KF fytmll Wtifrmttg pitog BOUGHT WITH THE INCOME PROM THE SAGE ENDOWMENT FUND, . THE GIFT OF Hetirg W. Sage . XS91 A--'A- < &-SL\.3-. i.a.4„a:./..a.a KF2125.Z9K25 Un,Ver " ,yUbrary 1JJJ | '■«' o* electric wires In streets and 3 1924 019 364 631 (Qartpll IGatu ^rifonl Hihrarg Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019364631 THE LAW OF ELECTRIC WIRES IN STREETS AND HIGHWAYS. Edward Quinton Keasbey, Of the New Jersey Bar. OHIO AGO : OALLAGHAN & OO. lses. A • 4*5 1 1 2. COPYRIGHT, l8q2, BY Callaghan & Co. ; Chicago. PREFACE. It is always interesting to observe the manner in which the courts deal with new inventions and apply old principles of law to new conditions. Invention within a few years past has been especially directed to new applications of electricity, and in order to serve the new uses that have been found for it, streets and highways have been taken as convenient lines for the distribution of the electric current. The use of the streets for this purpose has given rise to some legal contro- versies, and it seems desirable that the decisions on the sub- ject should be collected and examined in order to see how the principles of the law relating to the streets have beer applied to these new uses. The poles and wires for the electric railway have attracted especial attention to the subject within' the last two or three years, and it was a discussion of these in an article I wrot^ for the Harvard Law Review for January, 1891, that sug- gested a more careful examination of the law relating to the use of the streets and roads of all kinds for electric wirss. whether overhead or underground. Edward Q. Keasbey. Newark, New Jersey, June 1, 1892. TABLE OF CONTENTS. CHAPTER I. INTRODUCTORY. PAGE i. Growing Importance of the Subject, i 2. The Legal Relations of the Wires to the Highways, ... 2 3. Arrangement and Division of the Subject 3 1. Public Rights, 3 2. Private Rights, ; . 4 CHAPTER II. BY WHAT AUTHORITY THE STREETS MAY BE USED FOR ELECTRIC WIRES. 1. Introductory. 7 2. Analogies and General Principles, 7 3. The Power Over the Streets Belongs to the Legislature, ... 7 4. Power of Municipality is Only What is Delegated, .... 8 5. Extent and Limits of Ordinary Powers of Municipality, ... 9 6. The Same Continued — Municipalities Cannot Grant Exclusive Fran- chises, . . 9 7. The Same — Special Importance of the Subject with Reference to Electric Wires, 11 8. Ordinary Powers of Municipalities with Respect to the Streets, . 1 1 9. Question Whether the Various Electric Wires Come Within These Lines, 13 10. Powers of Cities to Grant the Privilege with Respect to These and Similar Uses — Steam and Horse Railroads, 14 11. The Same — Electric Railways 15 12. Power of Municipality to Authorize Street Railway Companies to Use Poles and Electric Wires 16 13. The Same Subject — Cases — Taggart v. Newport Street Railway Co., 17 14. The Same — Mt. Adams and Eden Park Inclined Railway Co. v. Winslow, 18 15. The Same — Lonergan v. Lafayette Street Railway Co., ... 18 16. The Same — Louisville Bagging Manufacturing Co. v. Central Pas- senger Railway Co., 19 17. The Same — Detroit City Railway Co. v. Mills, 19 18. The Same— Pelton v. East Cleveland R. R. Co. 20 19. The Same — Cases in Chancery in New Jersey, 20 20. The Same — Contrary Decision in the New Jersey Supreme Court, . 22 21. The Same — Telegraph and Telephone Lines, 23 22. The Same — Electric Lighting, 24 (v) VI CONTENTS. PAGE 23. Governing Principle in All These Cases, 2 S 34. The Paramount Authority is in the Legislature *S 25. Authority of Some Kind is Required for Special Uses of the Street, Even Though They are Proper Street Uses 2 ° CHAPTER III. MUNICIPAL CONTROL — CONSENT OF LOCAL AUTHORITIES. 1. Grants are Ordinarily Made Subject to Control of Local Authorities, 28 2. Grants Upon Condition Precedent— Power of Municipality in Such Cases, 2 9 3. Grants Subject to Municipal Regulation, 3° 4. Designation of the Streets to be Used for Telegraph, Telephone and Electric Light Wires, . . . " 3 1 5. The Power to Designate Streets or to Specify the Kind of Poles Does Not Imply the Right to Impose Other Conditions, ... 31 6. Electric Lighting Specially Subject to Local Control, .... 32 7. How Municipal Consent May be Given,' 33 8. What are the " Local Authorities," 34 9. Power to Revoke Franchise and Remove Poles and Wires, . . 34 10. The Same— Cases Relating to Telegraph and Telephone Wires, . 35 11. The Same — Other Cases, 36 CHAPTER IV. MUNICIPAL CONTROL — POLICE REGULATIONS. i. General Power of Police Regulation with Respect to Poles and Wires 38 2. Cases on This Point Relating to Telegraph Lines in Cities, . 38 3. Cases Relating to Electric Light Wires, 39 4. Extent and Meaning of the Power to Impose License Fees, . . 40 5. The Power to Regulate Does Not Imply the Power to Lay an Em- bargo 41 6. The Power to Regulate Does Not Imply the Power to Fix Tolls and Rates, 42 7. Condition that Other Companies Shall be Allowed to Use the Same Poles, 42 8. Municipal Rights in the Streets are Not Those of an Owner but are Held for Public Purposes, 43 CHAPTER V. POLES AND WIRES AS AN OBSTRUCTION OF THE HIGHWAY — HOW FAR JUSTIFIED BY GRANT OF FRANCHISE. i. Poles Erected in the Streets without Legislative Sanction are Nui- sances, ............. 45 2. Poles Set Up with Express Legislative Sanction are Not Nuisances, 46 3. General Authority Does Not Authorize Dangerous Obstructions, . 47 4. Cases of Telegraph Lines in the Street — Obstruction to Ordinary and Extraordinary Use of the Street — Cases Relating to Moving a House, 4 8 CONTENTS. Vll CHAPTER VI. UNDERGROUND WIRES. PAGE i. Rights of the Public and the Companies as to Putting Wires Under- ground, 50 2. An Expensive and Difficult Work. The Municipality Cannot Re- quire it, 50 3. Usually Provided for by Statutes. English Statutes Referred to, . 51 4. General Provisions of American Statutes, 53 5. The Legislation in New York Providing for a. Board of Electrical Control and a Subway Company, ....... 55 6. Decisions Thereon, 56 7. Other Decisions Thereon, '. 56 8. Relation of the Electric Wire Companies to the Subway Companies, 58 CHAPTER VII. RIGHTS OF THE OWNERS OF ABUTTING LANDS WITH RESPECT TO THE USE OF THE STREETS FOR ELECTRIC WIRES. GENERAL VIEW. 1. The Multiplication of Wires in the Streets Has Given Rise to Contro- versies with Landowners, ......... 59 2. The Purpose for which the Wires are Put There is an Important Ele- ment 59 3. New Uses. Different Views of the Proper Uses of a Street, . . 60 4. Views of Judge Dillon and Mr. Lewis, 61 5. Distinction with Respect to the Title in the Public and in the Abutting Owner, 61 6. In Either Case there are Certain Rights in the Street as Such, . . 62 7. Discussion of- the Subject by Mr. Carman F. Randolph, ... 63 8. Same Subject — The Elevated Railroad Cases, 64 9. Same Subject — Other Cases, 65 10. Same Subject — The Rights Really Affected are the Rights of Adja- cency Without Respect to Ownership of the Land in the Street, 66 11. This Principle, if Recognized, will Simplify the Discussion, but the Distinction Must be Considered in Reading the Cases, •. . 67 CHAPTER VIII. RIGHTS OF ABUTTING OWNERS — TELEGRAPH AND TELEPHONE. 1. Telegraph and Telephone Wires have become Obnoxious to Adjoining Landowners, ..." 69 2. The Question of Rights of Landowners Suggested, but Not Answered by Scott & Jarnagin in 1868, 69 3. The Question Has Now Become Important 70 4. The Question Stated, 71 5. Argument on One Side, 71 6. Argument on the Other Side, 72 7. Distinction in the Cases as to the Title to the Land in the Street, . 72 8. Cases in Missouri in 1882 in Favor of the Electric Wires, . . 73 9. Decision in Massachusetts on the Same Side in 1883, .... 74 VU1 CONTENTS. PAGE 10. Later Case in Missouri, 74 ii. Other Decisions on the Same Side, 75 12. Wires Without Poles Not a Burden on the Land, .... 76 13. Arguments on the Other Side — Decisions in New York and New Jersey, 77 14. Cases in some Western Courts, . . , 79 15. Recent Cases in Virginia,'- Maryland and Mississippi, ... 80 16. Other Cases, • . . 81 17. Views of Text-Book Writers 81 18. Conclusions with Respect to the Right to Use the Highways for the Telegraph and Telephone, 82 19. Right to Compensation for Actual Damages in Obstructing Access and Light and Air, etc., 83 20. No Further Use than Necessary Allowed — Liability for Cutting Trees in the Street ".84 21. Fire Alarm and Police Telegraph — Fire Alarm and Police Telegraph are Public Uses — No Doubt the Streets May be Used for These without Compensation 84 CHAPTER IX. RIGHTS OF ABUTTING OWNERS ELECTRIC LIGHT WIRES. i. The Purpose of the Use Being an Important Element, Electric Light Wires May be Analogous to Gas Pipes Rather than to Telegraph Lines, 86 2. Whether Gas Pipes May be Laid in Country Roads or City Streets Without Compensation, 87 3. Distinction Between Urban and Rural Easements, .... 88 4. Pipes or Poles and Wires for Lighting the Streets a Proper Use Wher- ever They are Needed for that Purpose, ...... 89 5. Cases, 89 6. Is There a Distinction Between Wire's Used Solely for Public Light- ing and Those Used for Private Buildings Also ? . 91 7. Liability for Actual Interference with Rights and Privileges of Adja- cency to Highway gi CHAPTER X. RIGHTS OF ABUTTING OWNERS — THE ELECTRIC RAILWAY. i. Opposition to the Introduction of the Trolley System 92 2. Peculiar Rights of the Landowners in the Street, .... 92 3. Two Questions to be Considered — Rights of Adjacency and Perver- sion of the Uses of the Street, 02 4. Questions Suggested by Judge Dillon on the Decision in Taggart v. Newport Street Railway, in January, 1890, .... 93- 5. The Electric Railway'and the Telegraph — Distinctions and Compari- son 94 6. Is the Electric Railway a New Burden or a Perversion of the Uses of the Street — Comparison with Other Railroads on the Street, . 9c 7. Horse Railroads are Generally Held to be a Proper Use of the Street Imposing No New Burden — Dissenting Opinions, . . . . oc CONTENTS. IX PAGE 8. Steam Railroads are Now Generally Held Not to be Within the Proper Uses of the Street 98 9. The Reasons that are Given for the Distinction, 98 10. Difference of Opinion as to Dummy Steam Engines, . . . 101 11. The Same. Mode of Use the Criterion, 103 12. Use of the Cable Railway, 103 13. Poles and Wires for the Electric Railway. Do they Affect the Prop- erty Rights of the Abutting Owner? 104 14. Comparison with the Elevated Railroad Cases — Poles Affect Not the Land, but Only Rights of Adjacency, Unless the Use is a Perversion of the Use of the Street, 105 15. There is no Change of Use in Substituting Electricity for Horse Power, 106 16. Question of Interference with Use of Street is a Question of Fact, 106 17. Recent Cases — Mt. Adams and Eden Park Inclined Railway Co. v. Winslow, 107 18. Pelton v. East Cleveland R. R. Co., 108 19. Taggart v. Newport Street Railway Co., 109 20. Detroit City Railway Co. v. Mills, no 21. Louisville Bagging Manufacturing Co. v. Central Passenger Rail- way Co., in 22. Lonergan v. Lafayette Street Railway Co .111 23. Halsey- v. Rapid Transit Street Railway Co., . . . . in 24. Lockhart v. Craig Street Railway Co., 114 25. Saginaw Union Street Railway Cases, 115 26. Detroit City Railway Co. v. Mills on Appeal, 116 27. Conclusions, 118 28. The Electric Railway Used as a Substitute for the Steam Railway — Mode of Use the Criterion, 119 CHAPTER XI. CONDEMNATION OF PRIVATE RIGHTS FOR LINES OF ELECTRIC WIRES. 1. General Statutory Provisions, 120 2. Statutes of Some of the States, 120 3. If Private Rights are Affected or Consent is Required by Statute, Condemnation is Necessary 122 4. The Telegraph and the Telephone are Public Uses, . . . 122 5. The Right Acquired is Only Such as is Necessary, . . . 123 6. Right of Way Over a Turnpike May be Condemned on Certain Con- ditions, 123 7. Failure to Agree as a Condition Precedent to Condemnation, . . 123 8. Designation of Streets as a Condition Precedent to Condemnation, 124 9. Requirements of Petition to Condemn, 124 CHAPTER XII. TELEGRAPHS ON POST ROADS. i. Occasion and Purposes of the Act of Congress of July 24, 1866, Con- cerning Telegraphs on Post Roads, 125 2. Decision of the Supreme Court Sustaining and Construing the Act, 125 X CONTENTS. PAGE 3. What the Term Post Roads Includes, ia6 ^ 4. The Scope and Effect of the Act as Declared by the Supreme Court- Equal Privileges Secured to all Telegraph Companies, . . 126 5. Railroad and Turnpike Companies Cannot Give Exclusive Rights to Use Their Rights of Way for Telegraph Purposes, . . . 127 6. Practical Difficulties — Question of the Interference of One Line with the Other, 129 7. The Rights Conferred are Public and Not Private Rights— The Latter Can Only be Taken by Consent, 129 8. The Same— The Act of Congress Gives No Power to Condemn, . 130 9. Compensation Must be Made for Use of Railroad or Turnpike, Although a Post Road, .' 131 10. Does the Statute Imply that Telegraph is a Highway Use and Not a New Burden on the Land? 132 11. Telegraphs on Post Roads are Subject to Municipal Control, . . 132 12. Telegraphs on Post Roads are Subject to State Taxation, . . . 133 CHAPTER XIII. TELEGRAPH LINES ALONG RAILROADS. i. Contracts for Exclusive Use of Right of Way by Telegraph Com- panies Void on Grounds of Public Policy 134 2. Modifications and Exceptions 135 3. Is a Telegraph Line a New Burden Upon the Land Taken for a Rail- road? 136 4. Statutory Authority Given to Telegraph Companies with Respect to the Use of Railroad Lands is to be Construed Strictly, . . 137 5. Miscellaneous Matters, 138 CHAPTER XIV. 1 INTERFERENCE OF DIFFERENT KINDS OF ELECTRIC CURRENTS — CONFLICT- ING USES OF ELECTRIC WIRES IN THE STREETS. i. The Use of the Telephone Disturbed by Electric Light and Electric Railway Currents, 135 2. Causes and Manner of the Disturbances Explained, .... 139 3. The Same Subject — Induction and Leakage 140 4. Some of the Difficulties May be Avoided by the Metallic Circuit — Ob- jections to This, !^ 5. Telephone Companies Insisted that They Were Entitled to Protection, 141 6. The First Contest Was with the Electric Light Wires, ... 141 7. Electric Light Wires — Decisions, !« 2 8. More Serious Controversy with Electric Railway Companies, . 143 9. Cases — Central Union Telephone Co. v. Sprague Electric Railway and Motor Co t ., 10. East Tennessee Telephone Co. v. Chattanooga Electric Street Rail- way Co. and Another Case, !>^ 11. Rocky Mountain Bell Telephone Co. v. Salt Lake City Railway Co., 144 12. Wisconsin Telephone Co. v. Eau Claire Street Railway Co. and Sprague Electric Railway and Motor Co., I4 ,- CONTENTS. * XI FAGB 13. Hudson River Telephone Co. v. Watervliet Turnpike and Railroad Co., 146 14. The Same Continued, 147 15. East Tennessee Telephone Co. v. Knoxville Street Railway Co., . 149 16. Cumberland Telephone Co. v. United Electric Railway Co., . . 150 17. .City and Suburban Teleg. Assoc, v. Cincinnati Inclined Plane Rail- way Co., 151 18. Conclusions, 152 CHAPTER XV. INJURIES FROM UNAUTHORIZED OR DEFECTIVE POLES AND WIRES. 1. Introductory, 154 2. Location of the Poles — Liability for Injuries by Reason of, . 154 3. The Same — Another Case 155 4. The Same — Another View 155 5. The Same — Source and Extent of the Liability, 156 6. The Same — The Legislature May Modify the Rights of the Public in the Street— Electric Railway Poles — Conclusion 157 7. Wires Hanging Too Low — Liability for Injuries 159 8. The Same — Decisions, 159 9. The Same Continued — Guy Wires, 161 10. Wires Hanging Too Low — Contributory Negligence 162 ii. Defective Materials, 164 12. Damages Caused by Severe Storms, 165 13. Dangerous Currents, 166 Table of Cases, 169 Index, , 179 Electric Wires in Streets and Highways. CHAPTER I. INTRODUCTORY. § 1. Growing Importance of the Snbject. — Roads were opened for communication as well as travel, and when the method of communication by electric telegraph was adopted it naturally sought the public roads, and lines of telegraph were stretched along the turnpikes and railroads. Statutes were passed giving permission to use the public rights in the highway. There was little, if any, damage to private interests and there was no great litigation in regard to it. Scott & Jarnagin, in their work on telegraphs written in 1868, refer to the subject as a matter of spec- ulation rather than practical interest, and cite no cases. Within a few years past the uses of electricity have greatly multiplied ; it has been found that it can be applied so that the people in different parts of a city and even in different towns hundreds of miles apart can talk with one another without leaving their houses ; it is used for furnishing light to the streets and houses and to provide power for turning machinery and for moving vehicles ; for all these uses the electricity must be distributed from central sources and carried by wires throughout the city and across the country. The wires have therefore been greatly multiplied, the streets of the cities are filled with them, and they line all the chief highways of the country. They have become obnoxious to the owners of adjoining property; the poles are ugly and sometimes obstruct the street. The wires are a se- rious obstruction to access to city buildings in case of fire. Some of them carry in themselves dangerous and even deadly currents, and when there are wires of different kinds for various purposes, one current is found to interfere with the free use of another. For all these reasons there are opposition and contest which have led to litigation. The wires, however, are too useful to be E. W.— 2 (1} 2 ELECTRIC WIRES [§ 2. dispensed with ; the purposes they subserve are public purposes and the conveniences they furnish are enjoyed by many. The use of tljem is likely to increase rather than diminish. Their pur- poses, if not the same as those of the highway itself, are closely allied to them, and it is only by using the highways that they can fully serve their purposes. Their relations, therefore, to the public and private rights in the highways must be defined, con- flicting rights must be adjusted and the manner of using the streets must be controlled. The questions involved depend, of course, upon the principles governing the use of streets and highways and the powers and duties of municipal corporations, and have been considered in the text -books upon these subjects ; but in view of the recent decis- ions relating especially to the use of electric wires and of the increasing importance of the subject, it may be well to consider these uses of the streets by themselves. § 2. The Legal Relations of the Wires to the Highways. — The legal relation of these lines of wire to the streets and highways de- pends to a great extent upon the question whether such use serves the purposes for which the roads are opened and also upon the question whether they interfere with the uses to which the streets have been commonly put. The rights in the streets are both public and private. They are opened for public use, and yet the title to the land subject to this use remains in private owners, or else the owners of adjoin- ing lands have a right of property in having the road kept as a road for the public purposes to which it is devoted. The discussion, therefore, involves the consideration of what are the proper uses of the street and how far these are subserved by the various uses of electric wires, and also what are the public or private rights with respect to the streets and to the use of them for these purposes. With respect to the public, the first question is whether any special authority is required for making such use of the streets, and, if so, whence the permission is derived and how it may be obtained. Then, supposing the lines to be put up under law- ful authority, there will remain questions in regard to the regular tions under which the privileges may be exercised and the liability for interfering with the other uses of the highway. With respect to private rights, the subject involves the discussion of the rights of the owners of adjoining land in the streets, both their rights of access and passage, and their title to § 3-J IN STREETS AND HIGHWAYS. 3 the land itself and also the liability for injuries received by individuals in consequence of unlawful obstruction of the streets or by reason of negligence in the construction and use of these lines of wires for the transmission of electricity. Other questions affecting private rights are those involved in the controversies between persons or companies using the same streets for parallel lines of wire for different applications of elec- trical energy and between persons or companies using electric wires and those having special rights or privileges in the same highway, as, for instance, a railroad or a turnpike company. § 3. Arrangement and Division of the Subject. — The discussion, therefore, may be arranged and divided in general terms some- what as follows : i. Public Rights. — The authority by and under which the streets and highways may be used for poles and wires. Under this the questions arising will be such as these : Are the public rights in the streets vested in the municipal governments or in the legislature ? If the power to permit a new use of the streets must come from the legislature, is it included in the ordinary powers delegated to municipal corpo- rations, and, in particular, are the telegraph and telephone, the electric light and power and the electric railway, uses for which cities and towns may grant the privilege of stringing wires or laying cables in the public streets? And, again, if the power to use the streets be given by the legislature subject to municipal consent, what conditions may be imppsed by the city and what regulations may be made with respect to the use of the franchise ? Under this will come questions as to the power to impose license fees or taxes or to exact compensation for the privilege of using the streets, and it will be found interesting and important to consider whether wires once put up under municipal license may be removed by the city authorities, and whether and on what terms they may be removed by the legislature itself. May the wires be ordered to be taken down from the poles and put under ground ; and, if so, by whose authority and on what terms may the companies themselves insist on using subways instead of poles, and how shall the use of subways for various kinds of wires be regu- lated ? These and similar questions are suggested ; but to answer them properly would involve the discussion of the whole subject of municipal and legislative franchises, and I cannot attempt to do more than refer to the general principles arid leading cases on the subject at large and then state what has been decided 4 ELECTRIC WIRES 1_§ 3- with special reference to electric wires. These cases are not very numerous, and it is better in the present stage of development of this branch of the law to let the cases speak for themselves than to attempt to lay down rules. Another matter involving public rights in the highways is the privilege secured by act of Congress to all telegraph companies alike to use the post roads of the United States. This has some bearing upon State and municipal control, but it is more fre- quently discussed in connection with lines along railroads, and may be considered in connection with the mutual rights of tele- graphs and railroads. 2. Private Rights. — The relation of the street to the owner of abutting land and his rights in the street. Do the several uses of the electric wires in the streets affect private rights, either as imposing a new servitude upon the land or as infringing the owner's rights in the street, so that compen- sation must be made ? This involves a discussion of the interesting and difficult ques- tion, what the rights of the abutting owner in the street are and what public uses may be made of the street without affecting those rights of the adjoining owner. The courts hold different views of the proper uses of the streets and as to what amounts to a perversion of the purpose for which the land is taken. Dis- tinctions are made between cases in which the fee of the street is in the public and those in which the public have only a right of way. Doubt has been thrown by recent cases on the soundness of this distinction, and the courts are beginning to recognize clearly the right of access and light and air and other privileges of adjacency to a street as substantial rights of property. The questions of the proper uses of the street, of the owner- ship of the soil and the rights of adjacency are all involved in the discussion, and we cannot attempt to decide whether one or all are sufficient to give a firm basis of principle on which to decide whether any or what rights of the landowners are affected by the use of the streets for electric wires for the various purposes to which they are or may be applied. The subject belongs to the broader topic of eminent domain with respect to streets and highways, and is fully considered in the standard text-books. We need only refer to the general principles and then we may take up in detail the various uses for electric wires : First, the telegraph and telephone ; secondly, the electric light ; thirdly, elec- tric power, and, fourthly, the electric railway. In discussing § 3-] IN STREETS AND HIGHWAYS." 5 these it will be necessary to refer to the decisions with respect to other and analogous uses of the streets and roads, as, for instance, for gas and oil pipes, for steam railroads, horse railroads and ele- vated railroads, for dummy engines and for cable railways, and it will be useful to compare the decisions with respect to the differ- ent kinds of electric wires with one another with a view to reaching a common and stable basis of decision with respect to all such uses of the streets. Assuming it to be settled that private rights are affected, the question will then arise, How are proceedings to be taken to sub- ject them to public use on making due compensation ? and we must, therefore, examine such cases as may be found on proceed- ings to condemn lands or rights of property for laying out lines of telegraph and telephone, electric light and other electric wires. In connection with this we may consider the right to construct a telegraph line on the right of way of a railway company and whether such a right may lawfully be made exclusive. This in- volves the act of Congress with respect to post roads, and this statute itself has been the subject of many interesting decisions with respect not only to contracts with railroad companies but also to the rights of States and municipalities to interfere with this instrument of commerce between the States. Another question involving private rights of property is that involved in the fact that the use of the streets for one kind of current of electricity may interfere with the use of them for an- other, and there are a good many recent decisions arising out of the complaints of the telephone companies that their business is interfered with and their property injured by the more powerful currents used for the electric light and the electric railway. There are other questions supplemental or incidental which will require some attention and especially the liability for injuries sustained by reason of unlawful or unnecessary obstruction of the streets, or by reason of negligence in constructing or operat- ing lines of electric wires. This will involve the question what precautions the companies must take against violent storms which may throw down their poles, and to what extent they are bound to keep dangerous currents of electricity from injuring persons and property. It is, as I have said, too early in the development of the law in its application to these subjects to do anything more than to re- fer to general principles and to collect the cases in which they 6 ELECTRIC WIRES [§ 3- have been applied to the use of these wires. I have, therefore, stated the cases somewhat in detail so that these pages may at least furnish the means of ascertaining what has been decided on these subjects up to the present time, even if they do not show that any very definite basis of decision has yet been agreed upon. I 3.] IN STREETS AND HIGHWAYS. CHAPTER II. B.Y WHAT AUTHORITY THE STREETS MAY BE USED FOR ELECTRIC WIRES. § 1. Introductory. — The question of the authority to use the streets for electric wires is, of course, a part of the broader question of control of the streets, and the right to grant special privileges with respect to particular public uses. It involves the relations of the legislature and the municipal corporation to the streets, the extent of the powers delegated to the local authori- ties, and the question what are the proper uses of a public street or highway. All these questions have been fully considered in many elaborate works on municipal corporations, eminent domain and streets and highways. § 2. Analogies and General Principles. — It is only necessary in dealing with the use of the streets for electric wires to state briefly the general principles bearing upon these subjects, and to refer to the standard text-books and a few important cases. The conclu- sions that have already been reached with respect to street railroads or gas pipes in streets may be used by way of analogy or dis- tinction in considering the electric railway, the telegraph and the electric light, and we may devote our attention especially to the cases decided with respect to these uses of the streets for the transmission of electricity. In considering the question by whose authority permission may be granted, whether it may be given by the municipal or other local government, or must come from the legislature, we may assume that the same principles apply to the use of electric wires as to other uses of the streets. § 3. The Power Over the Streets Belongs to the Legislature. — It is well settled that the use of the streets belongs to the public at large as distinguished from the municipality, that the legislature represents the public, and that the municipality has no control over the streets except what is given to it by the legislature, either expressly or by implication. 1 The legislature has (in the absence of constitutional restraint, and subject to the property rights and easements of the abutting 1 State Hoboken Land Imp. Co., Case of the Phila. & Trenton R. R. pros., v. Hoboken, 35 N. J. L. 208 ; Co., 6 Whart. 25. 8 ELECTRIC WIRES [§ 4- owner) full and paramount authority over all public ways and public places. 1 From this it follows that the authority of municipalities over streets and the uses to which they may be put depends entirely upon their charters or the legislative enactments applicable to them.' "The public easement in the highways," says Mr. Justice Magie, of New Jersey, "is vested in the public, and can be divested by nothing short of an exercise of sovereign power. The legislature, representing the public, may release the public right by vacating the highway, may modify the public use by granting a right to use the highway for a horse railroad, or may restrict the public use by granting a right to erect poles and other obstructions in the highway. What the legislature can thus do, it may delegate authority to do. . . . No reason appears why all such authority possessed by the legislature may not be thus delegated. But the delegation of such power must plainly appear either by express grant or by necessary implication." 8 § 4. Power of Municipality Is Only What Is Delegated. — The extent, therefore, of the power of the municipality depends upon the breadth of the charter or statutes authorizing municipal action. The legislature may no doubt delegate to the municipal govern- ment absolute control over the streets with express power to dispose of the public rights therein for public purposes, and the question whether in any particular case the local authorities have power to grant a franchise must be decided by reference to the local statutes. 4 1 2 Dill. Mun. Corp., 4th ed., § 656, Works Co. v. Consumers Water Co., 683, and cases cited. 44 N. J. Eq. 427-432 ; State v. Mil- 2 2 Dill. Mun. Corp. § 680. waukee Gas Light Co., 29 Wis. 454. 3 Domestic Tel. & Teleph. Co. v. See, however, 2 Dill. Mun. Corp., 4th Newark, 49 N. J. L. 344-346 (1887). ed., § 693; Norwich Gas Light Co. v. See also New Orleans Gas Co. v. Lou- Norwich City Gas Light Co., 28 Conn, isiana Light Co. 115 U. S. 650; Louis- 19, where it was held not only that the ville Gas Co. v. Citizens' Gas Co. 115 city had no power to grant an exclu- U. S. 683 ; New Orleans Water Works sive property interest in the streets, Co. v. Rivers, 115 U. S. 674; Citizens' but also that such a grant by the State Water Co. v. Bridgeport Hydraulic to a gas company for the purpose of Co., 55 Conn. 1 ; East Portland v. Mul- laying pipes was void as a monop- tomah, 6 Oreg. 62; 2 Dill. Mun. Corp. oly. § 695-6 ; Atlantic City Water Works v. 4 2 Dill. Mun. Corp., 4th ed., § Atlantic City, 39 N. J. Eq. 366, 374; 680, $ 719, and notes citing many modified in Atlantic City Water cases. § 6.] IN STREETS AND HIGHWAYS. 9 § 5. Extent and Limits of Ordinary Powers of Municipality. — Their power is strictly confined to the public rights ; they cannot exercise the power of eminent domain and, therefore, they can- not do anything which involves the taking of private prop- erty for public uses, and for this reason a full discussion of the extent of the power of the municipality involves a discus- .sion of the question whether the proposed use of the street is one that imposes a new burden on the land or affects in any way the property rights of owners of adjoining land ; and this question must be considered by itself and at some length when we come to deal with the private rights affected by the tele- graph and electric railway and other lines of wires for electric purposes. § 6. The Same Continued : Municipalities Cannot Grant Exclusive Franchises. — It is well settled that municipalities have not the power to grant an exclusive franchise or permanent privilege, 1 and it is no doubt because such permissions to use the streets must, if they are to be valuable, be to a certain extent exclusive, that special provision is made by statute for conferring legisla- tive authority upon corporations organized for the purpose of exercising such franchises. The legislature, unless specially limited by the constitution, has the right to grant an exclusive, indefinite and irrevocable franchise for the use of the streets, 8 although such a grant must be made in explicit language, and will not be implied ; 3 but with- 1 Norwich Gas Co., v. Norwich City Co., 115 U. S. 683 ; New Orleans Water Gas Co., 25 Conn. 19; Minturn v. Works Co. v. Rivers, 115 U. S. 674; Larue, 23 How. (U. S.) 435; Wright v. Citizens' Water Co. v. Bridgeport Hy- Nagle, 1 01 U. S. 791 ; Jackson County draulic Co., 55 Conn. 1 ; State v. Mil- Horse Railroad Co. v. Rapid Transit waukee Gaslight Co., 29 Wis. 454; At- Co., 24 Fed. Rep. 306; Saginaw Gas- lantic City Water Works Co. v. At- light Co. v. City of Saginaw, 28 Fed. lantic City, 39 N. J. Eq. 367. See, Rep. 529; State v. Cincinnati Gas- however, 2 Dill. Mun. Corp., 4th ed.,'§ light and Coke Co., 18 Ohio St. 262; 693, and Norwich Gaslight Co. v. Nor- Stein v. Bienville Water Supply wich City Gas Co., 25 Conn. 19 (1856), Co., 34 Fed. Rep. 145, with note. and as to the effect of express legisla- Dillon Mun. Corp., 4th ed., §§ 362, tive warrant, Atlantic City Water 395, and notes citing cases. See also Works Co. v. Atlantic City, 48 N. J. note 3, infra. L. 379. 2 2 Dill. Mun. Corp., 4th ed., §$ 69 1 ) 3 2 Dill. Mun. Corp., 4th ed., § 695 ; 1 692, 693, 694,695, 696 and notes; Elliott Ibid., § 362; People v. Benson, 30 on Streets, p. 332 ; Cooley Const. Lim., Barb. 24 ; Cooley Const. Lim., 6th ed., 6th ed., p. 342 ; New Orleans Gas Co. 250; Milhau v. Sharp, 17 Barb. 435 v. Louisiana Light Co., 1:5 U. S. 650; (1854); S. C. 28 Barb. 228; 27 N. Y. Louisville Gas Co. v. Citizens Gas 611. 10 ELECTRIC WIRES [§ 6. out express legislative authority, no municipality has the right to grant an exclusive, indefinite franchise, 1 and it has been held in many cases that a city has no right to grant an exclusive right even for a limited time." Where the constitution, as it does in many States, prohibits the legislature from passing any local or special law conferring exclusive privileges or franchises, it would seem that a munici- pality, acting under a general law, would not have the power to grant an exclusive franchise, for if it did the legislature could accomplish through a corporation created by it what it could not do itself directly. 3 In Grand Rapids Electric Teleg. Co. v. Grand Rapids Edison etc. Co.* it appeared that a city having only a general power to light streets, adopted an ordinance granting to an electric light company the exclusive right to use the streets for fifteen years. It was held that the grant was void for want of power. Jackson, J., insisted that upon principle and under the decis- ions, the authority to grant an exclusive franchise involves the exercise of the whole sovereign power, and that if the city has power to make an exclusive grant for fifteen years, it has the power to make such a grant for an indefinite time, and if it has not power to make the grant for the longer time it has not the power to make it for the shorter. " It requires the whole exclusive power and control to grant either the one or the other." The question resolves itself finally into a question of the ex- tent of the power granted to the municipality by the charter or other law in any particular case, and since the same question is involved with respect to many other franchises, it cannot be discussed in detail without going beyond the cases on electric wires. 6 1 See notes 2 and 3, page 8, and also Rep. 659; State v. Cincinnati Gas and Grand Rapids Electric Teleg. Co. v. Coke Co., 18 Ohio St. 262 (1868) ; Cin- Grand Rapids Edison etc. Co., 33 Fed. cinnati Street R. R. Co. v. Smith, 29 Rep. 659 ; Milhau v. Sharp, 27 N. Y. Ohio St. 291-308. 611; State of New York v. Davis, 3 See on the subject of exclusive Mayor of New York, 3 Duer 119; St. franchise and general laws, Atlantic Louis A. & T. H. R. R. Co. v. Belle- City Water Works Co. v. Consumers ville, 20 111. App. 580; People Pass. Ry. Water Co, 44 N. J. Eq. 427. Co. v. Memphis, 16 S. W. Rep. 973 ^33 Fed. Rep. 659; U. S. Circuit Tenn. (1875). Court W. D. Michigan (1888). 2 Grand Rapids Elect. Teleg. Co. v. 5 We may refer to some of the Grand Rapids Edison etc. Co., 33 Fed. cases on the subject of exclusive §8.] IN STREETS AND HIGHWAYS. II § 7. The Same : Special Importance of the Subject with Reference to Electric Wires. — The question, however, is of practical importance with respect to electric lighting and will become more important than it has been with respect to the telegraph and telephone when an indefinite number of wires are no longer allowed to be strung over the streets, and all must be placed in subways of limited capacity. This subject, however, must be reserved for a separate chapter (Chapter XIV). § 8. Ordinary Powers of Municipalities with Eespect to the StreetB. — Under the powers ordinarily granted to municipal corporations they have the care, supervision and control of the streets, the power to open, grade and regulate, to alter, and to vacate them. Under the power to grade, it has been held that they may take away the access to adjoining property and destroy the value of it without ' making compensation. And under the power to grade and vacate, it has been held that on making compensa- tion they have the power to raise the level of a street and build abutments of a bridge for the purpose of crossing over a railroad track. 1 They have the power to remove obstructions, and even to franchises granted by municipal au- thority. The power of municipal corpora- tion to grant an exclusive franchise and create a monopoly is discussed in 36 Am. & Eng. R. R. Cas. 116, note, where the American decisions are col- lected. See also 2 Dill. Mun. Corp., § 693-696, and notes above referred to. The validity of grants by munici- palities of the use of the streets is dis- cussed in an article by W. W. Thorn- ton in 41 Alb. Law Jour. 104. In Citizens St. Ry. Co. v. Jones, 34 Fed. Rep. 579, a grant by a city of ex- clusive rights to all the streets for ninety years was held not to confer such a right in any particular street where the grant had not been acted upon and the right had not been .acquired by use, although the city was specially authorized by statute to contract for providing the city with railroads and conferring for the time agreed upon an exclusive fran- chise. In Indianapolis Cable Street Ry. Co. v. Citizens St. R. Co. (Ind.), 8 L. R. A. 539; 24 N. E. Rep. 1054, it was held that a grant to use all the streets of a city for a cable street rail- road was not to be construed as exclu- sive until actually acted upon in good faith by the building 1 of a cable road and then only so far as the proposed system required it for actual use. For a collection of authorities on Munici- pal Control of Streets, see Daly v. Ga. So. & Fla. R. R. Co., 26 Am. & Eng. R. Cas. 27, n. ; Iron Mountain R. R. Co. v. Bingham, 4 L. R. A. 622, n. See also Appeal of Meadville Fuel Gas Co., 4 Atl. Rep. 733 (Pa. Sup. Ct. May 31, 1886); New Orleans City R. R. Co. v. Crescent City R. R. Co., 12 Fed. Rep. 308 ; Davenport v. Kleinschmidt (Sup. Ct. Montana 1887), 13 Pac. Rep. 249. 1 See Reed v. Camden, S3 N. J. L. 322, where, however, there was also a statute specially authorizing cities to make contracts with railroad com- 12 ELECTRIC WIRES [§ 8. authorize certain obstructions which are commonly allowed in the streets by custom, or are incidental to the ordinary uses of a street. They may, for example, permit a line of shade trees to remain or to be planted along the foot path, or even along the middle of the street. 1 They may permit or authorize hitching posts and drinking fountains as incidents to travel. It is very common for them to permit awnings to hang over the sidewalks, and posts for their support to stand along the edge of the street. Although if the awning is in fact a public nuisance, it has been held that the common council may abate it, even though a previous council had given permission to main- tain it, and the court expressed a doubt whether the council would have a right to authorize the construction of such an awning as was described in the case. 2 It is generally admitted that cities have the right to authorize the construction of sewers and drains, 8 although the sewers are used for draining private houses as well as the streets, and the former use has nothing to do with public travel. They may main- tain wells and cisterns* in the streets for public purposes, and may lay pipes there for a public water supply. So also "lighting cities is so necessary," says Judge Dillon, " for the safe- ty and convenience of the inhabitants that municipal author- ities are usually given more or less extensive powers in respect to it." 8 Power to light the streets, of course, involves power to panies whereby the companies might 689 (542); Traphagen v. Jersey City, " relocate, change or elevate " their 29 N. J. L. 206, 246; Michener v. Phila- roads. delphia, 18 Pa. St. 535 ; McKevitt v. 1 In Massachusetts the trees by stat- Hoboken, 45 N. J. L. 402; Elliott on ute belong to the adjoining owner Streets, p. 360 ; Lewis on Em. Dom., § and can only be cut down by order of 127. the mayor and council ; White v * Lostutter v. City of Aurora, Indi- Godfrey, 97 Mass. 472; Bliss v. Ball, ana Supreme Court, Jan. 8, 1891, 12 L. 99 Mass. 597. R. A. 259 ; West v. Bancroft, 32 Vt. 2 Farrell v. Mayor etc. of New York 367 ; although this not undisputed, Du- N. Y. Supreme Court, Special term, buque v. Maloney, 9 Iowa 450. See 2 Dec. 18, 1888; Lawrence, J., «s N. Y. Dill. Mun. Corp. 4th ed., § 690, and Supp. 672, referring to Ely v. Camp- note citing cases, and Elliott on Roads bell, 59 How. Pr. 333 ; People v. Mayor etc., 305-308 with notes. etc., 59 How. Pr. 277, relating to stalls 5 2 Dill. Mun. Corp., 4th ed., § 697 ; and market wagons in the streets and Lewis Em. Dom., § 128. denying the power of the common 6 2 Dill. Mun. Corp., 4th. ed., §691-2; council to authorize permanent ob- State v. Cine. Gas Light & C. Co., 18 structions. Ohio St. 262 (1868); Indianapolis v. 3 2 Dill. Mun. Corp., 4th ed., § 688, § ^Indianapolis Gas Light Co., 66 Ind. § 90 IN STREETS AND HIGHWAYS. 1 3 set up lamp posts and to lay down gas pipes for the purpose of supplying the lamps with fuel. There has been some question as to the right of a city to authorize a company to lay gas pipes in the streets for general use without making compensation to the land- owner. 1 Yet the better opinion is that this is a legitimate use of the streets, for which no compensation need be made." And it is certain that under the general power to light the city the cor- poration may lay gas pipes for its own use or authorize others to lay them for that purpose. Larger powers are given to cities than to villages, and the uses to which city streets may be put are more numerous and various than those to which a common highway may be applied by the township officers. 8 In all these cases the authority of the mu- nicipality is confined to those things which are incidental to and in furtherance of the power given by statute to regulate and control the streets. § 9. Question Whether the Various Electric Wires Come Within These Lines. — Whether the various uses of the electric wires come within these implied powers or not depends a good deal on the purpose for which the wires are used, and on the determination of the question whether or not they are within the proper uses of a street or constitute a new burden upon the land. The discus- sion of this question requires a separate consideration of the several uses, and must be reserved • until later. The principles which govern this subject are discussed in works on the powers of municipal corporations and on streets and highways, and in particular cases the answer depends so much upon the language 396; Nelson v. Laporte, 33 Ind. 258; (1853); Norwich Gaslight Co. v. Nor- Richmond County Gas Light Co. v. wich City Gaslight Co., 25 Conn. 19 Middletown, 59 N. Y. 228. In England (1856). it has been held, that the right to lay 2 Lewis Em. Dom., § 126, 129; 2 down gas pipes in a highway can only Dill. Mun. Corp., 4th ed., 4 691, note be conferred by legislative authority, and cases cited. It has been held that Queen v. Charlesworth, 16 Q± B. 1012, pipes for conveying natural gas along and the same is true in America of a highway for the purposes of fuel country highways, Bloomfield & R. N. cannot be laid without compensation Gas L. Co. v. Calkins, 62 N. Y. 386 ; to the land owner. Sterling's Appeal, Sterling's Appeal, m Pa. St. 35. The 11 1 Pa. St. 35; Kincaid v. Indiana Nat. authority must be purely incidental Gas. Co., 121 Ind. 577, (1890); 8 L. R. and in furtherance of the right to con- A. 602; 42 Alb. L. J. 208 ; 24 N. E. Rep. trol the streets, Richmond Co. Gas 1066; 8 Ry. & Corp. Law Jour. 242; 19 Light Co. v. Middletown, 59 N. Y. 228; Am. St. Rep. 113 ; Lahr v. Metropoli- Dodge v. Davenport, 57 Iowa 560. tan El. Ry. Co., 104 N. Y. 268, 292. 1 Milhau v. Sharp, 15 Barb. 210 s Elliott on Streets, p. 299; 2 Dill, 14 ELECTRIC WIRES [§ IO. of charters or statutes that it seems unnecessary to examine closely into the question whether, as a matter of legal theory, a municipal corporation with ordinary powers, has a right to grant permission to set up telegraph, telephone or electric-light lines, or to construct an overhead system for furnishing electric power to the street railway. As a matter of fact provision is generally made by statute for obtaining such franchises upon complying with certain conditions and obtaining a designation of the streets from the local authorities, and the question does not often arise whether, without special legislative authority, a grant of power to use the streets for such purposes may be made by a municipal corporation. §10. Powers of Cities to Grant the Privilege with Eespect to These and Similar Uses — Steam and Horse Railroads. — It maybe well, how- ever, to refer to a few cases in which it has been held that these or similar privileges may or may not be conferred by municipal grant. It has frequently been held that a city cannot give per- mission to use the streets for the operation of an ordinary steam railroad. 1 With respect to horse railroads there is some difference of opinion. Judge Dillon says (§§ 717 and 725) that the power must come from the legislature, but that the ordinary powers are often ample enough to authorize cities to allow the streets to be used for local travel by means of such railroads, but they can- not confer corporate franchises nor authorize taking of tolls. It was decided in New York, in 1856, that an exclusive right could not be thus granted ; but on the question whether the municipal- ity might, by a mere license, revocable at pleasure, authorize Mun. Corp., 4th ed., § 688 ; Lostutter R. R. Co. v. J. C. & Hoboken R. R. v. City of Aurora, 12 L. R. A. 259 Co., 20 N. J. Eq. 61; Morris & Essex (Indiana 1891, Elliott, J.) R. R. Co. v. Newark, 10 N. J. Eq. 352. * 2 Dill. Mun. Corp., 4th ed., § 705 ; See also on the distinction between Cooley Const. Lim., 6th ed. 250, 671 ; steam railroads and horse railroads, Savannah, Albany & Gulf R. R. Co. v. Chapter X, (Electric Railways). Shiels, 33 Ga. 601 (1863) ; State, Mont- In Kentucky steam railroads were gomery v. Trenton, 36 N. J. L. 79; treated in early cases as ordinary high- Chamberlain v. Elizabethport etc. Co., way uses, and a railroad company hav- 41 N. J. Eq. 43; Reichert v. St. Louis ing legislative authority to construct & S. F. Ry. Co., 51 Ark. 491; 11 S. W. a road, municipal consent was held to Rep. 696 (1889); 5 L. R. A. 183; 38 give it authority to use the streets of a Am. & Eng. Cas. 453. city ; Louisville & Frankfort R. R. Co. As to the necessity for legislative v. Brown, 17 B. Monroe 763. authority to lay a railroad in the street, In Illinois and Iowa it is held that see Pennsylvania Railroad's Appeal, cities may authorize the laying of 115 Pa. St. 514; Jersey City & Bergen steam railroad tracks in the streets: §»■] IN STREETS AND HIGHWAYS. IS persons to build such a railroad the judges were divided. 