The opinion
Garrison, J.
(dissenting). The questions upon which unanimity is lacking are — what does a trolley company own in the streets of this state, and how should it be taxed therefor? My colleagues think that it owns “an interest in the soil of the highways over which it passes,” and that this is real estate for which it should be taxed at its true value. I think that it owns whatever personal property it has lawfully annexed to the soil of the highway for which it should be taxed at its true value in its permanent environment. This is the point of difference between us.
We agree that it is the settled law of this state that the abutting owner, by reason of the servitude of a surface railway, parts with nothing that he had not previously parted with to the public. We must likewise agree that prior to the imposition of the railway use the estate in the soil of the highway had been so disposed between the private owner and the municipal entity representing the public that in the private owner rested the legal estate to the fee, while in the representative of the public vested the legal estate of an easement sufficiently broad to cover all public uses whatsoever, including that of operating a railway by electricity. Most probably we agree in regarding this easement as a trust to be administered for the benefit of the public. I, at least, so regard it. At this point we diverge. The position taken by the opinion is that the trustee, by permitting one of the public to make a special use of the common right, parts with whatever legal estate is necessary to support such separate easement; whereas, my view is that the trustee permits such use as part of the administra *472 tion of its trust and to that end it must retain its legal estate. Erom the same circumstance from which is implied a partition of the public easement that vested in a single grantee a several interest in the realty, I imply only an executed license to participate in the common easement in an authorized manner. The difference is fundamental and is too far-reaching to be passed over, because, in á given case, its practical bearing upon the question of valuation may be inappreciable. The elaborate reasoning of the opinion delivered in the Court of Errors by Mr. Justice Magie in the case of Camden Horse Railroad Co. v. Citizens’ Coach Co., 6 Stew. Eq. 267, supports the view for which I contend, and is entirely without point if the horse railroad company had at law the easement it sought to have established for it as an equity. The language of Chief Justice Beasley in the same case is likewise irreconcilable with the notion of a partition of the public easement. Id. 283.
The opinion of the same court in the case of Merchants’ Insurance Co. v. Newark, 26 Vroom 145 , was inspired throughout by the same notion. “It is plain,” said Mr. Justice Reed, speaking of a street railway mortgage, “that the real estate is an inconsiderable portion of the property mortgage,” language which was not only inconsistent with the idea that the property of the company in the streets was real estate, but which actually led to the amendment by the legislature of the Exemption act of 1876 by the insertion of the word “personalty” so as to extend the provisions of that act to mortgages covering the property of such corporations. Pamph. L. 1893, p. 494; Gen. Stat., p. 3319.
Indeed, a line of cases beginning with Morris and Essex Railroad Co. v. Newark, 2 Stock. 352 , and Hinchman v. Paterson Horse Railroad Co., 2 C. E. Gr. 75, and ending with West Jersey Railroad Co. v. Camden and C. Railway Co., 7 Dick. Ch. Rep. 31, seems to me to have established the opposite of the two propositions upon which the.present ease is decided, which are that “the right in the soil of the highway acquired by the trolley company” is greater than that enjoyed by the public in general, and that the enjoyment of such a *473 right supposes such a grant of an exclusive easement that a partition of the public right will be implied. I cite such of these cases as happen to be before me: Jersey City v. Jersey City and Hoboken Railroad Co., 5 C. E. Gr. 61; State v. Laverack, 5 Vroom 201 ; Camden Horse Railroad Co. v. Citizens’ Coach Co., 4 Stew. Eq. 525; Camden Horse Railroad Co. v. Citizens’ Coach Co., 6 Id. 267 ; Buttelli v. Electric Railway Co., 30 Vroom 302 ; Halsey v. Street Railway Co., 2 Dick. Ch. Rep. 380; Van Horne v. Newark Passenger Railway Co., 3 Id. 332 .
It is no part, however, of the object of this memorandum to argue the questions involved, or even to present the reasons for the conclusion to which I have come. The point upon which I differ from the views expressed in the prevailing opinion has been sufficiently indicated.