbott v. Milwaukee, etc., Traction Co. (1906), 126 Wis. 634, 106 N. W. 523, 4 L. R. A. (N. S.) 202; South Bound R. Co. v. Burton (1903), 67 S. C. 515, 46 S. E. 340; 1 Elliott, Railroads (2d ed.), §§6, 8; Booth, Street Railway Law, §1; 1 Joyce, Electric Law (2d ed.), §§28, 28a; Cooley, Const. Lim. (6th ed.), 683; 1 Lewis, Eminent Domain (2d ed.), §110a. The reasons in the main which courts have advanced in differentiating between the ordinary street railway and what is known as a commercial railroad, and in sustaining their holding that an urban or street railroad does not constitute an added burden upon the streets of a city, are that these latter railroads in their inception were purely urban institutions, intended to facilitate travel by carrying passengers and their ordinary hand luggage from one point within the city to another, and, so far from constituting a new or additional burden, they relieved the streets of the congestion of foot passengers on the sidewalks and of vehicles upon the roadway. They were regarded as the carriages of the masses, and, in a strict sense, á convenience for the people residing or sojourning within the city. They were subject to the reasonable regulation of the municipal authorities, and their use or operation was recognized by the courts as but an improved method of using the streets and, therefore, the burden imposed by them was the same in kind as was originally contemplated or imposed when the streets were opened to public use. They were considered as affording a convenience and serving an advantage to the abutting owner, by providing for him an easy transportation from — 582 — his home to distant parts of the city. By the development of electricity, a new motive power was brought into use, which has led to the construction of other railways, known as interurban, which run from one city or town to another. These roads, such as are here involved, as shown by the facts, are engaged in the business of general commerce, i. e., in transporting passengers, freight, express matter and United States mail in large and heavy cars for many miles between the city of Indianapolis and other cities, and no longer are a mere local convenience, but have become thoroughfares and competitors of the steam roads operating within this State. As shown, appellees are proposing and preparing to enlarge and extend their roads until they become trunk lines, connecting with railroads in adjoining states. In this manner, what was once a mere street railway is being developed and extended beyond its original object and purpose. In Zehren v. Milwaukee Electric R., etc., Co., supra, the court held that an interurban electric railway for the carriage of passengers, operating between the limits of the city of Milwaukee and a country town, was an additional burden upon the highways over which it was located, and could not be constructed without the consent of the abutting owner or the payment of damages. The court, in considering the development or change of urban or street railways into interurban railways, and the additional burden or servitude occasioned thereby, in the course of its opinion said: “The urban railway has developed into the interurban railway, and threatens soon to develop into the interstate railway. The small car which took up passengers ¡at one .corner, and dropped them at another, has become a large coach, approximating the ordinary railway coach in .size, ¡and has become a part, perhaps, of a train which sweeps across the country from one city to another, bearing its load of passengers ticketed through, with an occasional local passenger picked up on the highway. The purely city purpose which the urban railway subserved has — 583 — developed into or been supplanted by an' entirely different purpose, namely, the transportation of passengers from city to city over long stretches of intervening country. When this train or car, with its load of through passengers, is passing through a country town, it is clearly serving no township purpose, save in the most limited sense. It'is very difficult to say that, this use of a country highway is not an additional burden. It is built and operated mainly to obtain the through travel from city to city, and only incidentally to take up a passenger in the country town. This through travel is unquestionably composed of people who otherwise would travel on the ordinary steam railroad, and would not use the highway at all. Thus, the operation of this newly developed street railway (so called) upon the country road is precisely opposite to the operation of the urban railway upon the city street. It burdens the road with travel which would otherwise not be there, instead of relieving it by the substitution of one vehicle for many. However we regard this development of the urban into the interurban railway, it seems utterly impossible and illogical to say that it is essentially the same in its purpose or effects as the'mere street railway, which was held in the case of Hobart v. Milwaukee City R. Co. [1870], 27 Wis. 