The opinion
DISSENTING! OPINION.
Wilkjks, J.
I concur in the opinion of the majority as to • the liability of the electric railway company for damages for the interference of the poles and wires of the railroad company with those of the telephone company, on Main Street, East *527 Nashville, upon the ground upon which it is placed by the majority; I also concur with the majority as to the liability of the railroad company for all damages caused by conduction, and think the conclusion can properly be arrived at upon the grounds taken by the majority; but I am unable to concur with the majority that the use of the streets by an electric railway company is an ordinary use of the streets in the sense of the statute and charter provisions. The use of a street, in its broad sense, is the purpose or object of the street. This is simply to furnish a highway or passage-way from one portion of the city to another, and from one man’s premises to another. But this .highway may be used for this purpose in many different modes. It may he used by foot-passengers, by horses, by carriages, by wagons, or by street-cars drawn by animal power. These are all ordinary or common uses, and have been from time immemorial. What is, then, the ordinary or legitimate use of the street? We would say, in the words-of Mr. Lewis, in 6 Am. R. R. & Corp. Repts., page 326:
“First. — The right of passage; the right of each member of the community to use the street for travel on foot, with animals, or in vehicles drawn by animals, including the right to such new modes of conveyance as are adapted to the ordinary surface of the highway, and are free to be employed by any member of the community.
“Second. — The right to improve the street . for *528 the purpose of facilitating the right of passage, as by grading, paving, draining, lighting, etc.
■ “ Third. — The right, sanctioned by long usage and acquiescence and by frequent judicial recognition, to lay sewers, gas-pipes, and water-pipes beneath the surface, for use not only in connection with the right of passage, but also in connection with the abutting property.
“Fourth. — The right, possibly, to use the space beneath the surface to a limited extent for pipes or other appliances to distribute any article of convenience or necessity to the occupiers of abutting property, such as steam, petroleum, hot water, electricity, and the like.
“Fifth. — The right, upheld by very numerous decisions, of laying - down a street railroad so as to correspond with the surface of the street, and to be operated by animal power.. Beyond this the authorities do not compel us to go, and reason and justice forbid.”
It has been uniformly held, and it is conceded, that an ordinary horse railway is an ordinary use of the streets. It is virtually the same as a carriage or omnibus line, except the simple fact that the street-car is confined to a single track, while other vehicles may pass at will over other parts of the street between the pavements. 2 Bill, on Munie. Corp., 722; 2 Am. R. R. and Oorp. Repts., page 55, note. This Court has held that a dummy line is a new use and an additional servitude. Street Railway Co v. Doyle, 4 Pickle, 751 . It has *529 likewise been held that a cable-car line is an additional servitude. People v. Third Avenue Railway Co., 112 N. Y., 396 . That an elevated railway is a new use has ■ also been held, and is ' generally conceded. Thus the law stands as to the several improvements upon the ordinary street railroad.
Row, at the time the electric car system was inaugurated, “ an electric street-car was neither usual or common. It ivas not even lawful. Rot until several years after the telephone was in operation was it lawful to use such' power to propel street railways. A net-work of wires; double rows of poles; cross-wires, and long wires charged with dangerous currents of electricity; constant and dazzling flashes beneath the wheels; cars running swiftly, without any visible means of propulsion (the most alarming form of locomotion to horses), and flashing fire all the while; noisy machinery, and all unknown to former ages, and now allowable only by special statute,- can hardly be called the usual and common, or ‘ ordinary,’ use of a public street.”
I think the practicable test to determine whethel’ the use is a new or an ordinary use, is the .character and kind of the motive power used. There are valid and permanent distinctions between different sorts of traffic — between a railroad which conforms to the surface of a street and one which does not, between a railroad with a superstructure and one without a superstructure, between a railroad operated by animal power and one operated *530 by other power. The march of invention cannot obliterate these distinctions, nor can improvements and variations in railroad construction and operation.
All of these distinctions can be applied to the horse railroad, and it is capable of a logical and permanent distinction from all other- railroads. The one particular which distinguishes it from all other railroads is the motive, power. Other railroads may be operated upon the same sort of tracks; other railroads may be operated without a superstructure, or may he confined to street passenger traffic, but animal power is animal power for all time, and no other form of power can be confounded with it. In all the early horse railroad decisions, the identity of the motive power with that applied to ordinary, vehicles was ■ especially relied upon. The moment this basis of 'distinction is cast aside, that moment the whole subject is thrown into inextricable confusion. If the steam motor is allowed, then there Ts no resting place between the smallest motor and the largest locomotive.
“While I think the reason of the rule is that the electric car line is a new use and additional servitude, I do not consider • that the question is settled to the contrary by the authorities. I recognize the number of authorities cited by the majority opinion. Only two of them are decisions of Courts of last resort (Cincinnati Inclined Road v. Telephone Association, 12 L. R. A., 534; Hudson *531 River Tel. Co. v. Watervliet Tel. & R. R. Co., 52 New Eng. Rep.), and these were upon statutes and charters different from ours, aud having peculiar provisions. Moreover, all the cases were applications in equity for an injunction by the telephone company, in which it was necessary to show not only that the telephones were wrongfully interfered with and injured, but also that the remedy at law was inadequate, and the injury not susceptible of being righted by an action at law for damages. The action being brought by the telephone companies, the result was that in most cases the injunctions' were refused. But the. text-writers agree that the question, as between the telephones and railways, is still open and unsettled, and they incline to the view that the electric car system is a new use and additional servitude. Keasly on Electric Wires, 153; Thompson on Electricity, 64; Booth R. G. Law, Sec., 135; 6 Am. R. R. & Corp. Reps., p. 336; 2 Dillon on Mun. Corp., 892, 2d Ed.; 2 Am. R. R. & Corp. Reps., 57.
In this case, for the first time, the naked question of law is presented, untrammeled by the considerations which applications for injunctions in advance involve. The present case is one at law, to recover damages which have been sustained, aud the cases cited and relied on by the majority are not conclusive.
Holding to this view, I am of opinion the electric company is liable for all the damages caused to the telephone plant, aud the judgment of the *532 Court below should be reversed, and judgment given here- for the several amounts claimed.
I concur in this opinion. A. D. BRIGHT, Sp. J.