1 The New Jersey Supreme Court said, in 1872, that the power had never been exercised in that State under a mere grant of power to regulate streets, and that the attempt to assert it would doubt- less provoke the most determined resistance." It is certainly true that the right to operate a horse railway is a privilege giving the cars the preference in the right of way over other vehicles, so that a line of omnibuses, for example, will not be allowed to run regularly upon the tracks to the injury of the business ; s and although it is well settled that horse rail- roads are considered a legitimate use of the streets for public travel, it is usually necessary to have special legislative authority to oper- ate a line with all the privileges that are generally required." § 11. The Same: Electric Eailways. — The electric railway, as now commonly operated by the overhead system of poles and wires, differs from the horse railway, not in the purpose of its operation nor in the mode of using the street, but in the fact that poles are set up at intervals along the street and wires are strung over- head for the purpose of supplying electricity to the motors. It Chicago & Vincennes R. R. Co. v. People, 92 111. 21; Milburn v. Cedar Rapids R. R. Co., 12 Iowa 246; Cook v. City of Burlington, 30 Iowa 94 ; 6 Am. Rep. 649; 36 Iowa 357. See 1 Redfield on Railways, § 76, and notes, 6th ed. In reading Missouri cases it is to be observed that special and plenary power with respect to railroads is given by charter to the city of St. Louis. 1 Davis v. New York, 14 N. Y. 506. 2 State, Montgomery pros. v. Tren- ton, 36 N. J. L. 79, 83. 3 Camden Horse R. R. Co. v. Citi- zens' Coach Co., 31 N. J. Eq. 525. 4 Lewis Em. Dom., § 125; Atty. Gen. v. Metrop. R. R. Co., 125 Mass. 515 ; 28 Am. Rep. 264; Stanley v. Daven- port, 54 Iowa 463 ; Hinchman v. Pater- son Horse R. R. Co., 17 N. J. Eq. 75 ; Jersey City & Bergen R. Co. v. Jersey City & Hoboken Horse R. R. Co., 20 N. J. Eq. 61; Sixth Ave. R. R. Co. v. Kerr, 45 Barb. 138; Galbreath v. Ar- mour, 4 Bell. App. Cas. 374; Boston v. Richardson, 13 Allen 146; Sears v. Marshalltown St. R. Co., 65 Iowa 742 ; Redfield on Railways, 3d ed., p. 317 ; Mahady v. Bushwick R. R. Co., 91 N. Y. 148 ; Eichel v. Evansville St. R. Co., 78 Ind. 261 ; 41 Am. Rep. 561 ; Hiss v. Balto. & Hampden Pass. R. Co., 52 Md. 242; 36 Am. Rep. 371 ; People v. O'Brien, in N. Y. 1 ; 2 L. R. A. 255, and note; Adams v. Chicago, B. & N. R. Co., 39 Minn. 286; 1 L. R. A. 493; People v. Newton, 112 N. Y. 396; 3 L. R. A. 194; Attorney Gen. v. Lombard & South St. Pass. Ry. Co., 32 Leg. Int. (Pa.) 338; 1 W. N.'Cas. 489; People's Pass. Ry. Co. v. Mem- phis (Tenn.), 15 S. W. Rep. 973 (1875). But in Iowa it is the well settled doctrine that cities may authorize the construction of street railways. Da- mour v. Lyon, 44 Iowa 276. Aliter of . steam railways ; Stanley v. Daven- port, 54 Iowa 463; 37 Am. Rep. 216. In Indiana it is held that under sec- tion 3161, R. S. (1881) an incorporated city has exclusive power over streets and may grant a railway company power to lay down tracks along and 1 6 ELECTRIC WIRES [§ 12. has been held in many cases to which I shall refer hereafter, that since there is no change in the purpose or manner of the use of the streets, and since the poles and wires are necessary and incidental to the use of the streets for this mode of public travel, there is no additional burden imposed upon the land and no trespass committed upon the adjoining owner. The decision of this question has an important bearing on the question whether it is within the power of the municipality to grant such a privi- lege, but since it is doubtful whether even horse railroads may be authorized without special legislative sanction and since the rail- roads are usually constructed under legislative authority of some kind we need only refer here to the cases cited and discussed in the following sections of this chapter and in the chapter on the Rights of Abutting Owners with Respect to the Electric Railway. 1 § 12. Power of Municipality to Authorize Street Eailway Companies to Use Poles and Electric Wires. — Supposing the legislature to have authorized the operation of a street railway in the streets of a city, and by the original or a subsequent grant to have authorized the use of electric motors, is it competent for the municipal authorities to permit and regulate the construction of what is called the overhead system for supplying the electricity ? On this question there has been some difference of opinion among the courts. Under an express grant by the legislature of the right to use poles and wires the city council would, of course, have power to regulate the use and designate the size and location of the poles, and so give the company their consent to the use of the streets in the manner required, but when the statute provides generally for the use of electric motors the question may arise whether this gives by implication the right to use this means of supplying the electricity, and this may depend on whether, at the time of the passage of the act, the use of the term electric motor in connection with street cars implied the use of poles and wires for supplying the electricity. Before stating the cases on this subject I may suggest that since the right to construct and operate has been given, and such a railway has been held to be a proper use of the street and no trespass on the land, and since the poles and wires are used as necessary or conveni- ent means of supplying the power, and are not in themselves a across streets. Kistner v. Indianapo- M. & C. Ry. Co., 55 Ala. 413' 28 Am. lis, 100 Ind. 210. See also Carli v. Rep. 740. Stillwater St. Ry. Co., 28 Minn. 373; 41 l Chapter II, §§ 12-20, and Chap- Am. Rep. 290; Perry v. New Orleans ter X. § 13.] IN STREETS AND HIGHWAYS. 1 7 greater obstruction of the streets than lamp posts or hitching posts, or shade trees, it may well be, that if power is given by the legislature to use electricity, the local authorities, under their power to regulate streets, may permit poles to be set up in such a way as in their judgment will not interfere with public travel and provide for stretching the wires required to facilitate travel in the street cars. The municipality has not the power to divert the street or any part of it from its proper uses as a street, nor to impose a new burden on the land, nor to affect any of the rights of the land- owner in the street, and whether the use of the electric railway with the overhead system does any of these things must be the subject of a separate chapter ; and in considering the rights of the abutting owner I shall give an account of all the cases relating to the electric railway in*the streets. I need only refer now to those in which the power of the municipality has been especially considered. § 13. The Same Subject : Cases — Taggart v. Newport Street Rail- way Co. — The question came before the Supreme Court of Rhode Island in Taggart v. Newport Street Ry. Co., 1 on a bill filed by a property owner for injunction against the erection of the over- head electric system. The act under which the company was incorporated provided that the road might be operated "with steam, horse or other power, as the council of the city might from time to time direct." The common council of Newport passed an ordinance giving the company permission to use the overhead system, with poles along the curbstone and wires sus- pended over the tracks. The court held that the charter of the company was broad enough to authorize the use of electric power, and that the words " other power " were not to be confined to animal power, but that, "As the charter was passed in the winter of 1 885, when the idea that electricity might be brought into use as a motor was familiar, it seems probable that the words ' other power ' were used with a view to its possible employment." They said the poles and wires were directly auxiliary to the ordinary uses of the street in furnishing the power by which street cars are propelled ; that the electric railway did not constitute a new burden, and that the ordinance was valid. 1 Taggart v. Newport St. Ry. Co.; with note ; 43 Am. & Eng. R. R. Cas. January 25, 1890, 16 R. I. 668; 19 Atl. 208, 7 L. R. A. 205, with note. See also Rep. 326 ; 2 Am. Ry. & Corp. Rep. 55, this case quoted infra ChapterX, § 17. E. W.-3 18 ELECTRIC WIRES [§ 1 5' § 14. The Same : Mt. Adams and Eden Park Inclined Railway Co. v. "Window. — In November, 1888, it was decided by the court of common pleas of Hamilton County, Ohio, that poles and wires for the electric railway were an additional burden upon the land used for a street, and that a landowner who had not received compensation was entitled to a mandatory injunction for the removal of the poles. 1 On appeal to the circuit court of Ham- ilton County the decision was reversed, 2 and it was held that the use of the streets for horse cars was a proper one, and that the change of the motive power to electricity made no difference, and the poles and wires being used for the purpose of facilitating public travel, imposed no new burden on the land. The per- mission to make the change, and to put up the poles and wires was given by the common council, and the court held that the plaintiff, an abutting landowner, was not entitled to an injunction. The right of the common council to grant the permission was not discussed, but it must have been assumed that the grant was sufficient, or else that the point was not one which could be taken by the adjoining landowner. § 15. The Same : Lonergan v. Lafayette Street Railway Company. — In Lonergan v. Lafayette Street Railway Co., decided by the circuit court of Lafayette, Indiana, July 9, 1890, 8 it appeared that the statute under which the defendant company was organized pro- vided for the incorporation of any "street or horse railroad company for the purpose of constructing street or horse railroads through the streets of the cities and towns" of Indiana. The act was entitled "An act to provide for the incorporation of street railroad com- panies," and was passed in 1881. The city gave the company license in 1882 to operate their road by horse or electrical power. The court held that the legislature must be supposed to have contemplated new discoveries and inventions, and that they must not be understood as meaning to exclude the new and use- ful appliances that might be invented, and that the language of the act was broad enough to cover a street railroad, whether the cars are drawn by horses or propelled by electricity. It was held also that there was no change in the use of the street, and that neither in the use of poles nor by reason of danger and noise, was there a new servitude imposed upon the land. 1 Mt. Adams and Eden Park Inclined counsel for the Edison General Elec- Ry. Co. v. Winslow, ao Week. Bull. 420. trie Company, No. 44 Broadway, New J S. c, 3 Ohio Circuit Ct. Rep. 425. York, for copies of the opinions in 8 1 am indebted to Mr. John A. Wise, this and the two following cases. § I J- J IN STREETS AND HIGHWAYS. 19 § 16. The Same : Louisville Bagging Manufacturing Co. v. Central Passenger Railway Co. — A similar decision was made about the same time in the Louisville law and equity court, at Louisville, Kentucky. 1 The company was incorporated in 1865. An act of the legislature was passed in 1871 authorizing the company and the city to alter any contract theretofore made in relation to the motive power to be used in propelling cars on its tracks. In 1884 the legislature amended the charter so as to grant the com- pany the right to operate its cars by the cable system or electric- ity, or such other power as might be approved by the general council of the city of Louisville. In 1886 an act was passed authorizing the company to build and operate lines on the streets and routes granted through its charter or by ordinance, such lines to be operated by any power now authorized in the charter as amended, and the council was empowered thereafter to grant "authority to build and operate lines on routes and on such terms and conditions" as might be agreed upon. In 1888 the council granted the right to use the cable or elec- tricity as a motor on any or all of its lines, and to erect all neces- sary structures and appliances therefor. It was held that there • was no doubt the company had acquired legislative and muni- cipal sanction of the use of electricity as a motive power, and that the erection of posts and the construction of the apparatus neces- sary for the safe application and use of electricity as a motive power was not a diversion of the street from its proper uses. § 17. The Same: Detroit City Kailway Co. v. Mills. — In Detroit City Railway Co. v. Mills, in the circuit court of Wayne County, Michigan, the action was brought for cutting down a pole erected for an electric railway, and the defense was that the plaintiff had no right to put it up. The company was authorized by statute to propel its cars by steam or other power whenever the munici- pality should authorize the same. In January, 1889, it was em- powered by a city ordinance to substitute for animal power such system of electric or other motive power, except steam, as should seem best. It was held by Reilly, J., that the electric railway did not constitute a new burden, and that it was within the power of the city council to authorize the use of the poles and wires. This decision was affirmed by the Supreme Court of Michigan, May 6, i89i. a And it was held that under this action of the 1 Louisville Bagging Manufacturing a Detroit City Ry. Co. v. Mills, 48 Co. v. Central Passenger Ry. Co., N. W. Rep. (Mich.) 1007; 10 Ry. & June 30, 1890. Corp. L. J. 103. Two of the judges 20 ELECTRIC WIRES [§ !<)• legislature and the municipality, the railroad company had a right to use the overhead system for propelling street cars by electricity, and in this case, it will be observed, the poles and wires are not mentioned in the ordinance, but are only implied in the general permission to use electricity as a motive power. § 18. The Same : Pelton v. East Cleveland E. R. Co. — In Pelton v. East Cleveland R. R. Co. 1 the company had constructed a street railway under a general ordinance of the city of Cleveland regu- lating the construction and running of passenger cars drawn by horses or mules. The road was built in 1859, an ^ there was no statute at the time authorizing the construction of street rail- roads, but the company obtained the consent of the owners of the greater part of the adjoining property in pursuance of the ordinance. The statute pertaining to the subject was not passed until 1 861. In 1879 tne company obtained from the city a re- newal of the franchise for twenty-five years, but did not ask for the consent of property owners. On July 13, 1888, the city council passed an ordinance granting the company " the right to erect and maintain wires and all necessary appliances for produc- ing and conducting electricity as the motive power " on a certain part of its line, and this was extended by resolution on May 13, 1889, to the streets in question. On a bill for injunction by one hundred and twenty-five property owners, it was held that the change of motive power did not change the manner of use of the street, nor impose a new burden upon the land ; that the pro- vision requiring consent of property owners did not apply, and that the ordinance and resolution were valid. The decision of the common pleas was affirmed on appeal by the circuit court, Caldwell, J., reading the opinion of the court. 2 § 19. The Same : Cases in Chancery in New Jersey. — In Halsey v. Rapid Transit Street Railway Co., the question came before dissented, but only on the ground, that hoga circuit court, not yet reported. street railways, especially if they use See also State of Ohio v. East Cleve- the overhead electric system, are a land R. R. Co., in the Cuyahoga cir- new burden on the street, for which cuit court, quoted in this opinion, in damages must be paid to abutting which it was held that the consent of owners. For a fuller statement of the property owners, having once been case, see §§ 18 and 24, Chapter X, infra obtained for the construction of a (Abutting Owners — Electric Rail- horse railroad, was not required on way). the renewal of the franchise nor on the 1 Pelton v. East Cleveland R. R. Co. change of motive power to elec- Cuyahoga Com. Pleas, Ohio (July tricity. 1889), 22 Week. Bull. 67; s. c, Cuya- 2 See Chapter X, § 16, infra. § I9-J IN STREETS AND HIGHWAYS. 21 the court of chancery of New Jersey. 1 The railroad company had been organized under a general act for the formation of street railway companies which prescribed no special motive power. There was also a later statute authorizing the use of electric motors with the consent of the common council, and this consent had been given by a resolution authorizing the erection of poles along the curb line of certain streets and along the mid- dle line of the broader streets, prescribing the character of the poles and fixing the location of them. Van Fleet, V. C, referring to the fact that the company was organized under a general statute for the formation of street railway companies which in no way specified or limited the kind of motive power to be used, said : " Hence, under the general grant of power to maintain and operate a street railway, it would seem to be clear that a corporation formed under this statute takes, by necessary and unavoidable implication, a right to use any force in the propulsion of its cars that may be fit and appro- priate to that end, and which does not prevent that part of the public which desires to use the street according to other custom- ary methods, from having the free and safe use thereof. 8 Besides the act of incorporation, he said, there was another statute expressly authorizing the use of electricity as a motive power with the consent of the common council. The consent had been given by resolution, and a resolution was sufficient (no particular mode of giving the consent being specified). The resolution provided for supplying the electricity by means of the poles and wires, and in the present state of the art, as appears from the evidence, these constitute a part of the best, if not the only means by which electricity can be successfully used for street-car propulsion ;' and, therefore, he held the defendants had a right to use the poles and wires to furnish the motive power for operating their road. He held, moreover, that they were used to facilitate public travel on the street in the cars, and did not impose a new burden on the land nor entitle the owner to compensation. This decision was approved and acted on by the Chancellor of New Jersey in Jersey City and Bergen St. R. R. Co. v. Jersey City, de- cided in November, 1891, in which an order was made restraining a new board of works from interfering with the construction 1 47 N. J. Eq. 380 ; 20 Atl. Rep. 859, 55 Am. & Eng. R. R. Cas. 76; Dec. 6, 1890. a N. J. Law Journal, April, 1892. 22 ELECTRIC WIRES [§ 20. of a line of poles and wires permitted by an ordinance of the common council under the statute authorizing the use of electric motors. The order permitted proofs to be made to show that this manner of construction of this particular line was dangerous, but excluded all evidence to discredit the trolley system, on the ground that the right to use that was fixed by the action of the common council under the statute. It is to be observed, that in none of these cases is the use of poles and wires expressly authorized by the legislature, and in some of the cases it is not expressly mentioned in the municipal ordinance ; but in all the cases it is held or assumed that the aur thority to use the electric motor is sufficient authority for using these means of supplying electricity. § 20. The Same : Contrary Decision in the New Jersey Supreme Court. — The questions raised in the Halsey case came before the New Jersey Supreme Court in a suit on certiorari between the same parties, and it was decided that the common council had not power to grant the resolution authorizing the erection of the poles. No reference was made to the opinion of the vice-chan- cellor nor to any of the cases above cited. The decision was based upon the construction of the statute and upon the conclu- sion of the court upon the evidence as to what was implied in the term electric motor. 1 The court assumed it to be entirely settled that, without the authority of the statute, the city council had no power to permit the use of the poles, and decided that the statute in providing for electric motors did not by implication sanction the obstruc- tion of the street by the poles and wires of the overhead system. The conclusion was that the common council had no power to authorize or consent to anything more than the use of an electric motor (operated by a storage battery within the car), and that the ordinance pretending, as it did, to vest in the company the right to place poles and string wires in the streets was a nullity. The court expressly said that its conclusion rested upon the in- tention of the legislature, as expressed in the act, and declined to express an opinion on the question whether the rights of the owners of abutting land were affected. The court distinguished between the electric railway operated by the overhead system and the horse railway as described by Chancellor Green in 1 State, Green, pros. v. Trenton and sey pros. v. Newark and the Newark the Trenton R. R. Co. and State, Hal- Pass. Ry. Co. N. J. Supreme Court, § 2 I.J IN STREETS AND HIGHWAYS. 23 Hinchman v. Pater son R. Co., above referred to, 1 and said it was only because horse railways made no obstruction in the streets, that they were considered in that case as being only a modifi- cation of the ordinary use of the streets for vehicles ; but poles and wires, the court held, were such obstructions as changed the character of the use of the street and could only be permitted by the clearest expression of legislative intent. This decision will be considered hereafter in connection with the decisions of other courts which have taken a very different view of the relation of these poles to the proper uses of the street.'' § 21. The Same : Telegraph and Telephone Lines. — Legislative sanction either given directly or mediately conferred through proper municipal action is, of course, as Judge Dillon says, nec- essary to authorize the use of the streets for the poles and wires of a telegraph or telephone company ; 3 but the question remains whether, under the powers generally conferred upon city govern- ments, they have authority to grant permission to set up telegraph and telephone lines in the streets. Whether this comes within the power to regulate streets, depends a good deal on whether the use of the streets for telegraph and telephone purposes is a proper street use or not, and this question will be discussed in the chapter on the Rights of Abutting Owners with respect to the telegraph and telephone. 1 It has been held in many States, that these lines are a new use of the streets, and impose an addi- tional burden on the land, and if this is so, it would require spe- cial legislative sanction to justify their construction. In New Jersey, where the consent of the landowner to the poles is re- quired by statute, it has been held that a city having liberal charter powers has not authority to grant a telephone company the right to erect and maintain a line of poles and wires in the streets. 6 Magie, J., said, the legislature representing the public, may restrict the public use by granting a right to erect poles and other obstructions in the streets, and may delegate such authority to municipalities, " but such grant of power must plainly appear either by express grant or by necessary implication." In a case in Missouri," where the telegraph is held to be a January, 1892 ; 15 N. J. Law Journal 34 4 Chapter VIII ; and see also Chap- and 45, with note stating the evidence ters IX and X. and citing cases. 5 State v. Domestic Teleg. & Teleph. 1 $ 9. 17 N. J. Eq. 78. Co. v. Newark, 49 N. J. L. 344 (18&7). 2 Chapter X. 6 City of : St. Louis v. Bell Teleph. 8 Dillon Mun. Corp. 4th ed. 5 698. Co., 96 Mo. 623; Julia Building Asso- 24 ELECTRIC WIRES [§ 22. proper use of the street, large powers had been granted to the city of St. Louis, and no question was made as to its power to grant the right to construct the line of telegraph. The court said that the power of the city of St. Louis to regulate streets, extends to new uses as they spring into existence from time to time, as well as to old ones in use at the time of the grant of the power, and that the telephone was one of such uses. The line had, however, in fact been authorized by statute, as well as by ordinance. These decisions relate especially to privileges con- ferred on companies constructing lines for business purposes, but the telephone and telegraph are both used for municipal pur- poses in aid of the fire and police departments, just as elec- tric-light wires are used for public lighting, and it would seem that a city having full police powers would have implied author- ity to set up telegraph poles for such purposes, as well as to place fire plugs and lamp posts in the streets. 1 § 22. The Same : Electric Lighting. — The powers of village trustees are not as great as those of a city corporation and it has been held in New York, that the trustees of a village have power to authorize the erection of poles for lighting the streets and public places by electricity, even if not for lighting private build- ings, but that the fact that a pole is used also for private pur- poses does not justify the removal of it. a And in a later case, the supreme court referring to this, was inclined to admit the power of the municipal authorities to authorize the use of poles and wires for lighting all private houses which should require the light. The court said the owner of the soil might have a right to compensation, but it does not follow that he has any other right, and an injunction against his cutting down the poles was allowed, although the poles were part of a system intended for lighting an adjoining village." ciation v. BellTeleph.Co., 88 Mo. 258. field Gas Co., 22 Eng. Law & Eq. 518; See Rights of Abutting Owners, Tele- Galbreath v. Armour, 4 Bell App. Cas. graphs and Telephones, infra, Chap- 394, and other cases cited infra Chap- ter VIII. ter IX, § 2, note. As to the necessity for legislative 1 For cases on this and analogous authority for using the streets or high- questions see the next paragraph (22), ways for telegraph or telephone poles, and also Chapter IX. see also Commonwealth v. Boston, 97 2 Johnsonv.ThompsonHoustonElec- Mass. 555 ; Regina v. United Kingdom trie Co., 54 Hun 469 ; 28 N. Y. St. Elec. Teleg. Co., 9 Cox. Cr. Cas. 173- Rep. 296; 7 N. Y. Supp. 716. See also 180; Young v. Yarmouth, 9 Gray Elliott on Roads 525. 386. 3 Electric Construction Co. v. Heff- As to gaspipes.see Regina v. Shef- ernan (Sup. Ct.), 34 N. Y. S. R. 430; § 24.] IN STREETS AND HIGHWAYS. 2$ § 23. Governing Principle in All These Cases.— With respect to all these uses of the street, the governing principle would seem to be, that municipal corporations cannot grant exclusive privileges, cannot divert the street from its proper uses as a street, and can- not take private property, whether incorporeal or tangible ; but they have the power to regulate the use of the streets, and to de- termine in the first instance, at leasts whether or not anything is an obstruction to the public use of the street. There are many purposes of a public nature for which streets have been em- ployed by custom, which are in no way connected with public travel. They have been used for sewers, gas pipes and water pipes. They have been incumbered with lamp posts, awnings, and hitching posts. They are convenient avenues for dis- tributing water, light, heat, power and other things of general necessity or convenience. If, therefore, the use of electric wires, whether over the street or underground, for any particular purpose, does serve a purpose for which streets are ordinarily used, does not involve an exclusive franchise, and does not affect private rights in the adjoining lands, and does not obstruct public travel, in any such case it would seem that a municipal corporation might, under its implied powers, give authority to use the street for the electric wires. § 24. The Paramount Authority Is in the Legislature. — The subject, however, belongs, as I have said, more especially to the law of Municipal Corporations and Municipal Franchises ; and without discussing it any further, I only wish to emphasize the fact that the power over the streets belongs to the legislature and not to the municipality. The legislature alone has the power to divert them from their ordinary uses, or to limit or extend the uses to which they may be put. The streets, as Judge Dillon says, do not belong to the city or town where they are situated, even though acquired by the exercise of eminent domain and the damages paid out of the corporation treasury. The au- thority of municipalities over streets, they derive, as they derive 12 N. Y. Supp. 336; 58 Hun 605 Co., 67 How. Pr. 73 (N. Y. 1884); (1890). The distinction between People ex rel. McManus v. Thompson, lighting' public places and private 65 How. Pr. 407 ; People ex rel. Mc- houses was taken in Tiffany v. U. S. Manus, 32 Hun 93. Some account of Illuminating Co., ji N. Y. Super. Ct. these cases will be found in connec- 280 (1885). See also in regard to tion with the rights of abutting owners municipal authority under legislative with respect to electric -light wires, sanction, Tiffany v. U. S. Illuminating (Chapter IX). 26 ELECTRIC WIRES [§ 2$. all their other powers, from the legislature — from charter or statute. 1 It is also important to bear in mind that so far as the rights of the public are concerned, the power of the legislature over the streets is absolute. Subject only to making compensation for injury to private property — that is, to land or to rights in or relat- ing to land — the legislature representing the public has absolute power to dispose of the public rights in the streets. 2 It may release the public rights either wholly or partially ; it may vacate the street entirely, or authorize it to be used wholly or partially for a railroad or telegraph or any other purpose. It is only with respect to the private rights of owners of land along the street that any question can arise in regard to the authority of the legislature, or the municipality duly authorized by the legisla- ture, to change the uses of a street or divert any part of it from the purposes of public travel to any other purpose. All these questions in regard to the diversion of the streets from their ordinary uses will be considered in dealing with the rights of the owners of abutting lands, and the question whether electric wires of various kinds may be put up in the streets without making compensation." § 25. Authority of Some Kind Is Required for Special Uses of the Street, Even though They Are Proper Street Uses. — It has been argued that if the use of the wires or rails or any such exclusive use is a proper use of the highway, no authority of any kind is required, because the highway is open to any one who wishes to use it as a highway, and hence it is insisted that if legislative authority is required for any particular use of the highway, this is enough to prove that it is not a proper use of the high- way, but a new use, for which compensation must be made to the abutting owner. 4 It may well be, however, that the legislature has a right to distribute the space' occupied by a street, and appropriate the several parts to various uses, and yet that individ- 1 2 Dill. Mun. Corp.,. 4th ed., $ 683, phone, Electric Light, Electric Rail- citing cases ; Pennsylvania R. R. Co.'s way, etc. Appeal, 115 Pa. St. 514; Case of the * Lewis' Em. Dom, §§ 111, 124. Phila. & Trenton R. R. Co., 6 Whart. 6 See Lonergan v. Lafayette St. Ry. 25 (Pa.) Co., circuit court at Lafayette, Ind., 2 Ibid. Dill, on Mun. Corp., $ 657 ; July 9, 1899. Langdon, J., says : "The Domestic Teleg. & Teleph. Co. v. use of a street has been, as public. Newark, 49 N. J. L. 344-346. needs have required, subdivided, and 3 Infra Chapters VIII, IX, X, Abut- particular portions of public use have ting Owners— Telegraph and Tele- been restricted to certain defined lim- §25-] IN STREETS AND HIGHWAYS. 27 uals could not do this without legislative sanction. If there are various public uses to which streets are ordinarily put, the public authorities may provide for them all, some to be exercised in one part and some in another, so that altogether they shall serve all the purposes for which the street is required ; and yet, without this provision, no person would have the right to reserve to one special use any part of the space devoted to the general uses of a street. However this may be, and whatever the effect of the decision upon the question of compensation to adjoining owners, it appears to be well settled that no franchise or privilege for any special use of the streets can be obtained without the permission of the public authorities ; and there are no cases in which it is held that poles and wires for the telegraph, the electric light or the electric railway may be set up in the streets without authority of some kind. its in the street, as the sidewalks are devoted to foot passengers and the in- termediate spaces to animals, vehicles, and other uses. The greater and more complex the uses become, the incon- venience to former uses becomes greater and more denned. It is not, then, every incovenience, impairment or curtailment of the customary ac- commodations or enjoyments of the general public, or the abutter, that will suffice to constitute a legally apprecia- ble deprivation of a right of either. To determine whether a use of a street is without the original public ease- ment, it is quite plain that the incon- venience complained of must be tan- tamount to a substantial impairment of the public use — in other words, that the use of the street is destroyed or converted into a new use, subversive of its original purpose." For a further discussion of the power of municipal corporations over electric wires I may refer to Thomp- son on Electricity, chapter 3, which has appeared since the chapter was written. For a detailed statement of the laws of all the States with respect to fran- chises for the use of the streets, see a book on Economic Legislation of All States Relating to Incorporated Com- panies Operating Under Municipal Franchises, by Allen R. Foote, now being printed by Robert Clarke & Co., of Cincinnati. The account of the statutes and decisions of each State was prepared, by an attorney in that State, and, having myself had a hand in preparing the New Jersey section, I know that it is useless to ' attempt to go into the statutes of all the States in this present book on Electric Wires. 28 ELECTRIC WIRES [§ !• CHAPTER III. MUNICIPAL CONTROL — CONSENT OF LOCAL AUTHORITIES. § 1. Grants Are Ordinarily Made Subject to Control of Local Author- ities. — The legislature, as I have said, has the power to grant the right to make any special use of the streets. This power is now in many states conferred only by general laws, and in those cases may be acquired by any one on fulfilling the conditions prescribed. The statute giving the power, generally provides for the super- vision or consent of some local authority. In some states, there are boards of commissioners to whom such matters are referred, in others, the question of the propriety of allowing certain fran- chises is referred to the Probate court, which hears evidence and decides to a certain extent judicially. More commonly, the regu- lation of the matter is delegated to a greater or less extent, to the municipality where the streets are located. With the increase in the use of electric wires, special provisions have been made for the regulation of the setting up and main- taining wires in the streets for various purposes. The statutes authorizing the construction of telegraphs provided in many cases for the designation of the streets by the common councils of the towns through which the line passed. Special officers are in many cases appointed to supervise the putting up of electric light wires, and boards of electrical control have been constituted in some large cities, with extensive powers over all electric wires. It is very common also for the legislature to make the right to use the street conditional upon obtaining the consent of a certain proportion of the property owners. 1 'In Ohio, for example (Rev. Stat, are to appoint appraisers of damages 1890, § 3459), it is provided that the of persons over whose lands telegraph mode of use of streets shall be such as lines shall pass or be erected. Act of shall be agreed upon between the February 8, 1847, Rev. Stat. 1890 municipal authorities and the tele- (8747). So also by the act of May 12, graph company, and that if they can- 1886, Rev. Stat. 1890 (8752), companies not agree, and if they unreasonably de- are authorized to construct lines for lay to enter upon an agreement made, light and power through the streets the judge of the Probate court of the and alleys, etc., with the consent of the county shall direct in what mode the municipality. In Connecticut, the telegraph line shall be constructed selectmen of any town, the common along the line of the street. In the council of any city and the warden same State the county commissioners and burgesses of any borough are §2-] IN STREETS AND HIGHWAYS. 29 The authority to use the streets comes from the legislature, but the legislature may delegate to the local authorities the right to say upon what conditions the power may be used, or it may give only the right to determine the manner of the use. In the former case, there is a distinct delegation of legislative authority to grant the franchise ; in the latter, there Js only a grant of the power to regulate, but not to withhold the franchise. § 2. Grants Upon Condition Precedent — Power of Municipality in Such Cases. — If the legislative grant is made conditional upon the municipal consent so that the statute amounts to a distinct delegation of authority to determine whether the line shall be constructed or not, it is probably true that no authority can be obtained without the consent for whatever reason it may be withheld, although there are decisions which suggest that this is in effect legislation, and that it is very doubtful whether the given full direction and control over the placing, erection and maintenance of electric wires and fixtures ; Gen. Stat., § 3946, and no company using electric wires may exercise any of the powers conferred upon it to erect wires and fixtures over or under any public highway without the con- sent of the adjoining proprietors, or in case such consent cannot be ob- tained without the consent, in writing, of two of the county commissioners after hearing and notice. Gen. Stat., § 3945- In Illinois, the consent of the town or county authorities is required. (Hurd's Rev. Stat. 1889, ch. 134). In Massachusetts, the location of the posts is to be specified in writing by the mayor and aldermen. Pub. Stat. 1882, ch. 109, § 2. See also ibid, ch. 27, as to the powers of the selectmen, etc. So also in New Jersey, telegraph and telephone companies are author- ized to use the highways for the pur- pose of erecting poles on obtaining the consent in writing of the owners of the soil, and they are required to apply to the legislative body of any municipality through which they may pass for a designation of the streets to be used and the location of the poles (Rev. 1174, Supp. Rev. 1022). Pro- vision is made for application to the Circuit court in case the owners will not consent, or the town authorities will not designate the streets (Acts of 1887, ch. 377). For a collection of the statutes of the various states relating to tele- graphs and telephones, see Telegraph Laivs of the United States, 1 Volume, New York, 1880 ; Telegraph Laius of the American States and Canada, 1 Volume, New York, 1884, and ad- dendum 1884 (prepared for the use of the Baltimore & Ohio Telegraph Co.) ; American Statutes Relating to Tele- phones Collected; series of articles in American Law Register (N. S.), vol. 20, by J. B. Uhle ; Scott & Jarnagin on Telegraphs, published in 1868, con- tains an appendix of statutes in force at that time. See also a number of statutes quoted in Thompson on Elec- tricity, ch. 3, art. 2.. For a careful statement of the laws of all the states in regard to municipal consent to elec- tric wires in the streets, see Economic Legislation, by A. R. Foote, with the laws of several states, edited by Charles E. Everett, and now about to be published by Robert Clarke & Co., Cincinnati. 30 ELECTRIC WIRES [§3- legislative department can delegate to any other authority the power to grant such a franchise. 1 It has been held that where the right is given upon obtaining the consent of the municipality, the latter is not limited to giving or refusing consent, but may annex conditions as the price of its consent, but there are cases in which it is held that the consent cannot be withheld arbitrarily, but that it is the exercise of" the police power, and must be exercised in a reasonable manner and so as not wholly to defeat the grant. 2 If the right to use the streets is made conditional upon obtain- ing the consent of a certain number of property owners the condition must be fulfilled before the right is acquired. 8 We need not stop to discuss the subject of the powers of municipal corporations in such cases with reference to the use of the streets generally, but may refer to the standard text books. 4 § 3. Grants Subject to Municipal Regulation. — Even where the assent of the municipal or local authority is not expressly made a condition of the right to use the streets, it is usual to give power to determine the manner in which the streets may be used. Without discussing this subject generally, we may refer to some 1 Peoples' R. R. Co. v. Memphis R. R. Co., io Wall. 38-50 (1869) per Clif- ford, J. 1 The legislature may delegate to the municipality the right to say how and upon what conditions the public streets may be used. 2 Dill. Mun. Corp., 4th ed., § 708. The consent may be given upon con- dition e. g. that a station shall be built, or that the street shall be paved. 2 Dill. Mun. Corp., 4th ed., § 706, and cases cited; Jersey City & B. R. R. Co. v. J. C. & H. R. R. Co., 20 N. J. Eq. 61, 360, or that a street shall be graded and a crossing built, Ind. & Cin. R. R. Co. v. Lawrenceburgh, 34 Ind. 304, or that a steam locomotive shall not be used, Richmond F. & P. R. R. Co. v. Rich- mond, 96 U. S. 521 ; Detroit v. Detroit R. R. Co., 43 N. W. Rep. 447, but the municipality cannot by withholding consent destroy a franchise granted by the legislature, Jersey City and Ber- gen R. R. Co. v. Jersey City and Hobo- ken R. R. Co., 20 N. J. Eq. 61 ; Jersey City v. J. C. & B. R. R. Co., 20 N. J. 360; Paterson Passaic H. R. Co. v. Paterson, 24 N. J. Eq. 158. Even though the consent of the city be required as a condition precedent, the courts have power to review the decision to prevent oppression and fraud. City of Savannah v. Hancock, 91 Mo. 57, 3 S. W. Rep. 215 ; City of Kansas v. Baird, 98 Mo. 215, u S. W. Rep. 243, 562; St. Louis Ry. Co. v. Southern Ry. Co. (Mo.), 16 S. W. Rep. 960-962 (1891). See also Am, Union Teleg. Co. v. Town of Harrison, 31 N. J. Eq. 628. 8 2 Dill. Mun. Corp., 4th ed, $ 705, 706, 719 and notes. * So held in the case of an electric street railway under laws of New York 1884, Ch. 252; Re Rochester Electric Ry. Co., 33 N. Y. St. Rep. 695; 25 N. E. Rep. 381. Also in a case where the right to use the streets for a steam railroad was -given only on petition of the owners of one-half the frontage of the adjoining land. § S-] IN STREETS AND HIGHWAYS. 3 1 special provisions in the way of regulation which are commonly imposed with respect to telegraphs, electric light wires and other electric wires. § 4. Designation of the Streets to be Used For Telegraph, Telephone and Electric Light Wires. — Where the statute gives the right to use the highway for the purpose of a line of telegraph, and provides that the company must first obtain from incorporated towns a designation of the streets in which the poles shall be placed and the manner of placing the same, the application for this designa- tion of the streets is a condition precedent to the right to set up the poles. 1 The purpose of such legislation as Vice-Chancellor Van Fleet says in a New Jersey case' " is to invest telegraph com- panies with the right to use the streets of an incorporated town for the purpose of erecting their poles therein, subject, nevertheless, to such municipal control as may be necessary to secure to the public, safety, convenience and freedom in the use of the streets. The municipal authorities may say what streets shall be used, at what points in the streets the poles shall be erected and how they shall be planted and secured, but they have no power to lay an embargo. They have a right to regulate, but not to interdict, and their regulations to be valid, must be reasonable and fair." § 5. The Power to Designate Streets or to Specify the Kind of Poles Does Not Imply the Right to Impose Other Conditions. — If the right is granted subject to the right of the city to designate the streets, the city is bound, on proper application made, to make the desig- nation, 3 and where a company has power under a statute to place poles in the streets subject to city regulations by ordinance of the location of the poles and the kind of poles that shall be used, it Hunt v. Chicago Horse & Dummy R. N. J. L. 83; 2 Dill. Mun. Corp., $ 720, Co., 121 111. 638. (4th ed.) A horse railway prohibited by stat- £ Am. Union Teleg. Co. v. Town of ute from using any railroad, turnpike Harrison, 31 N. J. Eq. 628. or artificial road without the consent 3 Am. Union Teleg. Co. v. Town of of the parties owning the same, cannot Harrison, 31 N. J. Eq. 628. lay its rails on the paved streets of But see Suburban Light & Power Philadelphia without the consent of Co. v. Boston, 153 Mass. 200; 26 N. the common council. Commonwealth E. Rep. 447; 10 L. R. A. 497 (1891), v. Central Pass. Ry. Co., 52 Pa. St. 506. where in a case relating to elec- 1 New York & New Jersey Telephone trie light wires it was said that the Co. v. Township of East Orange, 42 N. statute concerning telegraph lines J. Eq. 490; State v. Broome pros. v. providing • that the mayor and alder- New York & New Jersey Teleph. Co., men of a city " shall designate the 49 N. J. L." 624 ; s. c. 50 N. J. L. 432 ; streets" should not be construed to be Winter v. N. Y. & N. J. Teleph. Co., 51 imperative so as to take away the con- 32 ELECTRIC WIRES [§ 6. has been held that the city has no right to prescribe other con- ditions and to refuse permits because these conditions were not accepted and that a mandamus should issue to compel the board of improvements to grant a permit for the construction of the line along the streets referred to. 1 In the case of an electric railway it was held that where per- mission to use electricity as a motive power had been granted by the legislature, with authority to erect poles, ",the kind and pat- tern to be approved by the common council," the council was bound to approve of a proper kind s of pole and could not, after approving of iron poles insist on the company giving free transfer tickets in consideration of being allowed to use wooden poles. The court said that such a condition was in conflict with the statute providing that a city shall not revoke a consent once given, nor deprive a company of rights and privileges conferred. 2 § 6. Electric Lighting Specially Subject to Local Control. — But under a statute declaring that a statute directing towns to des- ignate streets for telegraph lines should apply to electric light companies " so far as applicable," it was held in Massachusetts that it was not imperative upon a town to designate streets for electric light wires. The court said the use of these was local, and a refusal to allow them in the streets of a town would not defeat a business extending over a large territory, and it could not be supposed that the legislature intended to take away from the. local authorities the power to decide whether wires for lights in the town were safe and proper or necessary. 8 The statute trol of the city over its streets with ing Co. v. Jones Bros. Electric Com- respect to telegraph lines. pany, Super. Ct. Ohio, 23 Wkly Law 1 State v. Flad, 23 Mo. App. 185, Bull. 137. (1886). One of the conditions im- See also Brush Electric Light Co. posed related to the use of the posts v. Jones Brothers Electric Light Co., and wires by another company, and Hamilton (Ohio) Com. Pleas, 23 W. the other limited the number of wires L. Bull. 329, where it was held that a to such as were absolutely necessary, franchise must be obtained under Rev. 2 Electric Ry. Co. v. Grand Rapids, Stat., §§ 2491, 3550, 3551, although the 47 N. W. 567; 84 Mich. 257, (1890). company had obtained a permit from 8 Suburban Light and Power Co. v. the board of affairs in pursuance of a Boston, 10 L. R. A. 497, with note ; city ordinance. 26 N. E. Rep. 447, (Mass., January 26, Where a statute provided that no 1891). telegraph poles should be erected There is a statute in Ohio providing without first obtaining a designation for the joint use of wires by electric- of the streets from the authorities of light companies. The statutory con- any city or town through which the ditions are construed in Hauss Light- line should pass, it was "held in New § 7-] IN STREETS AND HIGHWAYS. 