194, not to be an additional burden on the fee. ’ ’ In our own State the development of interurban railways and the increase in their mileage in the last few years have far surpassed the expectations of their original promoters and organizers. During the year 1907, in addressing the State Board of Tax Commissioners, a prominent promoter of these roads said: “The interurban business has grown beyond expectations. We did not expect to have stations to sell tickets or to have freight houses, but competition with the steam lines brought them and the business has grown and will continue to grow. In fact I do not think we are yet in the beginning of it.” It necessarily must be apparent to all persons, who realize and recognize — 584 — the growth and extension of interurban railways in this State, and the change from passenger traffic to that of a general transportation of passengers, freight, express and mail matter between distant cities, that the city purposes which the street railway was designed to -subserve have been entirely supplanted by the modern interurban railway. By the facts averred in the complaint, which, so far as well pleaded, are conceded by the demurrer to be true, we are advised that the interurban road and system in question in this case in no sense subserves the purpose of a street railway. Its cars, as a general rule, do not stop within the city of Indianapolis for the purpose of receiving passengers to be conveyed to points within the city. The road or roads do a general passenger, freight and express business between places and cities as shown, which are many miles apart. Under the facts, the road appears to be operating within the class or field to which a “commercial railroad” belongs. It does not profess to compete with street railways, but has become a competitor of commercial railroads which are engaged in the furtherance of commerce between cities and towns within and without the State. If this road has entered the field of a commercial railroad, and performs the functions of the latter, it ought to be regarded as such, and should not be accorded, under the law, privileges and rights which alone, because of their character and nature, are peculiar to urban or street railways. > An examination of the statutes of the State bearing upon these interurban roads justifies us in- asserting that the legislature apparently has recognized that they were designed to be commercial roads. The general powers conferred by §5195 Burns 1908, §3903 R. S. 1881, upon companies or corporations operating commercial roads appear to have been substantially duplicated and granted by the legislature in 1903 to companies or corporations operating interurban railroads (Acts 1903, p. 92, §1, §5675 Burns 1908). (1) Both companies are given power to cause preliminary sur — 585 — veys to be made; (2) they may receive aid by donations of real or personal property; (3) both may obtain by purchase or gift land for depots, stations, etc.; (4) they are granted the power to lay out and construct their roads to a designated width, with as much additional width as may he required; (5) each is given the right to cross highways, streams, other railroads, etc.; (6) each has the right to take, transport, carry and convey passengers and property; (7) each has the right to erect and maintain necessary depots, etc.; (8) they have the right to-regulate toll; (9) they have the right to change lines; (10) they have the power of eminent domain. Interurban railways are also authorized to connect and consolidate with roads in this State and in adjoining states (Acts 1903, p. 181, §5690 Burns 1908). Where they are over five miles in length they are authorized to charge for excess in baggage, the same as steam railroads (Acts 1903, p. 225, §5190a Burns 1905). In case they operate for a continuous run of over eighteen miles they are required to provide and maintain a suitable water-closet and a tank containing drinking water in each regular passenger-ear, for the convenience of the traveling public (Acts 1903, p. 250, §1, §5684a Burns 1908). They are also required to fence their rights of way, and are liable for stock killed in like manner as any other railroad (Acts 1903, p. 426, §1, §5707 Burns 1908). By an act approved February 25, 1905 (Acts 1905, p. 45, §5221 Burns' 1908), it is provided: “That any railroad company heretofore organized under the general railroad law and which has heretofore availed itself of the provisions of the act of March 9, 1903 [Acts 1903, p. 271, §1, §5219 Burns 1908], authorizing such railroad companies to operate as interurban, electric or street railways, shall have the right to haul freight, freight-cars and trains by steam locomotives.” These powers and rights serve to indicate the dissimilarity between an interurban railroad and the one which is known and recognized as the urban or street railroad, which, as — 586 — heretofore said, subserves the purpose of the municipality over whose streets it is operated. Under the facts alleged, the interurban road in controversy does