City of Canton v. Canton Cotton Warehouse Co.

Truly, J., delivered the opinion of the court. The parties to this litigation are (1) the city of Canton, a municipality of this state incorporated by legislative authority in 1836, and by operation of law clothed with “full jurisdiction in the matter of streets,” and having power to “regulate the crossing of railways;” (2) the Canton Cotton Warehouse Company, a private corporation operating under a charter authorizing it to manufacture ice and sell water, but possessing no municipal franchise empowering it to lay pipes under the streets of the city; (3) the Illinois Central Eailroad Company, a foreign corporation operating and maintaining a railroad through this state from its southern to its northern boundary by virtue of a lease from the Chicago, St. Louis & New Orleans Eailroad Company. The city was complainant below, and the other parties defendant, to a bill filed in the chancery court of Madison county. The facts giving rise to this litigation are these: The railroad operated and maintained by the Illinois Central Eailroad Company runs through the city of Canton, traversing its streets with several tracks, and has so run for more than forty years. Canton is a division or relay station on the railroad, where a roundhouse is maintained and where the cars and engines upon its trains are changed. In the ordinary operation of its business at that place, the railroad company consumes from — 280 — 100,000 to 150,000 gallons of water daily. To procure tke needful supply, it has several wells on its property, but the wells frequently failed, whereupon water was obtained from the municipal waterworks at twenty-five cents per 1,000 gallons by agreement and consent of the city authorities, or the engines were taken to other points where the necessary water could be procured. The result of this was that, if an engine had to be taken elsewhere for water, it entailed considerable inconvenience and delay, while, if the water was obtained from the city, there constantly arose disputes as to the amount consumed. The power bouse of the Canton Cotton Warehouse Company, where it conducted its business of manufacturing’ ice, was adjoining the right of way of the railroad, about 1,700 feet north of the roundhouse where the railroad water tanks were maintained. In the prosecution of its business of manufacturing ice, the warehouse company wasted and was compelled to drain off its premises more water each day than was needed by the railroad for the running of its locomotives and other incidental uses. This condition of affairs brought about negotiations between the parties which resulted in a contract being entered into between the warehouse company and the railroad company, as follows: The warehouse company agreed to furnish and lay a four-inch water pipe from its pumping station to the tanks of the railroad company, and to connect with said pipe two first-class meters, to determine the amount of water consumed by the rairoad company; the railroad company agreeing to pay three cents per 1,000 gallons furnished; the contract to last five years from date. Before the pipes were laid according to the terms of this contract, it was discovered that the warehouse company had no franchise empowering it to lay pipes in or across the public streets; and it was further seen that in laying tke water main it would be necessary for it to cross two of the public streets of the city— namely, Feáce and Fulton streets — across both of which the railroad maintained, and had maintained for many years, its cross — 281 — ing. Acting upon legal advice, to avoid a conflict with the municipal authorities over the legality of their action, this contract was abandoned, and subsequently another entered into, whereby for the same price per 1,000 gallons, the warehouse company contracted to furnish the water, but the railroad company agreed to furnish and lay the requisite pipe. For purposes of convenience, a six-inch main was substituted for the four-inch as stipulated in the original contract. In pursuance of this contract the railroad company undertook to lay the water main from the pump station of the warehouse company into the right, of way of the railroad company, and thence south on said right of way to its own water tanks, when it was prevented by an injunction issued on behalf of the city. The grounds upon which the city prayed for and obtained the issuance of the injunction restraining the prosecution of this work were: (1) That this was a collusive and evasive scheme between the warehouse company and the railroad company, whereby it was sought to evade the police power of the city and afford the warehouse company an opportunity to further its private business by the sale of its water. (2) That the Illinois Central Railroad Company simply owned a leasehold estate in the railroad which it operated, and that it had no right to exercise the right of eminent domain under the terms of its lease, and that the laying of this water main necessitated the exercise of this power, because it constituted the establishment of a new servitude on highways, and it