33 relating to telegraphs declared that the mayor and aldermen, or selectmen of any city or village through which a line should pass, " shall designate the streets " where the line should be put up, the court said this ought not to be construed as imperative, nof as taking away from the local authorities the control over the streets. § 7. How Municipal Consent May be Given. — If the statute requiring the municipal consent specifies how the consent shall be given, the mode prescribed must be followed. If the statute gives the municipality authority to exercise certain powers by ordinance, a resolution will not be sufficient.' Certain form alities with respect to time and notice are required for the passage of an ordinance, and to permit an act to be done by resolution is to dispense with these formalities, and the courts therefore will not allow common councils to act by resolution, when an ordi- nance is required by the charter or statute. As a general rule, if a statute merely requires the consent of the common council, and is silent as to the mode in which it shall be given, a resolu- tion is sufficient ; a and in the case of Halsey v. Rapid Transit Street Railway Co., above referred to, it was held by the Vice- Chancellor that where the statutejprovided, that with the consent of the common council, street railway companies might use elec- tric motors, this consent was properly given by resolution ;' but the better opinion seems to be, and it was distinctly held by the Supreme court in New Jersey with reference to that same reso- lution that where the power conferred by the charter is the power to pass ordinances for regulating streets, the consent to putting up poles and wires for electric railways must be given by ordi- Jersey that the question was not so ville, 45 N. J. L. 279; State, Pater- much whether the town was incorpo- son v. Barnett, 45 N. J. L. 62. See, rated as whether it had control of however, Sower v. Philadelphia, 35 Pa. streets as distinguished from country St. 231, where a resblution was held to roads. N. Y. & N. J. Teleph. Co. v. be in fact equivalent to an ordinance. East Orange, 42 N. J. Eq. 490 ; Broome 2 Dill. Mun. Corp. 4th ed., § 307 and v. N. Y. & N. J. Teleph. Co., 49 N. J. notes. Bigelow v. Perth Amboy, 1 L. 624. Dutch. 25 N. J. L. 297 ; State v- Jersey 1 Dill. Mun. Coi-p. 4th ed., § 307 and City, 3 Dutch. 27 N. J. L. 493 ; Green notes. State, Van Vorst v. Jersey City, v. Cape May, 41 N. J. L. 45 ; Burling- 3 Dutch. (27 N. J. L.) 493; State, Glea- ton v. Dennison, 42 N. J. L. 165; But- son v. Bergen, 33 N. J. L. 72; State, ler v. Passaic, 44 N. J. L. 171; Halsey Hoboken L. & I. Co. v. Hoboken, 35 v. Rapid Transit St. R. Co., 47 N. J. N. J. L. 205 ; State, Story v. Bayonne, Eq. 380. 35 N. J. L. 33.5 ; State v. Paterson, 45 3 In Illinois and Iowa, where cities N. J. L. 267 ; State, Hunt v. Lambert- have power to grant the right to lav E. W.-3 34 ELECTRIC WIRES [§ 9> nance, because the consent is in fact a regulation of the streets. 1 The same thing had already been decided in regard to the con- sent to laying gas pipes." § 8. What Are the " Local Authorities." — Where the statute required the consent of the local authorities to the construction of a telegraph line, and the road along which it was to be put up was in the control of a turnpike company, it was contended that the consent of this company was sufficient, but the court held that by " local authorities " were meant the officers of the city, town or village whose duties and powers relate to the super- vision, care and maintenance of the streets and highways, and that in this case, in which the road was not in a city or village, but in a " town " or township, i. e., out in the country, the authorities were the commissioners of the highways. 3 It has been held in New Jersey, 4 that the statute requir- ing a designation of the streets in any incorporated city or town through which the line may pass, applies to streets rather than roads, and that although East Orange was a township, yet, as it was a municipal corporation having control of streets, it came within the meaning of the statute. § 9. Power to Revoke Franchise and Remove Poles and Wires. — The designation of streets, if once acted on, is not revocable by a city. A company having by legislative authority and municipal consent obtained the privilege of using the street has acquired a franchise which is valuable property. The legislative permission may of course be made expressly revocable, but it seems that municipal consent once acted upon by the construction of works, becomes a binding contract.' There- fore, if lines have been constructed under legislative authority, and with such municipal consent as may be required, the munici- pal officers cannot remove them unless the maintenance of them has been made expressly subject to such action. The subject of legislative and municipal contracts and fran- chises has been fully discussed in the standard works on munici- railroad tracks in the streets, it has Pass. Ry. Co. (N. J. Sup. Ct., January, been held that permission may be 1892), 15 N. J. L. J. 45. given by resolution. Quincy v. C. B. * Peoples' Gaslight Co. v. Jersey & Q;.R ; R. Co., 92 111. 21; Merchants' City, 46 N. J. L. 297. Union Barb Wire Co. v. C. B. & Q^ R. 3 He Rochester Electric R. Co., 123 R. Co., 70 Iowa 105. N. Y. 351 ; 46 Am. & Eng. R. Cas. 127. 1 State, Halsey pros. v. Newark 4 The State, Broome pros. v. N. Y. § IO.] IN STREETS AND HIGHWAYS. 35 pal corporations and constitutional law. I need only refer here to the cases directly involving the use of electric wires. § 10. The Same — Cases Relating to Telegraph and Telephone Wires. — In Hudson Telephone Co. v. Jersey City 1 the question came up squarely before the Supreme court of New Jersey. A telephone company was authorized by statute to use the highways along the line of its route, upon first obtaining from the incorporated cities or towns a designation of the streets in which the poles should be placed and the manner of placing the same. An or- dinance was passed by the common council of Jersey City giving the company permission to erect poles or lay an underground cable in certain streets on certain conditions. The company set up poles along the route marked out by the ordinance, and then the common council repealed the ordinance. This last action of the council was brought before the Supreme court by certiorari. The court (by Reed, J.) said : " I am of the opinion that as a general rule, a designation of streets by a city gives the company an irrevocable right to use the streets so designated, for the pur- poses indicated in the statute. Certainly, after the expenditure of money in the erection of poles, made in reliance upon the municipal designation, the company obtains a vested right of which they cannot be stripped by a subsequent revocation of such designation. The notion that a corporation which, under provisions similar to the present act, has, upon the strength of a permission to use a certain route, spent thousands of dollars in laying railway tracks, or subterranean cables, or in erecting posts and stretching wires, is at the mercy of the city authorities con- tinually and entirely, is not to be entertained for a moment," and it was held that the power reserved by the legislature to repeal all charters did not apply to a common council, and that as the act under which this company was incorporated conferred no power on the municipality to revoke a permission once granted, the grant was subject only to a repeal by the legislature, and " when that corporation had acquired vested rights in the mode desig- nated by their charter, it certainly was not within the power of a common council to strip them of any right so acquired." 8 The & N. J. Telephone Co. 49 N. J. L. revoke its permission given by statu- 624. tory authority to the location of a 1 49 N. J. L. 303, (1887). railroad in the streets of a city, was ex- a "The power of a common council," pressly denied in the case of the Peo- says Mr. Justice Reed in Hudson Tele- pies' Passenger Railway Co. v. Bald- phone Co. v. Jersey City, supra, " to win, reported in 37 Leg. Int. 424, and 36 ELECTRIC WIRES [§ II. court referred to Commonwealth v. Boston, 1 decided by the Supreme judicial court of Massachusetts. § 11. The Same — Other Cases. — In City v. Telegraph and Telephone Co.,' a city made a grant by ordinance to a particular company to use the streets for telegraph and telephone wires upon certain conditions subject to such ordinances as might thereafter be passed, it was held that this was not a mere revocable permit but a binding contract. In Mutual Union Telegraph Co. v. Chicago? a telegraph com- pany had erected poles and strung wires within a city under the permission of an ordinance which provided that the privilege should expire on a certain day. After the time had expired, the mayor, of his own motion and without notice, proceeded to cut down the poles. The court granted an injunction against this, but said, that if proper notice had been given, and the mayor had been authorized by the common council, his acts would have been lawful. "I can have no doubt," said Judge Drummond, "that it is entirely competent for the city authorities, unless they are bound by some absolute contract permitting. the poles and wires to stand as they are, to have them removed, and put ah end to such unsightly obstructions as these poles now are in our streets. There must be power, I think, somewhere, to cause them to be removed and to regulate and control the manner in which tele- graph lines shall enter and pass through the- city." In City of Hannibal v. Missouri and Kansas Telegraph Co., 1 it was held by the St. Louis court of Appeals, that a city will not be allowed to enforce an ordinance peremptorily directing a tele- phone company to re-locate its poles in an impracticable manner, after the poles have been located and allowed, when it is neither averred nor shown that the existing location incommodes the public, nor that there was any good reason for the removal of the poles. The subject of municipal consent involves a discussion of the extent and meaning of the power of cities to make police regula- tions and other cases involving incidentally the power to give, in the case of Brooklyn Central R. R. a 16 Fed. Rep. 309 (1883). See also Co. v. Brooklyn City R. R. Co., 32 Philadelphia v. Western Union Teleg. Barb. 358." Co. 11 Phila. Rep. 327; 35 Leg. Int. 1 Commonwealth v. Boston, 97 Mass. 129 (1876), referred to in Chapt. 555. See Chapter V, § 2. IV, 5. 2 40 La. Ann. 41 (1888). *3i Mo. App. 23 (1 §11 J IN STREETS AND HIGHWAYS. 37 withhold or withdraw consent will be considered in the next chapter, in which some of the cases already cited must be referred to again. 38 ELECTRIC WIRES [§ 2. CHAPTER IV. MUNICIPAL CONTROL — POLICE REGULATIONS. § 1. General Power of Police Regulation with Respect to Poles and Wires. — Even though the legislative grant is not made expressly subject to municipal control, or the assent of the local authorities, the grant must be taken to be subject to the general control of municipal corporations over streets. 1 Under the ordinary power to regulate streets, and in the absence of extra- ordinary immunities conferred on the company by its charter, city governments, no doubt, have the right to supervise and con- trol the erection of telegraph lines and all lines of electric posts and wires in the streets, with a view to public safety and conveni- ence and to see to it that the poles are not so placed as to cause unnecessary obstruction, that the wires are strung so high as not to interfere with public travel, and that the system is so constructed as not to be dangerous. 3 They may prescribe the size and shape and materials of the poles ; they may designate the streets along which the lines shall go, and require a statement or map showing the location of the several poles to be submitted to the proper officers. In short, they may regulate the manner of the use of the streets, and take care that the power granted by the legisla- ture to use the streets for these purposes is so used as not to interfere with the other lawful uses of the streets, and not to cause danger or inconvenience to the public. § 2. Cases on This Point Relating to Telegraph Lines in Cities. — Even in a case in which immunity was claimed by a telegraph company as carrying on commerce between the states, Drum- mond, J., said : " Notwithstanding telegraph lines may be instru- ments of commerce, a city has the right, as I believe, to determine how, in what manner and upon what conditions a telegraph com- pany shall enter and pass through it for the purpose of allowing the citizens of the country to communicate by telegraph one with another."" In Philadelphia v. Western Union Telegraph Co.* it was held 1 2 Dill. Mun. Corp. 4th ed. $ 680. s Mut. Union Teleg. Co. v. Chicago, 2 2 Dill. Mun. Corp. 4th ed. § 698, 16 Fed. Rep. 309 (1883). See Chapt. Ill, and note on p. 830; Am. Un. Teleg. §11, where this case is more fully stated. Co. v. Town of Harrison, 31 N. J. Eq. 4 n Phila. Rep. (Pa.) 327; 33 Leg. 627,630. Int. 129 (1875). § 3-J IN STREETS AND HIGHWAYS. 39 that cities have the right to regulate the construction of tele- graph lines within their limits, and to insist that the erection of them shall be under the supervision of the superintendent of the police and fire alarm telegraph. All grants of power to private corporations to carry on business in Philadelphia, were made, the court said, upon the implied condition that they should be sub- ject to any such reasonable restriction as the city might think necessary, and that they should obey reasonable ordinances ; and it was held that the company not having applied to the superin- tendent for directions, had no right to put up its lines. The court said the city made no claim to prevent the running of the line but only to supervise and direct it and to require plans and locations to be submitted, and this was reasonable and proper. But while the court thought underground wires were entirely practi- cable, it said that, as the legislature had authorized the use of both methods of construction, it was not for the court to confine the company to the use of only one. More recently it was held by the Supreme court of Pennsyl- vania, 1 that the city of Philadelphia has the right as a matter of police regulation to supervise and control by ordinance, the erec- tion of poles and wires in the streets. A municipal ordinance prohibiting any person from suspend- ing wires used for conducting electricity over or across the roof of any buildin'g has been held to be within the proper powers of a city, in a case in which it appeared from the evidence that the stretching of these wirestover buildings was extremely dangerous, both as being likely to originate fires and as interfering with the extinguishment of fires otherwise originated. The court said, moreover, " Indeed the danger is a matter of common knowl- edge. We might almost as well require strict proof of the dan- ger of storing gunpowder or dynamite in, under, upon or about our houses. Even if these wires can be so put up and insulated as to be safe in the mode suggested by one of the complainant's witnesses, Prof. Keith, it has not been done."" § 3. Cases Relating to Electric Light Wires. — In the case of wires for electric lighting which is a matter of local concern, larger discretion is ordinarily left with the local authorities than with respect to the telegraph and telephone, which are of wider inter- est and affect the intercourse between different towns, and it 1 Western Union Teleg. Co. v. Phila- Eng. Corp. Cas. 40, with note; 22 W. delphia (Pa. Supr. Ct. January 23, N. C. 39. 1888), 12 Atl. Rep. 144; 21 Am. & 2 Electric Impr. Co. -v. San Fran- 40 ELECTRIC WIRES. [§ 4- has recently been held by the Supreme Judicial Court of Massa- chusetts' that local authorities have the power to decide whether wires for local lighting are safe and proper and necessary, and although the statute relating to telegraphs gave permission for the erection of poles and wires, and said the selectmen shall designate the streets for the purpose, and another statute declared that this act "so far as applicable" should apply to electric light companies, yet it was held, that the act was not imperative with respect to an electric light company within the limits of a town, because its business was purely local, and a refusal would not defeat business extending over a large territory ; and the court said that even with respect to telegraphs, the words " shall designate," could not be taken to mean that the local authorities were deprived of their control of the street. § 4. Extent and Meaning of the Power to Impose License Fees. — The power to regulate may imply the power to license, but the license fees must be imposed only for the purpose of regulating, and must be only such as are reasonably necessary for that pur- pose. The power cannot be used for the purpose of revenue ; authority to regulate and to license does not confer the power of taxation." Authority for these propositions may be found in any text- book on municipal corporations, and I will only cite cases relat- ing especially to posts and wires in the streets. In the Pennsylvania case, above referred to, 8 in which it was held, that the city had a right to control the erection of telegraph poles in the streets, the court held, that a license fee of five dol- lars for each telegraph pole, and one dollar and a half for each mile of wire, might be sustained as a police regulation, although not as a tax. In other cases in Pennsylvania, it was held, that a city may regulate the erection and maintenance of poles for electric wires, and impose a reasonable license fee for the same, 4 and in one of these, the court said the reasonableness was a question for the court, Cisco, 45 Fed. Rep. 593. The same v. Harrison, 31 N. J. Eq. 627, per Van Scannell, Ibid. 596 ; 9 Ry. Corp. L. Fleet V. C. J. 494 ; 13 L. R. A. 131 (1891). 3 Western Union Teleg. Co. v. Phila- 1 Suburban Light & Power Co. v. delphia (Pa. Supr. Ct., January 23, Boston, 26 N. E. Rep. (Mass.) 447; 10 1888), 12 Atl. Rep. 144; 21 Am. & Eng. L. R. A. 497 (1891). As to electric Corp. Cas. 40; supra, p. 39, n. 1. wires of any kind over the roofs of 4 Lancaster v. Edison Electric 111. houses, see § 2, supra. Co.,.8 C. C. Rep. 178; Electric Light 2 Am. Union Teleg. Co. v. Town of Co. v. City, 4 Del. (Pa.) 117, s. c. Lack. §5-] IN STREETS AND HIGHWAYS. 41 the burden being on the defendant to show that it was unreasonable. 1 In this case, the ordinance required the owners of all electric light poles to number and initial each pole, and to take out a license on payment of fifty cents a year for each pole, under a penalty of five dollars for each and every offense. It was held that the ordinance was valid, but that a company refusing to mark and number its poles and pay the license fees on each pole, was guilty of but one offense, and subject to only one penalty. In one of these cases the license fee was paid by giving the city one free light out of every thirty, and this was held valid. 3 In another case in Pennsylvania, an ordinance passed by a borough, imposing a license fee on telegraph poles, was held invalid.' < In St. Louis v. Western Union Teleg. Co.? it was held by Judge Thayer of the United States Circuit Court, that an ordinance imposing a license fee on telegraph poles was a tax, and was not within the power of the city to regulate telegraph companies. § 5. The Power to Regulate Does not Imply the Power to Lay an Embargo. — This power to regulate is not, however, a power to lay an embargo. If a legislative franchise has been granted, a municipal corporation cannot under the guise of a regulation prevent the exercise of the franchise. The power must be exer- cised so as to regulate the manner of the use of the streets, and not so as to deprive a company of a franchise conferred upon it by the legislature.' In a recent case in New Jersey" the board of works of Jersey Jur. 177; Teleg. Co. v. City, 22 W. N. Justice Depue, in the former case, "in Cas. (Pa.) 39; 3 Lane. (Pa.) 164. State, Benson pros. v. H6boken, 33 N. 1 Lancaster v. Edison Electric 111. J. L. 280," and the same judge dis- Co., 8 C. C. Rep. (Pa.) 178. cusses the matter fully in the North 2 Electric Light Co. v. City, 4 Del. Hudson Co. Railway case above cited 117, s. c. Lack. Jur. 177. and refers to many cases and the fol- 8 Borough v. Teleph. Co., 22 W. N. lowing text-books where the cases are Cas. 572. collected. Boroughs on Taxation, 392; '39 Fed. Rep. 59 (1891). Cooley Const. Lim., 201 ; 1 Dill. Mun. 5 North Hudson Co. Railway Co. v. Corp. 4th ed., § 291 ; Cooley on Taxa- Hoboken, 41 N. J. L. 71 (1879); Muh- tion, 408. See, however, for a case on lenbrinck v. Commissioners, 42 N. J. the other side of the line, Flanagan v. L. 364. Plainfield, 44 N. J. L. 118, where it was " The distinction between the power held that the power to tax for revenue of taxation for revenue and police was conferred with the power to powers which are granted for the license the sale of liquor, maintenance of order and the admin- 6 Jersey City v. Jersey City Ber- istration of the internal affairs of a gen St. Ry. Co., N. J. Law Journal for municipality, it pointed out," says Mr. April, 1892. See also Chapt. X. 42 ELECTRIC WIRES L§ 7- City applied to the chancellor for an injunction against the erec- tion of poles in the streets and the operation of a street railway by the overhead or trolley system of furnishing electricity. It appeared that the legislature by general law had authorized the use of electric motors on obtaining the consent of the municipal authorities and fhat the common council had given their con- sent to the use of the trolley system. The chancellor denied the injunction, but when the Board of Works insisted that the line was being so constructed as to be dangerous, he allowed testi- mony to be presented to show that the manner of construction was improper but not to discredit the trolley system itself, be- cause a grant to use this had already been made by the legislature with the consent of the common council. § 6. The Power to Regulate Does not Imply the Power to Fix Tolls and Rates. — The power to regulate, does not include the power to fix tolls or charges. The State can regulate charges, and it may delegate to a Municipality the power to do so, but even though the Legislature (or the Constitution as in the case of the city of St. Louis) has given the city the most plenary powers for the regulation of the use of the streets for railroads and telegraphs and electric wires generally, the power to limit charges is not conferred. This is not a regulation of the use of the streets, but an interference with the franchise, or right to receive tolls. It has been so held by the Supreme Court of Missouri with respect to the Bell telephone wires in the city of St. Louis, which has almost legislative powers over the streets. 1 In a recent case in Michigan, 4 where a common council had granted permission to a street railway company to operate its line by electricity, it was held that the council could not there- after in designating the kind of poles that should be used, require the company to furnish free transfer tickets in considera- tion of obtaining the right to use a particular kind of pole, not- withstanding the right to make further regulations had been reserved. This decision, however, was made under a statute forbidding Municipalities to revoke a consent once given. § 7. Condition That Other Companies Shall be Allowed to Use the 1 St. Louis v. Bell Teleph. Co., 98 where it was held that a city might Mo. 622 (1888). pass an ordinance forbidding horse For a recent decision on the power cars to be run without conductors, of common councils to regulate the > Electric Railway v. Grand Rap- use of streets, see Trenton Horse R. ids, 84 Mich. 257; 47 N. W. Rep. R. Co. v. Trenton, 53 N. J. L. 132, 567. § 8.] IN STREETS AND HIGHWAYS. 43 Same Poles. — There seems to be some question whether it is com- petent for cities to insist that the right to set up poles and wires in the streets shall be subject to a condition that other compa- nies shall have the privilege of using the same poles on paying a proper rental. In Ohio there is a statute giving the probate courts power to decide what municipal franchises shall be granted, and in what manner, and while it has been decided that these courts may grant the right to put up poles and wires, subject to the rights granted by the courts to other companies, to use the same poles on paying a fair rental, it has also been held that a company obtaining its rights under a municipal ordinance, could claim no right to use the poles under the decision of the Probate Court, and that the Board of Public Affairs had no power to impose such a condition. 1 § 8. Municipal Rights in the Streets Are Not Those of an Owner but Are Held For Public Purposes. — The rights of the Municipality in the streets are not like those of individual land owners in their lands. They have no right as owners of the soil to object to the presence of the poles and wires, but they act only as guardians of the public easement. Accordingly it was held in New Jersey, in a case where the poles were on private lands, and only the wires were over the streets, that no injunction would be granted where it appeared that the wires hung twenty-five feet from the ground, and that the authorities had not even considered the question whether they were a nuisance." Unless the land in the streets has been conveyed to the city, the fee is ordinarily in the owner of the adjoining lands, 8 and when land is dedicated or condemned for a highway, or even taken for a turnpike, the title generally remains in the existing owners of the land, and it is only the street or road as such, that is vested in the public authorities, and it is held in trust for use as a street. 1 1 Hauss Lighting Co. v. Jones Bros, must still obtain a grant or franchise Electric Co., Ohio Supr. Ct., Special under the Statute. R. S. §§ 2491, 3550 Term, 23 W. L. Bull. 137. See also and 351. Brush Electric Light Co. v. Jones 2 Am. Union Teleg. Co. v. Town of Brothers Electric Co., Hamilton Com. Harrison, 31 N. J. Eq. 627. Pleas (Ohio), 23 W. L. Bull. 329, where 8 3 Kent's Comm. 434. See note 2, it was held, that a company having ob- Chapt. VII, § 5, infra. tained a decree of the probate court * In Davison v. Gill, 1' East 69, Lord and a permit from the Board of Public Kenyon said : "As to the consent of Affairs to' use poles on paying a the trustees of a turnpike road, the proper rental under the ordinance, soil was not vested in them, but re- 44 ELECTRIC WIRES [§ 5. In Coverdale v. Charlton? it was held by the English Court of Appeal that under an act providing that the street should vest in the district board, the property in the street so far vested in the board, that it could demise the right to depasture cattle there, so far as to give the lessee a right of action against a wrongdoer. In Wandsworth Board of Works v. United Telephone Co.,' an action was brought by a local board, against stretching telephone wires over and across a street. The wire was fastened to chim- ney tops and passed over the street in several places, and in some cases at a very acute angle. The wire was nowhere less than thirty feet from the ground. Stephen, J., found that the wire was not a nuisance to the highway, and that in the ordinary course of events it was likely to cause no perceptible danger to the public, although a violent storm might possibly blow it down. He held, however, that the local board- as owners of the soil, had an absolute right to prevent the defendants from suspending wires over the street, upon the principle that the air above the roadway was as much their property as the roadway itself. This decision was reversed in the Court of Appeal and it was held, that the Board of Works had only such title as was given it by act of Parliament, and that under an act declaring that the streets should " vest in and be under the management and control of the vestry or district board," the title to the streets was given to the board so long as the land remained a street, but that the word street did not include an indefinite right to the soil downward, and to the air upward, but only the surface and so much above and below it as was necessary and usual to be used for the protection of the enjoyment of the public. Bowen, L. J., said, " All that I feel called upon to say, is that I am satisfied that the Board of Works have not any proprietary interest above the street, except what is necessary to protect the street and the traffic from interruption or danger, or to enable them to exercise their powers in the street." It was held, that the learned judge erred in applying the doc- trine of Coverdale v. Charlton, so as to extend the area which was vested in the Board of Works, beyond the area of user and made it include the area of possible interference. mained in the persons who were en- Salisbury v. Great Northern Ry. Co., titled to it before they were appointed. 5 C. B. (N. S.) 174-208. The trustees have only the control of ^QjB. D. 104 (1878). the highways." See also Marquis of 2 g Q± B. D. 904 (1884). § I.] IN STREETS AND HIGHWAYS. 45 CHAPTER V. POLES AND WIRES AS AN OBSTRUCTION OF THE HIGHWAY — HOW FAR JUSTIFIED BY GRANT OF FRANCHISE. § 1. Poles Erected in the Streets Without Legislative Sanction are Nuisances. — Assuming that posts and wires have been set up in the street under legislative sanction and with the consent of the local authorities, the question remains how far this permission will justify the person maintaining them, in case of an injury arising from the mere presence of the post in the highway. The question of negligent construction or use is a different matter, and will be considered later. 1 The question now is, how far the mere obstruction, such as it is, is justified by the permission to make it. Posts erected in a highway without the anthority of law, or at least of ancient custom, are nuisances, and may be enjoined by any one suffering a special injury, or they may be abated, and those who set them up or maintain them are subject to indictment. 2 In an old English case/ on an indictment for erecting telegraph poles in the highway, the court maintained the right of the public to the whole road, and said the pole was a nuisance, although it was not in the metalled portion of the road nor in the footpath. The construction of the line had been authorized by the board of guardians, but it did not appear that it was sanctioned by act 'Chapter XV. son on Torts, § 313; Dillon on Mun. 2 An unauthorized construction of a Corp., § 6g8, 4th ed. See also, as to tel- railroad in a street is a public nuisance, egraph lines, Gay v. Mutual Union but that which is legally authorized Teleg. Co., 22 Mo. App. 485; Irwin v. cannot be a nuisance. Davis v. Mayor Great South Teleg. Co., 37 La. Ann. of New York, 14 N. Y. 506 ; Wetmore 63; Julia Building Assb'n v. Bell v. Story, 22 Barb. 414; MilhaU v. Teleph. Co., 88 Mo. 258; Hewett v. Sharp, 15 Barb. 193; Drake v. Hudson West. Union Teleg. Co.,4Mackay (D. River R. R. Co., 7 Barb. 508; Mac- C.) 424(1886). Farland v. Orange & Newark Horse 3 Regina v. United Kingdom Elect. Car R. R. Co., 13 N. J. Eq. (2 Beas.) Teleg. Co., 9 Cox Cr. Cas. 137-174, 17. See also Arbenz v. Wheeling & quoted in Redfield on Carriers, sec. Harrisburg R. R. Co., 5 L. R. A. 371, 574, note. Reported also in 6 Law and note citing cases; Randle v. Pacific Times Rep. N. S. 378; 31 Law Jour. R. R. Co., 65 Mo. 362; Chicago and E. (Magist. Cas.) 166; 13 Fost. & Finl. I. R. Co. v. Loeb, 118 111. 203, 5 West. 73; 8 Jur. N. S. 1153; 10 Wkly. Rep. Rep. 893. See also Chapter XV. 538. Elliott on Roads, Chapt. 24 ; Addi- In an early case in England an in- 46 ELECTRIC WIRES [§ 2. of Parliament. This fact is not mentioned in the report, but, except on this supposition, the ruling is not in harmony with the American decisions. § 2. Poles set Up with Express Legislative Sanction are not Nuisances. — The legislature has the right to authorize the obstruction of a street in any way it may please, subject only to making compensation for injury to rights of private property, and an obstruction expressly and specifically authorized by the legislature, cannot be illegal nor amount to a public nuisance. If poles have been set up under legislative sanction and under the direction of the municipal authorities, they cannot afterwards be declared by those authorities to be nuisances. " The power to remove obstructions from the streets," says Mr. Justice Reed in a case in New Jersey, 1 " is confined to nuisances, and any object which has a legal right in the street is beyond the power of the common council." And it was held by the supreme court in that case, that a common council cannot revoke the designation of the streets once made under a statute providing for the construction of a telephone line. In Commonwealth v. Boston? municipal officers undertook to remove telegraph poles on the ground that they were so located as to cause inconvenience to the public. It was held that the specifications and decisions of the mayor and aldermen, made and recorded in accordance with General Statutes, Chapter 64, § 3, determining the kind of poles and their location in the highway, were conclusive upon the rightfulness of their erection, so that they cannot be lawfully removed by the town or municipal officers, or be treated as a nuisance. So also in Young v. Yarmouth? it was held in Massachusetts that where a statute authorized the construction of a telegraph line, and the poles had been located in pursuance of the act, by the selectmen of the town, the decision of these officers was conclusive and was a complete justification of the town in an action against it for injuries arising out of an alleged obstruction of the highway. junction against maintaining wires in 583; 31 L. J. (Ch.) 329; 10 Wkly. Rep. tubes in the highway was refused until 167. the question of right to maintain them l Hudson Teleph. Co. v. Jersey City, had been settled at law. Atty. Gen. v. 49 N. J.'L. 303-307 (1887). See also United Kingdom Elect. Teleg. Co.; Chapters III, XV. Rolls Court, Sir John Romilly, M. R., ^97 Mass. 555 (1867). Nov. 1861, 30 Beav. 287; 8 Jur. N. S. 3 9 Gray 386. § 3-'] IN STREETS AND HIGHWAYS. 47 § 3. General Authority does not Authorize Dangerous Obstructions. — Although an obstruction expressly authorized by the legislature cannot be regarded as a nuisance, yet it is usual to make the privilege of using the streets for telegraph and electric light lines, expressly subject to the condition that the poles shall be so placed as not to interfere with public travel ; and the courts are inclined to construe all such grants as subject to the implied condition that the poles shall not be so located as to be dangerous. But it has been held, that even though there be a gen- eral authority to set up a line of posts and wires, the ques- tion whether a post in the highway is dangerous to travelers, may be left to a jury to determine in an action for damages caused by a collision with a horse and wagon. 1 The court said that a plea of license from the municipal authorities under legislative power was not good, and that the validity of the ordinance was subject to the judgment of the jury on the question whether the pole as located was dangerous to travelers on the street. Where, however, in a complaint claiming damages to a horse and wagon which ran into a telegraph pole," it appeared that the poles were placed as near the fence as they could be put without having the cross-arms encroach upon private property, and that although they were along the level highway without a ditch between, yet there were three traveled tracks, and the poles were set so as not to be an obstruction, it was held on demurrer that no cause of action had been set out, and that the question need not be left to the jury. With respect to electric railway poles, Judge Dixon, of the Supreme Court of New Jersey, charged a jury in a recent case at the Passaic Circuit" that although the location of the poles along the middle of a street had been designated by the city authorities 1 Wolfe v. Erie Teleg. and Teleph. of such a character as to interfere with Co., 33 Fed. Rep. 320. the public use of the street. 1 Roberts v. Wisconsin Teleg. Co. s Kowalski v. Newark Pass. Ry. Co., (Wis.) 46 N. W. 800. 15 N. J. Law Jour. 50, February, 1892. See also People v. Mutual Teleg. Co., Judge Dixon was one of the judges New York Supreme Court at Circuit, that decided State, Green v. Tren- reported in N. Y. Daily Register for ton and State, Halsey v. Newark Pass. Mar. 19, 1883, where, in an action to Ry. Co. referred to in Chapter II, remove telegraph poles from a street holding that electric railway poles in which their erection had been auth- were an obstruction of the street and orized bylaw, the only question left to were not justified by the statute auth- the jury was whether the poles were orizing the use of electric motors. 48 ELECTRIC WIRES [§ 4- under a statute authorizing the use of electric motors, yet this was a mere permission to the company and it was not obliged to use poles at all, and if it did so, it remained subject to the duty to exercise due care toward the traveling public, and if the pole was so located with reference to a passing car as to be dangerous to one attempting to enter the car, and such a person exercising due care on his part was injured, the company was liable. § 4. Cases of Telegraph Lines in the Street — Obstruction to Ordi- nary and Extraordinary Use of the Street — Cases Relating to Moving a House. — In Telegraph Co. v. Wilt, 1 decided in 1852, it was held that legislative authority and municipal license to set up a telegraph line in the street, were no defense in an action for an injury to a house being moved along the street and caught by the wires. Scott and Jarnagin disapprove of this decision, and. suggest that the moving of a house was not an ordinary use of the street nor one that could lawfully be made without special license." With this, agrees the opinion of Judge Depue of the New Jersey Supreme court in charging the jury in a case in the Essex Circuit court, April 30, i888. s Telephone wires were stretched across the high- way in pursuance of the act under which the telephone company was incorporated, and with the consent of the municipal authori- ties. There was a proviso in the charter that the wires should be so located as in no way to interfere with the safety or conven- ience of persons traveling on or over the roads or highways. There was a statute declaring that the use of a public street " in any of the incorporated cities or towns of this state, shall be sub- ject to such regulations and restrictions as may be imposed by the corporate authorities of said cities or towns." The city of Grange had adopted an ordinance declaring that " all telegraphic and telephone wires shall be placed so as to hang not less than twenty feet above the street crossing." The defendant had a special license to move a house along a street, and in moving it he cut all the overhanging wires, and in an action by the tele- phone company it was insisted on the part of the plaintiff that thirty of these wires were more than twenty feet above the street. The judge charged the jury that the use of a public highway in 1 11 Am. Law Journ. 374 (Feb., 1852), Phila. Dist. Court. 2 Scott v. Jarnagin on Telegraphs, § 53 and note. 3 New York and New Jersey Teleph. Co. v. Dexheimer, 14 N. J. Law Journ., 295 (October, 1891). §■5.1 IN STREETS AND HIGHWAYS. 49 moving a building was not within the right enjoyable by the public in a public highway for the purpose of travel, and that the defendant's act was not justified on the ground that he was obstructed in the use of the"highway for public travel. He held, however, that since the defendant had a special license to move the house, the defendant was justified in cutting such wires as were maintained in violation of the city ordinance less than twenty feet above the surface, and he left it to the jury to decide whether any of the wires that were cut were more than twenty feet above the roadway, and to assess damages for the cutting df these and these alone. § 5. Telegraph Poles as an Obstruction of the Street or Sidewalk. — The obstruction of the highway by telegraph poles is justified only so far as it is authorized by law, and if the extent of the obstruc- tion exceeds the authority given, the poles may be treated as nui- sances, and redress may be had by indictment, by suit at law or bill in equity, and city officers may even exercise the power of abate- ment. In a case in the Supreme Court of New York, 1 it was held that the People might maintain an action for damages and for an injunction against telegraph poles erected along the sidewalk and alleged to be. higher and larger than were authorized, but the jury having found a verdict for only six cents' damages, the court said it could not declare any particular pole to be a nuisance, and refused to order any of them to be removed. The statute in that case contained the provisions commonly found in statutes authorizing the construction of telegraph lines. It restricted the erection of poles to such as were necessary to the business of the company, and provided that they should be so constructed as not to incommode the public in the use of the street. It was held that the company was not limited to the use of poles no larger or higher than absolutely necessary, but that they had the right to use such as were reasonably sufficient and proper if they were so constructed as not to incommode the public in the use of the street or sidewalk ; and the court said that, to the extent to which the poles so constructed were reasonably necessary, they were authorized by the statute ; but that to the extent to which they went beyond that in height or size or number they were illegal, and were the subject of redress in the action.' 1 People v. Metropolitan Teleph. 2 For a further discussion of Poles Co., 31 Hun 596 ; s. c, 64 How. Pr. and Wires as an Obstruction, see Chap- 130 (1884). ter XV. E. W.— 4 SO ELECTRIC WIRES IS 2. CHAPTER VI. UNDERGROUND WIRES. § 1. Rights of the Public and the Companies as to Putting Wires Underground. — It has been the general custom in this coun- try to stretch telegraph and other electric wires on poles overhead, but the multiplication of wires in the cities has be- come such a serious incumbrance to the streets, and has been found to interfere so much with the labors of firemen in put- ting out fires, that there has been a very general public de- mand that the wires be put underground. This was resisted for a time by the companies, but means have now been discovered of carrying many wires in cables underground without affecting the current by induction, and the losses of overhead wires from wind and snow have been so great that the companies are now anxious to put their wires underground, and out of the way of harm. Two questions have, therefore, come up for decision : first, can the public require the existing wires to be taken down and put underground ? and secondly, have the companies a right to open the streets and put their wires below the surface, and if so, upon what conditions and under what authority? § 2. An Expensive and Difficult Work — The Municipality Cannot Require It. — The taking down of existing wires and putting them in cables underground involves very serious expense. The wires must be put in tubes and carefully insulated, or must be im- bedded in leaden cables. Provision must be made for repairs and for laying down new lines and every precaution must be taken against induction. It is in fact a reconstruction of the line in a very expensive manner, and only after careful experiment have practicable means been discovered, for putting underground the numerous and various wires required for the telegraph, the tele- phone and the electric light. It would seem to follow from the decisions already referred to with regard to overhead wires, that municipal corporations have not the power to order existing lines lawfully put up to be taken down and put underground. It is well settled that wires having been once properly put up under legislative authority and with municipal consent cannot be dis- turbed by municipal authority, 1 and I know of no reported case 1 Supra, § 1-4, Chapt. V. See, however, the remarks of Drummond, J., in Mutual Union Teleg. Co. v. Chicago, 16 Fed. Rep. 309, quoted in Chapt. V, § 3. § 3-J IN STREETS AND HIGHWAYS. 5 1 in which it was attempted by mere municipal authority to compel an existing system of overhead wires to be put underground. There is no doubt the legislature may provide that new lines shall only use the streets on condition that they are put beneath the surface, and it may be that unless legislative permission, either express or clearly implied, were given to stretch the wires overhead, a municipality might insist, as a regulation of the use of the streets, that the wires should be put underground. § 3. Usually Provided for by Statutes — English Statutes Referred to. — The matter, however, is so important and the relations of the parties are so difficult, that it is usual to make special and careful provision by act of the legislature, for the construction and control of underground cables and of subways for electric wires. In England, underground wires have been used for a long time, and some of the earliest cases on the use of the streets for the telegraph related to the title to the soil below the surface, and to the digging up of public roads for the purposes of a telegraph company. 1 The whole subject is now carefully regulated by the statutes 45 and 46 Vict., Chapter 56, called the Electric Lighting Act (1882), and the Electric Telegraph Act, 53 and 54 Vict., Chapter 59, part 2 (1890). 3 Large powers are given to the Board of Trade which is au- thorized to license from time to time, any local authority or any company or person, to supply electricity for any public or private person within any area, subject to certain provisions. It is assumed that wires will be placed underground as well as above ground, and provision is made for obtaining the consent of the local authori- ties to the breaking up of any streets repairable by the local authorities, and it is forbidden to place any electric line above ground, along, over or across any street without the express con- sent of the local authority, and if any wire is so placed without 1 Attorney General v. United King- and place in any public road, wires, dom Elect. Teleg. Co., Rolls Court, pipes and tubes necessary or con- Nov. 1861 ; Sir John Romilly, M. R. ; venient for a telegraph. 30 Beav. 287 ; 8 Jur. (N. S.) 583 ; 31 L. J. a The Electric Lighting Act, 1882, 45 (Ch.) 329; 10 Wkly. Rep. 167; Allen's and 46 Vict., Chapt. 56, entitled "An Telegraph Cases, 173. See also Regina act to facilitate and regulate the sup- v. United Kingdom Elect. Teleg. Co., ply of electricity for lighting and 9 Cox Cr. Cas. 174 ; Redfield on Car- other purposes in Great Britain and riers, § 574. Ireland." Electric Telegraph Act, The European and American Elec- 1890, S3 and 54 Vict., Chapt. 59. See trie Printing Telegraph Co., incorpor- also Report of Board of Trade, Parlia- ated Aug. 7, 1851, by 14 and 15 Vict., mentary Papers, 1889, 229. Special Chapt. 135, was authorized to lay down Report, 1889, Chapt. 5771. 52 ELECTRIC WIRES [§ 3. such consent it may be removed by the local authorities, and even if it has been put up with consent, it may be removed by a court of summary jurisdiction on complaint made, and proof that it is dangerous to the public safety. The decision of practical questions with regard to the con- struction of the line may, in case of disagreement, be referred to the railway commissioners, and the case of Wandsworth District Local Board v. Postmaster-General, found in the reports of their decisions, illustrates the manner in which such questions are dealt with. 1 A local board, on being applied to by the Postmaster-General under § 3 of the Telegraph Act, 1878, for their consent to the placing of telegraph wires and posts upon, along and over streets and roads in their district, refused their consent, except on condi- tion that the wires across or along streets or roads should be underground. This difference, after having been referred to a metropolitan police magistrate, was, in accordance with § 4 of the Telegraph Act, 1878, brought before the railway commis- sioners. The commissioners decided that overhead wires should be allowed, subject to the following conditions: 1. That all wires shall be of copper. 2. That all poles shall be of iron. 3. That no wire shall be placed over, along, or across any road or footway at a less height than thirty feet above such road or footway. 4. That where a wire crosses over any public road or street, the distance between the points of support at either side of such road or street shall not in any case exceed 100 yards. The question of cost was considered and the difficulty of having wires go down underground at every street crossing. There was evidence of Mr. Graves, the engineer-in-chief of the Postoffice Telegraphs, that overhead wires would be impracticable if they had to dip at every crossing. The cost of overhouse lines was estimated at about one-third of the cost of lines on poles if they were of wood and one-seventh if they were of iron, while underground work, it was considered, would be thirty times more expensive. Cunynghame on the Law of Electric apparatus relating to electric light- Lighting,London,Stevens & Sons,i883, ing. See also, the Law relating to p. 295, contains the electric lighting Electric Lighting, by G. S. Brown act of 1882, together with the earlier and W. Webb, 2nd ed., London, statutes that are incorporated with it, 1889. besides notes and forms and a short 1 4 Nevill v. Macnamara, 301 Com- discussion of the principles and the missioner's Decisions (1884). § 4-] IN STREETS AND HIGHWAYS. 