cluding the use of them for the removal of coal and timber from the remaining lands, in so far as such use did not interfere with the reasonable exercise or enjoyment of the easement herein sought to be acquired. The instruction. of that court did not make this clear to the jury, but on the contrary told the jury, in effect, that the power company could, capriciously or otherwise, exclude the landowners from any use of the strip. In this the court committed error." In Alabama Power Co. v. Keystone Lime Co. (1914) 191 Ala. 58, 67 So. 833, Ann. Cas. 1917C, 878, the court held that where a power company condemned a right of way for the erection and maintenance of transmission lines for electricity, it acquired only the surface, and any mineral deposits therein would remain the property of the owner. In Alabama Power Co. v. Sides (1925) 212 Ala. 687, 103 So. 859, a proceeding to condemn a strip of land for an electric power line, the trial court refused to charge the jury that the power company would acquire no right to fence the right of way. It was held in appeal that no such right would be acquired, and that the court should have so charged. In the reported case (COLLINS v. ALABAMA POWER Co.) it was held that under a grant of a right of way to a power company, which authorized it to maintain electric transmission lines with "the right to cut and keep clear all trees and undergrowth and other obstruction on said strip," a dwelling house which encroached on the company's right of way was an obstruction which it could compel the owner to remove. In Brown v. Wisconsin-Minnesota Light & P. Co. (1919) 170 Wis. 288, 174 N. W. 903, the court held that where the plaintiffs sold a strip of land to a power company for a transmission line, the contract providing that the land was to be used as a right of way only, and that the trees might be trimmed so as not to interefere with the lines, the power company had no right under the contract to cut down trees, even though it would otherwise be unable to build the transmission lines. In Kesterson v. California-Oregon Power Co. (1924) 114 Or. 22, 228 Pac. 1092, reversing (1924) Or., 221 Pac. 826, a case not strictly within the scope of this annotation, the defendant power company was granted a right of way, in part, as follows: "Said second party shall have the right to dig holes for and erect its poles, cross arms, and wires along said line and to maintain the same, and to cut all brush and trees therefrom, and at all times to enter said premises and to do what is reasonable, proper, and necessary thereon; and to maintain gates at all fences crossed by said lines and keep private locks thereon, and to permit no one, except employees of the said party to enter therein. Said first parties, however, reserving the right to cultivate said right of way and otherwise use and enjoy the same. The party of the second part agrees to reset any pole or poles, the moving of which may be necessary on account of mining operations by said parties of the first part." It was held that the act of a lessee from the grantor of land, including the land composing the right of way, in stacking lumber on the right of way, was a wrongful in vasion of the right granted to the power company to enter on the tract at all times and to exclude therefrom all persons except its own employees. The court said: "At the outset, we note that it is a grant of a 'right of way' or passage upon which the defendant has at all times the right to enter and 'do what is reasonable, proper, and necessary thereon.' We cannot conceive that any ordinary power line will stand perpetually without repair. This involves the necessity of hauling, upon the right of way, materials with which to maintain the line, such as Foles, insulators, cross arms, wire, etc. How can this be accomplished if the right of way is obstructed with piles of lumber 15 feet high, as the complaint shows existed here? Again, the defendant is given the right to permit no one except its own employees to enter upon the right of way. Evidently the meaning of this language is to grant to the defendant the exclusive possession of the tract, at least as against third parties. The exception to this is the reservation by the grantors of 'the right to cultivate said right of way and otherwise use and enjoy the same,' and the further provision about necessary resetting of poles to avoid interference with mining operations. It is not reasonable that the phrase 'otherwise use and enjoy the same' should be construed