Smith v. Jackson & Battle Creek Traction Co.

Grant, J. (after stating the facts). While the bill does not allege the act under which the defendant was organized, we must assume that it was organized under chapter 168 of the Compiled Laws of 1897, being an act to provide for the formation of street-railway companies. That act provides that any company may construct and maintain a street railway in and along the streets and highways of any township upon such terms and conditions as may be agreed upon by the company and the township board. 2 Comp. Laws, § 6446. Under this authority of the legislature, the township board and the company agreed upon terms, a franchise was granted, the road constructed and in operation when this bill was filed. The bill does not set up any facts tending to establish the construction and use of the road along the highway in question as a nuisance in fact. The use of public highways by street-railway companies is now recognized as a legitimate use of the highways, and does not create an ad [25] ditional servitude. Austin v. Railway, 134 Mich. 149 (96 N. W. 35), and authorities there cited. There is no claim in the bill or in the briefs of counsel that the defendant’s railway is constructed in any other than a legitimate and proper manner, or that it obstructs travel upon the highway, or that it is not beneficial to the public in affording commodious and expeditious means of travel. The sole claim of the complainant is that, because the defendant did not procure the consent of the highway commissioner of the township, therefore the existence of the road is a nuisance per se. The franchises granted to the defendant evidently provided for the construction of its road along this short piece of the Territorial highway within the township limits. There is no allegation that additional expense is caused to- the township or to the highway commissioner, in the care and control of the highway, on account of the construction and use of the street railway. The bill alleges that it was to be constructed under the supervision of the highway commissioner. It is to be presumed that the highway commissioner did his duty, and supervised the construction of the road in accordance with the terms of the franchise. Now, after the road has been so constructed under the supervision of the commissioner, and at very great expense, he seeks to virtually destroy it, and that, too, without showing that the public is in any way injured or the way obstructed. Such a proceeding would be most inequitable and unjust. We deem it unnecessary to enter into a discussion of the powers of the highway commissioner and of the board of supervisors over these Territorial roads. Neither is it necessary to determine whether the complainant is now estopped to complain by reason of the assent of his predecessor in office. It is sufficient to a determination of the case to say that the legislature has control over the State and Territorial roads, and may authorize the construction of street railways over them. It has so authorized the construction of these railways along the highways of the [26] townships upon such terms and conditions as the town-, ship and the company may agree upon. We think the authority thus conferred is broad enough to include the State and Territorial roads within the territory of the township, and for whose condition the township is responsible. The highway commissioner has nothing whatever to do with the granting of these franchises. No power in connection therewith is imposed upon him by statute. His sole power is to see that the roads are opened and kept in repair in the same manner as township roads. 2 Comp. Laws, § 4067. If the highway is obstructed to the detriment of the traveling public, he undoubtedly is the proper person to complain, and to take steps to remove or prevent the obstruction. Beyond this power, he has none other. Decree of the court below is affirmed, with costs. The other Justices concurred.