5 3 § 4. General Provisions of American Statutes. — In some of the American states, the statutes providing for the telegraph gave permission to lay the wires underground as well as to stretch them on poles. The more recent statutes have made special provisions for the removal of overhead wires and putting all the wires in certain large cities in cables or subways, under the control of commissions or boards clothed with special powers, and charged with special duties in the matter. In Connecticut the selectmen of the town are given full direction and control over the placing, erection and maintenance of electric wires, conductors, fixtures and apparatus, including the relocating or removal of the same, and it is provided that every person who shall place any telegraph, telephone or electric light or power fixtures or structures of any kind, over or under any highway or public ground, without the consent of the adjoining proprietors, or the consent of the town commissioners, shall be fined or imprisoned. Laws of 1887, Chapter 33 Gen. Stat. Conn. 1887, §§ 1477, 3946. A recent statute in Nebraska gives to the mayor and common council of any city having a population of sixty thousand inhabitants or upwards, power to prohibit or regulate the erection of telegraph, telephone or electric light poles in the public grounds, streets or alleys and the placing of wires thereon, and to require the removal from the public grounds, streets of alleys of any or all such poles, and require the removal and placing underground of any or all telegraph, telephone or electric wires. Gen. Laws of 1887, p. 123, passed March 30, 1887. The statutes of many states give municipal authorities power to regulate the putting up and maintenance of telegraph and other wires in the streets. In Massachusetts it was provided in 1881 that the city council of any city and the selectmen of any town may establish reasonable regulations for the erection and maintenance of all telegraph and telephone lines of wire within their respective cities and towns, and may permit the same to be laid under any public way or square. In cities such regulations shall be made by ordinance. Acts and Resolves 1880-81, Chapter 83, Sec. 1. In New Jersey, by a supplement passed March 31, 1882, Laws 1882, Ch. 172, Supp. Rev. 1023, it was declared that any telegraph company incorporated under the general telegraph act, desiring to construct its lines by means of underground cables containing the wires, instead of poles and posts sustaining the wires, should 54 ELECTRIC WIRES [§4- "be subject to all the restrictions and provisions concerning the use of roads, highways and streets as are provided " in the general telegraph act and its supplements. In New York it is provided by Chapter 397 of the acts of 1879, as amended by Chapter 483 of the laws of 1884, that telegraph companies incorporated in New York State may lay lines of electrical conductors underground in any city, village or town within the limits of the State, subject to all the provisions of law in reference to such companies not inconsistent with the act, provided, that such company shall first obtain from the common council of cities, the trustees of villages, or the commissioners of highways or towns (townships), permission to use the streets for the purposes therein set forth. In most of the states, however, the statutes giving authority to use the streets for electric wires refer to the use of posts, poles and abutments and give power to construct lines " along " or " upon and along" any public highway or to erect posts "along" or " upon and along " the road, and string wires therefrom. 1 1 See for example Rev. Stat, of Ohio, 1890, § 3454 ; Massachu- setts, 1882, Chapt. 109; Louisiana, 1876, § 3760; Acts of 1880, No. 124 amending § 690 of the Rev. Stat.; Minnesota, 1891, § 2632; Dakota, 1887, § 3025; Illinois Rev. Stat., 1874, p. 1471 ; Laws of 1883, p. 173; Missouri, 1889, § 2730 ; Nebraska, Laws of 1887, p. 634 ; New Hampshire, Laws of 1881, p. 472 General Laws, Chapt. 80; New Jersey, Laws of 1887, p. 119; 1888, p. 546; Supp. Rev., p. 1022 ; Rev., p. 1174; but by the act of March 31, 1882, telegraph companies are given permission to construct their lines by means of un- derground cables. Pennsylvania, Gen- eral incorporation act of 1874, § 33, Laws of 1885, p. 164; Vermont, Rev. Laws 1880, p. 702 ; Virginia, Code of 1887, § 1287; United States Rev. Stat., § 5263 *, Alabama, Code of 1876, § 1932 ; Arkansas, Rev. Stat. 1874, § 5724; Cal- ifornia, Act of Apr. 22, 1850 ; Colorado, Gen. Laws 1877, § 99; Florida, Gen. Laws, Chapt. 782, § 2; Iowa, Code of 1873, § 1324; Laws of 1882, Chapt. 104; Kansas, Laws of 1868, Act Con- cerning Private Corporations, §§ 74, 78 ; Maryland, Rev. Code 1878, § 130 ; Michigan, Stat, of 1871, Chapt. 80, § 5 ; Mississippi, Code, art. 6, § 2430; New York, Laws of 1848, Chapt. 265, §5 ; but see Laws of 1853, Chapt. 471, § 2, pro- viding for lines upon, over, or under any of the public roads, streets, etc., and Laws of 1879, Chapt. 397, and 1881, Chapt. 483, permitting wires to be laid underground, and the acts of 1884 and 1885 in § 5 referred to ; Oregon, Gen. Laws of 1872, Chapt. 58, § 1 ; Utah, Compiled Laws 1886, title XI, Chapt. 1. §4- It has been held in Ohio, that under a statute authorizing telegraph lines to be constructed "from point to point along and upon any public road, by the erection of the necessary fixtures, in- cluding posts, piers and abutments necessary for the wires in such manner as not to incommode the public in the use of the streets," the company is not restricted to the use of overhead wires, and that the municipality in the exer- cise of its power of regulating the streets might agree with the company for the construction of an underground system. The municipality having § 5-] IN STREETS AND HIGHWAYS. 55 § 5. The Legislation in New York Providing for a Board of Electrical Control and a Subway Company.— In New York the telegraph act of 1848 (ch. 265) provided for the construction of lines along and upon any of the public roads and highways. This was amended in 1853 (ch. 471) so as to authorize the construction of a line under as well as over a road. In 1884 an act was passed (ch. 534) by which it was provided that all telegraph, telephone and electric light wires and cables in all cities of the state having a population of five hundred thousand or over, should thereafter " be placed under the surface of the streets, lanes and avenues" of the city, and that this should be done before the first day of November, 1885. It was further provided that in case the owners of the ' wires should fail to comply with the act within the time specified, the local governments should remove without delay all such wires, cables and poles. In 1885 an act was passed (ch. 499) which provided for the appointment of a board of commissioners of electrical subways, and it was made the duty of this board to cause to be removed from the surface of the streets and to be maintained underground, wherever practicable, all electrical wires and cables, and the subways were required to be built under the supervision of the board, and no electrical wires were to be allowed above the surface of the streets without the permission of the board. This board made a contract with a company, providing that the company should construct the necessary subways, subject to the approval of the commissioners, and that all corporations owning and operating electrical wires above the streets should have the right to place them in the subways upon the terms and under the conditions specified. This contract was ratified by an act of the legislature in 1887 (Laws, Chapt. 716). failed to agree with the company, it Bradford, Rhodes & Co., 13 Spruce ■was held, that under the statute in St., 1880 (There is a copy in the Li- Ohio, the probate court had power to brary of the New York Institute) ; direct the mode in which the wires "Laws of the United States and the underground should be laid in the Several States and Canada Relating to streets. Edison General Electric Light Telegraphs," compiled for the Balti- Co. v. Cincinnati, 3 Goebel Probate more & Ohio Telegraph Co., The Court Reports (Ohio) 304 (Mar. 18, James Kempster Printing Co., 50 1890). Cedar St., New York, 1884; "Railroad For collections of the Laws of the and Telegraph Laws of Pennsylvania," American States relating to telegraphs 1816-1883, Drinker's Ball, 1884; "Stat- and telephones, see "Laws of the Vari- utes Relating to the Telephone," by ous States Relating to Telegraph Com- John B. Uhle; 28 Am. Law Reg- panies" (privately published, a few ister, N. S. 75, 141, 210, 265, 333, copies only printed). New York, 396. 56 ELECTRIC WIRES [§ 7- § 6. Decisions Thereon. — This legislation has been held to be a valid exercise of the police power. Injunctions against removing the wires have been denied, and, in an action for damages for cutting the wires, the New York Court of Appeals ordered judgment to be entered for the defendant. The question came before Judge Wallace, of the U. S. Circuit Court for the Southern District of New York, 1 and he held that the act of 1884 was a valid police regulation, even as to a telegraph company engaged in interstate commerce, and which had accepted the provisions of the act of Congress of July 24, 1866, 2 and which thereby became, as to government business, a government agency, and also that the act of 1887 was good as a police regulation, even though it gave special privileges to the subway company. And he denied an injunction against cutting down telegraph wires left hanging over the streets after notice to place them in the subways, but as to wires along the line of the elevated railroad, which was a post-road of the United States, he said it was doubtful whether the statutes were lawful to the extent of depriving the plaintiff of the use of such a road, and he granted an injunction. The subject came up before the State courts of New York in several cases. In People v. Squire? the court of appeals decided that the act of 1884 was not unconstitutional, and was a proper exercise of the power to regulate streets. The court said that in great cities there were many public uses to which the streets were necessarily put — that they must be used for sewers, gas pipes, steam pipes, telegraph and electric wires, and that it was competent and proper for the legislature to distribute the space for the various uses, so that all should best serve the public convenience, and, that in the exercise of this power, it was reasonable to require the electric wires to be placed in subways under the control of a neutral board, which should determine how and where the various kinds of wires should be laid. § 7. Other Decisions Thereon. — This decision was followed in two cases in the Supreme court 4 and the question came 1 Western Union Teleg. Co. v. New * U. S. Illuminating Co. v. Hess, 3 N. York, 38 Fed. Rep. 552 (1889). Y. Supp. 777, 19 N. Y. St. Rep., 883; 2 U. S. Rev. Stat, § 5263. See Chapt. U. S. Illuminating Co. v. Grant, XII, infra, § 1. 7 N. Y. Supp. 788; 27 N. Y. s People ex ret. N. Y. Electric Lines St. Rep. 767. See also East River Elec- Co. v. Rollin M. Squire, Com'r, 107 trie Light Co. v. Grant, 25 Jones & S. N - Y - 593 (1888); 14 N. E. Rep. 820, (57 N. Y. Superior Court) 553; 30 N. affirming 14 Daly, 154. Y. State Rep. 793; 9 N. Y. Supp. 317. § 7-] IN STREETS AND HIGHWAYS. 57 again before the court of appeals in American Rapid Telegraph Co. v. Hess, decided February 24, 1891. 1 The plaintiff, a tele- graph company organized under the telegraph acts of 1848 and 1853, had constructed lines in the streets of the city of New York without any special grant or authority from the city. The plaintiff claimed that these acts operated as a grant to it of a franchise to use the streets, which constituted an inviolable contract under the protection of the constitution of the United States, so that neither the State nor the city could cause the poles and wires to be removed without making compensation. The court held that the statute did not grant the plaintiff any interest in the streets, but only conferred upon it an authority or license to enter upon the streets and use them for a public use — one of the purposes for which the public streets could be used — not incon- sistent with the use for general street purposes, and that these acts of the legislature were general public legislative acts in the exercise of the police power of the State, and, therefore, they were not beyond the reach of future legislation. The court said, moreover, that even if there were a grant of some sort of a franchise, yet the state did not abdicate its power over the public streets, nor in any way curtail its police power, nor absolve itself from the duty of maintaining the streets and highways of the State in a safe and proper condition for public travel, and they held that the order to remove the poles and wires and put the wires in the subways, after due notice, was a proper and reason- able exercise of the control over streets, and that the cutting down the wires, after failure to comply with the notice, was not a taking of property for public use, but simply a removal of it after it had become a nuisance. The court said, also, that the authority to remove the wires could be found in the proviso in the act of 1848 under which they were erected, namely, that they should not be so constructed as to incommode the public use of the highways. The legislature, having determined that they do obstruct the public use of the streets, has a right to direct them to be put beneath the surface. The telegraph company insisted that under the act of Congress of July 24, 1866, Rev. Stat., § 5263, they were entitled to use the post-roads of the United States, and that under § 3964 and the act of March 1, 1884, all letter-carriers' routes and all public roads and highways 1 125 N. Y. 641; 26 N. E. Rep, 919; 58 Hun 610; 35 N. Y. St. R. 606. See 36 N. Y. St. R. 252 ; 10 Ry: & Corp. L. also Armstrong v. Grant, 31 N. Y. St. J. 117, affirming 12 N. Y. Supp. 536; Rep.248; 9N.Y. Supp. 388; 50 Hun220. 58 ELECTRIC WIRES [§ 8. were post-roads ; but the court held that these acts of Congress could not deprive the state of its control of its highways and its right to regulate them under the police power, and that the laws of Congress are perfectly satisfied by permission to place the wires in the subway. § 8. Relation of the Electric Wire Companies to the Subway Companies. — The relation of the electric wire companies to the subway companies was considered in a recent case in New York under the subway legislation above referred to. 1 An electric light company, having notice of the scale of charges fixed by the subway company and approved by the board of electrical control, applied for leave to put its wires in the subway, and it was granted. Having kept the wires there several years without paying any rent, and having received notice to remove them, the electric light company filed a bill insisting that the rents charged were unreasonable, asking the court to fix a fair rent and in the meantime to enjoin the removal of the wires. The relief was refused by Judge Ingraham, and the decision was affirmed by the general term. The court reviewed the statute and said the electric light company could not take possession of the subways, with notice of the rent charged, without becoming liable to pay that rent, and that if the rent was considered unreasonable, application to reduce it should be made to the board of electrical control. The decision of the board is final in the absence of fraud, except upon the proceedings for mandamus provided for in the statute, and it is doubtful whether equity can, in any case, interfere, but certainly no injunction can be granted or relief given so long as the rent already accrued remains unpaid. Another case on the relation of the companies owning the wires to the companies having the subways, 2 decides that a company whose wires have been placed in existing subways has no right by statute (and the present case none by agreement) to restrain the transfer of the subways to another company, nor to have an injunction against the board of electrical control to prevent it from making a contract for such a transfer. 1 Brush Electric Illuminating Co. v. Consolidated Telegraph and Electrical Subway Co. (New York), 15 N. Y. Supp. 81 ; s. c. on appeal to the gen- eral term, Id 477 ; feo Hun 466. 2 Manhattan Electric Light Co. y. Grant, Mayor of New York, 31 N. Y. St. Rep. 254; 56 Hun 642, New York Supreme Court (1890). § 2.) IN STREETS AND HIGHWAYS. 59 CHAPTER VII. RIGHTS OF THE OWNERS OF ABUTTING LANDS WITH RESPECT TO THE USE OF THE STREETS FOR ELECTRIC WIRES — GENERAL VIEW. § 1. The Multiplication of Wires in the Streets Has Given Rise to Controversies with landowners. — With the multiplication of electric wires in the streets and along the highways, the question becomes important, both for landowners and for companies, whether the poles and wires may be placed in the streets without the consent of the owner of the adjoining land, and without compensation made. So long as electric wires were only used for telegraph lines running along country roads, and into cities and out again, few controversies arose, and, although the telegraph has been in use for fifty years, there are few, if any, decisions to be found on this question prior to 1883 ; but, now that every street and almost every road has a line of many wires, and the wires make almost a net work in the centres of the cities, the occasions for controversies have greatly increased, and the inconvenience to the landowners has become more serious. Added to these is the new use of the wires for the electric street railway, and this has met with determined opposition on the part of the owners and occupiers of lands along the street, and there have been many decisions within the last two years on the question whether the owner of land on a street can object to the setting up of poles and wires in the street for the purpose of propelling street cars by electricity. § 2. The Purpose for Which the Wires Are Put There is an Important Element. — The answer to the question, whether the landowner has a right to object to the use of wires in the streets, depends on the purpose for which the wires are used, and on the question whether that purpose is a proper use of a street or a road as such. The answer, therefore, may be different with respect to the various uses of the electric wires. It may be that the electric light wire, used to supply the means for furnishing the streets as well as the houses with light, is a proper use of the street, auxiliary to the primary purpose for which the street was laid out, and yet that the telegraph wire, strung, it may be upon the same poles, serves a purpose which has no relation to that for which the street was dedicated or condemned to public use, so 60 ELECTRIC WIRES [§ 3. that to subject it to this use imposes a new burden, for which the owner of the soil is entitled to new compensation. The telephone wire must, doubtless, be classed with the telegraph wire, but the poles and wires for the electric railway, being used in aid of public travel, may add no new burden to the land in the street, or none in addition to that imposed by the railway itself. For these reasons it will be necessary to consider the various uses of the electric wires separately, after first inquiring what are the rights of the landowner in the street and what are the ordinary uses to which a street may be put without affecting his rights or requiring his consent. § 3. New Uses — Different Views of the Proper Uses of a Street. — The question is not now what the legislature may authorize the streets to be used for, but what are the uses which may be made without imposing a new burden upon the land, and without changing the use to which a street or highway may be supposed to have been dedicated. The answer to this will, of course, depend upon the breadth of the view taken by the courts of the natural and proper uses of a street by the public. When land is taken or dedicated for the purposes of a highway, the question, what use may be made of it depends on what the purposes of a highway are. There is little difficulty in deciding what are the recognized purposes of the street or highway at any given time, but the difficulty arises when, in the course of time, new modes of use are invented, and the question is whether they are within the meaning of the dedication or have been paid for in • the compensation already made. Opinions differ on this according as the courts are inclined to construe strictly or liberally the meaning of a dedication or taking of lands for a street. If the public gets only such uses as are known at the time, every change involves a new burden on the land taken ; but if the taking is construed to be the acquisition by the public of the use of the land for all the purposes-for which a street may reasonably be required, the changes in the mode of use will be regarded as of little consequence so long as the street is used for public purposes not inconsistent with those for which the land was taken. These two views of the uses of the streets will be found to underlie the decisions on all branches of our present subject, and the difference between them explains the difference in the decisions. It is useless for me to express my own opinion as to which of § 5- J IN STREETS AND HIGHWAYS. 6 1 these is the better view, and it would be going over fields already reaped to examine the cases in detail. The cases are collected and discussed in all the text-books on eminent domain, streets and highways, and municipal corporations. § 4. Views of Judge Dillon and Mr. Lewis. — Judge Dillon, in his work on Municipal Corporations (4th ed., § 683), says : " The fundamental idea of a street is not only that it is public, but public for all purposes of free and unobstructed passage, which is its chief and primary, but by no means sole, use." And again (§ 656$), after saying that in some cases the fee is in the owner of the adjoining land, and in some cases in the city, he says : " In either case the abutter is entitled as of right, subject to municipal and public regulation, to make any beneficial use of the soil of the street which is consistent with the prior and paramount rights of the public therein for the street purposes proper. The right of the public to use the streets, not only for travel and passage, but for sewer, gas, water, and steam pipes, and the like purposes, is, of course paramount to any proprietary rights of the abutter." So, also, Mr. Lewis, in his recent Treatise on Eminent Domain (§ 126), says : " In regard to the uses which the public authorities can make, or authorize to be made, of the land acquired for streets, the general rule is that the streets are laid out primarily to accommodate the public in traveling from place to place, and that the right attaches to whatever is necessary or proper to facilitate such travel in the usual and ordinary modes. But while the purpose of streets is primarily for public travel, yet in populous districts it has been the Immemorial custom to employ them for other purposes of a public nature, which, though having little or no connection with the uses or improvement of the street as a highway, are not inconsistent with such use." 1 § 5. Distinction with Respect to the Title in the Public and in the Abutting Owner. — Another matter of difference running through 1 Streets are not exclusively for power to authorize the occupation of travel, but for all the uses to which it a public street for a permanent mar- is customary to devote 'them (Henkel ket. State v. Laverack, 36 N. J. L. v. Detroit, 49 Mich. 249) ; so held by 201 ; Wartman v. Phila., 33 Pa. St. 202- Cooley, J., in a case in which land in a 210; McDonald v. Newark, 10 N. J. street was condemned for market pur- Law Journal, 84 and note ; s. c, 42 N. poses, and the incidental effect was to J. Eq. 136. block up the street with wagons. The For reference to cases on the use of weight of authority, however, is that street in cities and towns, see notes, 8 municipal corporations have not the L. R. A. 828 ; 9 L, R. A. roo. 62 ELECTRIC WIRES H 6. the decisions is the ownership of the fee of the land. A distinction is made between cases in which the fee is owned by the abutter and those in which it is owned by the public, and there are other cases in which that distinction is held to be of little consequence. As a general rule, upon the condemnation or dedication of a highway, the fee simple remains in the abutting owner, and the public acquires only an easement. 1 This is so in many cases of actual conveyance of the land for the purposes of a highway or street. On the other hand, there are cases in which the fee simple of the land in the highway never came to the abutting owner, but is held by the municipal corporation, or, in a certain sense, by the public. 2 In either case the street is subject to the public use for the purposes of a street, and the owner of the abutting land has certain special rights therein. If the fee is in the municipality, it is held in trust for the public use and subject to the rights of the abutter. If the fee is in the abutter, he holds it subject to the public use, whatever that may be, and whether the fee is in the city or in the abutting landowner, he has a right to the use of the street in connection with his property — a right to light, and air, and access — a privilege of using the street as such in connection with his land, and this right is a right of property of which he cannot be deprived without compensation. § 6. In Either Case There are Certain Bights in the Street as Such. — It is generally agreed, however, that whether the legal title is in one or the other, there are certain public rights in the street as a street, and there are special rights of property in the abutting owner in that use. 3 1 The general rule laid down by 597 ; Peck v. Smith, 1 Conn. 103 ; 6 Chancellor Kent is that "a grant of Am. Dec. 216, 220; Bissell v. N. Y. land bounded by a highway or river Central R. R. Co., 23 N. Y. 61 ; Elliott carries the fee in the highway or river on Roads 569; Dill. Mun. Corp., § 663. to the centre of it, provided that the 1 As, for example, the Dutch Streets grantor owned to the centre and there in New York discussed in some of the be no words or specific description to elevated railroad cases in New York, show a contrary intent." 3 Kent's Hine v. N. Y. Elev. R. R. Co., 27 N. Y. Comm. 434 ; Winter v. Peterson, 4 St. R. 303 ; Mortimer v. N. Y. Elev. R. Zab. (24 N. J. L.) 524; Hoboken Land R. Co., 25 N. Y. St. R. 872 ; Abendroth & Imp. Co. v. Kerrigan, 31 N. J. L. v. N. Y. Elev. R. R. Co., 54 N. Y. 13; Glasby v. Morris, 18 N. J. Eq. 72; Super. Ct. 417; s. c, sub nom. Aben- Higbee v. C. & A. R. R. Co., 20 N. J. droth v. Manhattan R. R. Co., 122 N.Y. E q- 43S. 439; Salter v. Jonas, 39 N. J. 1 (1890). L. 469; Boston v. Richardson, 13 Allen s See McQuaid v. Portland & Van- (Mass.) 152, 153; Bliss v. Ball, 99 Mass. couver R. R. Co.,i80reg.237; 22 Pac §7-] IN STREETS AND HIGHWAYS. 63 The land taken or dedicated for use as streets is subject to the right of the public to have them used as such, and also to the right of the abutter to use them as such in connection with his land. The general consensus of judicial opinion since the elevated rail- road cases have been thoroughly discussed, 1 seems to be, that the abutting owner, whether he owns the fee or not, has a substantial right in the street, a right to have it kept for use as a street for access to his property and to afford light and air, and that this is a right of property which cannot be taken from him without compensation." § 7. Discussion of the Subject by Mr. Carman F. Kandolph. — The Rep. 899; 1 Am. R. R. &. Corp. Rep. 34, with note. 1 Story v. N. Y. Elev. R. R. Co., 90 N. Y. 122; Lahr v. Met. Elev. R. R. Co., 104 N. Y. 268 ; Pond v. Met. Elev. R. R. Co., 112 N. Y. 186; Porter v. Met. Elev. R. R. Co., 120 N. Y. 284; Fobes v. Rome & Watertown R. R., 121 N. Y. 505 ; Hochalter v. Man- hattan R. R. Co., 31 N. Y. St. Rep. 112; Giordano v. Manhattan R. R. Co., 31 N. Y. St. Rep. 134. See also an article on the elevated railroad litigation by Ed- ward A. Hibbard, 4 Harv. Law Rev. 70 (May, 1890). 2 Judge Dillon, speaking of the na- ture of streets and the rights of the owners of abutting land, says (§ 656a) : "The full conception of the true nature of a public street in a city, as respects the rights of the public on the one hand and the rights of the adjoining owner on the other, has been slowly evolved from experience. It has only been at a recent period of our legal history that these two distinct rights have separately and in their relations to each other, come to be understood and defined with precision." He then proceeds to discuss the whole subject with reference to the use of the streets for various purposes, including gas and water pipes, and sewers, steam railways and horse railways, and de- votes two paragraphs to the telegraph and a note to the electric railway. See Dillon, Mun. Corp, 4th ed., Chapt. XVIII, Streets, Gas Pipes, § 691 ;Water Pipes, § 697 ; Sewers, § 689 ; Telegraph Poles, §§ 698, 698a, with notes ; Steam Railways, §§ 701-714, 724-727; Horse Railways, §§ 705-727; Elevated Rail- ways, §§ 723«-723a"; Electric Railways, note on page 893. The discussion of the subject in the elevated railway cases recently decided in New York is especially interesting and instructive, because it is in these cases that the rights of the landowner in the use of the street have been maintained without respect to the actual taking of land. See, however, a much earlier case in New Jersey, in which the landowner's rights in a highway were clearly ex- pressed. Barnett v. Johnson, 15 N. J. Eq. 481, infra, Chapt. VII, § 10. A distinction was made by Judge Dillon, in his earlier editions, between those cases in which the fee was in the .abutter and those in which it was in the public (old §§ 556 and 557, with cases), and he says in his last edition that he allows these sections to stand (as §§ 702 and 703), since they correctly summarize the law as it stood twenty years ago ; but he goes on in new sections 704 and 704s to say that "the law has been tending towards an abrogation, in many respects at least, of the distinction thpt the right.-; of the abuttei on the on; hand and <-l 64 ELECTRIC WIRES [§ 8. subject is ably handled by Mr. Carman F. Randolph, of the New Jersey bar, in an article on Eminent Domain Over Streets, in 12 New Jersey Law Journal 133, a chapter, I believe, in a book he is writing on eminent domain in general. His conclusion is that there is no real difference between cases in which the fee of the soil to the middle of. the street is in the owner of the abutting . land, and cases in which the fee of the land in the street is in the public. The distinction is taken in many.cases, and the deci- sions are made to turn upon it, but Mr. Randolph, after examin- ing the elevated railroad cases in New York and other late cases, in which the subject is thoroughly considered, suggests that the fee in the owner is subject to an indefinite right of present possession by the public, and cannot have substantial value as property, and that if the fee is held by the State, it is held in trust for the people for the purposes of a street, and subject to the right of the owner to the easements of light, and air, and access, so that in either case the only valuable property of the owner is his easement or right to use the street in connection with his property, and that for damage to this alone need compensa- tion be made upon the construction of any public work for the purpose of transportation. Mr. Randolph was speaking of the taking of streets for railroad purposes, and speaks therefore of public works of transportation, but the same principle is appli- cable to public works of any kind. § 8. Same Subject : The Elevated Eailroad Cases. — The cases he referred to were those of the elevated railroads in the city of New York, which, although they were intended for public travel, affected very seriously the ordinary uses of the streets by the owners of adjoining lands, and interfered with the access and light and air. 1 It was held in these cases that whether the fee the public on the other are essentially Telephone Lines, § 131. Judge Elliott different, whether the bare fee of the discusses the nature of streets in street or highway is in one or the Chapter I, and the rights of abutters other." with respect to uses of various kinds The same subjectis discussed by Mr. in Chapter XXVI, and with respect fo Lewis in Chapter V : "What Consti- street railways in Chapter XXIX. The tutes a Taking — Streets and High- telegraph and telephone are considered ways." See especially as to Railroads on pages 531 and 532, and some cases in Streets, §§ 1 10-123; Elevated Rail- are referred to. roads, § 123; Horse Railroads, §§ 124, J Story, v. N. Y. Elev. R. R. Co., 90 125; Other Uses Generally, § 126; N. Y. 122 ; Lahr v.Met. Elev. R. R. Co., Sewers and Drains, § 127; Water 104 N. Y. 268 ; Pond v. Met. Elev. R. R. Pipes, $ 128; Gas-pipes, § 129 ; Steam, Co., 112 N. Y. 186 ; Porter v. Met. Elev. Electricity, etc., § 130; Telegraph and R. R. Co., 120 N. Y. 284; Hochalter § g.~] IN STREETS AND HIGHWAYS. 65 was in the owner or in the city, owners were entitled to compen- sation for the injury to their lands as abutting lands. The com. pensation was paid, not because any land was taken, but because the right of the owner as abutter was affected ; the damages were given because of the effect of the work on the adjacent land. The new use, Mr. Randolph says, is not a taking because it is inconsistent with the easement of passage for which the land is taken, but because it affects the. adjacent property. " In the thoroughfare as such, the adjacent owner has no more interest than any other individual. That use is common, not particular, property ; the only limitation upon it is that it may not be so dealt with as to trench upon a private right, such as the right of access to the adjoining property." § 9. Same Subject: Other Cases. — The same idea is expressed by Chief Justice Arnold in a recent decision of the Supreme Court of Mississippi. 1 He says : "A distinction is made by some of the authorities in cases where the fee in the soil of the street is in the public— the State, county, or city — and where it remains in the abutting owner; and in the first case the right of the abutting owner to compensation is denied, and in the latter it is recognized and allowed. We perceive no well-founded difference in principle in such distinction. If the fee is in the public, it is held in trust, expressly or impliedly, that the land shall be used as a street, and it cannot be applied to any other purpose without a breach of trust. It is only where the fee is in the public, free from any trust or duty, that it may be disposed of for any pur- pose that the public may deem proper. Whether the abutting owner has simply an easement in the street, while the fee is in the public or in some other owner, or whether he has both the fee and an easement, he is equally entitled to require that nothing shall be done in derogation of his rights.' There is a thoughtful discussion of the subject in a late case v. Manhattan R. R. Co., 31 N. Y. St. main, §§ 114, 115; Barney v. Keokuk, Rep. J 12; Giordano V.Manhattan R. R. 94 U. S. 324; St. Paul, etc., R. R. Co, Co., 31 N. Y. St. R. R. 134; Abendroth v. Schurmeir, 7 Wall. 272; Story v. v. Met. Elev. R. R. Co., 54 N. Y. New York Elev. R. R. Co., 90 N. Y. Super. Ct. 417; s. c, sub nom. Aben- 123; 43 Am. Rep. 146; 1 Rorer on droth v. Manhattan R. R. Co., 122 N. Railroads, 524; Haynes v. Thomas, 7 Y. 1. Ind. 38; Anderson v. Turbeville, 6 1 Theobald v. Louisville,etc.,R. R. Co., Cold. 150; South Carolina R. R. Co. 66 Miss. 279514 Am. St. Rep. 564 (1889). v. Steiner, 44 Ga. 546; Crawford v. , ' He cites 1 Hare on Constitutional Village of Delaware, 7 Ohio St. Law, 370, 375 ; Lewis on Eminent Do- 460. E. W.-s 66 ELECTRIC WIRES [§ 10. in Oregon, 1 where the court said the question who owns the fee is of very little consequence. The fee cannot be in any real sense in the public, no matter how a street is laid out (whether by deed or statute or dedication) ; the public have the right of passage for all public purposes and nothing more, and the abutter has rights of light and air and- access. So, again, Mr. Justice Depue, in the court of errors of New Jersey, said: "With respect to lands over which streets have been laid, the ownership for all substantial purposes, is in the public ; nothing remains in the original proprietor but the naked fee, which, on the assertion of the public right, is divested of all beneficial interest,"" and this was quoted and applied by Vice-Chancellor Van Fleet of New Jersey, in a recent case in which it was held that the posts and wires for supplying electricity for the propulsion of street cars did not affect any substantial right of property of the abutting owner. 3 § 10. Same Subject : The Rights Really Affected are the Rights of Adjacency Without Respect to Ownership of the Land in the Street. — The question rests not upon what this or that judge thinks of the telegraph or electric light or electric railway with reference to the uses of the street, but rather upon a clear comprehension of what the uses of a street really are, and upon the establishment of a principle underlying the relations of the landowner and the public, which will apply to all the varying uses to which, with the prog- ress of invention and the necessities of modern society, the streets are commonly put, and which will on the one side protect the individual in the enjoyment of all his rights, and on the other give the public such uses of the streets as public conven- ience requires. It is only recently that the courts and the writers on this subject have begun to apply to this question the principle that the landowner has a right in the use of the street in connection with his land which is injured by a perversion of the uses of the street, and which may be affected by a new use, even though such use is authorized by law and is a proper use of the street for the purposes for which it was laid out. The right of adjacency — the advantage of having your land upon the high- way with right of access and light and air, this is what the peo- 1 McQuaid v. Portland & Vancouver R. R. Co., 18 Oreg. 237; 22 Pac. Rep. 899; 1 Am. R. R. & Corp. Rep. 34. 1 Hoboken Land & Improvement Co. v. Hoboken, 36 N. J. L. 540, 551. • Halsey v. Rapid Transit St. R. R. Co., 47 N. J. Eq. 380; 20 Atl. Rep. 859 (Dec. 6, 1890). § 1 1 J IN STREETS AND HIGHWAYS. 67 pie understand and value. Who owns the fee they do not know nor care. The courts have been puzzling themselves over the question whether there has been any legal injury to this intan- gible fee. The real question of any practical concern to the land- owner or the public is whether the owner is deprived of any thing or any advantage which he enjoyed in connection with his land. The decision of the elevated railroad cases in New York has emphasized the importance of these rights of adjacency, and shown that the landowner can be protected in his enjoyment of the highway, whether his land is taken or not, and that he has rights in the street, which, if they are taken, must be paid for, whether the fee of the street is in him or in the public. This principle was clearly expressed many years ago in New Jersey, where the court of errors maintained the right of the owner of land adjoining a canal to the enjoyment of light and air from over the canal, enjoining the canal company from putting up a build- ing over the canal alongside of the plaintiff's windows. 1 The right of light and air from a public highway, the court said, was established by universal and most ancient custom. Men do not first build cities and then lay out roads through them, but they first lay out roads and then cities spring up along their lines. . . . When people build upon the public highway, do they inquire or care who owns the fee of the road-bed ? Do they act or rely upon any other consideration except that it is a public highway, and that they are adjacent owners ? If this right of adjacency is fully protected — if a landowner cannot be deprived without compensation of any privilege he en- joys as landowner in connection with the street, it will not matter much whether or not he has a right of action for a trespass upon land which he has dedicated to public use and which the public has the right to use for an indefinite time. I think a definite answer to the question with respect to all the various electric wires will only be obtained when this principle has been fully recognized and has been applied by the courts not only to the elevated railroad but also to the street railroad, the tele- graph and the telephone. § 11. This Principle, if Recognized, Will Simplify the Discussion, but .the Distinction Must be Considered in Beading the Cases. — If this be the true theory of the relation of the landowner to new uses of the street, it will greatly simplify the discussion, and will do away » Barnett v. Johnson, 15 N. J. Eq. 481, 488 (1856). 68 ELECTRIC WIRES [§ II. with distinctions which have not been easy to justify between different modes of use. Take out of the discussion the trespass to the technical fee in the land, and let the question be whether the landowner has suffered any injury with respect to the pleas- ant and convenient use of his land in connection with a street, and then the question will be the same whether the new use be a steam railroad or a horse railroad, a telegraph or an electric lighting system. The fact is, however, that the subject has been generally discussed with reference to the ownership of the fee, and the question whether the new use is consistent with the old uses or is such as should have been anticipated when the street was laid out. A distinction has been taken between cases in which the fee was in the owner of the abutting land and those in which it was in the public, and owners have been held to be entitled to compensation for one use and not for another, on the ground that one was a use not anticipated and the other was a use that might have been expected to be made of a street, although the real damage may have been the same in both cases. The de- cision has depended sometimes on the breadth of view taken by the judges as to what are the proper uses of a street, and some uses have been excluded and some admitted when the difference may well be thought to be one of degree rather than of kind. I need not, however, attempt to discuss the general principles of a question which belongs to the broader subject of eminent do- main. It has been discussed by Mr. Lewis, Mr. Mills and Judge Dillon with reference to all the various uses of the streets. I will only examine the cases relating to the use of the streets for poles and wires intended for the various applications of electricity. § 2.] IN STREETS AND HIGHWAYS. 69 CHAPTER VIII. RIGHTS OF ABUTTING OWNERS— TELEGRAPH AND TELEPHONE. § 1. Telegraph and Telephone Wires Have Become Obnoxious to Adjoining Landowners. — There is no doubt that telegraph poles, with the great number of wires now stretched upon them, are becoming seriously annoying to owners of lands along the streets and highways. In cities the numerous lines of wire for the tele- graph, the telephone and the electric light, make a net work of iron and copper which sometimes almost darkens the windows, and is always a dangerous obstruction to the prompt action of the firemen in case of fire. Tall poles carrying, as they sometimes do, as many as one hundred and fifty wires, are dangerous in case of a storm of snow and wind. The numerous posts for the various kinds of wires obstruct the view and affect the appear- ance of the streets of the town. In the country the inconven- iences are not so great, and it used to be considered a matter of small consequence whether a line of telegraph ran along the highway in front of one's land or not ; but now that the lines have multiplied, and country roads are lined with villas and green lawns, a line of posts and wires sometimes spoils the appearance of a pretty place, and causes serious annoyance, even though it might be hard to prove any pecuniary damage. For these reasons, it is important for landowners to know whether they have a right to forbid the planting of the poles in front of their lands until legal proceedings have been taken and compen- sation has been made. It has become, therefore, a practical question of some impor- tance whether telegraph and telephone lines may be set up along country roads or city streets without the consent of the owners of the adjacent land ; and, if not, whether the compensation must be made for the mere occupation of the land in the street or only for damage to the right of access and other rights included in the privilege of adjacency to the highway. § 2. Question of Bights of Landowners Suggested, but Not An- swered by Scott & Jarnagin in 1868. — When Scott & Jarnagin wrote their treatise on telegraphs in 1868, they said: "Most of the telegraph lines of the United States, Canada and Great Britain, and probably also in other countries, are along the lines of public 70 ELECTRIC WIRES [§ 3. highways, either under or upon them, or along the line of railroads, and but few cases are likely to come before the courts between private persons and telegraph companies in relation to the appro- priation of lands, either by purchase or condemnation, for the purpose of constructing telegraph lines." 1 They suggest the question we are now considering, whether the street may be used without additional compensation to the owner of the fee, and ex- press their opinion upon it, but find no judicial decision on either side with respect to lines of telegraph wire. They refer to the conflicting decisions with respect to railroads, and although they thought the more generally received opinion in the American States was that the railroad was only an improved highway and that the owner of the fee had no claim to additional compensa- tion, they go on to say: "How this may be upon principle, and whether or not the railway track should be considered an addi- tional servitude upon the land, there can be little doubt that in the case of telegraph companies, the erection of posts upon the highway or locating pipes under the highway for wires, under leg- islative authority, without provision for compensation to the owner, would give such owner the technical right to damages, although such damages would be only nominal." And while they thought he would have his action at law, they said there was lit- tle doubt that a court of equity would refuse to entertain a bill for injunction, and that the matter might be considered a ques- tion of little or no importance. § 3. The Question Has Now Become Important. — Since this was written, the use of electric wires in the streets has greatly in- creased, and the question has become one of practical importance, not only with respect to the telegraph and telephone, but also because of the effect of the answer upon the other uses of the electric wires in the streets. It is important, therefore, to refer to the cases in which the question has been decided by the courts since Scott & Jarnagin proposed it as a mere matter of specula- tive interest. They assumed that it had been determined that railroads were not an additional burden upon the highway, and yet concluded that telegraphs did impose a new servitude. It has since been decided by the weight of authority that steam railroads, as ordi- narily operated with locomotives and trains of cars, are not merely an improved highway, but are inconsistent with the ordi- nary use of the street, and impose an additional burden upon 1 Scott & Jarnagin on Telegraphs, § 23 (1868). § 5-] IN STREETS AND HIGHWAYS. "Jt the soil ;' and yet the courts agreeing in this are divided on the question whether the telegraph and the telephone may be placed in the streets and highways without compensation. § 4. Question Stated. — It is admitted that the legislature has power to subject the highway to this use. The question is whether it can be done without compensation to the owner of the abutting land. In many of the states the statutes authoriz- ing the construction of the lines, expressly require the consent of a landowner to be obtained before telegraph or telephone poles are planted in front of his land on his side of the street, and in these cases there is, of course, no doubt, that compensation must be paid unless the consent be obtained; and, indeed, if no provision is made for condemnation, the consent is necessary to the right to plant the poles. But, supposing no condition to be imposed by the legislature, and no provision to be made for condemnation, the question now is whether the use of the street or highway for the telegraph or telephone lines imposes a new burden upon the land or affects in any way the rights of the owners of the land over or in front of which the street is laid. § 5. Argument on One Side. — On the one side it is argued that the easement of highway is, in the last analysis, intercommunication or the right to the use of the highway by the public generally for the purpose of intercommunication. Its purpose has always been not merely travel and transportation, but also the transmission of intelligence. It has been used by the post horse and the mail wagon, as well as the coach and the cart. When new kinds of road and new modes of travel and transportation become neces- sary, the public have a right to use them, and they impose no new burden on the soil unless they are inconsistent with the old use; and so.when new means of communication are found, the public may use the highway for these, and if the old use remains unimpaired the owner of the soil has no cause to complain. He has given his land for a public highway. It is used for a public purpose for which a highway was designed, and he has still the old use unim- paired.