not and never has operated as a street railway in the city of Indianapolis. Its cars, and the system to which it belongs, as shown by the facts, are not intended to accommodate the local traffic of the city between points therein. Its cars are constructed for and intended to transport passengers, freight and express matter to and from distant points beyond the city of Indianapolis. It is avérred that this road, “as thus constructed and operated, is and always has been a commercial railroad. ’ ’ We may properly examine some of the authorities in order to discover what distinction is made between railroads which belong to the commercial class and are open to a general traffic, and which in the main are held to constitute a new use or additional burden upon the public streets and highways, and the street railroad which is used, as heretofore shown, for city purposes, and therefore is considered in line with the use for which the street was originally dedicated or appropriated. In Magee v. Overshiner (1898), 150 Ind. 127, 40 L. R. A. 370, 65 Am. St. 358, this court, in considering the well-recognized right of an abutting owner, said: “The owner of the fee in a street which has been dedicated or condemned for a street is entitled to restrict its uses to such as are proper street uses, as stated by most of the decisions, to the uses contemplated at the dedication or condemnation; the public have only an easement for the proper uses of a street. When applied to new uses the fee owner is entitled to compensation. When a use is by proper public authority, and is not an additional burden upon the fee, no compensation is due the fee owner. In the use of the public easement there is no right unreasonably to burden the fee to the special injury and damage of the fee owner. ’ ’ In Eichels v. Evansville St. R. Co., supra, in considering the difference between railroads propelled by steam and — 587 — those by horses, Elliott, C. J., said: “Judge Cooley recognizes the distinction between horse railroads and ordinary steam railroads, and expresses the opinion that the laying down of a steam railroad track does add a new burden, entitling the owner of the fee to compensation, but that laying and operating a horse railroad does not.” The court also quoted with approval from Cooley, Const. Lim. (4th ed.), *556, as follows: “Perhaps the true distinction in these cases is not to be found in the motive power of the railway, or in the question whether the fee simple or a mere easement was taken in the original appropriation, but depends upon the question whether the railway constitutes a thoroughfare, or, on the other hand, is a mere local convenience.” The court further said: “The doctrine of the eminent jurist from whose works we have quoted is fully sustained by the adjudged eases.” As the authorities in general affirm, the motive power of the road is not a distinguishing feature between a street railway and the ordinary commercial railroad. In 1 Elliott, Railroads (2d ed.), §6, it is said: “A street railway has been defined as ‘a railway laid down upon roads or streets for the purpose of carrying passengers.’ The distinctive feature or characteristic of such a railway, considered in relation to ordinary commercial railroads, is that it is intended and used for the transportation of passengers and not of freight. This, and the character of the use of the street, rather than the motive power, distinguish it from the ordinary commercial railroad; and such a railway, laid in a street for the purpose of carrying passengers and facilitating its use by the public, is a street railway, no matter what motive power may be used to propel the cars.” The same author further says: “Railroads operated by electricity and engaged in carrying passengers along the streets of a city are classed with street railways rather than with ordinary commercial roads. Their use being the furtherance of travel upon the streets, may be said to be within — 588 — the original purposes for which the streets were dedicated and laid out, and they do not, therefore, when properly constructed, constitute a new servitude or additional burden for which abutting property owners are entitled to compensation. In this respect, as in most respects, they are governed by the same rules that apply to ordinary street railways operated by animal power, and not by the rules applicable to commercial railroads.” 