to let in every kind of occupancy 'otherwise' than cultivation, for that would defeat the very deed itself. . . . The only penalty prescribed against the defendant in the whole document is the payment of damages to live stock or growing crops caused by breaks in the wire or traveling over the right of way. Lumber of some third party is neither live stock nor growing crops. Of what benefit is it that the defendant may cut all brush and trees from the tract, if that growth is to be succeeded by high piles of more inflammable lumber? The evident design of the instrument is to give to the defendant the exclusive possession of the land as particularly bounded in the deed, except for cultivation and live stock of the grantors thereon, and pos sible future mining operations." W. M. CHICAGO, LAKE SHORE, & SOUTH BEND RAILWAY COMPANY, Eminent domain, § 258- transportation of freight on city streets additional servitude. 1. The mere fact that freight being transported to and from a point on a street so that it must in any event be carried upon and along the street, or some part of it, by some means, whether in drays, trucks, or wagons running upon the pavement, or in cars running on rails, is hauled in freight cars operated with the consent of the city on the tracks of an interurban street railroad, does not of itself constitute an additional servitude. [See annotation on this question beginning on page 1472.] pany from hauling freight thereon, in violation of the terms of the franchise which it received from the city, after it, in accordance with the permission of a statute, surrenders its franchise and receives an indeterminate permit placing the road under authority of the public service commission. APPEAL by defendant from a judgment of the Superior Court for Elkhart County (Hile, J.) in favor of plaintiffs in an action brought to enjoin defendant from operating freight cars or to haul freight upon and along its interurban railroad tracks in a city street. Reversed. The facts are stated in the opinion of the court. Messrs. Worth W. Pepple, Harry R. Wair, Arthur L. Gilliom, Attorney General, Ira Church, and Willard Chester for appellant. Messrs. Eli F. Seebirt and Daniel D. Schurtz, for appellees: Plaintiffs had a right to bring an action of injunction restraining the breach of contract between defendant and the city, since the breach affects them. Muncie Natural Gas Co. v. Muncie, 160 Ind. 97, 60 L.R.A. 822, 66 N. E. 436; 3 Dill. Mun. Corp. § 1244; Brown v. Atlantic & B. R. Co. 126 Ga. 248, 55 S. E. 24, 7 Ann. Cas. 1026; Princeton v. Princeton Electric Light & P. Co. 166 Ky. 739, 179 S. W. 1074. The city of South Bend, having exclusive power over its streets, possessed the right to make a contract containing terms affecting only the interests of the city and the utility, and in which the public generally and the state have no interest. Winfield v. Public Serv. Commission, 187 Ind. 53, P.U.R.1918B, 747, 118 N. E. 531; Oshkosh v. Eastern Wisconsin Electric Co. 172 Wis. 85, 178 N. W. 308. The right to prescribe what use could be made of a city street was the private business right of the city of South Bend. It did not involve any legislative power such as determining rates and service. Indianapolis v. Consumers Gas Trust Co. 140 Ind. 117, 27 L.R.A. 514, 49 Am. St. Rep. 183, 39 N. E. 433; Indianapolis v. Indianapolis Gaslight & Coke Co. 66 Ind. 396; Muncie Natural Gas Co. v. Muncie, supra; Dill. Mun. Corp. § 109; State ex rel. Tacoma R. & Power Co. v. Public Serv. Commission, 101 Wash. 601, P.U.R.1918E, 277, 172 Pac. 890; Oshkosh v. Eastern Wisconsin Electric Co. supra. The indeterminate permit emanating from the state permits the utility to do only the things theretofore licensed or permitted by the state through the municipality. La Crosse v. La Crosse Gas & E. Co. 145 Wis. 408, 130 N. W. 530; Calumet Service Co. v. Chilton, 148 Wis. 334, 135 N. W. 131; State ex rel. Kenosha Gas & E. Co. v. Kenosha Electric R. Co. 145 Wis. 337, 129 N. W. 601; Oshkosh v. Eastern Wisconsin Electric Co. supra. The city had the right to grant, or to refuse to grant, a franchise to the appellant. If it chose to grant the same, it could annex such limitations to the grant as it considered necessary for the protection of the citizens. Muncie Natural Gas Co. v. Muncie, supra; Western Paving & Supply Co. v. Citizens' Street R. Co. 128 Ind. 531, 10 L.R.A. 770, 25 Am. St. Rep. 462, 26 N. E. 188, 28 N. E. 88; Indianapolis v. Consumers Gas Trust Co. 140 Ind. 107, 27 L.R.A. 514, 49 