* The telegraph, therefore, being a legitimate use of the 1 See Morris & Essex R. R. Co. v. Rep. 859 ; Van Home v. Newark Pass. Newark, 2 Stockt. (10 N. J. Eq.)352; R. R. Co., 21 Atl. Rep. 1034, to appear Starr v. Camde n & Atlantic R. R. Co., in 48 N. J. Eq. ; and the cases and text- 4 Zab. (24 N. J. L.) 592 ; Hinchman v. books referred to infra, Cha.pt. X, §-8 Paterson H. R. R. Co., 17 N. J. Eq. and notes. 75; Citizens' Coach Co. v. Camden, 33 2 The argument on this side of the N. J. Eq. 267; Halsey v. Rapid Transit question is very well presented in the St. Ry. Co., 47 N. J. Eq. 380; 21 Atl. brief of Robert Stiles ol the Virginia 72 ELECTRIC WIRES [§ 7- highway for the purposes for which it was dedicated, it is only a new method of using an old easement and imposes no new burden on the soil. § 6. Argument on the Other Side. — On the other hand, it is con- tended that the streets and highways were intended primarily for travel and transportation, and that, although they were intended also for the transmission of intelligence, and the telegraph is used for that purpose, yet the mode of use is so wholly different from the old one, and requires such permanent occupation of the soil, that it cannot be supposed that the landowner, in dedicating his land for purposes of a highway, or the public in condemning it, con- templated that it should be used by a telegraph company for the erection of posts and the stringing of wires. The landowner has given only the right of user for a public highway, and re- tains the fee in the soil; or if the public have the fee, they hold it in trust for the highway use ; the landowner, therefore, has a right to complain of the permanent occupation of the soil and the setting up of obstructions in the street, and if he has not, there is nothing to prevent the posts being put up so as to form a barrier between his land and the street, and the wires from being so numerous as to be annoying and dangerous. § 7. Distinction in the Cases as to the Title to the Land in the Street. — It is to be noticed in reading the decisions, that some of them make a distinction between cases in which the fee is in the landowner and those in which the fee is in the public, and allow compensation for the use of the soil in the one case and not in the other. This is not a distinction which works practical justice, because it will be found that when land is taken or condemned for a street it is not regarded as of any prac- tical importance whether the public take the fee in trust for the uses of the street and subject to the special easements of the bar, in Western Union Teleg. Co. v. joyed ? Applying these tests to the Williams, Sup. Ct. of Appeals of Vir- new uses as they come up, the turn- ginia, decision reported in 86 Va. 896, pike, the plank road, the street railway 11 S. E. Rep. 106 (1890). He suggests and the steam railway, he finds they all as true tests of a legitimate use of a pass it except the last, and then apply^ highway the following : Is the ing it to the telegraph he insists that it alleged new use, so far as its purpose, passes them both, answering one of the object and effect are concerned, within most important purposes for which the the scope of the easement of a highway? highway was intended, taking the place and, 2d, Would the new use be incon- of the messenger and the mail wagon sistent with the further exercise of this and not interfering with the free use of easement in the manner in which it the highway for travel or transporta- was originally, or is at the time, en- tion or access to the adjoining land. § 8.] IN STREETS AND HIGHWAYS. 73 adjacent ov^ner, or whether the possession and beneficial use are given to the public, while the owner keeps such property in the land as remains for him. 1 The distinction was ignored in the elevated railroad cases, and a just decision was reached by recog- nizing the special interest of the adjacent owner in the street, and giving him damages for being deprived of the advantages his land was entitled to, as adjacent land, whether he or the public owned what is called the fee. However this may be, it is well, in reading the cases, to observe whether the fee is in the individual or in the public, and whether or not this fact is made the basis of the decision. § 8. Cases in Missouri in 1882 in Favor of the Electric Wires. — It is only recently, as I have said, that any cases have been reported on the question whether the owner of abutting land is entitled to damages for the construction of a telegraph line in the street in front of his premises. There are two cases in 1882 decided by the St. Louis court of appeals. In the first," it was held that, in the absence of special injury, the landowner is not entitled to an injunction against planting a telegraph pole in front of his premises. The mere presence of the pole, the court said, would not be a sufficient ground of complaint. There must be such in- convenience that the pole would be a nuisance if it were not au- thorized for a public use. In the second case, ? an injunction was granted against the erection of a broken and unsightly pole which might be dangerous, but was refused as to a proper pole, although it was to be erected within four feet and three inches of the plaintiff's dwelling-house, and tjie plaintiff was the owner of the fee in the land to the middle of the street. The court said there was no evidence of any injury to the fee, but that the only claim was an injury to the easement in the street by the obstruction of travel, and that there was in fact no real obstruction of travel or access. The meaning of these decisions is, that the landowner is not entitled to protection against a trespass upon the technical fee, the beneficial use of which is in the public, but only against an injury to his easement of access and travel, or when his enjoy- ment of the privileges of an adjacent owner are in some way •Mr. Randolph's Article on Emi- Rep. 34. See Chapt. VII, §§ 8, 9, supra. nent Domain over Streets, 12 N. J. Law 2 Gay v. Mutual Union Teleg. Co., Journal, 133; McQuaid v. Portland & 12 Mo. App. 485. Vancouver R. R. Co., 18 Oregon 237; ' Forsythe v, B. & O. Teleg. Co., 12 22 Pac. Rep. 899 ; 1 Am. R. R. Corp. Mo. App. 494. 74 ELECTRIC WIRES [§ IO. affected. It must be observed, however, in comparing decisions in Missouri with those in many other states, that the courts of Missouri had already decided that even a steam railroad, duly au- thorized, is not a perversion of the purpose of a street, nor a new burden upon the fee, but that the landowner is only entitled to compensation for the damage done to the adjacent land by rea- son of the construction and operation of the railroad. 1 How this principle is applied to the telegraph will appear in the later cases in Missouri, to be quoted presently. 3 § 9. Decision in Massachusetts on the Same Side in 1883. — The next reported decision on this side of the question was rendered a year later by the supreme judicial court of Massachusetts. The case was Pierce v. Drew; 3 the whole subject was thoroughly discussed, and the judges were divided in opinion. The majority maintained that an additional servitude was not imposed by the appropriation of part of a public highway under the statute (Pub. Stat. ch. 109) for the use of a line of electric telegraph. The whole beneficial use of the highway, they said, had been given to the public, and the use by a telegraph line is analogous to that by gas and water pipes. A change of public use requires no new compensation. When the land was taken, it w a s taken not merely for the privilege of traveling over it by the then known vehicles, or of using it by the then known methods of either conveying goods or transmitting intelligence. The telegraph is a new method of transmitting intelligence — a new method of using an old easement. It is recognized as such by the act of Congress which declares that all post-roads may be used for telegraph lines, 4 No compensation, therefore, need be made to the land- owner for the mere erection of a line of telegraph along the road. C. Allen and Wm. Allen, JJ., dissented, insisting that the mul- tiplication of telegraph wires might be a serious damage to the landowner, and that, as it could not be anticipated and paid for by the city or county, on laying out a road, it ought to be paid for by the telegraph company when the line was actually to be con- structed. § 10. Later Case in Missouri. — This decision was followed in 1 Porter v. R. R. Co., 33 Mo. 128; Lackland v. R. R. Co., 34 Mo. 259, and other cases cited infra, Chapt. X, § 8, note. 8 Julia Building Assn. v. Bell Teleph. Co., 88 Mo. 258 (1885) ; City of St. Louis v. Bell Teleph. Co., 96 Mo. 623 (1885). 3 136 Mass. 75 (1883). 'Act of July 24, 1886, U. S. Rev. Stat., § 5263. § I I.J IN STREETS AND HIGHWAYS. 75 1885 by the case of Julia Building Association v. Bell Telephone Co., decided by the Supreme Court of Missouri. 1 The question came up on an application by the owner of a store in St. Louis for an injunction restraining a telephone com- pany from cutting a hole in the pavement in front of his building and setting up a pole there. It was alleged that the company was about to cut a hole in the stone wall supporting a vault under the pavement. The plaintiff owned the fee to the middle of the street. The telephone company had authority from the legislature and the city council to construct the line. The court held that the street might be applied to all purposes consistent with the proper uses of a street, and that it is only when it is subjected to a new use, subversive of the old one, that the abutting landowner has cause to complain, and they decided that the telephone was a proper use for a city street, even if, as had been held in Indiana, it were not so for a country high- way. 1 Henry, C. J., and Sherwood, J., dissented, on the ground that it was not a use contemplated in the laying out of the street, and had nothing to do with the ordinary uses of a street. " The telephone does not need the street for its construction, and there is no connection between public travel and talking through a telephone." The chief justice suggested that if plant- ing telephone poles is a legitimate use of the street, the tele- phone company had no occasion to get permission from the city to set them, because every individual, including corporations, may make any legitimate use of the street without permission of the city, which can only regulate such use, but does not confer the right which it derived from dedication. 8 This argument is a strong one, but it applies with equal force to street railways -and other special or privileged modes of exercising the public use, and the answer to it is, no doubt, that the power really comes from the legislature, which, having supreme power over the high- ways, has the power to authorize special uses for certain parts of the road within the scope of this general purpose of the highway. § 11. Other Decisions on the Same Side. — These decisions were followed by the Supreme Court of Louisiana, in Irwin v. Great Southern Teleph. Co.? Manning, J., dissenting. In this case the fee was in the public, and the court said that the legislature, hav- x 88 Mo. 258. ' See Lewis' Em. Dom., $§ 111, 124, 2 Board of Trade Teleg. Co. v. sujfrra, Chapt. II, § 1 J Barnett, 107 III. 507; 27 Am. Rep. 453. * 37 La. Ann. 63 (1885). 76 ELECTRIC WIRES [§ 12. ing authorized the use of the street by the telephone, the land- owner had no cause to complain unless his right of ingress and egress was affected. In two cases arising in the city of Wash- ington the question related solely to the rights of the plaintiff as adjacent owner, the title to the streets being in the National Gov- ernment. The situation, of course, was the same as if the title were in the city or the public generally under a State govern- ment. A perversion of the streets from their proper use would affect the plaintiff's rights whether he owned the fee or not. These cases were Hewett v. Western Union Teleg. Co., 1 and McCor- mick v. District of Columbia? Bills were filed for an injunction against putting up a telegraph line along a street in Washington in front of the plaintiff's place of business. The company had acquired a right under the act of Congress of July 24, 1866, to use the streets, and the Commissioners of the District of Colum- bia had given their consent, so that the only question was whether private rights were affected. It was insisted that the poles would seriously obstruct the ordinary use of the premises and of the street as a highway contiguous thereto, and that the wires were a source of danger, and that the noise of the wind whistling through them would be a nuisance. The poles were one hundred and fifty feet apart, and were not near the plaintiff's doorways. The court said that an injunction would only be granted in case of serious and irreparable injury, and that no such injury was threatened in this case. It could not be seriously contended that the access or light and air were interfered with, and the danger and nuisance arising from the wires were very slight. The bills for injunction were dismissed. § 12. Wires Without Poles Not a Burden on the Land. — So also in New Jersey, in a case 3 in which no pole was set up in front of the complainant's land (for which the statute requires his consent), and the complaint was that the wires were about to be stretched along the street on his side of the way, the court of chancery refused to grant a preliminary injunc- tion, saying that it was doubtful whether the complainant had a right to complain of the use of a street for stretching tele- graph or telephone wires, and that there was no such urgent necessity as to call for a preliminary injunction. The chancellor (Runyon) referred to the decision in Pierce v. Drew, that x 4 Mackey (D. C.) 424; 2 Centr. Rep. 694 (18S6). 2 4 Mackey (D. C.) 396; 54 Am. Rep. 284 (1886). 8 Roake v. Am. Teleph. & Teleg. Co., 41 N. J. Eq. 35 (1886). § 13.] IN STREETS AND HIGHWAYS. TJ the telegraph did not impose a new burden on the highway, and alluding to the statute requiring the consent of the landowner to the planting of poles in the street in front of his land, he said: "The legislature of this state appears to have consid- ered that the use of the street, so far as the wires are con- cerned, was not a violation of the rights of the owner of the soil in the street; for, while it recognizes such rights as to the erec- tion of poles, it does not do so as to the wires." It is obvious that the stretching of wires over the plaintiff's land in the street is no less a violation of his right of property in the land than the planting of poles ; for, if he owns the land he owns usque ad ccz- lum. 1 If, therefore, the use of the street for the telegraph is a perversion of its proper use and imposes a new servitude, the land- owner has as much right to complain of the wires as of the poles. The distinction made, therefore, by the chancellor between the wires and the poles is significant, because the cases in New Jer- sey with reference to poles which are governed by a statute are frequently cited as authority for the general proposition that the telegraph imposes a new burden on the highway." § 13. Arguments on the Other Side — Decisions in New York and New Jersey. — On the other side of the question we find a longer list of cases, although in some of these, as in some of the others, there is disagreement among the judges, and in some, the deci- sions rest upon the fact that the statute authorizing the use of the streets has made express provision for obtaining the consent of the landowner or making compensation. 1 Electric Tel. Co. v. Overseers of note. Chancellor Runyon, however, the Poor of Salford, 24 L. J. (N. S.), in a later case, referring to poles put Magistrates' Cases 146. Per Pollock, up without the consent required by C. B. : "Whether the line goes under- statute, said the company without pre- ground or in the air the proprietors of tense of legislative authority and with- it exclusively occupy a certain portion out the consent of the plaintiff, had of space, of which they have complete put up poles upon his land (in the control." street) and had thus subjected the The title of the local authorities to land "to an additional servitude be- the land in the streets does not neces- sides that for which it was con- sarily extend upwards indefinitely, but demned." Broome v. N. Y. & N. J. a title given by statute has been held Telephone Co., 42 N. J. Eq. 141 (1886). to include only the surface, and so The difference, no doubt, is that in this much above and below it as may be case the use was not authorized but in required for the uses of a street, violation of the legislative condition ; Wandsworth District Board of Works whereas in the former case there was v. United Telephone Co., 13 Qj. B. D. no condition violated, and the com- 904 (1884). pany was authorized to use the public a See Lewis' Em. Dorn., § 131 and streets. Vice-Chancellor Van Fleet, 78 ELECTRIC WIRES [§ 1 3. In Dusenbury v. Mutual Telegraph Co., in the New York superior court, 1 the plaintiff owned land on a village street, and his title extended to the middle of the street. The telegraph act* gave a right of entry to telegraph companies, subject to the right of the owner or owners to full compensation. The court construed this as a condition precedent, applicable to streets and highways, as well as to other lands, and held that ejectment would lie against a company which had set up poles in the street on the plaintiff's land. The court said : " It is undisputed that the plaintiff owns the land thus occupied, subject only to the high- way easement which, as between him and the defendant, leaves his ownership complete and exclusive." In Metropolitan Telephone and Telegraph Co. v. The Colwell Lead Co.? it was held by Judge Ingraham at a special term, that the legislature has no power, so far as abutting owners are con- cerned, to authorize the use of the streets of New York for the erection of telegraph arid telephone poles arid wires. The fee of the street in that case was vested in the city, but the judge said that the city held it in trust for use as a public street, and that the use of a street for a telephone line did not come within the purpose of the trust, and that the power of the legislature to regulate streets did not extend to permitting such a use without the consent of property owners. Under a statute in New Jersey, authorizing the erection of poles subject to making compensation, it was held' that a manda- tory injunction should issue to compel a company to take down poles put up without the consent of the landowner, and without having taken proceedings to condemn. The chancellor spoke of the setting up of poles on the land in the highway, as subjecting the land to an additional servitude, and an invasion of the plain- tiff's proprietary rights, for which the defendants had obtained no authority under the terms of the statute. The chancellor was speaking, however, of the planting of poles without the consent required by statute, and does not modify the opinion he had re- cently expressed in regard to wires." In a later case in New however, in Halsey v. Rapid Transit » 11 Abbott New Cases 440 (1882). Ry. Co., 47 N. J. Eq. 380; 20 Atl. Rep.. ' Laws of New York, 1853, ch.47i; 859 (1890), in distinguishing between Amending Act of 1848, ch. 265. the telegraph and the electric railway, ' 67 How. Pr. 365 ; 50 N. Y. Super. assumes it to have been decided by Ct. 488 (1884). the .general current of judicial author- * Broome v. N. Y. & N. J. Teleph. ity that the telegraph is not within the Co., 42 N. J. Eq. 141 (1886). public easement of a street or highway. s Roake v. Am. Teleg. & Teleph. § I4-] IN STREETS AND HIGHWAYS. 79 Jersey, 1 Vice-Chancellor Van Fleet, deciding that an electric street railway was not a new use of the street, distinguished be- tween this and the telegraph, saying that the use the new method makes of the street is the real test, and that this principle ex- hibits in a clear light the reason why it has been held that placing telegraph and telephone poles in the street imposes an addi- tional servitude on the land. He said: "They are not placed in the street to aid the public in exercising their right of free passage, nor to facilitate the use of the street as a public way, but to aid in the transmission of intelligence. Although our public high- ways have always been used for carrying the mails, and for the promotion of other like means of communication, yet the use of them for a like purpose, by means of the telegraph and telephone, differs so essentially in every material respect from their general and ordinary uses, that the general current of judicial authority has declared that it was not within the public easement. Massa- chusetts has, however, by a divided court, held otherwise. Pierce v. Drew, 136 Mass. 75." § 14. Cases in Some Western Courts. — In Willis v. Erie Telegraph and Telephone Co.,' the judgment of the court below was, that the placing of telegraph and telephone poles in a city street, under license of the city authorities, was an infringement of the rights of the owner of the fee. On appeal, the question was thus stated by the court : " Is such a case within the purposes for which a city street must be deemed to have been established, so that the individual proprie- tor is not entitled to further compensation, or is there a new appropriation of the land not embraced in the original dedication or condemnation of the street for public purposes ? " On this question the court was equally divided, and no opinion was written on either side, but the judgment below was affirmed. Board of Trade Teleg. Co. v. Barnett,' was an action of trespass by the owner of land abutting upon a highway (not a city street), against a telegraph company for putting up poles just outside of Co., 41 N. J. Eq. 35, referred to 'Halsey v. Rapid Transit St. Ry. in § 12, supra. See also Broome v. Co., 47 N. J. Eq. 380; 20 Atl. Rep. Telephone Co., 49 N. J. L. 624; Winter 859-864.. See also Taggart v. New- v. Telephone Co., 51 N. J. L. 83, as to port St. Ry. Co., 16 R. I. 668; 19 Atl. the necessity for stating the size and Rep. 326 ; 2 Am. Corp. & R. R. Rep. location of the poles in a petition to 44, with note ; 43 Am. & Eng. R. Cas. condemn and assess damages so as to 208 ; 7 L. R. A. 205. show the extent of the burden to be 2 37 Minn. 347 (1887). imposed. 3 107 111. 507 ; 27 Am. Rep. 453 (1883). 80 ELECTRIC WIRES [§ 1 5. the hedge, and cutting some of the trees of the hedge. By way of justification, the defendant pleaded that the acts complained of were necessarily done in building a telegraph line authorized by law, and having the consent of the county board. It was held that the action would lie, and that the statutory permission was subject to the constitutional inhibition, that private property shall not be taken nor damaged for public use without just com- pensation. The court said that a telegraph line was not a part of the public easement in the highway, but a new and additional burden thereon, a use to which it was not contemplated that the highway should be subjected, and for which the owner is entitled to additional compensation. The case was likened to that of a railway which had been held in Illinois to be an addi- tional burden and a new kind of use of the highway. 1 This case was distinguished in Julia Building Association v. Bell Telephone Co.? on the ground that it related to a country road and not a city street. In Smith v. Central District Printing and Telegraph Co.' the circuit court of Trumbull County, Ohio, followed Board of Trade v. Barnett, and held that a telephone or telegraph line upon a high- way (it was a country road and not a city street) was a new bur- den upon the land not contemplated when the road was laid out, and that the owner was entitled to compensation. Poles put up pending the litigation and after objection were ordered to be removed. § 15. Recent Cases in Virginia, Maryland and Mississippi. — In a recent case in the supreme court of appeals of Virginia 4 a very strong argument was made by counsel, 6 in favor of the proposi- tion that a telegraph as a means of communication is a proper use of a public highway, for which no compensation need be made ; but the court decided that, by the condemnation of the land for a road, the public had acquired only a right of way, and that the extent of the condemnation was the right to pass along over the road, and that for all other purposes the title remained in the individual: to dig the soil was to dig his soil, and to put up a post was to take possession of his land, and the right to do 1 B. & W. Railroad Co. v. Hartley, Hams, 86 Va. 896; 11 S. E. Rep. 106; 8 67 111. 439. L. R. A. 429 ; 42 Alb. L. J. 4 ; 30 Am. & 2 88 Mo. 258, quoted in $ 8, su- Eng. Corp. Cas. 564 ; 2 Am. R. R. & fra. Corp. Rep. Ann. 258 (1890). 8 2 Ohio Circuit Ct. 259(1886). ' Mr. Robert Stiles of the Virginia * Western Union Teleg. Co. v. Wil- bar. § 1 7.] IN STREETS AND HIGHWAYS. 8 1 these things must be paid for before it can be acquired. It was held that the court below was right in charging the jury that the owners of the soil had the exclusive right to the land in the road, subject to the right of public passage, and that the fact that the road was a public highway did not authorize the erection of tele- graph posts without the owner's consent. A still later decision, made in view of all the previous decisions on both sides, was that of the court of appeals of Maryland on March 24, 1891. 1 In an action of trespass for placing a telephone pole in the street on the plaintiff's land, a plea that the defend- ants were a telephone company, authorized to construct a line along post roads, and having the permission of the city govern- ment, was held, on demurrer, to be bad, because the statutes could not give the right to use the plaintiff's land without compensation. The subject of the rights of abutting owners was discussed and many cases were cited. § 16. Other Cases. — Again, on May 4, 1891, it was held by the Supreme Court of Mississippi," that a city cannot grant a company the right to erect a telegraph line along a public street, without making compensation to the owners of abutting land, because the telegraph is a new use and an additional burden, and it makes no difference whether the fee of the street is in the abutting owner or in the public.' § 17. Views of Text-Book Writers. — The large majority of the de- cisions thus far seem to be in favor of the view that the telegraph is an additional burden on the highway, and this seems to be ac- cepted by the text-writers who refer to the subject as the better opinion. 4 Mr. Lewis, in his work on Eminent Domain (§ 131), says : "The lines of a telegraph or telephone company are on the same footing as the steam railroad. They form no part of the 1 Chesapeake & Potomac Telephone v. Pearce, 71 Md. 535 ; 18 Atl. Rep. Co. v. Mackenzie, 21 Atl. Rep. 690; 910; 7 L. R. A. 200, a telegraph line 74 Md. ' was held to be an additional burden on 2 Stowers v. Postal Telegraph Cable land already condemned for the right Co., Sup. Ct. Miss., 44 Alb. L. J. 133; of way of a railroad. For other cases 9 So. Rep. 356; 12 L. R. A. 864. on the subject, see Chapter XIII, In Theobald v. Railway Co., 66 infra. Miss. 279; 6 So. Rep. 230; 4 L. R. A. * Lewis Em. Dom., § 131; Dillon 735 (1889), it was said, in passing Mun. Corp., 4th ed., § 698, 6980/ Elliott (obiter), that the telegraph is an addi- on Roads and Streets, pp. 533-536. tional burden, and that it makes no Mr. Angell, in his work on High- difference whether the fee is in the ways, refers to the cases, and expresses landowner or the public. no definite opinion. 3d ed., § 9ie. 3 In American Teleph. & Teleg. Co. See, also, Mr. Lewis' Notes to West- E. W.— 6 ' - 82 ELECTRIC WIRES [§ 1 8. equipment of a public highway, and are entirely foreign to its use." He makes a distinction, however, between cases in which the fee is in the public and those in which it is in the abutting owner. He says that in the latter case, the owner is entitled to compensation for the additional burden placed upon his land, and in the former case, he may recover for interference with his rights, but that if there is no interference with the ingress and egress, or the light and air, there is no taking, because there is no damage. Judge Dillon, on the other hand (§ 69812), says he "considers the true doctrine to be that the rights of the abutter, as between him and the public, are substantially the same whether the fee is in him, subject to the public use, or is in the city in trust for street uses proper;" and his. conclusion is that, "on the whole, the safer and perhaps sounder view is that such a use of the street or highway, attended as it may be, especially in cities, with serious damage and inconvenience to the abutting owner, is not a street or high- way use proper, and hence entitles such owner to compensation for such use, or for any actual injury to his property caused by poles and lines of wires placed in front thereof." § 18. Conclusions with Respect to the Eight to Use the Highways for the Telegraph and Telephone. — It may be suggested, however, that it is not yet safe to predict which of the two views will finally prevail. It is certain that no distinction can permanently endure which makes a practical difference between two public streets with re- spect to the technical title to the soil. When men lay out land for streets, they dedicate it for street uses, retaining all the privi- leges of adjacency; when they convey land to the city for a street, or when the city condemns land for a street, the land is taken for the purposes of a street, and for these only, and the individual retains the same rights of adjacency as before. The decision of the question depends not on the nature of the title to the street, but on the question whether the rights and privileges of the abutting owner in the use and maintenance of the street as such are affected, and on the further question what is the scope of the uses and purposes of a public street. It is only recently that the courts have begun to look at the subject from this point of view. The older reports are full of cases which take the destinction with respect to the title of the land, in decid- ing on the rights of railways in the streets, and in the later cases ern Union Teleg. Co. v. Williams, 2 Ibid. 73-S6. Also note to Taggart v. Am. R. R. Corp. Rep. 258, 268, and Newport St. R. R. Co., 2 Am. Corp. & Am. Teleg. & Teleph. Co. v. Smith, 1 R. R. Cas. 56. § 19.] IN STREETS AND HIGHWAYS. 83 the distinction has been gradually ignored. At length the question was brought squarely up in the New York elevated rail- road cases, 1 arid the court of appeals of New York held that it made no difference whether the fee was in the city or the individ- ual; but that in either case the landowner was entitled to damages for the injury to his rights as adjacent owner, his right of access, and of light and air. These cases illustrate this principle so clearly, that they may yet influence judicial opinion in dealing with all the uses of a street, and afford a satisfactory basis upon which the rights of landowners may be protected, while the streets are thrown open to every improved method of accom- plishing their general public purpose, so that they may serve the greatest public good. There must be an extension of the uses to which streets are put, and so long as they serve the public convenience and do not affect the use formerly enjoyed by the landowner, there would seem to be no good reason why the landowner should have a right to object, since in such a case if he were entitled to dam- ages they would amount to nothing. It could hardly be said, moreover, that the rule was settled if it should be found that, according to the rule, a landowner could object to the use of poles and wires for the telegraph but not for the electric light, or to the use of a pole and wire for the ordi- nary telegraph, but not for the fire-alarm telegraph; or that poles with wires overhead trespass upon the fee of the soil, while wires underground do not; and yet, as we shall see presently," it is quite clear that electric wires for lighting a city, and telegraph and telephone lines for the fire and police purposes, are a proper use of the street, and that if gas pipes may be laid underground without compensation, there can be no objection to cables for furnishing electric light to private houses. And if this be so, it would be hard to exclude the telegraph and the telephone from the use of the same subways. § 19. Rights to Compensation for Actual Damages in Obstructing Access and Light and Air, etc. — Whatever conclusion may be reached as to the right to plant poles without the landowner's 1 Story v. N. Y. Elev. R. R. Co., 90 N. Y. 122 ; Lahr v. Met. Elev. R. R. Co., 104 N. Y. 268; Pond v. Met. Elev. R. R. Co., 112 N. Y. 186; Porter v. Met. Elev. R. R. Co., 120 N. Y. 284; Abendroth v. Manh. R. R. Co., 122 N. Y. r. See also Railroad Co. v. Bingham, 87 Tenn. 522; 11 S. W. Rep. 705; Smith v. Railroad Co., 87 Tenn. 626; 11 S. W. Rep. 709; McQuaid v. Port- land & Vancouver R. R, Co., 18 Oreg. 237 ; 22 Pac. Rep. 889. ' 2 § 21, infra. 84 ELECTRIC WIRES [§ 21. consent, there is no doubt that the adjacent owner has redress against any substantial obstruction of his right of access or inter- ference with his enjoyment of the use of the street in connection with his land. This right of adjacency is not the right the owner has in common with others to complain of an obstruction of the street to the inconvenience of general travel. That is a matter over which the legislature has control, and the remedy for an un- lawful obstruction is by indictment. The obstruction must be one which interferes with his enjoyment of his land with refer- ence to the street. For this he has a remedy by injunction, whether he owns the fee or not, and he has doubtless also a rem- edy at common law for the disturbance of his easement.' § 20. No Further Use than Necessary Allowed — Liability for Cut- ting Trees in the Street. — On the other hand, even though it be held that the street may be used for telegraph purposes, without compensation to the owner for the use of the land, yet no further use is allowed than is necessary for the proper construc- tion of the line, and it has been held, even where the fee is in the public, and the telegraph is constructed for the public purpose of a fire alarm, that the persons engaged in putting it up are liable to the owner of an adjoining dwelling-house for unnecessarily cutting the branches of trees growing on the sidewalk." § 21. Fire Alarm and Police Telegraph — Fire Alarm and Police Telegraph Are Public Uses — No Doubt the Streets May be Used for These Without Compensation. — It would seem to be beyond ques- tion that the streets of a city, or even a village, might be used by the local authorities for sending signals to guard against disorder and conflagration, and that this may be done by means of posts and wires in the streets without the consent of abutting owners. It is not like electric lighting, a use connected directly with the streets themselves, but it is a municipal use of the greatest importance ; and although it is a use which could not have been contemplated when some of the streets were dedicated, 1 See Gay v. Mutual Union Teleg. v. Barnett, 107 111. 507. In this case Co, 12 Mo. App. 485 ; Forsythe v. B. the telegraph was held to be an addi- & O. Teleg. Co., 12 Mo. App. 494; tional burden. Julia Building Assn. v. Bell Teleph. A grant of a right of -way for a tele- Co., 88 Mo. 258. phone line over a street does not con- 2 Tissot v. Great South Teleg., etc., fer the right to enter private property Co., 39 La. Ann. 996 (1887) ; 3 South, and cut the limbs of trees, although Rep. 261. For a case of cutting the the limbs project over the pavement, branches of hedge within the lines of Memphis Bell Teleph. Co. v. Hunt, 16 the street, see Board of Trade Tel. Co. Lea (Tenn.) 456; 57 Am. Rep. 237. § 31.] IN STREETS AND HIGHWAYS. 85 it is one which by common consent would be regarded as neces- sary and proper, and one which public opinion would not allow individuals to interfere with. I am speaking only of the claim of a technical right in the soil, and of additional servitude. Of course, if the right of access were interfered with or the wires were not so numerous as ma- terially to diminish the light, the owner might be entitled to damages. And it has been held that the unnecessary cutting of trees on the sidewalk is actionable, even though the fee is in the public, and the wires are being put up for the city government for the purpose of a fire alarm. 1 1 Tissot v. Great Southern Tel. Co., poles and wires are a new burden upon 39 La. Ann. 996; 3 South. Rep. 261 the land of a highway when the fee is (1887). in the owner of the adjoining land, In a case decided since this chapter although it is not so when the fee is in was printed, it was held by the United the public. Pacific Postal Teleg. Ca- States district judge for the Southern ble Co. v. Irvine, U. S. C. C, S. D. Cal., District of California that telegraph January 19, 1892, 49 Fed. Rep. 173. 86 ELECTRIC WIRES {§ I. CHAPTER IX. RIGHTS OF ABUTTING OWNERS — ELECTRIC LIGHT WIRES. § 1. The Purpose of the Use Being an Important Element, Electric Light Wires May be Analogous to Gas Pipes Rather than to Telegraph Lines. — Since the purpose for which the wires are used is an im- portant element in the decisions on the question whether they are a legitimate use of the streets, it is obvious that the decisions in regard to the telegraph and telephone may not apply to the poles and wires for electric lighting. The poles may be the same and the wires may be more dangerous, and yet the purpose of the use may be such as to bring the electric light wires plainly within the necessary uses of a street; while the telegraph and the tele- phone may remain entirely outside of the uses which the courts allow to be proper. Electric light wires are, like gas pipes, a means of furnishing light from a central source of supply, and whether they are car- ried in tubes under the street, or strung on poles overhead, it would seem that their legal relations to the streets and highways must be analogous to those of gas pipes, and that it is safe to refer to the law governing gas pipes for the principles applicable to the electric light wires. It would seem to be clear that the rights of the abutting owner must be the same with respect to- one as to the other, and that if the laying a gas pipe in a city street or country highway is or is not an additional servitude on his land, the same would be true of laying a tube for electric light wires, or placing posts in the ground for carrying the wires overhead. There is, indeed, a difference between pipes underground, whether for gas or electricity, and posts and wires above the sur- face, in that the latter are to some extent an obstruction of the street ; but the obstruction of a street is a public injury, and affects private rights only so far as it affects the right of ingress and egress, and the use of the street in connection with the adjoin- ing land. If the public authorities allow the obstruction, the landowner has no right to complain unless it diminishes the bene- fits conferred on his land by the opening of the street. If the Value of his adjoining land is affected, he is entitled to compensa- tion for the obstruction ; but so far as his right is based upon his § 2.] IN STREETS AND HIGHWAYS. 87 ownership of the soil in the street, there is no difference between a tube underground and posts and wires in and above the sur- face, and if this right depends upon whether or not there is a perversion of the uses of a street, there is a close analogy, as I have said, between gas pipes and tubes or overhead wires for electric lighting. § 2. Whether Gas Pipes May be Laid in Country Roads or City Streets Without Compensation. — It has been held by the court of appeals of New York 1 that a gas company has no right to lay down a main line of gas pipe in a country highway without the consent of the owner of an adjoining farm or compensation made to him. Such a use of the street, the court said, would interfere with the 'soil and freehold to a greater extent than was ever con- templated when the land was taken for the ordinary purposes of a highway, but the court conceded that there might be a distinc- tion in this respect between the street of a city and a highway in the country. With regard to cities, Judge Dillon, in his work on Municipal Corporations, says, it seems to him to be clear, that the use of the streets under legislative or municipal sanction for the purpose of laying down gas pipes or other pipes for the purpose of supplying the city and its inhabitants with light, is a legitimate use of the streets, for which the abutting owner is not entitled to compen- sation. "Such," he says, so far as he knows "is the general under- standing of the public and the profession."* So also Mr. Lewis, in his work on Eminent Domain (§ 129), says : "Gas is not, like water, a necessity, in the sense of being ab- solutely indispensable, but it has become a practical necessity in all urban communities. The right to lay gas pipes in the streets of cities and villages has never been questioned, but has often indirectly received judicial sanction. But a country highway cannot be used for the purpose of conveying natural gas to a distant city. This is an additional burden for which compen- sation must be made." 1 Bloomfield & R. Nat. Gasl. Co. v. Q^B. 42; Queen v. Charlesworth, 16 Q. Calkins, 62 N. Y. 386 (1875). B. 1012; Queen v. Train, 9 Cox. Cr. In England it has been held that ga,s Cas. 180; Thompson v. Sunderland pipes cannot be laid in a highway with- Gas Co., L. R., 2 Ex. Div. 429. See out express legislative sanction. Re- Boston v. Richardson, 13, Allen 146, gina v. Sheffield Gas Co. (Ct. of Q^B., 160, per Gray, J. June 4, 1853); 22 Eng. Law & Eq. 200; 2 2 Dillon's Mun. Corp., 4th ed., Galbreath v. Armour, 4 Bell App. Cas. § 691, note. See also Elliott on Roads 374; Ellis v. Sheffield Gas Co., 23 L. J., and Streets, p. 305. 88 ELECTRIC WIRES [§ 3- Mr. Lewis refers to cases 1 and proceeds to make an application of the principle so as to include wires for electric lighting. He says : " Within the principle of the foregoing cases would be the laying of pipes in the streets for the purpose of conducting and distributing gas or steam for heating, or the laying of subterra- nean cables or wires for supplying electricity, either for lighting or other general use." So, poles may be set and wires strung in a street for the purpose of lighting the same with electric light, or operating a fire alarm, or aiding the police service.'" § 3. Distinction Between Urban and Rural Easements/ — There is certainly a difference with respect to the uses to which they would ordinarily be put between city streets and country roads. "With reference to the latter," Judge Dillon says " all the pub- lic requires, is the easement of passage and its incidents ; " while with respect to streets in populous places, public convenience requires more than the right to pass over and upon them." 6 With the rapid growth of population around the large cities, it is not always easy to distinguish between city streets and country roads. Suburban roads soon require the conveniences of city streets, and as electric light wires are not often carried where there are so few houses that the light is not needed along the line of the street, it is hardly necessary to decide whether they would be an additional servitude upon the land in such a case. It is pretty safe to say that, if the poles and wires may be used in city streets without compensation, they may be used in the same way wherever they are needed for the same reason, and, on the other hand, they might well be called an additional burden if the road were merely used as a convenient line for extend- ing the wires from one town to another, so that the wires cannot 1 The cases cited are Story v. N. Y. cited in support of this paragraph are Elev. R. R. Co., 90 N. Y., at p. 161; Carli v. Railroad Co., 28 Minn., at p. West v. Bancroft, 32 Vt. 371; Thomp- 376; People v. Thompson, 65 How. Pr. kins v. Hodgson, 2 Hun 146; questioned 407. See also observations on the in Boston v. Richards, 13 Allen 146, power of municipalities to grant elec- 160. Also as to natural gas in a country trie light companies the right to use 'highway. Bloomfield, etc., Gasl. Co. the streets, supra, Chapter II, § 11, v. Calkins, 62 N. Y. 386; s. c, 1 with the cases there cited. Thomp. & Cook, 541, 549; Sterling's * As to the distinction between ur- Appeal, in Pa. St. 35. ban and suburban servitudes with ref- 2 This probably refers to electric erence to the use of the streets, see power ; but it would seem to in- Elliott on Roads and Streets, ch. 18 ; elude the telephone, which is now so Angell on Highways, 3d ed., § 91a. generally used. 5 2 Dill. Mun. Corp., 4th ed., 3 Lewis' Em. Dom., § 130. The cases § 688. § 5-] IN STREETS AND HIGHWAYS. 89 be said to be intended for the use of those who travel upon, or live upon the road.' § 4. Pipes or Poles and Wires for Lighting the Streets a Proper Use Wherever They Are Needed for That Purpose. — It seems to be well settled, that wherever there is a local government with power to regulate streets, whether it be a village, a borough or a city, the local authorities have power, with the sanction of the legislature, to provide for lighting the streets, and either to lay down gas pipes or set up poles with electric wires for that purpose, and that an abutting landowner is not entitled to compensation for the mere use of the soil, or for anything except injury to his easement, or damages arising from negligent construction." § 5. Cases. — In Johnson v. Thompson-Houston Co.* it was held that where a village has by law the control of streets, the village may authorize the erection of poles therein for the purpose of lighting the streets, and that the fact that a pole is also used for private purposes does not entitle the landowner to have, it removed, so long as it is reasonably necessary and proper for the public service. On the other hand, in a case in Ohio, where the public purpose of the light does not appear to have been involved, it was held that, even though the fee of the land be in the public, the city cannot, without obtaining the consent of an abutting owner, authorize an electric lighting company to plant a pole in front of his land. 4 1 It has been recently decided in der a country roadway are an addi- Indiana, that pipes for conveying nat- tional servitude. Sterling's Appeal, ural gas for fuel from the wells to a town m Pa. St. 35; Kincaid v. Ind. Nat. cannot be laid in a suburban high- Gas Co., 121 Ind. 577 ( 1890) ; 24 N. E. way without compensation made tothe 1066; 8 L. R. A. 602 ; 8 Ry. & Corp. L. abutting owner. Kincaid v. Ind. Nat. J. 242 ; 42 Alb. L. J. 208. Especially if Gas Co. (1890), 121 Ind. 577; 19 Am. J;he pipes are used for fuel gas as distin- St. Rep. 113; 8 L. R. A. 602; 42 Alb. guished from lighting. Webb v. Ohio L. J. 208; 24 N. E. Rep. 1066; 8 Ry. & Gas. Fuel Co., 16 Ohio Week. Bull. Corp. L. J. 242. i2i. But in this case it was held that 2 Lewis on Em. Dom., § 129; 2 Dil- if the landowner does not own the fee Ion's Mun. Corp., § 691. in the street he is not entitled to dam- For cases in regard to gas pipes in ages unless the gas escapes, streets, see Milhau v. Sharp, 15 Barb. Injunction granted to remove water 210; Norwich Gaslight Co. v. Nor- pipes laid in.a highway without con- wich City Gas. Co., 25 Conn. 19 (1856) sent. Goodson v. Richardson, L. R., (exclusive franchise) ; Smith v. 9 Ch. App. 221. Metrop. Gasl. Co., 12 How. Pr. (N. 3 7 N. Y. Supp. 716 (1890). Y.) 187 (1855); People v. Bowen, 30 *McLain v. Brush Electric Light Barb. 24(1859). Co., 9 Bulletin (Cincinnati) 65. The Pipes for conveying natural gas un- . learned judge argues that if poles 90 ELECTRIC WIRES [§ 5- Judge Haight, of the New York Superior court, in 1883,' declined to interfere with poles and wires put up in the streets of New York under an ordinance authorized by the legislature. It was objected that the statute was unconstitutional because it did not provide for compensation to the owners of abutting land. He said that lamp posts for lighting the streets were admitted to be a proper use of them, and that it seemed to him that planting the necessary poles for bearing the wires that transmit the elec-r tricity to the lamps was among the public uses to which the streets might properly be devoted. But in a later case in the Supreme court, 2 O'Gorman, J., at special term took a distinction between the lamp posts and the poles used for supporting the wires, and granted an injunction until it should be ascertained that they did not interfere with the access or light and air of the adjoining owner. Vice-Chancellor Van Fleet, in a case already referred to, 3 speaking of the poles set up in the middle of the street for an electric railway, some of which were also used for lighting the street, said there could be no doubt that erections can be lawfully made in the streets for the purpose of lighting them, and that this use of the poles and wires would legalize their erection. In the New York Supreme Court 4 a preliminary injunction was allowed to stand against interfering with poles put up in the streets of a village to carry wires for the purpose of lighting a neighboring village as well as the village where they were, the complaint alleging that the poles formed a part of a line neces- sary for the lighting of the latter village under a contract. could be put up, they might be put up 67 How. Pr. 73. See also People v. so as to be like a picket fence ; but the McManus, 32 Hun 93. question was not whether the defend- a Halsey v. Rapid Transit St. Ry. ants had a right to put up a picket Co., 47 N. J. Eq. 380, Chapt. II, § 19. fence, but a telegraph line, which is a * Electric Constr. Co. v. Hefferman, very different thing ; and if the poles 34 N. Y. St. Rep. 436; 12 N. Y. Supp. were put too near together, the land- 336(1890). There was evidence of au- owner would have his remedy for in- thority to put up the poles. They had jury to his easement of access. If the been cut down before, and there was courts would bear in mind that the danger of their being interfered with landowner has a substantial right in pending the suit. It was held that the street as street, they would not have poles erected for electric lighting in to trouble themselves so much over a highway cannot be lawfully cut his rights in the land as land. down by a private person as a nui- 1 People ex rel Thompson v. Mc- sance obstructing the highway, even Manus, 65 How. Pr. 407. though they might be abated by ac- 2 Tiffany v. U. S. Illuminating Co., tion. § 7-] IN STREETS AND HIGHWAYS. 