1 Elliott, Railroads (2d ed.), §8. In Williams v. City Electric St. R. Co., supra, the court, in its opinion, said: ‘ ‘ The difference between street railroads and railroads for general traffic is well understood. The difference consists in their use, and not in their motive power. A railroad # * # which runs at a moderate rate of speed, compared to the speed of traffic railroad, which carries no freight, but only passengers, from one part of a thickly populated district to another, in a town or city and its suburbs, and for that purpose runs its cars at short intervals, stopping at the street crossings to receive and disJ charge its passengers, is a street railroad, whether the cars are propelled by animal or mechanical power. The propelling power of such a road may be animal, steam, electricity, cable, fireless engines, or compressed air; all of which motors have been, and are now, in use for the purpose of propelling street-ears. ’ ’ In Louisville, etc., R. Co. v. Louisville City R. Co., supra, the court said: “A railroad is for the use of the universal public in the transportation of all persons, baggage, and freight—a street railway is dedicated to a more limited use of a local public for the more transient transportation of persons only within the limits of the city. ’ ’ In Carli v. Stillwater St. R., etc., Co., supra, the construction and maintenance upon a public street of the city of Stillwater, Minnesota, of a railroad operated by animal power for the purpose of transferring freight-cars from one line of railroad to that of another running into said city, — 589 — was held to be an additional servitude upon the street, and therefore to entitle the abutting owner to compensation. The court, in that case, said: “It is evident from all the facts that this road is not located on the street because its business is to be derived from the street, and that its purposes would certainly be equally well filled if it was on property of which the defendant should have the exclusive use. On the other hand, the public travel on the alley derives no aid' or advantage from its location, but is and must be more or less impeded thereby. The public would be in every respect as well served if the road were on private property remote from the street. * * * The construction of the track on the street cannot, therefore, be said to be in aid of the public travel for which streets are created, any more than it would be if it was part of a continuous lino of railroad running through the city of Stillwater. * * * The fact that the cars are moved by animal power instead of steam is not a controlling consideration.” In Funk v. St. Paul City R. Co., supra, the court, in distinguishing between commercial railroads and street railways, said: “Nor do street railways carry freight. * * * They get their business from the street, usually in populous cities, where passenger travel is the only business carried on. Street-cars do not usually run beyond the city limits. * * * ‘The distinctive and essential feature of a street railroad, considered in relation to other railroads, is that it is a railroad for the transportation of passengers and not of freight.’ ” In Chicago, etc., R. Co. v. Milwaukee, etc., Electric R. Co., supra, the question as virtually presented in the case at bar received a full and careful consideration in many of its phases. In that case it was held that an electric railway upon a village street, which formed a part of the connecting line between' cities for transporting merchandise, personal baggage, mail and express matter, as well as passengers, constituted an additional servitude upon the lands of abutting — 590 — owners, for which they were entitled to compensation. The court, in considering the question, .said: “The manifest purpose of the amendments was to authorize the construction and operation of commercial railways upon such streets and highways without consent of, or compensation to, abutting owners. The charter of the defendant company contemplates the construction and operation of such commercial railway between Milwaukee and Kenosha, which, of course, on the same theory, might be extended to Chicago. That such commercial railway upon public streets and highways, engaged in the carriage and transportation of merchandise, personal baggage, mail, and express matter, as well as passengers, would tend to obstruct and interfere with the ordinary uses of a street or highway, would seem to be quite manifest. Such use of streets and highways by such commercial railways constitutes, in our judgment, an additional servitude or burden.” In South Bound R. Co. v. Burton, supra, the court affirmed that “the operation of a railroad running to distant points is not a street purpose. It is not ordinarily used to transfer either freight or passengers from one part of the city to another and has no direct connection with the city’s internal traffic or travel, which are distinctive uses of its streets. ’ ’ Rische v. Texas Trans. Co., supra, was an action to enjoin the operation of what was claimed to be a street railway which was transporting freight over the streets of San Antonio. Electricity was the motive power of this road. It appeared that access to the plaintiff’s premises was made inconvenient. The cars upon the road made a great noise, jarred and shook his house, and ran so fast that it endangered the lives of his family. The court in that case held that the plaintiff was entitled to damages. In passing upon the question the court said: “If the railway in question can be classed as a street railway in contradistinction to a commercial railway, then, under the general doctrine of the — 591 — courts of this and