was further said, in this same connection, that the railroad lessor had no right of way through the city of Canton, and its tracks had been laid and were maintained simply by acquiescence on the part of the municipal authorities. (3) That in the prosecution of this work it would be necessary to dig a trench across the public streets mentioned, in order to install the water main, and that the digging of this trench, and the necessary reopening of the trench whenever repairs were needed, would constitute a continuous nuisance, and an unauthorized taking of public prop — 282 — erty .for private purposes, and would inflict irreparable damage to public and city, for wbicli there existed no adequate remedy at law. To determine the question of whether or not the arrangement between the railroad company and the warehouse company was evasive or collusive, we need only look at the attendant circumstances, in order to ascertain that the contract was based upon strict business principles. Here was one corporation having a product to sell, and another corporation whose needs demanded that product ; the one being clothed with power to sell, and the other being vested with power to buy. The record discloses that the contract was to the mutual advantage of the parties. The warehouse company was seeking to dispose of a waste or by-product at an advantage; the railroad company was procuring a needed supply of water, of a better quality, more suitable for its use, more conveniently obtained, and at less cost than it could be otherwise procured. The purpose of the contract was legitimate, and contravened no principle of law or morals. The fact that under its provisions the railroad company procured water cheaper than the municipal authorities would supply the private citizen in no wise affects the legality of the transaction. The railroad officials had the right to buy where they could procure the needed supply of water cheapest, and their action was based on good business principles, and was strictly in accordance with their duty to the stockholders of the company. Both parties to the contract were within their legal rights, and so there was nothing to conceal, and no necessity for collusion or evasion. Nor can any sinister motive be attributed to their action in the abandonment of the original contract, and entering into another bv which the railroad company was to furnish and lay the water main. It is manifest that this change in the terms -of the contract was due to the fact of the discovery that the warehouse company possessed no municipal franchise vesting it with power to construct water mains across the public streets, but, — 283 — this fact being proven, it nevertheless remains true that the purpose of the contract, the object in view, the end which both parties sought to attain, was strictly legal. The railroad corn: pany wanted the water; the warehouse company wanted to sell it. The seller had no authority to lay the delivery pipes. It was thought the buyer had. So the buyer assumed the expense entailed by the construction of the requisite water main. This was not a violation of the law, but a commendable effort to keep within its pale; to prevent friction between the contracting parties, on the one hand, and the municipal authorities, on the other; and to still carry into effect in a perfectly legal wa'j the contract which was for their mutual pecuniary benefit. Assuming the power of the railroad company to lay water mains for its own private purposes on its own right of way, it must be conceded that, if the mains were not intended to cross the public streets, the contract in question would be above suspicion, and the warehouse company could, with the consent of the railroad company, have laid the main.along its right of way. The change in the contract was in no sense an attempt to evade the police power of the city. If the Illinois Central Railroad Company had the power to construct and maintain water mains along its right of way and across the public streets, it had like power to contract with others to do the work. And this brings us to the consideration of the material inquiry presented by this record. Has a railroad company the right to construct water mains along its right of way, and, if so, has it the like power to construct such mains over the public streets of a municipality ? But first, and as preliminary to this question in the instant case, the attitude of the Illinois Central Railroad Company must be considered. It is contended by appellant that this company, being a foreign corporation, is not vested with any power to exercise the right of eminent domain in this state, and that the laying of the water main on its right of way is the imposition of an additional servitude, and hence calls for the — 284 — exercise of the power of eminent domain before such main can lawfully be constructed. It is said further that, conceding, as an abstract question, that railroad companies owning their rights of way have the power to construct water mains for the purpose of procuring a needed supply of water, still in the instant case the Illinois Central Railroad Company