91 § 6. Is There a Distinction Between Wires Used Solely for Public Lighting and Those Used for Private Buildings Also? — This case seems to suggest that there may be a difference between wires used for the public purpose of lighting a city, and wires used for some other purpose. There is a case in New York in which this distinction is taken. The charter of an electric lighting company gave it power to furnish light to the city corporation for the streets, and also to individuals for lighting private houses, and the court said the former might involve a public and ordinary use of the streets, while the latter would involve a private use ; and it was held that the company must show that the pole in question was necessary or highly convenient for the public as well as the private use, or else an injunction granted would be allowed to stand. 1 The dis- tinction, however, is not made with respect to pipes for lighting by gas. It seems to be now conceded that city streets may be used for gas pipes without compensation to abutting owners, whether it be for the purpose of supplying private houses or for the purpose of lighting the streets and public places." The pipes used for both purposes are generally the same ; the purpose is, in a sense, necessary and general, and the streets are the most convenient if not the only means of access. The same conditions apply to the electric light ; the only difference is in the additional poles required for carrying the wires, and it can hardly be main- tained that they make a difference in principle. If the purpose is a public purpose for which the streets may be used, it would seem that compensation could not properly be required for the mere occupation of the soil by a pole any more than by a gas pipe. § 7. Liability for Actual Interference with Eights and Privileges of Adjacency to Highway. — It does not follow that the landowner is without redress if poles be put up so as to interfere with his ac- cess, or even so as to be. inconvenient or unsightly, or if wires be hung so as to be dangerous, or so as to prevent ready access in case of fire. The landowner has a right to the free use of the highway for access and other purposes relating to the pleasant enjoyment of his land, and all these rights and privileges are under the protection of the courts. 8 1 Tiffany v. U. S. Illuminating Co., 50 N. Y. Superior Ct. 280 (1885.) 2 Chapter IX, § 2, and Chapter VII, supra. See also Opinion of the Justices Re Manufacture of Gas and Electric Light by Municipal Corporations, 150 Mass. 592 ; 8 L. R. A. 487, with note ; and Crooke v. Flatbush Water Works Co., 29 Hun. 245. * Tiffany v. U. S. Illuminating Co., 67 How. Pr. 73. 92 ELECTRIC WIRES [§ 3- CHAPTER X. RIGHTS OF ABUTTING OWNERS — THE ELECTRIC RAILWAY. § 1. Opposition to the Introduction of the Trolley System. — The latest use of poles and wires in the streets is to supply the motive power for electric railways. Wires are not only strung along the street, but across it also, and poles are set not only along the side of the footpath, but also along the middle of the street. The new motor makes a disagreeable noise ; the cars run fast, and are thought to be dangerous ; the poles and wires are objectionable to many persons, and for these and other reasons there is, in many cases, vigorous opposition made to the introduction of the overhead or trolley system, and this opposition is sometimes made by or through the owners of property along the line of the street. It is important, therefore, both for property owners and the railroad companies to know what are the rights of the owners of abutting land with respect to the placing of poles and wires in the streets for the electric railway. § 2. Peculiar Eights of the Landowners in the Street. — There is no doubt but that the landowner has a peculiar interest in maintain- ing the use of the street for the proper purposes of a street, and that he has property rights in the use of the street as such in con- nection with his land. He has the right of free access to the street, and the right to receive light and air upon his land from over the street, and all the advantages of owning land upon a public street. These are rights in the nature of an easement, and belong to him as owner of the land and not merely as a part of the public use. In addition to these rights, the abutting land- owner may have a title to the land to the middle of the street, or if the fee is in the public, it is held in trust for street purposes, so that he still has an interest in preventing a perversion of the purposes for which it was taken. § 3. Two Questions to be Considered — Rights of Adjacency and Perversion of the Uses of the Street. — In inquiring, therefore, whether the landowner is entitled to compensation for the use of the streets for the electric railway, there are two questions to be considered: first, whether he suffers injury with respect to his rights in the use of the street as owner of the abutting land, and, sec- ondly, whether the new use is an additional servitude upon the § 4-] IN STREETS AND HIGHWAYS. 93 land in the street owned by him, or a violation of the trust upon which the land is held by the public for the purposes of a street. With respect to the first point there is, first, a question of fact as to whether there is in this case, as it is held there is in the case of elevated railroads, actual damage in the way of interfer- ence with access and light and air, and, secondly, a perversion of use by which the owner is deprived of some of the advantages of his adjacency to a public street; and with respect to the second point, the question is also whether there is a perversion of the use or such a new use as in either case to impose a new servi- tude upon the land, or to violate the trust upon which the land is held by the public. These distinctions having been pointed out, we may reserve the question of actual damage and consider the question of the change of use of the street with respect to the ownership of the land, and also with respect to the right to use the street as a street. § 4. Questions Suggested by Judge Dillon on the Decision in Tag- gart v. Newport Street Railway, in January, 1890. — The subject has, of course, been only recently considered with reference to the electric railway. Judge Dillon, in the last edition of his book on Municipal Cor- porations, 1 refers to a recent case in Rhode Island, decided while his book was in press, in which it was held that the erection of poles in the streets, with wires, for the purpose of propelling street cars by electricity, did not entitle the owner to compensation. 3 The company had authority from the legislature to use steam, horse or other power, as the city council might from time to time direct, and the council had given permission to use elec- tricity, with poles and wires. On an application by an owner of abutting land for injunction, the Supreme court held that, since there was no change in the mode of using the streets, but only in the motive power, there was no additional servitude. The court distinguished this case from those relating to telegraph and telephone wires by saying that these are not used to facili- tate the use of the streets for travel and transportation, " whereas the poles and wires of the railroad company are directly ancillary to the uses of the street as such, in that they communicate the power by which the cars are propelled." Judge Dillon throws 1 2 Dill. Mun. Corp., $ 734c, note, 16 R. 1. 668 ; 19 Atl. Rep. 326 ; 2 Am. R. 4th ed. R. & Corp. Rep. 44, with note ; 7 L. R. "Taggart v.Newport Street R.R. Co.,, A. 205, with note (January 25, 1S90). 94 ELECTRIC WIRES [§ 5- discredit upon this decision by saying : " The distinction last mentioned is so fine as to be almost impalpable, and it suggests serious doubts whether both conclusions are sound and recon- cilable. The general subject awaits further development and settlement. " This remark was made less than two years ago, and the subject is already being rapidly developed, and must soon reach a settlement. The law must follow close upon the progress of invention, and the application of electricity to street railroads is being made so quickly and so generally that the conclusions of the law in regard to the use of the new power cannot be long delayed. It is, of course, too soon yet to attempt to say how the ques- tions will be settled by the general concurrence of decisions or by the weight of authority, but we may consider some of the princi- ples involved in the discussion, and refer to the cases which have been decided in various courts since this remark of Judge Dillon's upon the case determined in Rhode Island in January, 1890. § 5. The Electric Railway and the Telegraph — Distinctions and Comparisons. — It is hard to tell whether Judge Dillon means to suggest that the courts were mistaken in holding that the tele- graph and the telephone do not come within the natural and proper uses of the street, or whether he thinks that it is going too far to allow the electric railway. It may well be that the dis- tinction between the telegraph and the railway is not sound, and yet that the railway is a proper use of the street. Whether both are to be included in the same class depends a good deal on the breadth of the view that is taken of the proper uses of a street. If these are confined to travel and transportation, then the rail- way may be included, while the telegraph is left out ; but if the use of the street is to provide for communication, then it would seem to be just as well to send messages along it upon wires ar- ranged for the purpose as to send them on by men on horseback, or in heavy wagons carrying the mails. It has been held, as we have seen, in Massachusetts and Missouri, that the telegraph is not a new burden upon the streets ;' and in the numerous cases in which it is held otherwise, it was so held upon the ground that the telegraph and telephone are not used to facilitate public travel, and that if they do transmit intelligence, they do so by a 'Pierce v. Drew, 136 Mass. 75 (1883); Julia Building Association v. Bell Teleph. Co., 88 Mo. 258 (1885) ; sufra, Chapter VII. § 7-] IN STREETS AND HIGHWAYS. 95 method so different from the ordinary use of the streets as not to come within the public easement. 1 On the whole, it is safe to say that these decisions against the use of the streets for the telephone and telegraph are not suffi- cient to determine the question of the use of the streets by the electric railway, and whether the distinction drawn in the Rhode Island case is sound or not, the question of the use of the electric railway must be decided by itself. § 6. Is the Electric Railway a New Burden or a Perversion of the Uses of the Street — Comparison With Other Eailroads on the Street. — The question is, whether the poles and wires, and the street railway operated by electricity, constitute a new burden upon the land or a perversion of the true uses of a street, so as to entitle the adjacent owner to compensation without respect to actual damages. The electric railway, as now generally used, is applied to the same purposes and operated in the same manner, with respect to the running and stopping of the cars, as the horse railway. It , is a street railway, or what is called a city passenger railway, oper- ated with a new motive power, and with new appliances, but for the same purposes as the old form of street railway. It seems probable that electricity will soon be used to propel cars at a high rate of speed, and on lines running along country roads the electric motor even now takes the place of the steam dummy, if not of the locomotive. Hence it is obvious that the electric railway is analogous to other railways and resembles one or another kind according to the uses to which it is put. It is important, therefore, to inquire what has been decided with re- spect to use of the streets by the older forms of railway, whether one or another has been held to be an additional servitude, and for what reason. We may in this way obtain a rule and a reason with respect to the various uses of the streets by the electric railway. The subject has been fully discussed by the text-writers, and I need only quote their conclusions and refer to the cases. § 7. Horse Eailroads are Generally Held to be a Proper Use of the Street Imposing No New Borden — Dissenting Opinions. — There is a very general agreement of authorities that the use of a street for a horse railroad is a legitimate use of it for public travel consistent 1 2 Dill Mun. Corp., § 698, 698(1, note, Transit Street Ry. Co., 47 N. J. Eq. citing cases ; Lewis' Em. Dom., §§ 380 ; 20 Atl. Rep. 859, 864, per Van 131, 226, citing cases ; Halsey v. Rapid Fleet, V. C. o6 ELECTRIC WIRES [§7. with the purposes for which it was laid out, and does not impose a new burden upon the land. In many of the older cases a distinction is made between cases in which the fee of the street is in the abutter and those in which the fee is in the city ; but this distinction is not now generally approved, and it seems to be accepted, that in either case a horse railroad authorized by statute is not inconsistent with the rightful use of a street. 1 Mr. Lewis, in his recent work on Eminent Domain, says : " It has been determined in numerous decisions, and without dissent, except in New York, that the use of the street by a horse railroad, constructed and operated in the ordinary manner, falls within the 1 Hinchman v. Paterson H. R. R. Co. 17 N. J. Eq. 75; Hogencamp v. Same, 17 N. J. Eq. 83 ; Jersey City and Bergen R. R. Co. v. Jersey City & Hoboken H. R. R. Co., 20 N. J. Eq. 61 ; Pater- son & Passaic H. R. R. Co. v". Pater- son, 24 N. J. Eq. 158; West Jersey R. R. Co. v. Cape May & S. I. R. R. Co., 34 N. J. Eq. 164; Brooklyn City R. R. Co. v. Coney Island R. R. Co., 35 Barb. 364; People v. Kerr, 27 N. Y. 188 ; Kellinger v. Forty -second St., etc., R. R. Co., 50 N. Y. 206; Elliott v. Fair- haven & Westville R. R. Co., 32 Conn. 579 (at Nisi friiis) ; Cincinnati R. R. Co. v. Cumminsville, 14 Ohio St. 523 ; Hussner v. Brooklyn City R. R. Co., 114 N. Y. 433; 21 N. E. Rep. 1002; 11 Am. State Rep. 679, with note; Clin- . ton v. Clinton & Lyons H. R. R. Co., • 37 Iowa 61 ; Stanley v. Davenport, 54 Iowa 463 ; Stange v. Hill & West Du- buque Street R. R. Co., 54 Iowa 669; Sears v. Marshalltown St. R. R. Co., 65 Iowa 742 ; Eichels v. Evansville Street R. R. Co., 78 Ind. 261 ; Savannah v. Savannah & Thunderbolt R. R. Co., 45 Ga. 603, (but it has been held in Georgia that under a provision of the constitution, directing that property shall not be taken or damaged without compensation, an action may be main- tained by an owner whose property is damaged by a street railway, and that it is immaterial that it is not a new use of the street, Campbell v. Met. R. R. Co., 82 Ga. 320 ; 9 So. E. Rep. 1078); Carson v. Central R. R. Co., 35 Cal. 325 ; Market St. R. R. Co. v. Cen- tral R. R. Co., 51 Cal. 583 ; Finch v. Riverside & Arlington R. R. Co., 87 Cal. 597 ; 25 Pac. Rep. 765 ; Brown v. Duplessis, 14 La. Ann. 842; Piddicord v. Baltimore, etc., R. R. Co., 34 Md. 463 ; Hiss v. Baltimore, etc., R. R. Co., 52 Md. 242 ; Hodges v. Baltimore Pass. R. R. Co., 58 Md. 603; Briggs v. Lewis- ton & Auburn R. R. Co., 79 Me. 363 ; Atty. Gen. v. Met. R. R. Co., 125 Mass. 515 ; Hobart v. Milwaukee City R. R. Co., 27 Wis. 194 ; 9 Am. St. Rep. 461, with note; Randall v. Jacksonville St. R. R. Co., 19 Fla. 409 ; Grand Rapids & I. R. Co. v. Heisel, 38 Mich. 62; East End R. R. Co. v. Doyle, 88 Tenn. 747; 13 S. W. R. 936; N. R. R. Co. v. Garside, 10 Kan. 552 ; O. O. C. & C. G. R. R. Co. v. Larson, 40 Kan. 301 ; Hiller v. A. T. & S. F. R. R. Co., 28 Kan. 635 ; Wichita & C. R. Co. v. Smith, 45 Kan. 264; 25 Pac. Rep. 623 ; Railway Co. v. Cuykendahl, 42 Kan. 234, and other Kansas cases there cited. In Kansas, however, it is held that a steam rail- road is not an additional burden, and that the landowner cannot recover compensation unless there has been a practical obstruction of the street and he is virtually deprived of access to his land. The fee of the land in the streets is in the public. The same is held in Missouri. Porter v. R. R. Co., 33 Mo. 128 ; Lackland v. R. R. Co., 34 Mo. 259; Tate v. R. R. Co., 64 Mo. §7-] IN STREETS AND HIGHWAYS. 97 purpose for which streets are established, and, consequently that for any damage resulting from such use to the abutting owner he can recover no compensation, whether the fee is in the public or not." 1 Mr. Lewis, however, goes on to say that in his own opinion, although the difference between the ordinary horse railway and the ordinary steam railway is obvious, yet the difference is only one of degree. The essential characteristic of both roads is that an exclusive franchise is granted in the soil of the street, and that if the principle of the horse railroad cases is sound, then a street may be so filled with tracks as practically to exclude all other travel and traffic from the streets." The law, however, is settled by the great weight of authority that the street railway is not in itself an additional burden, and the proviso is that it shall leave the landowner free right of use of and access to his land. 150; Randle v. R. R. Co., 65 Mo. 325 ; R. R. Co. v. St. Louis, 66 Mo. 228. See also Angell on Highways, 3d ed., § 91-91 e; 2 Dill. Mun. Corp., 4th ed., § 722 and note; Lewis on Em. Dom., § 124 and note ; Mills on Em. Dom., § 205 ; Elliott on Streets, pp. 530-532 ; Lewis' Note to Taggart v. Newport St. R. R. Co., 1 Lewis Ann. Amer. R. R. & Corp. Rep 55. See, however, note on page 57. For references to many cases on the use of the streets for railroad pur- poses, see note to Stanley v. Daven- port, 37 Am. Rep. 224, and Theobald v. Louisville R. R. Co., 14 Am. St. Rep. 569 ; and also note to Vose v. Newport St. R. R. Co., 46 Am. & Eng. R. R. Cas. 91. But if a street railway is laid along the margin of a sidewalk so as to dis- turb the grade, and so as to be in fact an obstruction to the convenient access to the complainant's house, compensa- tion must be paid. Street Railway v. Cumminsville, 14 Ohio St. 524; Rail- way Co. v. Lawrence, 38 Ohio St. 41 ; Campbell v. Met. R. R. Co., 82 Ga. 320; 9 S. E. Rep. 1078; Wichita & C. R. Co. v. Smith, 45 Kan. 264 ; 25 Pac. 623, and Kansas cases cited ; Lackland v. R. R. Co., 34 Mo. 259 ; Grand Rapids & I. R. Co. v. Heisel, 38 Mich. 62 ; E. W.— 7 Nichols v. Ann Arbor & Y. St. R. R. Co., 87 Mich. 361. In the following cases it has been held that an ordinary horse railroad is an additional burden upon land taken for streets, and that the owner is en- titled to compensation. Craig v. Roch- ester City & B. R. R. Co., . 39 N. Y. 404. (In this case unlike the Kerr case, supra, the feewasinthe abutter.) Theobald v. Louisville, etc., R.R. Co., 66 Miss. 279 ; 14 Am. State Rep. 564, (with note) ; Indianapolis B. & W. R. R. Co. v. Hartley, 67 111. 439. Earlier cases in Illinois held otherwise where the fee was in the public. The distinction is main- tained in this case. The case was ap- proved and followed in Barnett v. Board of Trade Teleg. Co., 107 111. 507. See, however, Wiggins v. East St. Louis Ferry Co., 107 111. 450. The same dis- tinction is made in Tennessee, Iron Mountain R. Co. v. Bingham, 87 Tenn. 522; n S. W. Rep. 705 ; East End R. R. Co. v. Doyle, 88 Tenn. 747; 13 S. W. Rep. 936. See, however, a strong opinion that the question of who owns the fee is of little conse- quence in McQuaid v. Portland & V. R. R. Co., 18 Oregon 237 ; 22 Pac. Rep. 899 ; 1 Am. R. R. Corp. Rep. 34. 1 Lewis' Em. Dom., § 124. 2 See also the dissenting opinion of 9 8 ELECTRIC WIRES C§9- Judge Cooley, in his work oil Constitutional Limitations (§ 688), says : " When land is dedicated for a street it is unquestion- ably appropriated for all the ordinary purposes of a street, not merely for the purposes for which such streets were formerly applied, but those demanded by new improvements and new wants. Among these purposes is the use of heavy carriages which run upon a grooved track ; and the appropriation of impor- tant streets in large cities for their use is not only a frequent necessity which must be supposed to have been contemplated, but it is almost as much a matter of course as the grading and paving." Mr. Angell, Judge Dillon and Mr. Mills reach the same con- clusion.' § 8. Steam Railroads are Now Generally Held Not to be Within the Proper Uses of the Street. — It is equally well settled that the ordinary steam railroad, as now conducted, is not within the purposes for which a street is dedicated, and does impose an additional burden upon the abutting owner. 2 § 9. The Reasons That are Given For the Distinction. — The same cases which allow the horse railroad to be within the proper uses Earl, J., in Story v. N. Y. Elev. R. R. Co., 90 N. Y. 179-189. 1 Mills on Em. Dora., § 205 ; 2 Dill. Mun. Corp., § 722; Angell on High- ways, § 91-912. 2 With respect to a steam railway we may refer to Lewis on Em. Dom., § 115 and note, where the cases are col- lected and arranged by states with ex- planations. See also Springfield v. Conn. River R. R. Co.,4 Cush. 63; Starr v. Camden & Atl. R. R. Co., 24 N. J. L. 592 ; Hinchman v. Paterson Horse R. R. Co., 17 N. J. Eq. 75; Jersey City & Bergen R. R. Co. v. Jersey City & Hoboken R. R. Co., 20 N. J. Eq. 61 ; Citizens' Coach Co. v. Camden Coach Co., 33 N. J. Eq. 267 ; Halsey v. Rapid Transit St. Ry. Co., 47 N. J. Eq. 380 ; 21 Atl. Rep. 859 ; Van Home v. Newark Pass. R. R. Co., 21 Atl. Rep. 1034; 48 N.. J. Eq. — ; Fla. Southern R. R. Co. v. Brown, 23 Fla. 104; Gray v. St. Paul & Pac. R. R. Co., 13 Minn. 315; Reichert v. St. Louis, etc., R. Co., 51 Ark. 491 ; 11 So. W. Rep. 696; 5 L. R- Ann. 183, with note, citing many cases ; 38 Am. & Eng. R. R. Cas. 453; D. & R. G. R. Co. v. Bourne, 11 Colo. 59; Weyl v. R. R. Co., 69 Cal. 203; 10 Pac. Rep. 510; Ruttles v. Covington, Ky. Ct. of App., January 13, 1889, 10 S. W. Rep. 644; Daly' v. Georgia, etc., R. R. Co., 80 Ga. 793 ; 12 Am. St. Rep. 286, and note ; 2 Dill. Mun. Corp., 4th ed., $§ 701, 702, 703, 704, 722, 723, 725, and cases cited; Lewis on Em. Dom., § 636; The People v. Kerr, 27 N. Y. 188 (1863) ; Craig v. Rochester City & B. R. R. Co., 39 N. Y. 404 (1868) ; Kellinger v. Forty-second, etc., R. R. Co., 50 N. Y. 206 ; Story v. N. Y. Elev. R. R. Co., 90 N. Y. 122 ; Lahr v. Met. Elev. R. R. Co., 104 N. Y. 268 ; Redfield on Rail- ways, 5th ed., 314, et seq., and notes. See also Adams v. Chicago B. & N. R.Co. (1888), 39 Minn. 286; 39 N. W. Rep. 629 ; 1 L. R. A. 493, with notes. The court held that an abutting owner has an easement in the street, inde- pendent of the fee, and that depriving him of this, to any extent, is a taking of §90 IN STREETS AND HIGHWAYS. 99 private property. A steam railroad was held not to be a proper use of a street, and the landowner was awarded damages ; but these were confined to the operation of the road in front of the plaintiff's land, so as not to include damages common to the public. This decision was affirmed in Lamm v. Chicago St. Paul & M. R. R. Co., 45 Minn. 71; 10 L. R. A. 268 (with note). It was held that the easement goes beyond the middle line of the street. Damages from noise and jarring were excluded, because these do not affect the easement. The appropriation of a street for a railroad held to be a new burden. Cox v. L.N. A. & C. R. R. Co., 48 Ind. 178 (1874); compare Delhi v. Evans, 36 Ind. 90. In Iowa it is held that the legisla- ture may authorize the use of streets for railroads without compensation to the abutting owners. Clinton v. Ce- dar Rapids & M. R. R. Co., 24 Iowa 455. The statutes providing for com- pensation do not apply to street rail- ways. The city council may author- ize these without compensation. Sear v. Marshalltown St. R. R. Co., 65 Iowa 742. But compensation must be made for actual damage done by the con- struction and operation of the road in the street. Stanley v. Davenport, 54 Iowa 463 (steam dummy); Drady v. Des Moines & Ft. O. R. Co, 57 Iowa 393; Stange v. Dubuque, 62 Iowa 303 ; Rihard v. Burlington & W. R. Co., 66 Iowa 440; Wilson v. Des Moines, O. & S. R. Co., 67 Iowa 569; McLean v. Chicago, I. & D. R. Co, 67 Iowa 568. There are cases in which it is held that the operation of a steam railroad, if authorized by law and municipal consent does not entitle the landowner to compensation, especially if he does not own the fee.unless it practi- cally obstructs the street and deprives him of his right of access. This is the settled rule in Kansas. Wichita & C. R. R.Co.v. Smith, 45 Kan. 264 ; 25 Pac.Rep. 623; Railway Co. v.. Cuykendall, 42 Kan. 234; 21 Pac. Rep. 1051, and cases cited. Also in Missouri, Lackland v R. R. Co, 34 Mo. 259 ; R. R. Co. v. St. Louis, 66 Mo. 228; Julia Building Assn. v. Bell Telephone Co, 88 Mo. 258-271, and cases cited. In Cosby v. Owenboro, 10 Bush (Ky.) 288, it was held that building an embankment in the middle of the street for a rail- road, leaving a passageway from six to thirteen feet wide for vehicles, is not such an appropriation of the street as to give landowners a right of action. See Costigan v. Penna. R. R. Co., N. J. Sup. Ct, February, 1892, 15 N. J. L. J. 90. See also in Arbenz v. Wheeling & Harrisburg R. R.Co, 33 W. Va. 1 ; 5 L. R. A. 371, where it was held that an abutting owner was not entitled to an injunction against excavating a street for a railroad duly authorized so long as there was sufficient space on either side for the proper purposes of a street. See note to this case, 5 L. R. A. 371. See also Fobes v. Watertown, etc, R. R. Co., 121 N. Y. 505, where it was said that an abutter who does not own the fee has no right of action against a steam railroad company law- fully occupying a public street in such a manner as not to change the grade nor interfere with public travel, ap- proving Drake v. Hudson River R. R. Co, 7 Barb. 508. In West Virginia it has been re- cently held that the owner of lands along a street on which a railroad was to be laid cannot obtain an injunction unless the injury will be such as en- tirely to destroy the value of the prop- erty so as to constitute a taking. Yates v. Town of West Grafton, 24 W.Va. 783; 12S.E. Rep. 1075 (189:). The court re- lied on the language of the now vener- able Chancellor Williamson in Morris & Essex R. R. Co. v. Newark, 10 N. J. Eq. (2 Stock.) 352, decided in 1855, but it had not then been established by ex- perience that steam railroads were in- consistent with other uses of the street within the lines of the railroad. See § io, infra. 100 ELECTRIC WIRES [§ 9. of a street declare that the steam railroad is not. 1 The reason for the distinction is not the motive power, but the mode of using the streets, the purpose for which the cars are used, and the effect of using them upon the other and ordinary uses of the streets, and upon the use of the adjoining land. Chancellor Green, in Hinchman v. Pater son Horse R. R. Co.? said the use of land for a steam railway, and the use of it for an ordinary high- way were almost wholly inconsistent with each other, but with respect to the street railroads used as a part of the highway and in connection with it, he said the use of the land was almost identical with that of the ordinary highway, and went on to show that the use of the railroad could not interfere with the landowner in the use of his property any more than an ordinary highway. Chancellor Zabriskie, in Jersey City and Bergen R. Co. v. Jer- sey City and Hoboken Horse R. Co., 3 referred to this and many other cases distinguishing street railroads from the ordinary rail- roads operated by steam. He said that steam railroads did not afford access to the land along which they passed, and that the landowner whose land was taken acquired none of the benefits of a public highway to his land from the use of the street for such a railroad, but that in the case of street railroads it was different. "In general," he said, "the cars will stop in front of every door, In Colorado where, under the con- For cases on horse and steam rail- stitution and statutes, it is contem- ways in streets, see notes 14 Am. St. plated that the streets of Denver may Rep. 569, and 11 Am. St. Rep. 682; 36 be used for steam railroads, and' that Am. and Eng. R. Cas., n. 9 ; 38 ibid. permission may be granted by munici- 452, n., 468, n. ; 4 L. R. A. 623, n. ; 32 pal authority, the abutting owner is Am. & Eng. R. Cas. 351, n. For an still entitled to compensation for this article on the right to construct and op- extraordinary and unusual use of the erate an elevated steam railroad on the streets as compared with the use for other side of the street, see 27 Am. Law local convenience and travel. Denver Reg., N. S. 1 ; and see also Penna. R. R. & S. F. R. Co. v. Domke, 11 Colo. 247. Co. v. Lippincott, 116 Pa. St. 472. See also Gilbert v. Greeley, S. L. & P. The construction of a tollgate-keep- R. R. Co., 13 Colo. 501. er's house within the lines of » high- 1 Hinchman v. Paterson Horse R. R. way, without the consent of the owner Co., 17 N. J. Eq. 75 ; Jersey City & Ber- of the soil, is the imposition of an ad- gen R. Co. v. Jersey City & Hoboken ditional servitude, although the legis- HorseR.Co.,2oN.J.Eq.6i; 2Dill.Mun. lature had authorized the turnpike Corp., §§ 725 (576), 722 (573) ; Hobart company to appropriate the highway, v. Milwaukee City R. R. Co., 27 Wis. Perkins v. Moorestown & C. Turnp. 194(1870) ; s. c, 9 Am. Rep. 461 ; Ford Co., 14 N. J. L. J. 197; 22 Atl. Rep. v. Chicago & N. W. R. R. Co., 14 Wis. 180 (Chancery, N. J. 1891). 616; Springfield v. Conn. River R. R. 2 17 N. J. Eq. 75. Co., 4 Cush. 63. s 20 N. J. Eq. 61. § IO.] IN STREETS AND HIGHWAYS. 101 and convey persons from any one point on their line to any other to which they may desire to go, and the great use or advantage of them is to those whose property is taken for the street and whose lands adjoin it. . . . They are but means of using the public streets to a greater advantage for the very purposes for which they were laid out, free and quick transit from one part to another ; they are the best and cheapest mode yet devised, and they do not hinder the use of the rest of the street for pub- lic travel, and hardly, and in a very small degree, obstruct travel on the part occupied by the tracks, except the few inches used for the iron rails." And it was held that the state, or those to whom it has delegated the authority, has the right to set apart a certain portion of the street for a street railroad, if that road is to accommodate the public travel for which the street was designed. It is worthy of note that before it was learned by experience that the use of the steam railroad in the streets was in fact ex- clusive, and was not consistent with the ordinary uses of a street, it was held in New Jersey that even this was only a new mode of travel to which the streets might be devoted. Chancellor Wil- liamson, in his remarkable judgment in Morris and Essex R. R. Co. v. Newark, 1 in 1855, said: " While (the land) is preserved as a common public highway, the use of it does not belong to the owner of the fee. any more than to any other individual of the community. The legislature, therefore, does not, by permitting the company to use the public highway in common with the pub- lic, take away from the landowner anything that belongs to him. It is not a misappropriation of the way. It is used in addition to the ordinary mode, in an improved mode for people to pass and repass." It was only when it was found that the steam railroad running through a town was not a mode of using the streets for travel within the city, that the courts held that it was not a use for which the streets had been dedicated, and that although the right to use it so might be granted, compensation must be given to the landowner. § 10. Difference of Opinion as to Dummy Steam Engines. — Horse railroads having been held to be within the uses of a street, and steam railroads not, the question next arose whether the use of steam motors on street railroads imposed a new burden, and this was variously decided according to the views of the courts upon x 2 Stock. 352. 102 ELECTRIC WIRES [§ 10. the effect of such a change upon the use of the streets. In Iowa, for example, 1 it was held that steam motors authorized by a city to be used on the streets were a nuisance, and that the city was liable to a traveler for damages. In Minnesota, on the other hand, it was held" that the running of cars drawn by steam motors inclosed in cabs was a proper use of the streets in aid of public travel, and did not impose a new servitude. The same thing was held in a case in Maine, 8 when the court said : " The motor is not the criterion ; it is rather the use of the street. A change of motor is not a change of use." In Williams v. City Electric Railway Co., in the U. S. Circuit court for the district of Arkansas, 4 it was held that a railroad operated in a city by steam motors was a street railway, within the meaning of a statute giving cities power to provide for the operation of street railways, and that it did not impose a new servitude. The court said : " The distinction attempted to be drawn between animal and mechanical power as applied to street railroads is not sound. The motor is not the criterion. It is the use of the street and the mode of that use ; " and that if a railroad, whether operated by horse power or mechanical power, is in fact so operated as to be a nuisance, the landowner has his remedy. In Tennessee it has recently been held, that the use of a steam motor drawing cars and running along a city street and five miles out into the country was, in fact, a new servitude. The court said that it was a question of degree, and depended on the man- ner in which the streets were used ; but that in this case there was noise and smoke, the trains were longer and heavier, and the speed was greater than in the case of horse cars, and the use was practically inconsistent with other uses of the highway. 6 In a recent case in Oregon, 6 relating to a railroad operated by a steam dummy, it was held that the question, whether the 1 Stanley v. Davenport, 54 Iowa 463; 6 McQuaid v. Portland & VlR.R.Co., 37 Am. Rep. 216, with long note. 18 Oreg. 237; 22 Pac. Rep. 899; 1 Am. 2 Newell v. Minneapolis. Lyndale & R. R. Corp. Rep. 34. See also in re- M. R. R. Co., 35 Minn. 112; 59 Am. gard to steam dummies, R. R. Co. v. Rep. 303. Bingham, 87 Tenn. 522; 11 S. W. Rep. 3 Briggs v. Lewiston & A. Horse R. 705 ; Smith v. R. R. Co., 87 Tenn. 626; R. Co., 79 Me. 363 (1887). 11 S. W. Rep. 709. Plaintiff did not 4 41 Fed. Rep. 556, March 26, 1890. own the fee, and it was held that his 5 East End R. R. Co. v. Doyle, 13 S. damages were confined to injury to W. Rep. 936; 88 Tenn. 747; 17 Am. St. easement of access, etc. Hussner v. Rep. 933 (1890). Brooklyn City R. Co., 114 N. Y. 433; § 12.] IN STREETS AND HIGHWAYS. 103 owner of the abutting land was entitled to damages for the opera- tion of a railway in the streets, depended on whether his right of access, and other rights appurtenant to his property, were interfered with, and that this was a question of fact for the jury. The court said the question who owns the fee was of little con- sequence, because the fee could not be in any real sense in the public, but is held for the purposes of a street, and if the fee is •in the individual, he holds it subject to the public use of the street. § 11. In a still later case in Michigan ' it was held that a rail- road operated by a steam dummy running along a country road did affect the rights of the owner of the adjoining land, not be- cause of the kind of motor used, but because the line was so constructed with cuts and fills as not to make a part of the high- way. The court said : "A street railway the rails of which are laid to conform to the grade and surface of the street, and which is otherwise so constructed that the public are not excluded from the use of any part of the street as a public way, carrying pas- sengers, stopping at street crossings to receive and discharge them, is a street railway, whether it be operated by horses or electric power or by steam motor such as shown to be used by the defendant in this case." An injunction, however, was granted against the maintenance of the road in question until compensa- tion should be made. § 12. Use of the Cable Railway. — The use of the cable as the mo- tive power involves the digging up of the soil, and placing a per- manent structure along the middle of the street, and so there may perhaps be some likeness in this respect to the planting of poles along the street. The slot or groove for the cable is not an obstruction, but it is not quite safe for horses to travel upon, and it does, therefore, interfere with the use of the tracks for one-horse vehicles, and it certainly does take possession of a greater portion of the land within the street than that which is occupied by the poles of the electric railway. The question of the occupation of the soil of the street has not been mentioned in the cases, but the cable has been considered rather as a change of motive power, and with reference to the statute under which the franchise was granted. In a case in the 21 N. E. Rep. 1002, an action for dam- Eng. R. Cas. 372; 5 L. R. A. 371, ages from noise and smoke in using a note. steam motor. For a discussion of the 1 Nichols v. Ann Arbor & Ypsilanti question of nuisance, see 36 Am. & R. R. Co., 87 Mich. 361 (1891). 104 ' ELECTRIC WIRES [§ 1 3. V New York court of appeals, in which one of the conditions of the grant was that no steam should be used, the court held that the franchise did not include the right to excavate and use the streets for a cable. 1 In a later case, in the same court, it was held, that a change from horse power to the cable may be made without the consent of the owners of the land. 2 The change was made before the amendment to the constitution of New York, requiring the consent of the owners of one-half the property along the line to the construction and operation of a street rail- way, and the court distinguished the decision in People v. Gilroy, relating to an electric road, in which this point was not taken. 3 In a local court in Ohio," it has recently been held, that a street railway operated by cable is not to be classed with steam railways, and is not a new burden entitling the owner of the land to compensation. And again, in the United States Circuit court for the northern district of Illinois, it was held, that a landowner who did not own the fee, was not entitled to an injunction against the use of a street for a cable railway, without his consent, in the absence of proof of some special injury to himself, beyond what he might suffer in common with the public at large.' § 13. Poles and Wires for the Electric Railway — Do They Affect the Property Rights of the Abutting Owner ? — The use of the over- head system of electric wires presents some different questions from the use of steam motors or cables. It involves some obstruc- tion of the streets by the poles and wires, and is said to inter- fere with the working of the telephone. The poles must be set up either along the sidewalk or in the middle of the street, and the wires must be strung along, and in some places across, the street. It is strenuously objected that the placing of the poles in the soil of the street is a taking of private property, and that even if the fee of the street is in the city, it is an interference with the easement of the abutting owner and his right of access. It must be borne in mind that the question is not whether the poles interfere with public travel, and thus constitute a public nuisance. People v. Newton, 112 N. Y. 396 5 Lorie v. North Chicago City R. R. (1889) ; 3 L. R. A. 174. Co., 32 Fed. Rep. 270. See also with ref- 2 In re Third Ave. R. R. Co., 121 N. erence to the cable as a motive power, Y. 336 (1890) ; 24 N. E. Rep. 951. Indianapolis Cable St. R. R. Co. v. Cit- "9N. Y. Supp. 686, 833 (1890). izensSt R.R.Co., 127^.369; 8L.R. 4 Harrison v. Mt. Auburn Cable R. A. 539; 24 N. E. Rep. 1054; 43 Am. & R. Co., 17 Week. Bull. 265 (Hamilton Eng. R. R. Cases 234; Des Moines St. Com. Pleas, Ohio). R. R. Co. v. Des Moines Broad Gauge § I4-] IN STREETS AND HIGHWAYS. 105 This is a question to be decided by the legislature. If the legis- lature decides that the interests of public travel are subserved by having the poles in the streets, then the public have no ground for complaint. The only question now is whether the private rights of the abutter are affected ; whether it is a private nuisance to him, and whether his lands are taken or his rights on the street infringed. In deciding this question, it is to be remembered that the land used is a public street, and that whether the fee is in the abutting owner or in the public, the whole beneficial use of the land is in the public for the purposes of a street. For those pur- poses it belongs wholly to the public ; and so long as it is used for those purposes, it does not belong to the individual at all. 1 § 14. Comparison With the Elevated Railroad Cases — Poles Affect Not the Land, but only Eights of Adjacency, Unless the Use is a Perver- sion of the Use of the Street. — The abutter retains only his ease- ments of light and air and access, and these are property rights ; and for the loss of these, it has been recently decided in the New York Elevated Railroad cases, he is entitled to com- pensation. 2 It was held, in these cases, that the erection of a heavy iron railway upon posts in the streets was not a taking of the land, but that it did in fact affect the use of his land in connection with the street, and was an interference with the right of access and of light and air, which entitled the adja- cent owner to compensation.' It would seem to follow from this R. R. Co., 74 Iowa 585 ; 35 N. W. 602 ; an article on the Elevated Road Liti- Teachout v. Des Moines B. G. R. R. gation, by Edward A. Hibbard, 4 Co., 75 Iowa 722 ; 38 N. W. 145. Harv. Law Review 70. 1 Hoboken Land & Impr. Co. v. s Story v. N. Y. Elev. R. R. Co., 90 Hoboken, 36 N. J. L. 540, 551, per N. Y. 122; Lahrv. Met. Elev. R.R. Co., Depue, J. 104 N. Y. 268; Pond v. Met. Elev. 2 Story v. N. Y. Elev. R. R. Co., 90 R. R. Co., 112 N. Y. 186; Porter v. N. Y. 122; Lahr v. Met. Elev. R. R. Met. Elev. R. R. Co., 120 N. Y. 284; Co., 104 N. Y. 268; Pond v. Met. Abendroth v. Manhattan R. R. Co., 122 Elev. R.R. Co., 112 N. Y. 186; Porter N. Y. 1. v. Met. Elev. R. R. Co., 120 N. Y. 284; In Fobes v. Rome W. & O. R. R. Fobes v. Rome & Watertown Og- Co., 121 N. Y. 505, it was held hy the densburg R. R. Co., 121 N. Y. 505; court of appeals that the abutting Hochalter v. Manhattan R. R. Co., 31 owner, not owning the fee in the street, N. Y. St. Rep. 112 ; Giordano v. Man- had no right to compensation for the hattan R. R. Co., 31 N. Y. St. Rep. 134; use of the street by a steam railroad Abendroth v. Manhattan R. R. Co., 122 duly authorized ; but the same court, in N. Y. 1 ; Haynes v. Thomas, 7 Ind. 38 ; Abendroth v. Met. Elev. R. R. Co., 122 Crawford v. Delaware, 7 Ohio St. N. Y. 1-17, said that the former case 459; Stack v. East St. Louis, 85 111. did not decide that an abutting owner 377 ; and many other cases. See also has not vested rights to light air and 106 ELECTRIC WIRES [§ l6. that if the use of cars for local travel, propelled by electricity, is a proper use of the street as such, then the occupation of the soil for poles reasonably necessary to supply the .electricity is not a taking of land belonging to the abutting owner, and that it does not interfere with his rights in the street, unless it appears that it affects his beneficial use of it as a street in connection with his land, and that it does in fact affect his access to his premises, or obstruct the light or air. It becomes, therefore, a question of fact whether the electric railroad is a mode of using the street for the purposes for which it was designed, and whether the poles and wires really and sub- stantially affect the use of the adjacent land and interfere with the right of access and light and air. § 15. There is no Change of Use in Substituting Electricity for Horse Power. — It would seem to be very clear that the use of electricity instead of horses to propel street cars used for the same purposes as horse cars does not change the use of the streets. The cars are of the same kind ; they are used ' in the same way for taking people from door to door, and facilitating travel in and about the city. The use of the road corresponds exactly with the description of a horse railway in the New Jer- sey cases 'cited in § 9, as distinguished from a steam railway, which occupies the streets for another purpose, to the exclusion of local travel. 1 § 16. Question of Interference with Use of Street is a Question of Fact. — The question whether the poles and wires interfere with the use of the street as such in connection with the adjacent land is a question of fact to be determined in each case, but it cannot be said without proof that the poles and wires as ordina- rily arranged would have that effect. The most serious opposition is made to those placed in the middle of the street ; but however inconvenient these may be to the public, it is clear that they are less open to objection from the landowner than those on the side- walk, in which, by custom at least, the landowner has more privileges, and on which he is allowed to place obstructions, such as awning posts and hitching posts, for his own convenience. access in a public street which are in- Trenton, and State, Halsey, pros. v. cident to his lot, and are private prop- Rapid Transit St. Ry. Co., N. J. Sup, erty, -but that the operation of a steam Ct., January, 1892 ; 15 N. J. Law railroad on the grade of the street was Journal 39 & 45, where the electric not an invasion of his rights. railway is declared not to answer the 1 See, however, State, Green, pros. v. description of the horse railway given § 1 7.] IN STREETS AND HIGHWAYS. 107 The land itself occupied by the electric poles in the middle of the street belongs to the public for the uses of the street, and if the pole is put there for such a use, nothing belonging to the abutting owner is actually taken. Such seems to us to be the conclusion to be reached upon legal principle, and such is the conclusion of the judges in many of the cases which have recently been decided in regard to electric railways, and espe- cially that of Vice-Chancellor Van Fleet in Halsey v. Rapid Tran- sit Street Ry. Co. above referred to.' The real question is not whether the poles and wires trespass upon what may be technically the land of the abutting owner, but whether the use of them and of the electric cars does, in fact, interfere with the free and convenient use of the street in con- nection with the land, or diminish the value of the land by changing its relation to the street. The landowner has no absolute veto upon the planting of the poles by reason of his technical ownership of the soil, but his right to compensation will depend upon whether the poles are so constructed or so placed as to affect his free access to every part of his property, and whether the cars are so run as to be inconsistent with a free and safe use of the street from and to his land for other street uses. It may depend somewhat on the character of the street, the purposes for which it is used, and that which gives the property along the line of it its peculiar value. § 17. Recent Cases — Mt. Adams and Eden Park Inclined Railway Co. v. Winslow. — I shall now refer to the recent cases. Many of them are decisions of local and inferior courts, but some of these bear evidences of careful examination of the principles and au- thorities, and they are all interesting as the beginnings of, the application of the principles to new conditions. 3 One of the earliest cases was Mt. Adams and Eden Park Inclined Railway Co. v. Howard Winslow et al., in the court of common pleas of Hamilton County, Ohio, in the year 1888. 3 ' In that case it appeared that poles were placed along the margin of the side- in those cases, but to resemble rather ported, and some others are not gen- the steam railroad in its obstruction of erally accessible. I am indebted to the street. Mr. John S. Wise, counsel for the Edi- 1 Halsey v. Rapid Transit St. Ry. son General Electric Company in Co., 47 N. J. Eq. 380 ; 20 Atl. Rep. New York, for copies of the cases and 859; 46 Am. & Eng. R. R. Cas. 76 opinions. (1890), supra, Chapt. VIII, § 14. 3 20 Week. Bull. & O. L. J. 420, Nov. 2 Several of these cases are not re- 17, :888. 