most of the other states of the Union, appellant would not be entitled to damages on the ground that streets can be legitimately used by street railways, whatever the motive power, if they are properly constructed. «= =::= * The qUestion then arises, what is a street railway, and can the railway of appellee be placed in that class? * * * The weight of authority, however, is that a street passenger railroad, laid on the surface or established grade of the street, is a legitimate use, while all other railroads are not. ’ ’ It was held that the road in question must be classed as a commercial railroad. In Hanna v. Metropolitan St. R. Co., supra, the railroad company operated an electric railway between Kansas City and Independence. The question in that appeal was whether the road in controversy must be considered and regarded as a steam railroad, and thereby required to fence its right of way under the general statute of that state pertaining to ordinary railroads. It was held that the railroad was subject to the burdens of an ordinary railroad, and was not entitled to the privileges of a street railway. The court, in that case, held that the road was required to erect and maintain fences upon its right of way, as required by the general statute. In the course of the opinion it is said: “A street railroad has been variously defined. As the name indicates, the primary meaning of street railway, or street railroad, is one constructed and operated on and along the streets of a city or town for the carriage of persons from one point to another in such city or town or to and from its suburbs. It is peculiarly an institution for the accommodation of people in cities or towns; its tracks are ordinarily laid to conform to street grades; its cars run at short intervals, stopping at street crossings to take on and discharge passengers, and its business is confined top the carriage of passengers and not freight. Booth, Street Railway Law, 1; Elliott, Roads and Sts., 557; Williams v. City Electric St. R. Co. [1890], 41 Fed. 556; Funk v. St. Paul City R. Co. — 592 — [1895], 61 Minn. 435, 63 N. W. 1099, 29 L. R. A. 208, 52 Am. St. 608.” In Schaaf v. Cleveland, etc., R. Co., supra, the supreme court of Ohio had under consideration a case in which the •question was involved as to whether an interurban electric railway, laid with “T” rails entirely on the side of a public highway, the company operating such road having authority to run an unlimited number of cars and trains for the transportation of passengers, freight, express and government mail, was an -additional servitude upon such highway. It was held that it was; the court asserting in the course of its opinion that, “all things considered, it is reasonably certain from the facts found, that the practical operation of such a road, within its capacity, must necessarily produce annoyance and inconvenience to the plaintiffs, and interfere with their property rights as abutting owners, of the same general character that result from the operation of steam railroads, and become an additional burden on the public highway, and taking of the plaintiff’s property, in the same sense. ’ ’ In Wilder v. Aurora, etc., Traction Co., supra, an electric railroad forming a part of an interurban system, which was authorized to carry freight as well as passengers, baggage, mail and express matter, is held to be a commercial railroad, and to constitute an additional burden on the fee of a public street in said city of Aurora, Illinois. This road was intended to be a part of a railroad system extending from the intersection of North river and Walnut streets, the entire length of Walnut street, to the western limits of the city of Aurora, and there connect with the tracks of the Aurora, etc., Traction Company, thereby forming a continuous electric railroad to the city of Rockford by way of the city of Dekalb. The court in that case, in passing upon the question whether the road involved was a street railroad or a commercial railroad, said, on page 527: “If the road so to be constructed be regarded as merely a street railroad, it — 593 — cannot be regarded as an additional servitude, and the appellant is not entitled to injunction against its construction even though he is the owner of the abutting property and of the fee of the street in front thereof to the center of the same. * * * A railway, authorized to carry freight as well as passengers, becomes a commercial railroad, instead of a street railroad, and such railroad, when laid in a street, becomes an additional burden on the fee, and cannot be laid without the consent of or compensation made to the adjoining property owner. Linden Land Co. v. Milwaukee Electric R., etc., Co. [1900], 107 Wis. 511, 83 N. W. 851. * * * In our opinion, the railroad to be constructed under appellee’s charter, and under the ordinances authorizing it to lay its tracks in the streets of Aurora, is what is called a commercial railroad, and is not a street railroad within the definite and fixed meaning of the latter term. Being a