Henry Billings Brown

“ But on examining § 3 of the charter-the source of this almost unlimited power-we find that, so far from its being conferred in precise and definite words, the implication is clearly against the power claimed. In fact, it is only by a strained and unnatural construction that any intention on the part of the legislature to abdicate its authority over the submerged lands of Lake Michigan can be raised. ”

“ In such case the condition upon which the power should be exercised, namely, the consent of the common council, should also be construed as continuous. In other words, the railroad company cannot assert the power and in the same breath repudiate the condition. ”

“ That this was the intention of the legislature is also evident from the proviso of the section 'that nothing in this section contained shall be so construed as to authorize the said corporation to interrupt the navigation of said streams.' The use of this word 'streams' was not only intended to differentiate the waters of rivers from the waters of the lake, but also has its bearing as tending to show that the word 'land' was used in the sense of dry lands, or upland, as distinguished from submerged land. ”

“ Third. That said company shall proceed to locate, survey, and lay out, construct, and complete said road and branches, through the entire length thereof, . . . with a branch also diverging from the main track at a point not north of the parallel of thirty-nine and a half degrees north latitude, and running on the most eligible route into the city of Chicago, on Lake Michigan. ”

“ In delivering the opinion the court observed: 'When the right to use the streets has been once granted in general terms to a corporation engaged in supplying gas for public and private use, such grant necessarily contemplates that new streets are to be opened and old ones extended from time to time, and so the privilege may be exercised in the new streets as well as in the old. ”

“ Such seems to have been the practical construction placed upon it by the city and the railroad company. If the position of the company, that it applies only to the main track, were sound, it would be possible for it, upon establishing the necessity for additional facilities, to locate these engine houses and work shops in localities where they would be an intolerable nuisance to the inhabitants ”

“ In the case under consideration the supreme court took the view that the controversy in that case concerned only the 200-feet strip for the location of the main track; that no question was raised or decided in regard to the right of the railroad company to go beyond the 200-feet right of way, and take submerged lands for an engine house or other purposes named in the charter. This is entirely true ”

“ Road Co., [1] 43 Mich. 140, in both of which it was held that a toll gate, lawfully erected upon land which was subsequently taken into the city, could not be declared a nuisance by reason of the extension of the boundaries, and that the same could not be abated without a violation of the Constitution. ”