108 ELECTRIC WIRES [§ l8. walk about one hundred feet apart, and wires were stretched across and along the street for the purpose of supplying elec- tricity to street cars. An injunction was granted to prevent the defendant, a land- owner, from removing the poles. Maxwell, J., dissolved the in- junction and issued a mandatory order to remove the poles. He referred to cases in Ohio, establishing the doctrine that the right of the adjoining owner to ingress and egress, and light and air, is just as much his property as the ground on which his building stands, and cannot be taken from him without compensation, and that he will not be left to his remedy at law. He criticised Julia Building Association v. Bell Telephone Co., 1 as ignoring this doc- trine. He said it was not enough to say that these poles were in aid of public travel, and that every vehicle is an obstruction of the street. There is an essential difference between a fixed obstruc- tion and a moving one. One is exercising the easement of passage and the other is interfering with it. There is no distinc- tion between the poles for the electric railway and telegraph poles, and neither one nor the other can be set up without the consent of the landowner. On appeal to the Circuit court this decision was reversed. 2 The court held that the sidewalk was a part of the highway, and to be dealt with as such ; that the margins of sidewalks have for centuries been appropriated for placing shade trees, lamp posts, hitching posts, and similar structures, and that these new poles did not, in fact, obstruct the access to the plaintiff's land and imposed no new burden upon it ; that the electric current used was not dangerous; that the use of the street by the electric cars was substantially the same as that by horse cars, the mode of travel being the same, the only change being in the motive power. The poles were allowed to stand. § 18. Pelton v. East Cleveland R. It. Co. — This decision was quoted and approved by the court of common pleas for Cuya- hoga county, Ohio, in Pelton v. East Cleveland R. R. Co., Jan- uary, 1 88o,. 3 The court said that the question of speed and of danger to travelers on the street might safely be left to the municipal authorities, and that although the poles added nothing to the beauty of the street, yet the burden or obstruction created was more fancied than real, and 'that it could not be said in 1 88 Mo. 258, chapt. VIII, $ 10 supra. '' 3 Ohio Circuit Court Rep. 425. ' 22 Week. Bull. & O. L. J. 67. § I9-] IN STREETS AND HIGHWAYS. IO9 seriousness that the poles and wires would, if properly placed, obstruct the light and air, or interfere with the ingress and egress to and from the plaintiff's land. An injunction was refused. This case came before the Circuit court of the same county on appeal, and upon a supplemental petition alleging that the run- ning of the cars made a great deal of noise and danger, that the electric current was dangerous and not under control, and that the whole system was a public nuisance and should be abated. The court held that there was a question on the evidence whether the noise was greater than that of horse cars ; but that it was different, and people were not accustomed to it, and that as a mode of using the streets it was subject to regulation by the common council ; that the danger from speed was also a matter for the council to regulate, and, as to the electricity itself, the weight of evidence was that the current used was not very dangerous. The injunction was refused. § 19. Taggart v. Newport St. Railway Co. — The first decision by the Supreme Court of a State seems to be that in Taggart v. The Newport St. Railway Co., already referred to. 1 This was decided January 25, 1890, and the opinion was read by Chief Justice Durfee. A bill was filed by owners of abutting land to restrain a street railway company from erecting poles and wires in front of their houses for the purpose of carrying an electric current to propel the street cars. The poles were to be placed one hundred and twenty feet apart, and along the margin of the sidewalks. The act of incorporation of the company provided that the road might be operated " with steam, horse or other power, as the councils of the city might from time to time direct." The per- mission of the council to use the overhead electric system had been given by ordinance. The court held that the right to use electricity might be inferred from the words of the charter, and that this was probably meant by the words " other power " in an act passed in the year 1885 ; that the poles did not incumber the streets, within the meaning of a clause in the charter forbidding the incumbrance of any portion of the street not occupied by the tracks ; and, lastly, that street railways operated by electricity by means of poles and wires do not constitute an additional ser- vitude upon the land. The court said it was well settled that an ordinary steam railroad does impose a new servitude, and 1 16 R. I. 668; 19 Atl. Rep. 326; 7 L. R. A. 205, with note; 2 Am. Railroad & Corp. Rep. 44, with note; 43 Am. & Eng. R. R. Cas. 208. I IO ELECTRIC WIRES [§ 20. that a horse railroad does not ; that, although the distinction is • often stated as a distinction between steam and horse railroads, it properly rests, not on any difference in motive power, but on the different effects produced by them respectively on the highways and streets which they occupy. It is not the motor, but the kind of occupation, whether practically exclusive or not, which is the criterion. A steam railroad comes into serious conflict with the usual modes of travel, whereas an ordinary street railway, instead of adding a new servitude, operates in furtherance of the original uses of the street. The danger from the electric current, or from the frightening of horses, does not appear to be sufficient to create a new servitude. In answer to the suggestion that telegraph and telephone poles and wires have been held to constitute a new servitude, the court said that these are not used to facilitate the use of the street for travel and transportation, or if so, very indirectly so, " whereas the poles and wires now in question are directly ancillary to the uses of the street as such, in that they communicate the power by which the street cars are propelled ; " and the Chief Justice alluded to the significant fact that telegraph lines erected by a railroad company within its right of way to increase the safety and efficiency of the railroad were held not to be a new burden, but only a legitimate development of' the easement already acquired. 1 The injunction was refused. § 20. Detroit City Railway Co. v. Mills. — After this came several more decisions of inferior courts. There is one by Judge Reilly, of the Circuit court, of Wayne County, Michigan, which was af- terwards affirmed by the Supreme court." Referring to Judge Cooley's opinion in a case in Michigan 8 that a street railway was a proper use of a city street, although a steam railroad was not, he held that a street railway operated by electricity imposed no new servitude. The poles, he said, being placed along the margin of the street, where other posts are put, do not interfere with travel. The cars, he admitted, frightened horses (they had frighted his own), but the horses would get accustomed to them, and the wires were only dangerous in case of accident. He granted an injunction against cutting down the poles. 1 See Chapter XIII on Telegraphs and Railroads. * Detroit City R. R. Co. v. Mills, Circuit Court of Wayne Co., Mich., 1890. Affirmed May 6, 1891; 85 Mich. 634; 48 N. W. 1007 ; 10 R. R. Corp. L. J. 104. See infra, § 26, Chapter X. 8 Grand Rapids, etc., R. R, Co. v. Heisel, 47 Mich. 393. § 23-J IN STREETS AND HIGHWAYS. Ill § 21. Louisville Bagging Manufacturing Co. v. Central Pass. Rail- way Co. — The subject was discussed in all its aspects in a long opinion by Judge Toney, of the Louisville Law and Equity court, on June 30, 1890. 1 He referred to the authorities by which it has been held that a horse railroad is not a new servitude, and quoting the opinion in the Rhode Island case, he said that he was satisfied that the conversion of the horse cars into electric cars, and the construction of poles and appliances necessary for the operation of the cars by electricity, did not constitute a new ser- vitude entitling the plaintiff to compensation. Examining the question of danger to the plaintiff's servants and property from the overhanging wires and from running the cars by electricity, the judge discoursed eloquently on the mysteries of electricity, and after examining, he says, the evidence in the case, and all the accessible literature on the subject, he decided that the single wire trolley system had proved to be safe and that there was no ground for an injunction. § 22. Lonergan v. Lafayette St. Railway Co. — In Loner gan v. Lafayette St. Railway Co.? already referred to, it was held that the purpose of the street railway, whether it was operated by elec- tricity or by horses, remained the same ; that it was well settled that horse railroads are a proper use of the street, and do not impose a new servitude upon the land', and that there was not, in the mode of operation of the electric road, sufficient in the way of noise or danger to make such a substantial or permanent impair- ment of the use of the street by the general public as to lead to the inference than an additional burden has been imposed upon the land. § 23. Halsey v. Rapid Transit St. Railway Co. — A well consid- ered decision, is that of Vice-Chancellor Van Fleet, of New Jersey, from which we have quoted already. The case is Halsey v. Rapid Transit St. Railway Co., court of chancery, N. J., Dec. 6, 1890. 8 The company was organized under a general law, passed in 1886, " to provide for the incorporation of street rail- Ways and to regulate the same." Nothing is said in the act about the kind of motive power to be used. This general grant was of itself sufficient, the court said, to include electric power, and the decision on this point has been quoted already. There 1 Louisville Bagging Mfg, Co. v. 2 Circuit court at Lafayette, Indiana, Central Passenger R. R. Co., Louisville July 9, 1890. Supra, Chapter II. Law and Equity Court, Louisville, Ky. 3 47 N. J. Eq. 380 ; 20 Atl. Rep. 859 ; Opinion filed June 30, 1890. 46 Am. & Eng. R. R. Cas. 76, with note. 112 ELECTRIC WIRES [§23. was, however, other legislation ; a statute had been passed authorizing any street railroad to use electric motors, with the consent of the city. Such consent had been given by resolution specifying the overhead system, and providing for poles either on the sides or in the middle of the street, every other pole in the middle of the street to be furnished with a group of incan descent lights. The railroad company was about to put up poles one hundred and twenty-five feet apart, in the middle of the street, in front of the complainant's tannery. The bill was filed for an injunction, and it was insisted that the resolution of the common council went beyond the statute in authorizing the use of poles, that the poles occupied land belonging to the com- plainant and interfered with his easements in the street, for all of which he was entitled to compensation, and that this not being provided for, the acts of the company were unlawful. The Vice-Chancellor held that the overhead system was in- cluded in the legislative grant ; that the testimony of Thomas A. Edison and other witnesses showed that this was the best elec- trical system, and the only one which as yet had proved success- ful, and that the poles and wires were in the present state of the art necessary to the successful operation of the defendant's rail- way by electricity. " They form part," he said, " of the means by which a new power, to be used in the place of animal power, is to be supplied for the propulsion of street cars, and they have been placed in the street to facilitate its use as a public way, and thus add to its utility and convenience. . . . The whole matter may be summed up in a single sentence : the poles and wires have been placed in the street to aid the public in exercising their right of free passage over the street. That being so, it seems to me to be clear be- yond question that the poles and wires do not impose a new burden upon the land, but must, on the contrary, be regarded both in law and reason as legitimate accessories to the use of the land for the very purposes for which it was acquired. They are to be used for the propulsion of street cars, and the right of the public to use the streets by means of street cars, without making compensation to the owners of the naked fee in the street, is now so thoroughly settled as to be no longer open to debate. It would seem, then, to be entirely certain that the occupation of the street by poles and wires takes nothing from the complainant which the law reserved to the original proprietor when the public easement was acquired." §23.] IN STREETS AND HIGHWAYS. IIJ The Vice-Chancellor cited with approval the cases above re- ferred to in Rhode Island, Kentucky, Ohio and Indiana, and said the question whether there was a new burden must be de- termined by the use which the new method makes of the street, and not the motive power which it employs in such use. And this principle, he said, " exhibits in a very clear light the reason why it has been held that telegraph and telephone poles do im- pose a new burden, since they are placed in the street, not to aid the public in their right of free passage, but in the transmission of intelligence ; and although streets are used for this purpose in carrying the mails, yet this mode differs so essentially from their general and ordinary use, that the general current of authority, with an exception in Massachusetts, has declared that it does not come within the public easement." The Vice-Chancellor added, that the poles in the present case served an ordinary public purpose in lighting the streets, and also that with respect to danger from the current, the proofs showed that the current employed might be used with entire safety to everybody. In answer to the contention that the poles ought not to be placed in the middle of the street, the court said that this part of the street was especially subject to public control, and that the complainant had fewer privileges with respect to it than in the sidewalk, and that the poles were placed in a part of the street of which, so long as it was used as a street, the com- plainant, by virtue of his title to the fee, could not make any use whatever. 1 An application was made to the supreme court of New Jersey, before this decision was rendered, for writs of certiorari to review the resolution of the common council of Newark, giving permis- sion to the Rapid Transit Street Ry. Co. and the Newark Pas- senger Ry. Co. to set up poles and wires for the electric current, and to also review an ordinance of the common council of Tren- ton, giving a similar privilege to the Trenton Horse Railroad Co. to use the streets of Trenton. The court allowed the writ, and testimony was taken to show whether at the time of the passage of the act of March 6, 1886, electric motors were supplied with electricity by the storage battery or by means of poles 1 This decision was followed in Koch v. North Ave. Ry. Co., 23 Atl. Rep. 463 (Md. Ct. App., 1892). See also North Balto. Pass. Ry. Co. v. North Ave. Ry. Co. 23 Atl. Rep., 466, 470 ; Farrell v. Winchester Ave. Ry. Co., 61 Conn. 127, 23 Atl. Rep. 757; Williams v. Citizens' Ry. Co., 29 N. E. Rep.4o8(Ind.). E. W.— 8 1 14 ELECTRIC WIRES [§ 24. and wires. The cases were decided. January 8, 1892,' and the court, while expressly saying that it did not rest its decision upon the rights of the abutting owners, held that the poles and wires were an obstruction of the street which was not authorized by the statute giving permission to use electric motors. They said the city council had no power without distinct legislative authority to permit the obstruction of the streets, even though the obstruc- tion was incidental to the use of a street railway. Referring to the evidence, they said it appeared that cars operated by storage batteries had been in operation for five years at the time of the passage of the act, and that, therefore, the act did not imply the right to use poles and wires. They said the electric railway with respect to its obstruction of the street was rather to be compared with the steam railroad than the horse railroad, and that the planting of poles was not an ordinary or proper use of the street, but that an abutting landowner had a right to complain. if a pole was put on any part of his land, even in the middle of the street, and was entitled to a writ of certiorari to have the resolution or ordinance set aside. The court did not allude to the decision of Vice-Chancellor Van Fleet, nor to any of the other cases on electric railroads referred to in this chapter. 1 Although the question of a new burden upon the lands was expressly reserved, it is plain that the Supreme court regarded the erection of the poles as a perversion of the proper uses of the streets, and so disallowed the premises of the Vice Chancel- lor's argument. 8 § 24. Lockhart v. Craig St. Railway Co. — The opinion of the Vice- Chancellor was confirmed by a decision of the Supreme court of Pennsylvania rendered at about the same time, and without refer, ence to his decision. The case was Lockhart v. Craig St. Rail- way Co.* The opinion of Stone, J., in the court below was 1 State, Halsey, pros. v. City of New- § 20 (p. 22), supra. It appeared in the ark, 23 Atl. Rep. 281 ; 15 N. J. Law case that the storage battery was only Journal 39 ; State, Green, pros. v. City used on three or four cars in Europe of Trenton, 23 Atl. Rep. 284; 15 N. J. before 1886, and that the first car was L. J. 45, with a note giving a summary brought to this country in October of of the evidence on the subject of the that year. There was also proof undis- prior use of the storage battery and puted that five railroads in this coun- the trolley system and referring to try were operated by the trolley sys- cases. tern as early as the winter of 1885-6. * For a further statement of this case a See $ 23 in this chapter, and of the evidence relating to the use * 8 Phila. County Court Rep. 470 ; 37 of the storage battery and the trolley Pittsburg Law jour. 479; 21 Atl. system in March, 1886, see Chapter II, Rep. 26 (Jan. 6, 1891) ; 139 Pa. St. 419. §25-3 IN STREETS AND HIGHWAYS. IIJ affirmed by the Supreme court. The poles and wires were to be placed along the line of the curbstone. As to the wires, the judge said : "The placing of the wires over the streets does not appeal to be a taking of plaintiff's property. The streets are dedicated to the public use, and he has certain special rights as an abutting owner, but I cannot see how a wire run through the air above the streets can be said to be a taking, injury, or a destroying of his property." As to the posts, he said that in Pennsylvania it had been gen- erally understood that the landowner had a fee to the middle of the adjoining street, and that the public had only a right of pas- sage over it, 1 but this must not be taken in a literal sense, espe- cially in towns and cities, and he referred to the common use of the streets for gas pipes, water pipes, awning posts, fire plugs and lamp posts, all of which, he said, "more or less impinge upon the absolute right of an owner of the soil, and are not necessary to accommodate public travel or even consistent with the public right to an unobstructed passage way." He referred to Taggart v. Newport St. Ry Co. as a case directly in point, and said : " My own impression is that the use of poles, wires and other necessary appliances, such as proposed being used by defendants, is not, in any respect, a greater interference with the ownership of the adjoining property owner on a street than the use of streets for fire-plugs, horse-troughs, and lamp posts, which have long and generally been recognized as within the power and control of the city government. Recognizing the right of the legislature and city authorities to authorize the building of railways upon streets of a city without compensation to property owners, because it is a means of public transportation and accommodation, the neces- sary and proper apparatus for moving them must be allowed to follow as an incident, unless there is something illegal in its con- struction or use." An injunction was refused. § 25. Saginaw Union Street Railway Cases. — There are two re- cent cases in Michigan, in which relief against the electric railway was denied the landowner, but which, nevertheless, suggest that he may have legal ground for complaint. They were both suits against the Saginaw Union Street Railway Co." In one it was 1 Chambers v. Ferry, i Yeates 167 ; R. R. & Corp. L. J. 34 ; 47 N. W. Rep. Lewis v. Jones, 1 Pa. St. 336. 217; Barber v. Saginaw Union St.. 1 Potter v. Saginaw Union St. R. R. R. R. Co., 83 Mich. 299 ; 47 N. W. Rep. Co, 83 Mich. 285; 10 L. R. A. 176; 9 219. 1 16 ELECTRIC WIRES [§ 26. held that an injunction against the use of electricity on a street railway would not be granted to an owner of vacant land on the ground that when he built a house there the operation of the line by electricity would be annoying and dangerous. Nothing was said about poles, but it was held that mere apprehension of future injury was not sufficient, especially in a case in which large sums of money have already been spent by defendant in constructing their electric apparatus. In the other case, it appeared that the track was wholly on the further side of the ' street, and that the defendant had removed all poles and wires from in front of the premises of the plaintiff ; and it was held that he was en- titled to no relief except a perpetual injunction against erecting poles and wires in front of his premises (and on his side of the street), without his consent. The subject was not discussed, but it would seem that the court thought that the setting up of poles in the plaintiff's land in the street was an invasion of, his rights. § 26. Detroit City Ey. Co. v. Mills on Appeal. — These decisions were followed, however, by another at the same term relating to the same kind of electrical apparatus. 1 The complainant was a street rail- way company having lines in the city of Detroit, and was author- ized by the common council to extend its lines through Mack street, and to substitute in lieu of animal power such system of electric or other motive power, except steam, as should seem best, upon any and all of its lines. Poles were put up along both sides of Mack street in front of the defendant's lands, and he cut them down and threatened to continue to do so as often as they were put up. On a bill filed for injunction against this, and on a cross-bill praying a perpetual injunction against the use of the railway, it was held that in the absence of injury to his right of ingress and egress, and to his right of free passage over the street, the abutting landowner had no cause to com- plain of poles set up for the purpose of propelling street cars for public travel. There was a difference of opinion between the judges. Three concurred in the decision and two dissented. Grant, J., with whom Long, J., concurred, maintained emphatically that however In Electric R. R. Co. v. Grand it cannot insist upon the furnishing of Rapids, 84 Mich. 257 ; 47 N. W. Rep. transfer tickets as a condition of per- 567, it was held that when a common mission to use a certain kind of council had given a street railway pole. company permission to operate its line 1 Detroit City R. R. v. Mills, 84 Mich, by electricity, the kind and pattern of 634; 48 N. W. Rep. 1007; 10 R. R. & poles to be approved by the council, Corp. L. J. 104 (May 8, 1891). §26.] IN STREETS AND HIGHWAYS. 117 it might be with country highways, it was well settled that the streets of a city might be used for any purpose which was a necessary public one, and that for any such use the abutting landowner would not be entitled to a new compensation whether he owned the fee in the street or not. He referred to the cases in which it had been held that horse railroads are not a new burden upon the land, and said the electric railway was only an improved method of making the same use of the streets. " The poles," he said, " are a necessary part of the system. When they do not interfere with the owner's access to and use of his land, we see no reason why they should be held to consti- tute an additional servitude. Certainly they constitute no injury to his reversionary interest. To constitute an additional servi- tude, they must be an injury to the present use and enjoyment of his land," and the court distinguished them in this respect from the elevated railroad and the steam locomotive, and said. that if they were unsightly they were no more so than the lamp- post and the electric tower, and that it is as necessary that rapid transit be furnished to a crowded city as it is that light should be furnished to its streets. Campbell, C. J., while concurring in the decision, said he was not prepared to say that a street railroad track is of itself no additional burden, that he thought it was, but to what extent, depends upon all the circumstances of the case. If in any case it becomes a nuisance and causes damage, the abutting owner has his remedy at law. And so with regard to the setting of poles to aid the propulsion of cars by electricity, he said : " I do not think ordinarily it is such a taking of private property as requires condemnation and compensation before the poles can be set ; but I think that if the owner suffers damage on account of the erection of poles, he should seek his remedy at law for such damage." McGrathand Morse, J J., dissented ; McGrath, J., insisted most earnestly that a street railway, whether operated by animal power, electricity or steam, was an additional burden. " Any fixed right of way in a street," he said, " is a burden upon that street. Any use of a street, a like use of which is not com- mon to all, is a new servitude. Any use of a street which nar- rows the street, or which interferes with the use of any part of the street by the public, or confines the public to a use of but a part of the street, is an added burden." And he made a strong argument to show that no railroad ought to be allowed to be operated in a street without making compensation to the Il8 ELECTRIC WIRES [§ 2 7- landowner for the damage actually sustained by reason of the change in the use of the street. Morse, J., concurred in this opinion, and insisted also that the operation of a street railway, and especially an electric rail- way, interfered with the access to property and with ordinary travel, and was injurious to the property and disagreeable to the owners, and that public convenience was not a good reason for inflicting injury upon individuals without compensation. It is to be observed, that these dissenting opinions make no distinction between the electric railway and the horse railway. The former may be a little worse, but both are on principle a perversion of the purpose of the street and a damage to the landowner. That is not a question we need attempt to discuss. We have to do only with use of the poles and wires, and there is no reason given in these dissenting opinions why the electric system may not be used if it is determined that a horse railway is a proper use of the street. 1 In a later case in Michigan relat- ing to a railroad operated by a dummy steam engine the decision in the Mills case was approved, and the court said the answer to the question whether the landowner was entitled to compensa- tion or not depended on the mode of use of the street rather than on the motive power employed.' § 27. Conclusions. — It is no doubt true that all railroads do 1 In Tracy v. Troy & Lansingburgh property being required by the con- R. R. Co., 54 Hun 550, it was held that stitution for the construction of a an injunction against the use of poles street railway, it was held that an should be vacated where it appeared electric railway could not be built that the plaintiff had no further in- without it, but in the Third Ave. ducement to press his suit, and that the Railroad case, where it appeared that effect of the injunction would be to the charter of a horse railroad was retard a work of public utility. granted before the constitutional pro- In re Rochester Electric R. R. Co., vision was adopted, it was held that 33 N. Y. St. R. 695 ; 25 N. E. Rep. the consent was not required for a 381, it was held that where the consti- change to the cable system, tution requires consent of one-half Authority . to use "the power of the property owners, before proceed- horses or any mechanical power" ings are taken to condemn land for a embraces electricity. Hudson River street railway, this consent is a pre- Teleph. Co. v. Watervliet Turnpike requisite to proceedings to condemn Co., 56 Hun 67; Taggart v. Newport private property for an electric rail- St. Ry. Co., 16 R. I. 668 ; 19 Atl. Rep. way. See also People v. Gilroy, 9 N. 326; 7 L. R. A. 205 ; Williams v. City Y. Supp. 686, 833 ; In re Third Ave. R. Electric R. R. Co., 41 Fed. Rep. 556. R. Co., 24 N. E. Rep. 951 (N. Y.) 2 Nichols v. Ann Arbor & Y. St. R. In the former case (Gilroy's), the R. Co., 87 Mich. 361 ; 49 N. W. Rep. consent of the owners of one-half the 538. See §11, Chapter X. §28.] IN STREETS AND HIGHWAYS. II9 affect in some degree the use of a street ; they do claim some exclusive use ; they divide the street into two parts ; and if it is narrow, they make it impossible to leave a wagon standing at the curbstone. The electric road may have some additional elements of danger and obstruction, and it may well be that the solution of the difficulty is to be found in the suggestion of Chief Justice Campbell, that a person who suffers actual damage shall be entitled to compensation for the injury he sustains. Whether the operation of the railroad is a new burden is a different ques- tion, and it might tend to a reconciliation of the cases and the adoption of a uniform rule if the question of new burden were left on one side, and the attention were directed to the practical question whether the rights and privileges of the abutting owner in the use of the street were affected or not by the operation of the railroad. § 28. The Electric Railway Used as a Substitute for the Steam Bail- way — Mode of TJse the Criterion. — These cases relate to the elec- tric railway used for the same purposes as horse cars, and operated on the streets of a city. Since the reasoning is based upon the purpose of the use, it may well be that if cars were run at a high rate of speed along a country road from one town to another in such a way as to afford no access to abutting land, or so as to make the use of the street dangerous for ordinary travel, or so as to take exclusive possession of a part of the street, it would be held that this was in fact a perversion of the use of the street.' In short, if the electric railway were used like the steam railway, it would be classed with it and be subject to the same ruling; and if the electric motor were used as the steam dummy is used, it would, like the dummy, be in a doubtful position. In fact, it is not the motive power but the mode of using the street which de- termines the question whether the railroad constitutes a new burden upon the land, and if the railroad is not a new burden, the poles and wires being in fact a part of the railroad and in- tended for the purpose of operating it, do not constitute a bur- den and are not an injury to the landowner, unless as a matter of fact they obstruct the access to the street or in some way affect his right to the use of the street in connection with his land. 1 See, however, Pelton v. East Cleve- to the right of the owner to compen- land R. R. Co., Ohio (Cuyahoga com. sation, the speed being a matter upon pleas), 22 Week. Bull. 67, where which it was competent for the city it was held that the fact that a speed council to legislate. See also Nichols of twelve miles an hour was author- v. Ann Arbor & Ypsilanti R. R. Co., ized made no difference with respect 87 Mich. 361 ; 49 N. W. Rep. 538. 120 ELECTRIC WIRES [§ 2- CHAPTER XI. CONDEMNATION OF PRIVATE RIGHTS FOR LINES OF ELECTRIC WIRE. § 1. General Statutory Provisions. — The statutes of the various states give the right to use the public highways for telegraph, telephone and electric light wires, and generally provide for obtaining the consent of abutting owners. Provision is also made for condemning private lands, and for ascertaining and paying the damages suffered by the owners of abutting lands who withhold their consent, but it seems that no statutes have yet been passed providing for the condemnation of the rights of owners of adjacent land for the use of poles in the streets for electric railways, and such statutes will only be necessary when it is determined that their rights are affected by the use of the streets for that purpose. § 2. Statutes of Some of the States. — It would be beyond the scope of this discussion to quote in detail the provisions of the statutes of all the states on this subject, but it may be well to refer to some of them by way of showing what private rights are recognized and what provision is made for compensation to abutting owners. In Ohio, the county commissioners are to appoint appraisers to assess the damages of persons over whose lands the lines shall pass or on which the posts or piers shall be built. 1 In Massachusetts, it is provided that if property abutting on a highway is in any way injuriously affected or lessened in value, whether by occupation of the ground or air, or otherwise, by the construction of telegraph, telephone, electric light or electric power lines, the owner, whether he is the owner of the fee in the way or not, may apply to the mayor or aldermen, or to the selectmen to assess his damages. 3 In Connecticut, it is declared that no telegraph, telephone or electric light company, or company engaged in using electric wires or conductors for any purpose, may exercise any power conferred upon it, on or under any highway or public ground, or change the location of the same, without the consent of the adjoining , 1 Act of July 8, 1847, Ohio Rev. Stat. 1890 (8746). See also (8752), (3454). (3455). (3456). (3459)- 2 Laws 1882, ch. 109, Gen. Stat. Mass. 1884, ch. 306. § 2.] IN STREETS AND HIGHWAYS 121 proprietor, or in case such consent cannot be obtained, without the consent in writing of two of the county commissioners, which shall only be given on hearing after the notice. The common council or selectmen have full direction and control as to the plac- ing and removal of wires, subject to an appeal to a judge of the Supreme court, who may appoint three commissioners to appraise damages. 1 In Illinois, provision is made for paying for property taken or injured." In Indiana, the power of eminent domain with the writ of assessment is given to telegraph and telephone companies. 3 In California, the county court is authorized to appoint three com- missioners to assess damages. 4 In New Jersey, provision was made in 1890, for the appoint- ment by the circuit court of three commissioners to assess dam- ages to owners of the soil of any road or highway along which a telegraph or telephone line is to be constructed. 6 In the Revised Laws of Vermont there is a provision that when, in the erection of a telegraph line, the owner or occupant of lands or tenements sustains or is likely to sustain damage thereby, the selectmen of the town shall appraise such damage, and the same shall be paid before the line is erected ; and the decision of the selectmen shall be final, notice being given as provided in the statute." So also in New Hampshire, it is provided that if any person shall be aggrieved or damaged by the erection of electric wires or poles, or by the stretching of such wires, or by the use made of the same, he may apply to the mayor and aldermen or the selectmen to assess the damages which he claims are occasioned thereby, who shall give notice to the proprietors and all others interested; and after hearing all parties, may award such damages as may be legally and justly due.' In Louisiana, telegraph companies are given a right of way over all lands owned by the state, and over any highways and navigable waters, but they must so construct their works as not to interfere with, impede or hinder the free use of the highways or navigable waters or drainage or natural servitudes of the land, and no provision seems to be made for compensation. 8 1 Laws 1887, ch. 33, Gen. Stat. Conn. 5 Laws N. J. 1890, ch. 298. 1888, §$ 3943-54- 6 R ev. Laws Vt. 1880, $ 3637. * Rev. Stat. Ills., ch. 134. 7 Laws N. H. 1881, p. 473, $ 6. 3 Ind. R. S., ch. 42, 43, 4§ 4162, 4192. "Laws, 1855, 109; Rev. Laws La * Act of April 22, 1850 Cal. 1870, § 3760. 122 ELECTRIC WIRES [§4- § 3. If Private Bights are Affected or Consent is Required by Statute, Condemnation is Necessary. — If in any case a new burden is imposed, or a private right of property is affected, the right to construct the line can only be obtained by the exercise of emi- nent domain, and if in any case the statute giving authority to construct the line provides that consent must first be obtained or compensation made, this condition must be fulfilled, and the act of putting up the poles is without authority, unless consent be obtained or proceedings be taken to condemn. 1 § 4. The Telegraph and the Telephone are Public Uses. — The tele- graph is a public and not a private use," and statutes authoriz- ing the condemnation of private property for the construction of a telegraph line are not unconstitutional, and this even though the telegraph company is not expressly required to serve all alike. The same is true of the telephone, which is only another form of telegraph, 3 serving the same general purpose with the same electric current and with the same poles and wires, only delivering the message in a different way. " They are," says Mr. Justice Reed of New Jersey in a recent case, 4 " both services There are many other states in which no provision for compensation to abutting owners is made. For a list of the Compilations of American Statutes on the Telegraph and Telephone, see note to § 47, of chapter 6, supra. See also Thomp- son on Electricity, chapter 3, art. 2, and for an account of the legislation in every state relating to the condem- nation of property in connection with various municipal franchises, see Eco- nomic Legislation of all the States, or the Law of Incorporated Companies operating under Municipal Franchises, by Allen R. Foote, Cincinnati; Robert Clarke & Co., 1892. Subdivision III, in the section relating to each state. 1 Broome v. N. Y. & N. J. Teleph. Co., 42 N. J. Eq. 141. 2 Pierce v. Drew, 136 Mass. 75; Central Un. Teleph. Co. v. Bradbury, 106 Ind. 1; s N. E. Rep. 721; State v. Postal Teleg. Co., 47 Fed. Rep. 633 ; State, Trenton & N. B. Turnpike Co., pros. v. American & European Com- mercial News Co., 43 N. J. L. 381. In this latter case it was held that the statute imposed upon the company the duty of serving all alike, but the court said that it had not been established as a rule that in order to render the use public so as to give power to take private property, the duty must be ex- pressly imposed upon a company to serve all who make reasonable de- mands upon it. Citing Lumbard v. Stearns, 4 Cush. 60 ; Scudder v. Tren- ton Del. Falls Co., Saxt. 694, 729; Mills on Em. Dom., §§ 14, 21. See also as to what constitutes a public use, Lewis on Em. Dom., Chapt. VII, and as to the telegraph, § 172. 3 Mr. Bell's specification of his claim. Telephone Cases, 126 U. S. 2; Attor- ney-General v. Edison Teleph. Co., 6 Q^B. Div. 244; Chesapeake & Poto- mac Teleg. Co. v. Bait. & Ohio Teleg. Co., 66 Md. 399; State, Duke, pros. v. Central N. J. Teleph. Co., 53 N. J. L. 341 ; 21 Atl. Rep. 460; Wisconsin Teleph. Co. v. Oshkosh, 62 Wis. 32; Hockett v. State, 105 Ind. 250; 5 N. E. Rep. 178. 4 State, Duke, pros. v. Central N. J. Teleph. Co., 53 N. J. L. 341 (189O. $ 7-] IN STREETS AND HIGHWAYS. 1 23 of a public nature -which would permit the legislature to confer the power to condemn for each use." § 5. Eight Acquired Only Such as is Necessary. — The right acquired under proceedings for condemnation is only such as is necessary to put up and maintain the poles and wires. Under the statute of Illinois (Rev. Stat. 47, Eminent Domain, and Rev. Stat. 134, Telegraphs), it has been held that the com- pany does not acquire a fee in the strip of land described in the proceedings, and acquires an exclusive use of only such land as is occupied by the poles, besides a right to enter and make repairs. The company cannot cultivate it nor maintain a fence along it. The landowner need not erect a fence along the strip, and is not entitled to compensation for the expense of one. 1 § 6. Right of Way Over a Turnpike Hay be Condemned on Certain Conditions. — A right of way for a telegraph over a turnpike may be taken on payment of compensation, and without an express grant of authority to construct the line on a turnpike. The right to maintain a turnpike is a franchise, and a franchise cannot be condemned without express authority," but it has been held that a telegraph line does not materially affect the franchise of the turnpike company, and that the construction of a line on a turn- pike needs no express grant, but, like the crossing of one railroad by another, is authorized by the general power to construct the line. 8 The petition to condemn, however, " should show that the tele- graph company is limited in its right to erect poles to a specified width along the exterior line or lines of the pike, so that it may appear that it is not proposed to appropriate the franchise of the turnpike company, and the order should be equally definite." A petition for " permission to plant poles along the margin of said turnpike in such places along said turnpike road as not to interfere with the public travel of said road," was held to be insufficient.' § 7. Failure to Agree as a Condition Precedent to Condemnation. — The courts will not exercise the power of condemnation unless the applicant has made an effort to purchase, and the petition should allege the inability of the parties to agree." In a recent case in Mississippi, relating to a telegraph line, the court held that it was enough if it appeared from the record that an effort 1 Lockie v. Mut. Union Teleg. Co., 3 Turnpike Co. v. News Co., 43 N. J. 103111.401(1882). L. 381. 2 State, Trenton & N. B. Turnpike * Ibid, p. 386. Co. pros. v. Am. & Eur. Com. News 6 Mills Em. Dom., § 107, Lewis Em. Co, 43 N. J. L. 381 (1881). Dom. §§ 301-304, 357. 124 ELECTRIC WIRES [§ 9. had been made by the telegraph company to adjust the matter by contract, and that no answer to the offer made had been returned within a reasonable time, 1 § 8. Designation of Streets as a Condition Precedent to Condemnation. — Under a statute giving authority to construct a telegraph line "after application to the legislative body of any incorporated city or town through which the line may pass," it has been held in New Jersey that a telephone (or telegraph) company cannot exercise the power of condemnation without having made an application for a designation of the streets. 2 § 9. Requirements cf Petition to Condemn. — In this case the statute provided for a petition for the appointment of commissioners to assess the damages landowners might sustain by the erection of the line along the highway in front of their lands, and required that a description of the premises in which the privilege of erect- ing poles is to be exercised should be set forth in the petition. The Supreme court held that a petition containing no informa- tion as to the size and location of the poles except what was furnished by some small dots on a map of the street, without a scale, was too indefinite. The decision was affirmed on appeal on this point' (no opinion being expressed on the other), and the court said the petition should indicate the intended height of the poles, the number and size of the cross arms they will bear, and the number of wires they are to sustain. These particulars, the court said, are necessary in a case of this kind to the ascertain- ment of the privilege or right of way which is to be secured. 1 Louisville, N. O. & T. Ry. Co. v. The case of Winter v. The Telephone Postal Cable Co., 68 Miss. 806; 10 So. Co., however, was decided after this Rep. 74 (1891). opinion of the court of errors, and 2 Broome v. N. Y. & N. J. Teleph. maintained that a designation of the Co., 49 N. J. L. 624; Winter v. N. Y. streets was essential to give the court & N. J. Teleph. Co., 51 N. J. L. 83. jurisdiction over an application to con- These decisions were made in the demn. The company had never applied Supreme court, and when the former for a designation, but acted on a desig- came before the court of errors, this nation made for another company, court affirmed the judgment on an- which was expressly made non-assign other ground, and said : "Our conclu- able. sion on this point obviates the neces- s New York & New Jersey Tele- sity of expressing an opinion upon the phone Co. v. Broome, 50 N. J. L. 432. other branch of the case, upon which See also Winter v. N. Y. & N. J. the Supreme court passed, and the act Telephone Co., 51 N. J. L. 83, on the of 1887 (P. L. 119) has so changed the same point, and Turnpike Co. v. A. & law that it is not a public utility that E. Commercial News Co., 43 N. J. L. we should do so." N. Y. & N. J. 381, in regard to the petition to con- Teleph. Co. v. Broome, 50 N. J. L. 432. demn a right of way along a turnpike § 2.] IN STREETS AND HIGHWAYS. 1 25 CHAPTER XII. TELEGRAPHS ON POST ROADS. § 1. Occasion and Purposes of the Act of Congress of July 24, 1866, Concerning Telegraphs on Post Roads. — The telegraph was found during the civil war to be of supreme importance as an agency of the government; and when the unity of the United States had been established by the result of the war, the importance of binding the whole country together by means of the telegraph and the railroad was the more fully appreciated. The govern- ment had already in the midst of the war provided for a rail- road and a telegraph to extend from the Mississippi to the Pacific, under the authority and control of the United States. In pursuance of the wise policy by which this great work was undertaken, and making use of the power to regulate commerce between the states and to maintain post roads, Congress enacted a law, in 1866, giving telegraph companies the right to extend their lines over the public domain, and over all military or post roads in the United States. This act was approved July 24, 1866, and is entitled, "An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military and other purposes." (14 U. S. Stat., 221, U. S. Rev. Stat., §§ 5263, 5268.) It declares that any telegraph company organized under the laws of any of the states of the Union shall have the right to construct, maintain and operate lines of telegraph through and over any portion of the public domain of the United States, and over and along any of the military or post roads of the United States which have been or may hereafter be declared such by law, but that such lines of telegraph shall be so constructed and main- tained as not to interfere with ordinary travel ; and it is provided that before any telegraph company shall exercise any of the powers or privileges conferred by the act, the company shall file their written acceptance with the Postmaster-General of the restrictions and obligations required by law. § 2. Decision of the Supreme Court Sustaining and Construing the Act. — The act came before the Supreme Court of the United States in 1877, and was broadly sustained, and was so construed as to give it the fullest effect for the purpose of maintaining the 126 ELECTRIC WIRES [§ 4. freest intercourse between the states, and preventing any inter- ference with the telegraph by state governments or by corpora- tions or individuals. The case was Pensacola Telegraph Co. v. Western Union Tele- graph Co. 1 on appeal from the decision of Judge Woods, in the United States Circuit court for the district of Florida." An act of the legislature of Florida purported to give the complainant the exclusive right to erect telegraph lines in certain counties in the state, and Judge Woods held that, so far as the act purported to give to any company the exclusive privilege of using a post road, it was in conflict with the act of Congress, and therefore void. This decision was sustained by the Supreme court. § 3. What the Term Post Roads Includes. — The act is not con- fined to the public domain and to military and post roads belonging to the United States, 8 but extends to all post roads, and applies to public highways opened under the laws of the sev- eral states and territories upon which the mails are carried.* By a subsequent statute (1872, Rev. Stat. U. S., § 3964), all railroads and all letter carrier routes in any city or town were expressly declared to be post roads, and by the act of March 1, 1884 (23 U. S. Stat. 3), all public roads and highways were declared to be post routes, and since the decision of the Supreme court in the case of the Pensacola Telegraph Company there has been no question that the act of July 24, 1866, applies generally to all public highways of every kind over which the mails are carried, or which are declared by Congress to be post roads. § 4. The Scope and Effect of the Act as Declared by the Supreme Court — Equal Privileges Secured to all Telegraph Companies. — The purpose of the act as declared by the Supreme court in that case, and generally recognized ever since, was to facilitate communica- tion by telegraph throughout the country, and to prevent restriction upon this kind of interstate commerce by the states or individuals. Chief Justice Waite, delivering the opinion of the court in that case, said : " The statute of July 24, 1866, in effect, amounts to a prohibi- tion of all state monopolies in this particular. It substantially 1 96 U. S. 1. Teleg. Co., 2 Wkly. N. C. 455 ; 33 Leg. * 2 Woods C. C. 643 (1875). Intel. 