commercial railroad, it constitutes a new and additional servitude upon the fee of the property owner to the center of the street. ’ ’ The court in that ease quoted with approval from 1 Lewis, Eminent Domain (2d ed.), §110a, wherein the author says: “Railroads now exist in great variety as regards motors and motive power, the size and style of ears and coaches and methods of operation and construction. It is probable that these variations will be multiplied in the coming years. It is doubtful whether any permanent and satisfactory classification can now be made. There has been a general concurrence, however, in embracing all railroads in two divisions or classes; (1) commercial railroads, and (2) street railroads. Commercial railroads embrace all railroads for general freight and passenger traffic between one town and another, or between one place and another. =::= * * Street railroads embrace all such as are constructed and operated in the public streets for the purpose of conveying passengers with their ordinary hand luggage from one point to another on the street. ’ ’ The same author — 594 — ■further states: “Considering all the cases and having due regard to the weight of authority and the trend of judicial opinion we should 'say that the general doctrine to be extracted from the street railroad cases is that a railroad is a legitimate street use provided, first, that the road is devoted exclusively to street passenger traffic, and, second, that its track is laid to conform to the surface' of the street, and so as to obstruct ordinary travel as little as possible. This excludes a road with cuts and fills, because of the cuts and fills. It excludes the elevated railroad, because of the elevation of the tracks above the surface and the superstructure which such elevation makes necessary. It excludes the commercial railroad because of the nature of its traffic.” 1 Lewis, Eminent Domain (2d ed.), §115h. That an electric railway to be operated between two cities in different states and to carry passengers and freight is not' a street railroad, but a commercial or trunk railroad, is declared and held in Diebold v. Kentucky Traction Co., supra. Many more quotations from the decisions of the courts and the works of the text-writers, in addition to the above, might be given to show that a street railroad is one of a local character as contradistinguished from a commercial railroad, but to do so would unnecessarily extend this opinion. Keeping in view the principles asserted by the authorities to which we have referred, we may next inquire, in the light of facts and the law applicable thereto, what is the character of the road or roads with which we have to deal in this appeal, and into what class are they placed under the facts as alleged in the complaint. Briefly summing up the facts, we have here presented a traction company with a thirty-year franchise to run passenger-, baggage-, express- and freight-trains. There are no limits to the size of its cars or trains; no limit to the number of trains, nor the rate of speed at which they may be propelled. Tracks laid with “T” rails as heavy and of the same pattern and shape as — 595 — those of the ordinary railroad passenger-cars. The company is actually engaged in operating its electric cars and trains from the city of Marion to the city of Indianapolis, a distance of eighty miles, and from the city of Muncie to Indianapolis, a distance of sixty miles, operating both freight- and passenger-cars. The cars are sixty feet long, and carry 150 passengers. Twenty-eight regular passenger-cars or trains run daily in and out of the city of Indianapolis. Many ears and trains are used exclusively for hauling freight a distance of from ten to eighty miles, a greater part of which is hauled forty miles and over. Eight of the passenger-trains make but one stop between Indianapolis and Muncie, and stop only once between the limits of the city of Indianapolis and the terminal station, a distance of four miles, crossing more than fifty streets within the city of Indianapolis. Its through cars do not stop to take on passengers after leaving the terminal station. Its passenger-cars frequently run in trains of three cars, and it runs freight-trains consisting of three and more cars every day. Passenger-cars are provided with baggage compartments for trunks and ordinary baggage, water coolers and closets, and are twiee the size of the cars run upon the street-car lines in Indianapolis. Outside ’of the city cars run from forty to sixty miles per hour, and within the city and over College avenue at a rate of twenty to thirty miles per hour. Outside of the city of Indianapolis the road is not operated upon the public highway, but on a private right of way, paralleling the Big Four Railroad to Marion and Muncie. It is not intended to, and does not, do a local business, but a through business in travel and freight. It charges a rate of fare forbidden to be charged by a street railroad in Indianapolis and refuses transfers, which the statute absolutely