is not vested with like power, for the reason it is the lessee only of the railroad which it operates, and is only clothed with the power and rights granted by the terms of its lease; and still further it is contended that its. lessor never had a legally acquired right of way through the city and across the streets of Canton, and that tbe construction of its tracks and the subsequent maintenance thereof are solely due to the acquiescence of the citizens and the municipal authorities of said city. The consideration of these contentions requires a proper understanding of the underlying facts, and this renders indispensably necessary a brief examination of the laws to which the presence of the Illinois Central Railroad in this state is to be attributed. The Illinois Central Railroad Company in the year 1882, being first thereunto duly empowered by the legislative authority of the state (Laws 1882, p. 1023, ch. 559), entered into a contract of lease for the term of four hundred years with the Chicago, St. Louis & New Orleans Railroad Company. By virtue of this lease the lessor company leased, granted, and demised unto the Illinois Central Railroad Company its railroad, “extending from the city of New Orleans, in the state of Louisiana, through the states of Louisiana, Mississippi, Tennessee, and Kentucky, to a point on the south bank of the Ohio river,” including all rights of way, depot buildings and grounds, and all other property, with the appurtenances thereunto belonging, and containing this further delegation of power: It (the Illinois Central Railroad Company) was expressly granted the power “to have, hold, exercise, and enjoy all the rights, powers, privileges, and franchises which can be lawfully exercised and enjoyed in or about the said railroad and other demised premises, and the manage — 285 — ment, control, and operation of the same, as fully, amply, and entirely as the same might or could have been held, exercised, or enjoyed by the said party of the first part [the Chicago, St. Louis & New Orleans Railroad Company], had this indenture not been made.” This operated as a full and complete investiture in the Illinois Central Railroad Company of all the rights, powers, privileges, and franchises which its lessor held, enjoyed, or possessed. What were those rights, and what property did the lessee enter into possession of under this lease ? The Chicago, St. Louis & New Orleans Railroad Company was the result of several preceding consolidations between other and different railroad corporations. Its immediate predecessors were the Central Mississippi Railroad Company and the New Orleans, Jackson & Northern Railroad Company, and by the supplementary act ratifying the consolidation of these two companies into the Chicago, St. Louis & New Orleans Railroad Company, and incorporating the last-named company, the said Chicago, St. Louis & Rew Orleans Railroad Company was expressly declared to be a corporation of the state of Mississippi, and, as such domestic corporation, was “invested with all the rights, powers, privileges, liberties, and franchises conferred by the act to which this is a supplement, and especially the rights and powers of section 10 of the act to insure the construction and completion of the New Orleans, Jackson & Great Northern Railroad Company through the state of Mississippi, and of section 10 of the act incorporating the Mississippi Central Railroad Company.” Referring to the acts of incorporation of the several companies, from the consolidation of which the Chicago, St. Louis & New Orleans Railroad Company resulted, and to which by each successive act of incorporation or consolidation the rights, privileges, and franchises of such companies were expressly granted, we find that the existence of a continuous line of railroad from the southern boundary of the state, thence north through the state, is expressly recognized, and its existence and enjoyment of franchises acquiesced — 286 — in and continued. We find further, as bearing on this question, and showing the privileges, powers, and franchises granted by legislative act of this state, and all of which are expressly-kept alive, and finally invested in the Chicago, St. Louis & New Orleans Railroad Company, the following, arranged without reference to chronology: “An act to authorize the consolidation of the New Orleans, Jackson & Great Northern and the Mississippi Central Railroad Companies, and for other purposes. Approved April 18, 1873 [Laws 1873, p. 567, ch. 295]. “Whereas, the New Orleans, Jackson & Great Northern Railroad Company owns a line of railroad from New Orleans, Louisiana, to Canton, Mississippi, and the line thence northward to Jackson, Tennessee, is owned by the Mississippi Central Railroad Company, but now leased to the Southern Railroad Association, a corporate body existing under the laws of this state, and this line the parties concerned are now rapidly extending to Cairo, Illinois, so that a continuous line of railroad shall be formed from New Orleans to St. Louis, Chicago, and all the railroads leading to the Atlantic seaboard and the Pacific coast, and looking