Am. St. Rep. 183, 39 N. E. 433; Cambria Iron Co. v. Union Trust Co. (Union Trust Co. v. Richmond City R. Co.) 154 Ind. 291, 48 L.R.A. 41, 55 N. E. 745, 56 N. E. 665; Noblesville v. Noblesville Gas & Improv. Co. 157 Ind. 162, 60 N. E. 1032; Dill. Mun. Corp. §§ 1229, 1304; Vincennes v. Citizens' Gaslight Co. 132 Ind. 114, 16 L.R.A. 485, 31 N. E. 573; Indianapolis Cable Street R. Co. v. Citizens Street R. Co. 127 Ind. 369, 8 L.R.A. 539, 24 N. E. 1054, 26 N. E. 893; Galveston & W. R. Co. v. Galveston, 36 L.R.A. 33, note; State ex rel. West Allis v. Milwaukee Light, Heat & Traction Co. 166 Wis. 178, 164 N. W. 837; Oshkosh v. Eastern Wisconsin Electric Co. 172 Wis. 85, 178 N. W. 308. Where a municipality, acting under authority from the state, enters into a contract with a public utility and imposes terms and conditions of a proprietary nature upon the right of the utility to occupy the streets, any act of the legislature attempting to relieve the public utility from such terms and conditions would be invalid as an impairment of the contract. New York v. Eighth Ave. R. Co. 43 Hun, 614; Interurban R. & Terminal (Ind., 152 N. E. 167.) Co. v. Public Utilities Commission, 98 Ohio St. 287, 3 A.L.R. 696, P.U.R. 1919B, 212, 120 N. E. 831; Vicksburg v. Vicksburg Waterworks Co. 206 U. S. 496, 51 L. ed. 1155, 27 Sup. Ct. Rep. 762; Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77; Southwest Missouri R. Co. v. Public Serv. Commission, 281 Mo. 52, 219 S. W. 380; Columbus R. Power & Light Co. v. Columbus, 249 U. S. 399, 63 L. ed. 669, 6 A.L.R. 1648, P.U.R. 1919D, 239, 39 Sup. Ct. Rep. 349; Grand Trunk Western R. Co. v. South Bend, 227 U. S. 544, 57 L. ed. 633, 44 L.R.A. (N.S.) 405, 33 Sup. Ct. Rep. 303; Louisville v. Cumberland Teleph. & Teleg. Co. 224 U. S. 649, 56 L. ed. 934, 32 Sup. Ct. Rep. 572; Northern Ohio Traction & Light Co. v. Ohio, 245 U. S. 574, 62 L. ed. 481, L.R.A.1918E, 865, 38 Sup. Ct. Rep. 196; Wolff v. New Orleans, 103 U. S. 369, 26 L. ed. 399; Winfield v. Public Serv. Commission, 187 Ind. 53, P.U.R.1918B, 747, 118 N. E. 531; Chicago v. Sheldon, 9 Wall. 50, 19 L. ed. 594. The use to which defendant put the street constituted the imposing of an additional servitude upon the appurtenant property. Kinsey v. Union Traction Co. 169 Ind. 563, 81 N. E. 922; Cadwell v. Connecticut Co. 85 Conn. 415, 40 L.R.A. (N.S.) 253, 83 Atl. 215, 444, Ann. Cas. 1913C, 401. Ewbank, J., delivered the opinion of the court: The appellees, seventy-one in number, were the plaintiffs below, and brought this action to obtain an injunction forbidding the defendant company (appellant) to operate freight cars and trains of freight cars or to haul freight upon and along its interurban railroad tracks in La Salle avenue in the city of South Bend. A complaint in two paragraphs and a supplemental complaint having been filed, the defendant filed a demurrer to each paragraph as modified by the facts stated in the supplemental complaint, which demurrer was overruled. An answer of general denial was then filed, after which the cause was tried by the court, and, upon proper request, a special finding of the facts was made on which the court stated five conclusions of law. These conclusions were to the effect that the defendant company has no right to haul freight on its railroad in La Salle avenue except in its baggage and express cars, that it has no right to operate thereon more than two baggage or express cars in any one train, or to operate any freight cars thereon except to haul necessary materials for use in the repair of its tracks and the operation of its railroad, and that plaintiffs are entitled to a permanent injunction forbidding defendant to do any of the things mentioned which the court decided it had no right to do. Judgment was rendered perpetually enjoining defendant from hauling or carrying freight on its railroad on La Salle avenue in said city of South Bend, excepting parcel express, baggage, and small merchandise carried in baggage or express cars, and excepting materials for repairing and maintaining its tracks and operating its railroad, and perpetually enjoining it from operating freight cars and freight trains thereon. Error is assigned upon each conclusion of law and upon overruling the demurrer to the complaint. The special finding recites in the main the facts alleged in the complaint and supplemental complaint to the following effect: That each of the plaintiffs, severally, is the owner of a lot with a dwelling house thereon, all of which lots abut on that part