requires from a street railroad operating in the city of Indianapolis. It is extending and will complete lines to Chicago, Illinois, Columbus, Ohio, and Ft. Wayne, Indiana, and proposes to and will put on sleeping-cars to run on — 596 — through cars and trains between the aforesaid cities and other points, thereby transporting all of its traffic over College avenue. It is not a street railroad, but a “commercial railroad,” carrying persons and freight in competition with steam roads both for long and short distances. It shakes the ground, etc., and has damaged plaintiff, as charged in the complaint, etc. Certainly these facts show that there is a wide difference between the railway here involved and what the many authorities which we have cited recognize and regard as an urban or street railway. The fundamental purpose of the road here involved appears not to be to accommodate or sub-serve the travel upon the streets of the city of Indianapolis, but, on the contrary, it is shown to be a thoroughfare between the latter city and other cities or points for the distance of many miles beyond. In its purposes, uses, equipments and mode of operation it is materially different from the urban or street 'railroad, except that it employs electricity as a motive power. It is shown frequently to run passenger-trains composed of three large cars, and to run daily freight-trains of a like number of heavy ears. It is neither a street railroad in fact, nor is it shown to be operated for street railroad purposes. Further to emphasize, we have, under the facts, a railroad which in no sense is operated to promote the utility of the public streets of the city of Indianapolis. It is not merely engaged in doing business between the latter city and its suburbs. It is not an extension of a city street railway over intervening territory between neighboring cities or towns, carrying passengers and light freight, but it is absolutely an independent railway, engaged in a general passenger and freight traffic between distant cities and communities. Its ears are not light and small when compared with those of the ordinary steam roads. • As a result of its operation some of the usual discomforts due to the operation of the ordinary steam roads are present, viz., loud noises, dirt and dust, — 597 — shaking or vibrations of the ground, and other annoyances or detriments which affect the owners of abutting property situated" on the streets over which the road is operated. There is also the presence of danger or peril which continually menace the safety of persons using the public street. Possibly it may be said that a difference in degree in respect to these matters exists. But the question presented is not as to whether it constitutes' a burden to the same degree as that imposed by a steam railroad, but is it a burden upon the public street in addition to that to which it was originally dedicated or appropriated? Surely, under the circumstances, this road, in its character and operation, so nearly approaches the ordinary steam commercial railroad that a dividing line between it and the latter cannot consistently with reason be drawn. Consider'the road and the system to which it belongs all in all, in our opinion it comes clearly within the class of commercial railways, which, as said in 1 Lewis, Eminent Domain (2d ed.), §111, “embraces all railroads for general freight and passenger traffic between one town and another, or between one place and another.” If this character of a commercial road cannot be accepted to test the question in regard to its being an additional servitude upon the fee of the public streets, when, then, and under what circumstances, can the line of demarcation be drawn between roads "which constitute a new use of the streets and an added burden thereon and those which do not? While it may be conceded that the use of the public streets by appellees for the operation of their railways is quite a matter of economy in their favor, still such use, as shown in this case, is a diversion .from and incompatible with the public use to which the streets were originally dedicated or appropriated, and is, therefore, an additional burden upon the fee of the abutting owner, for which the latter is entitled to compensation. We have examined the cases cited by counsel for appellees. Many of these apply to street railways and deal with — 598 — the difference between such of these roads as are run by animalpower and those which are operated by electricity. Some of the cases, notably those of the courts of California, apparently adhere to the view that no railroad constitutes an added burden. The courts of Maine, Oregon and Kentucky, and possibly some others, appear, to an extent at least, to entertain this liberal and antiquated view. This broad doctrine, as our decisions show, has no sanction in this State, and the decisions of these latter courts, of which we have made mention, cannot be regarded or accepted as influential authorities in the determination of the question presented in this appeal. The