to this end said parties have already entered into a contract with the Illinois Central Railroad Company.” Section 3 of an act entitled “An act granting the right of way through the state of Mississippi, and other privileges, to the New Orleans, Jackson & Great Northern Railroad Company:” “Sec. 3. Be it further enacted, that said company are hereby invested with all rights and powers necessary for the construction, repair and maintenance of said railroad through this state, and may purchase such lands and materials for the same as they may consider necessary; and in case they or their agents cannot agree with any owner or owners of land or other material, upon the terms of purchase, or in case the owner shall be under- the age of twenty-one years, or a non-resident of — 287 — the state, feme covert, or non compos mentis, said company may proceed to obtain title to said lands and materials .as in the manner prescribed, and shall be invested with all the powers conferred by the sixth, seventh, and eighth sections of an act to incorporate the Hernando Railroad Company, approved May 13, 1837, so far as the same may be applicable to the construction of a,railroad through this state from New Orleans to the line of boundary separating it from the states of Alabama and Tennessee.” Section 2 of an act entitled “An act to incorporate the Canton & Jackson Railroad Company:” “Sec. 2. Be it further enacted, That the president, directors and company shall have power and authority to build and construct said railroad with one or more tracks or railways from Jackson, in Hinds county, to Canton, in Madison county; and' they and their agents, engineers or workmen may enter upon and use or excavate or embank any land which may be needed for the site of said railroad, or for the erection of any warehouses, depots, offices, or any other buildings or works necessary or useful in the construction of said road, and may take and use any land, timber, gravel, stone, or other materials necessary for the construction of said road, or its works, or to build, erect and repair bridges, culverts, dams, or other things necessary for the same.” Section 13 of the same act: “Sec. 13. Be it further enacted, That whenever, in the construction of said railroad, it shall become necessary to cross or intersect a public road or highway, it shall be the duty of said president and directors so to construct said road across such public road or highway as not to impede the progress or transportation of persons or property along the same, or when it shall be necessary to pass through the lands of any person it shall also be their duty to provide for such person proper ways to cross said railroad from one' part of his land to another.” Section 2 of an act entitled “An act to incorporate the New Orleans & Jackson Railroad Company and for other purposes:” — 288 — “Sec. 2. Be it further enacted, That whenever, in the construction of said road, it shall be necessary to cross or intersect any established road or way, it shall be the duty of the president and directors of said company so to construct said road as not to impede the passage of persons or property along the said highway; and when it shall become necessary to pass through the lands of any individual, it shall be their duty to provide for such individual a proper wagon way across said road from one part of his land to the other; and where said road shall run through the enclosures of individuals, it shall be the duty of said company to dig and keep in repair the necessary stock ditches in order to protect such enclosures.” Section 2 of an act entitled “An act to incorporate the Holly Springs Railroad Company:” “Sec. 2. Be it further enacted, That whenever, in the construction of the said railroad, it shall be necessary to cross or intersect any established road or way, it shall be the duty of the said president and directors so to construct the said railroad across any road already or hereafter to be established by law, as not to impede the passage or transportation of persons or property thereon; and when it shall be necessary to pass through the land of any individual, it shall also be their duty to provide for such individual a proper wagon way across said railroad from one part of his land to another.” By these references it becomes evident that the Chicago, St. Louis & New Orleans Railroad Company was clothed with complete power to do any and all acts which might be necessary to insure the successful maintenance and operation of its line of railroad throughout the state. The object which preceding legislation had in view was the encouragement of various railroad corporations so as to insure the construction of a line of road which should run without break, traversing the entire state, and link together the markets of the north and the fields and factories of the south. This end had already been accomplished at the date of the incorporation of the Chicago, St. — 289 — Louis & New Orleans Railroad Company. The continuous line of railroad was already in successful operation throughout the state, and it was only necessary to clothe the company then