of La Salle avenue that is used exclusively for residence purposes; that said residence portion of the avenue extends eastward from where La Porte avenue crosses La Salle avenue 3,500 feet to Michigan avenue, and is traversed by defendant's interurban railroad tracks lengthwise along the center of the street; that east of said residence district is a square on La Salle avenue devoted to business purposes, in which defendant has a passenger depot, and near that depot is the eastern end of defendant's railroad, where cars are turned on a Y; that defendant is lawfully organized as an interurban railway company, and that it en tered upon the streets of South Bend and constructed its railroad thereon under a franchise contract with the city by which it was authorized to build and operate its tracks from the city limits on the west to and along Birdsell street, thence to where La Porte avenue intersects and crosses La Salle avenue, thence east along La Salle avenue to the eastern terminus of the railroad, which franchise granted defendant the right to construct, repair, and maintain its railroad therein, but stipulated that the freight depot should not be east of Birdsell street, and that "said company shall not haul any freight on La Salle avenue except such as is contained in baggage and express cars, and shall not operate any freight train or freight cars on any street or avenue in the city of South Bend or any part thereof that lies east of Birdsell street," and that "the baggage cars and express cars herein mentioned shall be used exclusively for parcel express and baggage and small merchandise, and shall not at any time exceed two cars in number in any one train while operating or running east of said La Porte avenue, and shall not be unloaded except at the company's baggage room;" that these provisions of the franchise contract, as duly executed by the defendant company and the city, were ratified in general terms by ordinances duly passed, and continued in full force until five months after this action was commenced, when defendant, on the 22d day of May, 1922, "surrendered its franchise from the city of South Bend, and took out an indeterminate permit, pursuant to the provisions of an Act of the General Assembly of 1921 (chapter 93, page 197), and that said permit has not been forfeited, but defendant is now operating under it;" that defendant constructed and maintains its freight depot west of Birdsell street; that in the six months immediately preceding the commencement of this action defendant hauled on its tracks laid in La Salle avenue eastwardly through said residence district to the intersection of Michigan avenue 100 freight cars received by it from different commercial railroads operated by steam, loaded with lumber, stone, brick, tile, cement, steel, and other building materials and fixtures; that in the next five months, before defendant surrendered its franchise and took an indeterminate permit, it hauled thereon to said point 54 freight cars so loaded received by it from such railroads; and that in the three months next following such surrender it so hauled 10 more freight cars so loaded; that in the six months preceding the commencement of this action defendant hauled upon and over its said tracks in La Salle avenue, from the intersection of Michigan avenue westward through said residence district, 171 gondola cars owned by it, loaded with sand, gravel and earth; that all of said freight cars so hauled in either direction were loaded with sand, gravel, and earth excavated from the side of new buildings that were being constructed by the Hotel La Salle and Palace Theater at the corner of Michigan and La Salle avenues, or with building materials, fixtures, and construction outfits used in the construction and erection of said buildings; that they were hauled by elec tric engines "in trains of from one to four cars at one time, the usual number being three cars;" that defendant never appropriated under the power of eminent domain nor paid for any right as against plaintiffs to do any of said acts; that said acts make and their continuation will make plaintiffs' property on La Salle avenue less desirable and less comfortable for residence purposes; and that defendant intends continuing in the future to haul freight of like kind in like freight cars on and along said avenue under the claim that it has the legal right to do so. Formal matters showing that by proper steps plaintiffs had become entitled to maintain an action for an injunc |