case as made by the facts herein is quite different from the one presented under the facts in Mordhurst v. Ft. Wayne, etc., Traction Co. (1904), 163 Ind. 268, 66 L. R. A. 105, 103 Am. St. 222, and the two cases are easily distinguishable. It may be said, however, that the latter case is to be confined to the facts upon which the court based its opinion, and is not to be extended beyond its fair import. The ease just cited ivas an action by an abutting owner to enjoin the defendant from constructing and operating an interurban railway over the public streets of the city of Ft. Wayne. The rights, powers and duties of the defendant company in that case, in the construction and operation of its road over the streets of that city, appear to have been defined by an agreement between the city’s board of public works and the defendant company. The railway in that case was limited by the agreement in question in its operation to running one, or, by special consent of the board of public works, at the farthest, two cars at a time, and to the carriage of mail, light express and passengers. Dowling, J., in that case said: “To determine the sufficiency of the ground upon which the right of the plaintiff rests, we must look to the contract between the city and the railroad company, and not to the allegations of expected violations of that agreement by the company. If the — 599 — use of the streets by the defendant in the manner and upon the conditions described and set forth in the contract would not create a new and additional burden upon the street and a deprivation of the plaintiff’s beneficial interest therein, then he is not entitled to any injunction against the construction of the road. Future breaches of that contract, or violations of its terms by the company, resulting in special damages to the property of the plaintiff, may hereafter entitle him to maintain an action against the company for such injuries, but the mere anticipation of such breaches and injuries cannot authorize the court to enjoin the construction and operation of the railroad. It is important, then, to ascertain from the agreement itself what rights in the use of the streets, and in Fulton street among them, were granted to the railroad company, and upon what conditions the company was authorized to use these streets. ’ ’ It is further said in that appeal that “cheap transportation of passengers, light express and mail matter between neighboring towns and cities may be quite as necessary and as largely conducive to the general welfare of the places so connected and their inhabitants as the like convenience within the town or city. Where such transportation is furnished by an interurban electric railroad operated under the conditions and restrictions contained in the agreement between the appellee and the city of Ft. Wayne, we do not think the construction and operation of such a railroad in such a manner constitutes an additional servitude upon the street which entitles abutting property owners to compensation. ’ ’ It will be observed that the court in that ease tied its holding or conclusion down to the facts, conditions and restrictions contained in the agreement between the city and the railroad company. When this latter case is considered in the light of the facts upon which the court based its holding, it is manifest that there is a radical difference or distinction between it — 600 — and the case at bar. In that case the road in controversy had not been constructed. It was only in expectancy, and the court viewed the averments of the complaint in respect to the detrimental results of its operation as not justified by the facts. The results anticipated were regarded as imaginary or fanciful. In the case before us, however, we are dealing with a road, and a system of which it forms a part, as already constructed, and which has been in full operation for several years. The results due to its location and operation are shown to be actually detrimental to the abutting property of appellant, and it is disclosed that she has sustained actual damages. In the case of Mordhurst v. Ft. Wayne, etc., Traction Co., supra, the road in question was held, under the facts, to be consistent with the use of the street by the abutter and the general public, and it was said by the court to be a road, if not directly beneficial to abutting property, at least not detrimental. Applying the principles asserted and the limitations mentioned in this latter case, it would follow that the complaint here involved states a cause of action sufficient oh demurrer. Appellant, having sold and transferred her property, therefore the question as -to her right, under the facts, to be awarded injunctive relief is not considered, but in passing we may say that, in sustaining her right under the facts to recover damages, we do not mean, in addition thereto, to hold that she has the right to exclude appellees from thé use, in operating their roads under the franchises granted by the city, of the public street upon which appellant’s property abuts.