coming into existence and obtaining possession of the line with all necessary powers to insure its continued and successful operation. This company, in assuming charge' and control of the railroad already constructed, was clothed, as successor, with all the powers, privileges, and franchises with which each and every prior corporation had been by legislative authority invested. We think it absolutely indisputable that the acts referred to, recognizing and acquiescing in the enjoyment of a franchise by a railroad corporation through the state of Mississippi and through each one of the municipalities mentioned in its charters and traversed by its line, considered in connection with the further fact that a right of way “from Jackson to Canton,” and “from Canton northward,” and “through the state,” was in express terms granted to the corporations named, did do what they undertook to do, and that evidently was to grant and delegate to the Chicago, St- Louis & New Orleans Railroad Company full power to do all acts necessary to the completion of the construction and incidental to the subsequent maintenance of the road, wherever it might, under the terms of its charter, lawfully be laid. Hazlehurst, Rec. v. Freeman, Trus., 52 Ga., 245; Rio Grande R. R. v. Brownsville, 45 Tex., 88; M. & E. R. R. Co. v. Central R. R. Co., 31 N. J. Law, 205, 212; C. & N. W. Ry. Co. v. C. & E. R. R. Co., 112 Ill., 589; Com. v. Erie, Etc., R. R. Co. (Pa.), 67 Am. Dec., 475. Power, as we have seen, was expressly granted to cross any “public road or way;” and it is now finally and firmly established by the adjudications of our own court and other authorities that these terms refer, unless a contrary intention plainly appears, not only to country highways, but to municipal streets as well. Hamline v. Railway Co., 76 Miss., 417 (25 South., 295); Smith, Mun. Corp., sec. 1495; Elliot, Roads and — 290 — Streets, sec. 1, note 3, and cases cited. To hold that a grant of a right of way through a state did not carry with it the power to cross over highways of every description would be to render nugatory every act of incorporation granted to a railroad company. In the very nature of things, it would be impracticable, if not impossible, to specify in each act of incorporation every street and road, to be, or which might be, crossed by the projected railroad; and yet it is a matter of common knowledge that no railroad can possibly traverse a populous state without crossing many thoroughfares, both urban and rural. It was certainly not the intention of the Legislature that the great march of progress in which railroads are so often the leaders could be interfered with or impeded by an arbitrary refusal to grant a right of way by any municipal body. To so hold would have the inevitable effect of compelling railroad companies not to run through the municipalities of the state, but to avoid them. That this was not the legislative design, and is not the true view, but is directly violative of the public policy of our state, is plainly shown by all past legislation on this subject; and by reference to section 181 of our present constitution, where it is made compulsory upon every railroad passing within three miles of any county seat, even when not mentioned in its charter, to pass through the same, and to maintain a depot, provided the town or its citizens will grant a right of way and sufficient depot grounds therein; the object clearly being to prevent property values in an established county seat being injured by the locating of a line of railroad a short distance therefrom; and this is ah implied recognition on the part of the framers of our constitution of the great underlying truth that railroads, properly conducted and under reasonable regulations, are a power for good in the upbuilding of the material prosperity of a community. In this state the power of the legislature over municipal streets is plenary, unless in exceptional cases not here presented. — 291 — It has the power to divest the municipalities of all control over their streets, and authorize their use by corporations without compensation to the municipality. It is a question of legislative will and intent, not a question of power. City of Meridian v. Telegraph Co., 72 Miss., 912 (18 South., 84); Dillon, Mun. Corp., secs. 680, 683, 701; Smith, Mun. Corp., sec. 1309. With this principle clearly in view, looking now to the facts of this case, and bearing in mind the needs of a railroad for its successful operation, the question next arises as to what rights a railroad acquires in its right of way, and, further, whether there is any difference in the extent of these rights where the right of way is over private property, or where it traverses public streets or highways. It should be borne in mind that both railroad corporations and municipal corporations are created solely by legislative authority, and are clothed, in this connection, at least, only with such powers as are expressly granted in the creative act which vitalizes and brings them into existence. By the grant to a railroad of a right of way, whether that grant be made by legislative act over public lands or across public highways, or by condemnation proceedings, donation, or purchase through private property, certain rights in the use of its right of way are acquired by the railroad. It has the right to do all things with its right of way, within the scope of its charter powers, which may be found essential or incidental to its full and complete use for the purpose for which it was acquired. Thus it has been held that as a railroad cannot be successfully constructed or advantageously operated without establishing proper grades, so that trains may be safely and speedily transported over its tracks, the abutting owner has no claim for compensation for any earth that may be removed from the right of way, or for damages by establishing in a proper manner a grade thereon. R. R. Co. v. Brown, 64 Miss., 482 (1 South., 637); Cassidy v. Old Colony Ry. Co., 141 Mass., 174 (5 N. E., 142). It is also settled that as railroad companies cannot discharge the duties — 292 — incumbent upon them as public carriers of freight and passengers, and cannot transport the many trains required by the needs of commerce and travel with safety or security to life or property, without the maintenance of á telegraph system, they have the right to establish a system of wires ana posts over their rights of way, and that this is not the imposition of an additional servitude, within the legal meaning of that term, authorizing an abutting owner to claim additional compensation. American Tel. & Tel. Co. v. Pearce, 71 Md., 541 (18 Atl., 910; 7 L. R. A., 200); Tel. Co. v. Rich, 19 Kan., 517 (27 Am. Rep., 159); Taggart v. Street Railway Co., 16 R. I., 688 (19 Atl., 326; 7 L. R. A., 205); Randolph, Em. Dom., sec. 210. The basic principle here, as in the case of municipal control of highways, is essentially the same. Railroad companies are vested with power to devote the right of way to any purpose within the scope of the original condemnation or acquisition, and for the consequences flowing from such use the original owner is presumed by law to have been fully compensated. They may devote the right of way which they have acquired to any use indispensable to or which will facilitate the fulfillment of the objects of their corporate existence, whether these uses be by grading, constructing of telegraph lines, or other incidental uses requisite for the convenient, safe, and successful conducting of their business and regular running of their trains. Does the use to which the Illinois Central Railroad Company desires to devote its right of way in the instant case fall within the category of incidental uses included within the original condemnation or acquisition, or is it a use foreign to its purpose and outside of its needs ? It is hardly necessary to state that as railroad trains are pulled by locomotive engines, and as steam is the propelling power, fuel and water are both absolutely indispensable to their movement. As the power cannot be generated without heat, so water is required in order to bring into existence the required motive energy. If water, then, is necessary, a railroad company — 293 — certainly lias the right to purchase it, or procure it in any lawful method most convenient, whether by wells dug on its right of way, or by purchase from others. Hougan v. M. & St. P. Ry. Co., 35 Iowa, 558 (14 Am. Rep., 502). This much being proven, it follows to our mind, irresistibly, that it has the power to lay such conduits as are required to bring the water from the source of supply to the place of use. It can hardly be seriously contended that a railroad company clothed with power to grade its right of way and to remove the earth therefrom, to lower or raise at pleasure the surface of the ground, and to dig wells for the purpose of obtaining water, would not likewise have the power to dig thereon a trench and lay pipes for the purpose of conveniently conveying the water needed to supply the motive power. We think it manifest, therefore, that if the water main in question was to be laid solely on that portion of the right of way of the railroad obtained by private conveyance or condemnation of private property, the railroad company would be clearly within its rights in so installing it. And we are unable to see that there is any distinction, based upon any sound legal principle, in the power of a railroad company to make such proper use of its right of way as the needs of its business may demand, whether such right of way is acquired through private property by donation, purchase, or condemnation, or granted by legislative enactment over public property, streets, or highways. If it be necessary for a railroad company to construct a telegraph line, or raise or lower a grade where its right of way runs through private property, the same conditions demand the same treatment when the right of way traverses streets or highways. The broad, fundamental principle is: In the construction or maintenance of its line of road, a railroad company is vested with all such powers as may be requisite for the successful consummation of the object for which it was granted corporate existence. Take the in-, stance of an interurban line of cable railway. Should a charter be granted by the state to such a corporation, which, from the — 294 — very nature of the power by which the cars are run, requires that a trench shall be dug, and a cable laid over its entire route, could it be successfully contended that the grant of a franchise would not carry with it, even without special provision, the power to perform such work and to dig such trenches as would be indispensable for the construction of its line of road? Clearly not; the reason being that the work is a mere incident to the completion of the purpose for which the charter was granted, and upon which the very existence of the corporation would depend. Just as a cable is indispensable for the running of such a road, so is water required to produce the propelling power used by steam railroads. The one is no more necessary to the successful operation of the first than is the latter indispensable to the other. This being so, and the lessor of the Illinois Central Railroad Company being expressly vested with all requisite powers, privileges, and franchises, and these, in turn, by the broad and general provisions of its lease contract, being transferred to the Illinois Central Railroad Company, and the power of the legislature to grant the franchise being unquestioned, we see no escape from the conclusion that such railroad company is strictly within its rights in laying the proposed water main over its right of way, whether the same traverses private property, or crosses the public streets of a municipality, through which, by legislative enactment, its lessor acquired the right to construct and maintain its line of road. Especially where, as in the instant ease, the right to so cross the streets was asserted and exercised by the railroad company long prior to any express legislative grant to the municipality of power to “regulate the crossings of railways,” and such use has been acquiesced in and tacitly acknowledged by the municipal authorities and the citizens continuously and uninterruptedly for nearly half a century. See Smith, Mun. Corp., sec. 1309e; Chicago v. Union, Etc., Co., 164 Ill., 224 (45 N. E., 430; 35 L. R. A., 281). Under these circumstances, the fact that the Ulinois Central Railroad Company is a foreign cor — 295 — poration is of no importance. It is not compelled to resort to the power of eminent domain. It is but exercising a right already acquired by its lessor, and to which it has been expressly subrogated. We do notnhere decide whether, under sec. 1Y of our constitution, the construction across the streets of such water main would or would not entitle the abutting owners on the streets to recover compensation. That is not the case here. The municipality has no such title to the fee of the streets as entitles it to claim compensation from a railroad company or other corporation which by virtue of a legislative franchise occupies a portion of the public streets for crossing. Meridian v. Tel. Co., supra; Randolph, Em. Dom., secs. 297-365; People v. Kerr, 27 N. Y., 188. We recognize the Veil-established distinction between cases of longitudinal occupancy of streets and cases where the highways are simply crossed in the construction of the line of railroad, but that distinction, as we understand this record, is not brought into question in this case. The only taking of the streets of the city of Canton is by the crossing by the tracks of the railroad, and this power, in our judgment, was expressly granted to the lessor of the Illinois Central Railroad Company, by any just interpretation of the various legislative acts of incorporation hereinbefore referred to. The remaining question in the case is of easy solution. It is a well-established principle of equity jurisprudence that any unauthorized occupancy of a street constitutes a nuisance, which can by equity be enjoined or prohibited. But here there is no unauthorized occupancy of the public streets of the city of Canton, and no proof that their free use will be permanently interfered with, or that any irreparable damage will-be inflicted, and hence there is no ground for the interposition of the restraining hand of a court of equity. Faust v. Pass. Ry. Co., 3 Phila., 166; Danville, Etc., R. R. Co. v. Com., 73 Pa., 38. Under the facts of this record, all that is sought by the Illinois — 296 — Central Railroad Company is tbe temporary and partial obstruction of the streets for tbe short time required for the laying of tbe water main. Tbis it has tbe right to do, and tbis power is expressly recognized as a general proposition as appertaining to all railroad corporations by § 3555, Code 1892. For all damages proximately resulting from such laying of tbe water main and tbe digging of tbe trench, tbe railroad company, by express statutory provision, would be responsible. Elliot, Roads and Streets, secs. 809-882. For these reasons, we are of the opinion that the bill of complaint herein states no proper cause for injunction, and, upon the facts disclosed, the decree of the chancellor dissolving the injunction was correct, and is affirmed.