129. 8 Although it was so held in an early * Pensacola Teleg. Co. v. Western case in Pennsylvania. Phila. v. W. U. Union Teleg. Co., 96 U. S. 1. § 5-] IN STREETS AND HIGHWAYS. 1 27 declares, in the interest of commerce and the convenient trans- mission of intelligence from place to place by the government of the United States and its citizens, that the erection of telegraph lines shall, so far as state interference is concerned, be free to all who will submit to the conditions imposed by Congress, and that corporations organized under the laws of one state for con- structing and operating telegraph lines, shall not be excluded by another from prosecuting their business within its jurisdiction, if they accept the terms proposed by the national government for this national privilege. " To this extent, certainly, the statute is a legitimate regulation of commercial intercourse among the states, and is appropriate legislation to carry into execution the powers of Congress over the postal service. It gives no foreign corporation the right to enter upon private property without the consent of the owner, and erect the necessary structures for its business ; but it does provide that, whenever the consent of the owner is obtained, no state legislation shall prevent the occupation of post roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges." The act, therefore, provides that all post roads shall be kept open for the use of all telegraph companies who shall accept the terms of the act, and prohibits interference with this privilege by state legislation, or by the action of individuals. A state legis- lature cannot give to any one telegraph company an exclusive right to use a post road for a telegraph line. 1 § 5. Railroad and Turnpike Companies Cannot Give Exclusive Rights to TJse Their Rights of Way for Telegraph Purposes. — As this is true of the state with respect to all post roads, so also, it is true of the corporations or individuals owning the right of way of 1 Pensacola Teleg. Co. v. Western construct a line of telegraph between Union Teleg. Co., 96 U. S. 1 ; 2 Woods any two points connected by post C. C. 463 ; West. Union Teleg. Co. v. roads. There is, however, an inter- B. & O. Teleg. & R. R. Co., 19 Fed. esting decision in California, made in Rep. 660 (1884) ; West. Union Teleg. 1863, sustaining, on grounds of public Co. v. Am. Union Teleg. Co., 9 Biss. policy, the validity of a very broad 72 (1879); W. U. Teleg. Co. v. Bur- grant of an exclusive privilege of build- lington & S. Ry. Co., 11 Fed. Rep. 1 ; ing and operating a line of telegraph West. Union Teleg. Co. v. Am. Union from San Francisco to Marysville, by Teleg. Co., 65 Ga. 160; 38 Am. Rep. 781. way of San Jose, Stockton and Sacra- Since the passage of the act of Con- mento City, for fifteen years. It was. gress of July 24, 1866, it is of course the grant made to Allen & Burnham on impossible for a state to grant an ex- May 3, 1852. California St. Teleg. Co. elusive right to any one company to v. Alta Teleg. Co., 22 Cal. 398 (1863), 128 ELECTRIC WIRES [§ 5. a turnpike or a railroad. Neither a railroad nor a turnpike com- pany can give a telegraph company an exclusive right to use its road which shall be of any avail against a company which has accepted the provisions of the act of Congress. In Western Union Telegraph Co. v. American Union Telegraph Co., 1 it was held that a railroad company cannot grant to a telegraph com- pany the sole right to construct a line over its right of way, so as to exclude other companies which have complied with the act of Congress and which do not interfere with the use of its line of railroad, and it was held that the railroad company hav- ing given its assent to the new line of telegraph, the company owning the old line was not entitled to an injunction, even , though it had an agreement with the railroad company for the exclusive use. In Western Union Telegraph Co. v. Burlington and South West- ern Railway Co.,' the court said, it is not competent for a rail- road company to grant a telegraph company the exclusive right to establish its lines of telegraph along its right of way, such con- tracts being in restraint of trade and contrary to public policy, and the court referred to the statute and cited the decision of the Supreme court and other cases. So also in Western Union Telegraph Co. v. B. & O. Telegraph Co.,' the court said that a railroad is, under the statute, a post road, and therefore the act of Congress of July 24, 1866, giving to all telegraph companies alike the right to construct and operate lines along all post roads of the United States, is paramount over any agreement made by a railroad company securing a telegraph company the exclusive use of the line for its wires. There are other cases in which the same rule is maintained in which the decision is based also upon the principle that such exclusive contracts tend to stifle competition and are contrary to public policy, without regard to the Federal statute. These 1 9 Biss. 72 ; 7th CWcuit 1879, Har- company and a telegraph company Ian, J. giving exclusive right of way for the 2 11 Fed. Rep. 1 ; 3 McCrary 130; U. construction of its line, does not con- S. circuit court D. Iowa (1882). cern the duty of railroad companies to 3 19 Fed. Rep. 660; U. S. circuit observe equality, but a contract to court S. D. New York, Wallace, J., deliver material anywhere along the (1884). line for one company and not to In Teleg. Co. v. Teleg. Co., 10 deliver for others, except at stations, is Cine. Week. Bull. 201, it was held contrary to the duty of common ear- that an agreement between a railroad riers. and void as against public policy § 7-] IN STREETS AND HIGHWAYS. 1 29 cases will be referred to in the chapter on telegraphs in relation to railroads. 1 § 6. Practical Difficulties — Question of the Interference of one Line With the Other. — There may be practical difficulties in allowing several telegraph companies to use the same railroad for their lines, for the reason that the use by one, or at all events by more than one, may interfere with the full and efficient use of the right of way by another. A telegraph line can often be econom- ically operated only in connection with the use of it by the rail- road company itself, and this use is certainly not what is con- templated by the statute. And again, there may be facilities at the railroad stations for the use of but one line, and these can hardly be within the scope of the statute. It may even be that several distinct lines of wire could not be operated without interfering with one another along the narrow strip of land available for them, and the cases do not go so far as to hold that any company has a right to construct a line so as to interfere with the proper working of an existing line. The same princi- ple would no doubt apply to this as has been applied to the use of the right of way itself, namely, that the statute does not give the right to injure property without compensation. The ques- tion of interference between different telegraph lines does not seem to have been much discussed by the courts, 2 and we can only apply the principles on which the lines are allowed to be erected on the right of way of the railroad companies. § 7. The Rights Conferred are Public and Not Private Rights — The Latter Can Only be Taken by Consent. — The effect of the statute, according to the decisions of the courts, is to authorize telegraph companies to use public highways of every kind over which the mails are carried or which are declared by law to be post roads ; and so far as these roads are public highways for the transportation of the mails, they are subject to be used for 1 Telegraphs & Railroads, infra, in operation, would not disturb the Chapt. XIII. possession or materially obstruct the 2 In Western Union Teleg. Co. v. operation of the lines of that company. American Union Teleg. Co., 9 Biss. In West. Union Teleg. Co. v. A. & 72 (1879), the court in laying down P. Teleg. Co., 7 Biss. 367, proceedings the rule that a right of way could in a state court by a telegraph company not be given to one company so to condemn the right of way of an- as to exclude others, limited these other telegraph company over a raif- others to such as had accepted the road, while the railroad was in the provisions of the act of 1866, and hands of a receiver, were held to be whose lines, when constructed and put inoperative and void. E. W.— 9 130 ELECTRIC WIRES [§ 8. telegraph purposes, and for all companies alike, whether chartered by a state or the United States. But the statute does not affect private rights, nor give the power to take or injure private property without compensation. So far as there is a public right of passage, the way is open to the use of the telegraph com- panies, but so far as there is private property, this must be acquired by consent or by condemnation. The act of Congress does not provide for condemnation. It has no reference whatever to private rights, except so far as to provide that exclusive privileges must not be granted, but that if a right of way is given it shall not confer an exclusive right to the use of the public highway, whether it be a road, a turnpike or a railway. In the case of the Pensacola Telegraph Co. above referred to, 1 the Chief Justice of the Supreme court said : The act " gives no foreign corporation the right to enter upon private property without the consent of the owner, and erect the necessary struc- tures for its business ; but it does provide that whenever the consent of the owner is obtained, no state legislation shall prevent the occupation of post roads for telegraph purposes by such corporations as are willing to avail themselves of its privi- leges." § 8. The Same — The Act of Congress Gives no Power to Condemn. — In Atlantic & Pacific Telegraph Co. v. Chicago, R. I. & P. R. R. Co.,' in the United States Circuit court, Drummond, J., said : " The rights of a railroad company over its roadway are different from those of the public over a highway. Over the latter, any one has a right to travel, subject only to tolls, but the railroad company has exclusive possession of its own cars, etc. " The construction of the telegraph line involves the actual tak- ing of the property of the company, and Congress has no power to authorize this to be done without making compensation." And with this, Mr. Justice Harlan agreed in a later case in the same circuit. 8 So also in a case in Tennessee, 4 in which a New York telegraph company applied for leave to condemn a right of way along a railroad in Tennessee, it was held that the grant of the privilege to condemn rests wholly with the state, that the laws of Tennessee 1 Pensacola Teleg. Co. v. West. Union Teleg. Co., 96 U. S. 1. 2 6 Biss. 158. 8 West. Union Teleg. Co. v. Am. Union Teleg. Co., 9 Biss. 73 (1879). * 5 Cincinnati Week. Bull. & O. L. J. 858; 28 Meyers Fed. Dec, § 31. § 9-] IN STREETS AND HIGHWAYS. 131 confer no privileges on any corporation except such as are organized in that state, that the United States statutes confer no power on foreign corporations, and that section 5263 of the Revised Statutes gives only the Federal permission to telegraph companies to use railroads, and that they must first acquire a right of way by purchase. Judge Wallace, in a case in the United States Circuit court for the southern district of New York, 1 referring to Pensacola Tele- graph Company* v. Western Union Telegraph Company, said : " It was not held in that case that a telegraph company could acquire a right of way over a railroad without the consent of the owner, or even that the act gave to telegraph companies the power to acquire such rights of way by compulsory proceedings upon due compensation, and the contrary was plainly intimated, but the act was considered and expounded as intended, and effectual to deny to any one telegraph company the right to acquire any such easement in the lands of a railroad for telegraph facilities as would exclude other companies from obtaining like privileges, and as a declaration by Congress of a policy in the interests of the public and of the government, which was reasonable and lawful." A similar view of the statute was expressed by the Supreme Court of the United States in a recent case, and Mr. Justice Miller referred to the statute as a permissive statute, which did not have the effect of exempting a telegraph company from taxation by the state." § 9. Compensation Must be Made for Use of Eailroad or Turnpike Although a Post Road. — It has been distinctly held in Georgia, 4 that an act authorizing a telegraph company to erect a line upon the right of way of a railroad company without compensation, is unconstitutional, and there are many cases in which it is held that a line of telegraph is an additional burden upon the land condemned for the right of way of a railroad, and that compensation must be made to the owner of the soil, even though the telegraph company has complied with the act of Congress. 6 . 1 West. Union Teleg. Co. v. B. & O. Co. v. Rich, 19 Kan. 517 ; 27 Am. Rep. Teleg. Co., 19 Fed. Rep. 660 (1884). 159 (1878). 2 96 U. S. 1. * South Western R. R. Co. v. South- 3 Western Union Teleg. Co. v. Mas- ern & Atl. Teleg. Co., 46 Ga. 43 ; 12 sachusetts, 125 U. S. 530 (1887). Am. Rep. 585 (1872). See also S. W. R. R. Co. v. Southern 6 Am. Teleg. and Teleph. Co. v. & Atl. Teleg. Co., 46 Ga. 43; 12 Am. Pearce, 71 Md. 535; 18 Atl. Rep. 910 ; Rep. 585 (1872); Western Union Teleg. {sub nom. A. T. & T. Co. v. Smith), 1 132 ELECTRIC WIRES [§ II. We need not stop at this point to consider whether the telegraph is in fact an additional burden on the land taken for a railroad. There is a good deal of difference of opinion on the subject, but where it is so held, then the fact that the railroad is a post road, does not relieve the telegraph company of the duty of making compensation. The same rule applies to ordinary highways, and if in fact the erection of a telegraph line along a highway is- a new burden upon the soil, compensation must be made to the owner, even though the highway is a post road and the company has complied with the act of Congress. 1 § 10. Does the Statute Imply That Telegraph Is a Highway Use and Not a New Burden on the Land ? — It has, indeed, been suggested that the principle on which the act of Congress was based pre- cludes the idea that the telegraph is a new burden upon the land of a highway. The act assumes that the telegraph is one of the proper uses of the highway, and only another mode of using the public rights therein. It deals only with public rights, and assumes that no private rights are affected by the use of the highway for the telegraph, and it was held in the District of Columbia that the act gave the right to erect lines in the streets of Washington, and that there was no additional burden upon the land for which compensation need be made." On the other hand, the case decided by Judge Drummond and reported in 6 Bissell, 8 was used as an argument on the other side of the question by the dissenting judges in Pierce v. Drew" in Massachusetts. § 11. Telegraphs on Post Roads are Subject to Municipal Control. — The act of Congress has not the effect of putting telegraph com- panies beyond municipal control with respect to the use of the streets. When the legislature of New York gave authority to commissioners to cause telegraph wires in large cities to be placed under ground, Judge Wallace allowed a temporary injunc- tion to stand, so far as the wires strung along the elevated rail- roads were concerned, on the ground that it was doubtful whether the state statutes could deprive the complainant of the Am. R. R. Corp. Rep. 73 (18S9); West- nor even claimed to be a justification em Union Teleg. Co. v. Rich, 19 Kan. for not making compensation. 517. See Chapt. XIII, § 3, infra. 2 Hewett v. West. Union Teleg. Co., 1 This appears negatively rather 4 Mackay (D. C.) 424 (1886). than affirmatively from the decisions, 3 Atl. & Pac. Teleg. Co. v. Chicago in that when an additional servitude R. I. & P. R. R. Co., 6 Biss. 158. is recognized the statute is not allowed * Pierce v. Drew, 136 Mass. 75. 134 ELECTRIC WIRES [§ I. CHAPTER XIII. TELEGRAPH LINES ALONG RAILROADS. § 1. Contracts for Exclusive Use of Right of Way by Telegraph Companies Void on Grounds of Public Policy. — We have already seen that under the act of Congress, approved July 24, 1866, any tele- graph company has the right to erect and maintain a line along any of the post roads of the United States, and that it has been held that railroads being post roads, neither the states nor the railroad companies can interfere with this right by granting ex- clusive privileges to any one telegraph company. 1 It has also been held in many cases that, independently of the Federal statute, it is not competent for a railroad company to grant to a tele- graph company the exclusive right to establish lines of telegraph along its right of way, because such a contract is in restraint of trade, tends to stifle competition, and is contrary to public policy. It was so held in a case in Georgia, in which the contract had been made before the passage of the act of July 24, 1866, but the court referred to § 2750 of the code of Georgia, relating to monopolies. 3 So also in Gilberts Case, 3 it was held by the New York court of appeals, that a telegraph being a public use, a railroad com- pany cannot make an exclusive contract with a telegraph com- pany so as to prevent another company from obtaining a right of way over the railroad in such a manner as not to interfere with travel, and a similar decision was made in Alabama in 1875.* In Georgia, it was suggested that a contract for exclusive use was beyond the power of the railroad company, because it had condemned the land only for railroad purposes, and these did not include exclusive rights for telegraph purposes against the public interest." So also in a case in the United States Circuit court for the 1 Chapter XII, §§ 4 and 5. 2 Western Union Teleg. Co. v. Am. Union Teleg. Co., 65 Ga. 160 (1880). 3 7oN. Y. 361. 4 New Orleans, Mobile & Texas R. R. Co. v. South & Atl. Teleg. Co., 53 Ala. 211. 5 South Western R. R. Co. v. Southern & Atlantic Teleg. Co., 46 Ga. 43; 12 Am. Rep. 585(1872). § 2.] IN STREETS AND HIGHWAYS. 1 35 western district of Missouri, 1 in which the contract was made before the passage of the act of July 24, 1866, the court held that an exclusive contract was invalid in that it took away the state's right of eminent domain. The railroad company in giv- ing an exclusive right seek to add an unlimited franchise to one that is itself limited, and this they are powerless to do. The contract was also held to be ultra vires. Whether it was affected by the act of 1866, passed afterwards, was not decided. In another case in the same circuit/ Judge McCrary, while grant- ing an injunction against an ejectment before a suit brought to declare the contract void, said : " I have little doubt that the clause here referred to is void." It was the case of a railroad company agreeing with a telegraph company for the construction of a line, and to give it the exclusive use of it for commercial and general business, the telegraph company to transact the tele- graph business of the railroad company. Mr. Justice Woods, in a case in the seventh circuit, in 1885, 3 referred to the doctrine as " now well established that an exclusive privilege to do tele- graphing upon or along any railroad company cannot be given to any person or corporation." It was held otherwise, however, in an earlier case in Illinois. 4 Many of the cases decided with reference to the Federal statute relating to post roads also declare that independently of that act, exclusive contracts between railroad companies and telegraph companies for the use of the right of way are contrary to public policy, because they tend to monopoly and are in restraint of trade. 6 § 2. Modifications and Exceptions. — There is a limit, however, to be placed on the general language of this proposition, whether it be an expression of general policy or the interpretation of a statute. There can be no reasonable doubt that such exclusive contract as is necessary to the proper operation of the lines and of the railroad is permissible, and that the prohibition is only 1 West. Union Teleg. Co. v. Cent, graph companies upon a statute declar- Union Co., 3 Fed. Rep. 417. ing that no corporation should contract 2 West. Union Teleg. Co. v. St. with a landowner for the exclusive Joseph & W. R. R. Co.,, 1 McCrary use of his land. West. Union Teleg. 569 ; 3 Fed. Rep. 430. Co. v. B. & O. Teleg. Co., 22 Fed. Rep. 3 West. Union Teleg. Co. v. B. & O. 133 (1884) ; Sabin, J., Texas Rev. Stat., Teleg. Co., 23 Fed. Rep. 12. See also B. art. 624. & O. Teleg. Co. v. West. Union Teleg. * West. Union Teleg. Co. v. Chicago, Co.,24Fed.Rep.3ig. A similar decision etc., R. R. Co., 86 111. 246 (1879). was made in the United States Circuit 5 See Chapter XII, §§ 4 an< i 5i supra court in Texas with regard to tele- and cases cited. 136 ELECTRIC WIRES [§ «• against exclusive privileges for the purpose of shutting out rival lines.' It has been held, also, that in a contract between a railroad company and a telegraph company, a restriction binding the rail- road company not to construct another telegraph line along its right of way, is not void as against public policy, because if the needs of the public should demand another line it could be con- structed along another railroad or along public highways, or even on land condemned for the purpose." § 3. Is a Telegraph Line a New Burden Upon the Land Taken for a Railroad? — When land is condemned for the purpose of a rail- road track, it is ordinarily only the right of way for railroad pur- poses that is taken, and the question has arisen whether the same land may be used with 'the consent of the railroad company for the purposes of a line of telegraph intended for general business. Railroads are in a certain sense public highways, and the use for which they appropriate lands is a highway use. 8 Whether a telegraph is an additional burden may depend therefore on the question whether such a use is within the highway use for which the land was taken. A telegraph line has been held by some courts to be a proper use of an ordinary street or highway, 4 and in other courts it has been held to be a new use and an additional burden. 6 Although a railroad is a public highway it is not open 1 See Chapter XII, § 6, and cases was not exclusive, but that the rail- cited, road company might maintain a line 1 West. Union Teleg. Co. v. Atl. & for its own use, or allow a. telegraph Pac. Teleg. Co., 7 Biss. 367. company to use it for general business In B. & O. Teleg. Co. v. Morgan's although it had granted another tele- La. & Tex. Teleg. Co., 37 La. Ann. graph company the right to place 833, there were proceedings to con- wires on its poles and establish sta- demn the right of way of a railroad tions and do business with points off for a telegraph, and it was held that the line of the road reserving the right an existing telegraph line could only to do local business ; s. c, 2 Bull. 74. intervene and seek to exclude the new Reversed. company on the theory that it had an 3 As to the effect of dedication or exclusive right of way under a con- condemnation of land for railroad or tract with the railroad company, canal purposes, and the right of adja- Whether such a contract would be cency in adjoining owners, see Barnett valid to give an exclusive right was v. Johnson, 15 N. J. Eq. (2 McCart.) 481. not decided, because an exclusive right See also Pierce v. Drew, 136 Mass. was not claimed, and it was found that 75 ; Julia Building Association v. Bell no damage could result. Teleph. Co., 88 Mo. 258, and other In Marietta & Cincinnati Railroad cases in regard to the telegraph and Co. v. West. Union Teleg. Co., 38 highways cited in Chapter VIII. Ohio St. 24; 2 O. W. L. Bull. 152, it * See Chapter VIII, §$ 12-14. was held that the grant in question 5 See Chapter VIII, §§ 8-10. § 4. J IN STREETS AND HIGHWAYS. 137 to the public for general use, but only for use in a certain way. The land is condemned by a certain corporation for the purpose of transportation by means of engines and cars on a railroad track. The use of the land by another corporation, or even by the same corporation for another and different purpose, may well be held to be an additional use for which further compensation should be paid. Accordingly it has been held that a telegraph company using the right of way of a railroad company for the purpose of gen- eral telegraph business must make compensation for the use of the land to the owner of the soil, 1 but that so far as a telegraph is appurtenant to the railroad, and necessary or convenient to the use of the railroad, the construction of it is consistent with the purposes for which the land is taken, and that no further compen- sation need be made." § 4. Statutory Authority Given to Telegraph Companies With Respect to the Use of Railroad Lands is to be Construed Strictly. — It was held by the court of exchequer in England in 1854, 3 that a telegraph line was not authorized by the act of 14 and 15 Vict., ch. 135, to cross under a railway so as to interfere with or damage it. Boring through the ballast under the rails was held to be an interference, and the court said that the power to cross was strictly limited by the terms of the act. It was held by the Supreme court of New York, in 1880/ that 1 A. & P. Teleg. Co. v. C. R. I. R. R. that the company had the right itself Co., 6 Biss. 158 ; West. Union Teleg. or by contract with another company, Co. v. Am. Union Teleg. Co., 9 Biss. 72; to erect the poles and wires necessary Am. Teleg. & Teleph. Co. v. Pearce, to maintain a line of telegraph. The 71 Md. 535 ; 18 Atl. Rep. 910 ; sub court said that since under the charter nom. A. T. & T. Co. v. Smith, 1 Am. the land was held in fee simple, the R. R. & Corp. Rep. 73 (1889). right to erect poles upon it was a mat- As to condemnation of the rights of ter of course. Prather v. West. Union the private landowners, see New Or- Teleg. Co., 89 Ind. 501 (1883). leans, Mobile & Tex. R. R. Co. v. As to the right of a railroad corn- South & Atlantic Teleg. Co., 53 Ala. pany having a line of telegraph for 311,(1875). Also cases cited in Chap- its own use to parmit a telegraph ter XII, 4$ 7 and 8. company to use it for general business, 2 West. Union Teleg. Co. v. Rich, 19 see Marietta & Cine. R. R. Co. v. Kan. 517; 27 Am. Rep. 159 (1878); West. Union Teleg. Co., 38 Ohio St. 24. State, Duke, pros. v. Central N. J. ' South Eastern Ry. Co. v. E. & A. Teleph. Co., 53 N. J. L. J. 341, 349 per Electric Printing Teleg. Co., 9 Exch. Reed, J. 3 6 3- In a case in Indiana in which the 4 New York City & Northern R. R. charter of the railroad company gave Co. v. Central Union Teleg. Co., 21 it the land in fee simple, the court held Hun 261. 138 ELECTRIC WIRES [§ 5. the provision of the telegraph act of 1853 (Laws, ch. 471, §2), authorizing telegraph companies to erect fixtures upon " any of the public roads " of the state, did not apply to the right of way of a railroad company. § 5. Miscellaneous Matters. — In Western Union Telegraph Co. v. Western & Atlantic R. R. Co., 1 it was held that a contract between a railroad company and a telegraph company, by which the latter was to put up a wire for the exclusive use of the rail- road company, connecting it with the various stations, and fur- nishing all the necessary instruments for the exclusive use of the railroad company was not a sale of the wire, and that a lessee of the railroad took the property subject to the terms of the con- tract, and acquired only such interest in the wire as the lessor had. In Western Union Telegraph Co. v. Baltimore & Ohio Railroad Co.," it was held that a license by a railroad company to maintain a telegraph line along its road so long as the licensee existed, expires with the expiration of the telegraph patents held by the licensee notwithstanding the reincorporation of the company. 1 U. S. Supreme Court, 1 Otto 283. duties with reference to the telegraph, 2 20 Fed. Rep 572. see West. Union Teleg. Co. v. Union For cases relating to the relation Pacific R. R. Co., 1 McCrary 418, 582; 3 between the telegraph companies and Fed. Rep. 1, 423; Cent. Branch Union the Union Pacific Railroad Company Pacific R.R. Co. v. West. Union Teleg. under the acts of Congress providing Co., 3 Fed. Rep. 417. Citing- and af- for the construction of that railroad firming Atl. & Pac. Teleg. Co. v. Union and conferring special powers and Pacific Teleg. Co., 1 Fed. Rep. 745. § 2.] IN STREETS AND HIGHWAYS. 1 39 CHAPTER XIV. INTERFERENCE OF DIFFERENT KINDS OF ELECTRIC CURRENTS — CONFLICTING USES OF ELECTRIC WIRES IN THE STREETS. § 1. The Use of the Telephone Disturbed by Electric light and Electric Railway Currents. — The new uses of electric wires have led to controversies between the new and the old. The telephone having obtained possession of the streets naturally resented the intrusion of the newcomers, and with good reason, because it was found that the more powerful currents of the electric light and the electric railway caused serious disturbance in the delicate variations of the current required to transmit the sound of the human voice. The wires did not touch one another ; there was no interference with any tangible property; but there was, nevertheless, a serious disturbance of the current used for the telephone. Electricity operates at a distance, and the currents are carried, not only along the wires, but also through the earth ; and when new wires were strung along the streets parallel with the telephone wires, and the strong currents required for light and motive power were sent through them and came back again through the earth, the telephone current was affected so that buzzing sounds were heard instead of the human voice ; the call-bells were rung and false alarms were given, so that the business of the telephone companies was greatly disturbed, and their subscribers were seriously annoyed. Strenuous opposition, therefore, was made by the telephone companies to the use of the streets, first for electric light wires, and afterwards for the electric railway, and there has been much litigation and some conflict of decisions. § 2. Causes and Manner of the Disturbances Explained. — Without going into a discussion of electrical phenomena, we must state in a few words the facts out of which the conflict arises. The tele- phone as it has been ordinarily constructed makes use of the earth for the return current, and the electric railway, in using what is known as the single trolley system, also makes use of the earth even though the wires are grounded in the rails. The earth was used for the return current by Professor Henry 140 ELECTRIC WIRES [§ 4. when he worked the first electric telegraph line in the campus at Princeton in 1835, 1 and the earth has been in common use ever since for the purpose of completing the circuit in all applications of the electric current. It is possible, of course, to use a metallic circuit, but it is cheaper to use the earth, and the earth is used in common by all. Continuous currents passing through the earth have little effect upon one another, but a pulsating or discontinuous current disturbs another current. The telephone requiring a delicate pulsating current is affected even by the currents of other telephones, and much more by the strong and varying currents produced by the dynamos generating electricity for light and power. The effect varies with the nature of the soil, and the manner in which the several circuits are grounded, but when the telephone uses the earth for its circuit, it is almost inevitably disturbed by the use of the earth for dynamic currents in the same direction and locality. § 3. The Same Subject — Induction and Leakage. — When two sys- tems use the earth for a return current, there is also interference by induction between parallel wires running near together, a cur- rent in one wire inducing a similar current in the opposite direc- tion in the other, so that even a conversation over one wire can be heard by one using a telephone on the other, and the pulsa- tions of a dynamic current make a buzzing sound which drowns the sound of the voice. Still another cause of disturbance is leakage, by which one cur- rent grounded near another passes over to it and increases its force. This took place when both currents sought the same course on their return, and since telephone wires were often grounded by means of water pipes and gas pipes, disturbances frequently occurred by reason of leakage from the electric light currents. Since the telephone current is weaker and the use of it depends upon the accuracy of its pulsations, all these disturb- ances are very injurious to the telephone system, and the value of it would be greatly impaired if it were to be subject to such disturbances. § 4. Some of the Difficulties May be Avoided by the Metallic Circuit — Objections to This. — Most if not all of these difficulties can be avoided by the use, of a metallic circuit, either for the telephone 1 Joseph Henry and the Magnetic Telegraph, an address delivered at Prince- ton College, June 16, 1885, by Edward N. Dickerson, LL.D. New York: Charles Scribner's Sons, 1885, p. 19. § 6.] IN STREETS AND HIGHWAYS. 14I current or for all other currents, for in this case the induction would be neutralized. The objection to the use of the metallic circuit is the expense. The metallic circuit is used in all the systems of electric light- ing, but it is not always perfectly balanced and there are both leakage and induction. The electric railway uses the rails, but these not being insulated, the current affects other currents in the earth. A true metallic circuit can only be made by a return wire kept in constant connection with each car by a second trolley. This is expensive to build and complicated in operation. The telephone can use a metallic circuit, but to have a double wire for every instrument would be very expensive, and by what is called the McCluer device, a common return wire may be used by which substantially the same purpose is accomplished. § 5. Telephone Companies Insisted that They Were Entitled to Pro- tection. — The telephone companies having set up their wires in the streets with the consent of the authorities, and having spent much money in building up a profitable business of great public utility, insisted that they were entitled to protection against the use of the streets by other and more powerful currents which damaged their business and impaired the value of their property. They said that, having established their business and set up their wires long before the electric light and electric railway companies were organized, they were not obliged to adopt new and expen- sive devices for neutralizing the effect of the new currents, and that on the other hand, the other companies should not be per- mitted to use the streets unless they would adopt return wires and use all other devices necessary to prevent their current from disturbing that of the telephone. § 6. The First Contest Was with the Electric Light Wires. — The electric light wires were the first to. disturb the telephones, and the first struggle took place between the telephone and the electric light companies. Bills for injunction were filed in many courts, and many temporary injunctions were granted, but very few cases have been reported, and not many have come to final hearing. There was no serious difficulty in so stringing the elec- tric light wires as to keep them at some distance from telephone wires, and insulating them so that the induction was not felt at that distance, and much of the difficulty from leakage could be avoided by the exercise of due care. A practical settlement was therefore made in many cases, after a sharp fight, before a final decision had been reached by the courts. 142 ELECTRIC WIRES [§ 7 § 7. Electric Light Wires — Decisions. — There is a case in Ne- braska, 1 in which the court interfered so far as to protect telephone wires already set up in a street by compelling the electric light wires to be kept at a certain distance from them, but relief was refused as to those streets which had already been occupied by the electric light wires. The bill alleged that incandescent light wires could not be operated parallel with telephone wires at a less distance than three feet, nor arc light wires at a less distance than ten feet without interfering with the use of the telephone wires and preventing the transaction of the plaintiff's business, and that if arc light wires crossed telephone wires at a less dis- tance than ten feet, unless they were securely boxed, there was danger of accidents. The decree of the district court enjoined the electric light company from using for arc light purposes any wires running parallel and on the same side of the street with the plaintiff's telephone wires, and from using for incandescent light purposes any wire which ran parallel with the plaintiff's telephone wire on the same side of the street, and less than eight feet from the telephone wire, or in any case for a distance of more than three hundred feet ; and it was provided that in all cases a strong iron guard wire should be suspended across the lines every one hundred feet, midway between the telephone and electric light wires, so as to prevent the upper wires from falling upon the lower. This injunction, however, was confined to those streets which had been first occupied by the telephone wires, and was refused with respect to streets in which the tele- phone wires had not been put up until after the electric light company had commenced their work in pursuance of a plan which had been submitted to the officers of the telephone com- pany, and pronounced satisfactory. The district court also granted an injunction in the latter case against the maintenance of the telephone wires. The Supreme court sustained this decision, except with respect to the injunction against the tele- phone wires. On this point the court said there was no evi- dence that the telephone current had the slightest appreciable effect on the electric light current, nor that there was any danger from the former current, and that, besides, there was no prayer in the answer for an injunction against the plaintiffs. In a case in Ohio," it was held that an electric light company, 1 Nebraska Teleph. Co. v. York Gas ' West. Union Teleg. Co. v. Cham- & Electric Light Co., 17 Neb'. 284; 43 pion Elect. Light Co., 14 Cin. Week. N. W. Rep. 126 (September 17, 1889). Bull. 327. § 9-] IN STREETS- AND HIGHWAYS. 143 putting up wires no nearer than three or four feet from an exist- ing parallel telegraph wire, would not be enjoined before final hear- ing, the bulk of the testimony showing that no sensible diminu- tion of current by induction would be caused at that distance, and that the line-men would incur no great risk except in repairing and taking down the wires when, on notice, the electric current could be stopped. The danger from falling wires and from storms, the court said, was too uncertain to be considered, and it was added that if an injunction were awarded it would be with these limita- tions and with leave to move to modify it after experiment. § 8. More Serious Controversy with Electric Railway Companies. — In the case of the electric railway it was more necessary that the battle should be fought out, for two reasons ; first, because the wires cannot be insulated, and secondly because they must be stretched along a certain line directly over the railroad track. The electric current, moreover, was applied to the uses of the street railway which had long occupied the street, and had acquired a right there before the telephone was invented, and the electric railway, being used for the purposes of public travel, had a stronger claim of right to use the streets than the electric light wire or the telephone itself. There are, therefore, a number of decisions on this subject, but many of them are those of inferior courts, and are not reported so as to be generally accessible. These must be stated more fully than would otherwise be necessary. They have all been made within two or three years past, and it is yet too soon to say that the law is entirely settled. § 9. Cases — Central Union Telephone Co. v. Sprague Electric Rail- way & Motor Co. — One of the first cases was that of Central Union Telegraph Co. v. Sprague Electric Railway & Motor Co. and the Akron Street Railway Co. in the court of common pleas of Summit county, Ohio, heard in January, 1889. It was a petition for injunction against operating an electric railway by the single trolley without a return wire, in such a manner as to interfere with the working of the telephone system. The case was pre- sented on affidavits, and the court, after saying that this was an unsatisfactory mode of proof, found that the operation of the rail- way did, in fact, substantially interfere with the use of the plaintiff's telephones ; that while the railroad company under the ordinances had a prior right to the use of the streets, yet the city council had no right to grant to either party any privileges to the exclu- sion of the other. The court said that they were not satisfied 144 ELECTRIC WIRES [§ II. from the proof in this case that a return trolley wire as suggested would relieve the difficulty, and should hesitate before ordering it to be done lest it should be a useless expenditure of money, and also that they were not absolutely certain that a return wire would relieve the telephones, although it seemed from Mr. Mc- Cluer's affidavit that his device would accomplish the result. In such case, they said the expense of adopting this device would be the measure of damages of the complainants, and these could be recovered in an action at law. The prayer for injunction was denied. § 10. Hast Tennessee Telephone Company v. Chattanooga Electric Street Eailway Co. and Another Case. — In East Tennessee Telephone Co. v. The Chattanooga Electric Railway Co., in the Chancery court of Hamilton county, Tennessee, an opinion was filed June 21, 1889. A preliminary injunction having been granted restrain- ing the railroad company from using the single trolley system, the case came before the court on bill, answer and affidavits upon a motion to dissolve the injunction. The defendants admitted that they did not propose to use the double trolley system, but said they had adopted a precaution which had never been adopted before to increase the conductivity of the rails and prevent leakage. Wm. Henry De Witt, special chancellor, said that since he was not fully satisfied that injury would result to the complain- ants by the operation of the defendant's system, and especially since the defendants had adopted an additional precaution which had never been adopted before, he was content to dissolve the injunction for the present upon condition that the defendants give bond in $10,000, to secure any damages that might be adjudged to the complainants. There was also a decision in favor of the telephone company in the case of The Wichita and Suburban Railway Co., in the District court of Sedgwick Co., Kansas, June 29, 1889. § 11. Rocky Mountain Bell Telephone Co. v. Salt Lake City Eailway Co. — In The Rocky Mountain Bell Telephone Co. v. The Salt Lake City Railway Co., in the District court for the Third Judicial District of Utah, July 23, 1889, an injunction against a street railway company was denied by Zane, J., on the ground that it did not 'appear clearly from the affidavits that the electricity used by the railway company would injure the telephone com- pany if the wires of both were properly insulated so as to prevent leakage, and that it could not be determined on the affidavits § I2.J IN STREETS AMD HIGHWAYS. 145 whether it was practicable for one or both to insulate them. The same case came before the same judge in the December term, 1889, on final hearing, and he denied the injunction on the ground that the telephone company could protect itself by the use of the McCluer system of return wires for the telephone cir- cuit, which, although very expensive, appeared to furnish a more perfect service. He said that the court would not enjoin the use of the earth by the defendant for a return current so long as the plaintiff continued to use it, especially as it did not appear to be established that it was practicable for the defendant to give it up. § 12. Wisconsin Telephone Co. v. Eau Claire Street Railway Co. and Sprague Electric Railway & Motor Co. — The case of Wisconsin Telephone Co. v. Eau Claire Street Railway Co. and Sprague Electric Railway & Motor Co., in the Circuit court of Eau Claire county, Wisconsin, came before the court on motion for a preliminary injunction against the use of the electric current for propelling cars in the streets until the defendants should have provided against injury to persons and property, and especially against injury to the telephone service and danger to subscribers and employes. The affidavits and exhibits in the cause are valuable as containing a full statement of the facts on both sides of the case, with a full account of the telephone and electric rail- way, and of the devices used on both sides to prevent interfer- ence. The opinion of the court was delivered by Bundy, J., on January 29, 1890. He held that the telephone company took their right to use the streets subject to the right of public travel, including new and improved modes of travel, and that if the railroad company using . the street for this purpose took reasonable precaution against doing injury, the telephone com- pany could not complain ; that the defendants in using the single trolley were using a system in common use, that the evidence was that the double trolley was not practicable and that to require the use of it would be to require the operation of the line as an electric road to be abandoned ; that the telephone company, on the other hand, could operate their line as it was or else adopt a metallic circuit at an expense not very large, and that therefore an injunction should not be granted. In answer to the claim that the defendants were violating a statute (Laws Wis. 1889, ch. 375, § 112) requiring electric companies to provide suitable insulation and return wires, the judge said that the plaintiffs E. W.— 10 146 ELECTRIC WIRES [§ 1 3. were in a like position differing only in the amount- of electricity allowed to escape, and that they were not entitled to an injunc- tion on this ground. § 13. Hudson River Telephone Co. v. Watervliet Turnpike & Railroad Co. — The same question came before the Supreme court of New York, in Albany county, in Hudson River Telephone Co. v. The Watervliet Turnpike & Railroad Co., 1 on application for preliminary injunction, and Mayham, J., granted an injunction, pendente lite without prejudging the merits of the case, and on the plaintiff's executing a bond for $10,000. On appeal to the general term the injunction was continued on February 24, 1890, for thirty days, and until the defendants should stipulate that the court might determine, on the final hearing, what would be the necessary expense to the plaintiffs of preventing, by metallic circuit or otherwise, the injury to, or interference with their tele- phone, and what damage the plaintiffs would sustain, and should give bond to pay the damages. Landon, J., reading the opinion of the court, said the grant to the railroad company made in 1862 to use any power except steam embraced electricity, and that each company, therefore, had its respective rights and privileges along the same streets and highways, one for telephonic purposes and the other for the purposes of railway propulsion ; neither party might exclude the other from the use of the space granted to both, although it might be competent for the court to readjust the occupancy so as to afford mutual accommodation. If, for example, a man had, by municipal permission, laid his gas, water and sewer pipes beneath the surface of a street, a railway com- pany might afterwards be granted the privilege of laying its tracks in the same street, subject to the proper readjustment of the pipes, and the owner of them would have no vested right to prevent such readjustment. Speaking of the plaintiff's claim that the defendant had invaded the electrical field already granted to the plaintiff, he said : " It is obvious that rules applicable to a definite acreage of land may not be applicable here. The grant to each company is to employ upon the same street the invisible energies of nature ; and, since it is in vain to define the fields that confine them, we are, per- force, constrained to seek for metnods which will neutralize or reduce to a minimum the injurious effects of their contact or inter- ference with each other." Learned, P. J., concurred. 1 Hudson River Teleph. Co. v. Watervliet Turnpike & R. R. Co., 56 Hun 67; 29 N. Y. St. Rep. 22, 694; 8 N. Y. Supp. 497. § 140 IN STREETS AND HIGHWAYS. 147 An appeal from the order of the general term was taken to the court of appeals, and on June 3, 1890, this court, through Judge Andrews, delivered an opinion, declining to entertain the appeal, on the ground that the granting of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and that to dissolve the injunction then would inevitably defeat the plaintiff's remedy without a trial. 1 The court said, however : " We have examined with care the questions involved in this case, and we are compelled to say that we entertain grave doubts whether, upon the facts stated in the complaint and affidavits, any cause of action exists in favor of the plaintiff, and whether the plaintiff has any remedy for the injury of which it complains, except through a readjustment of its methods to meet the new condition created by the use of electricity by the defendant under the system it has adopted." A decision on the merits was reserved until after the final hearing. All concurred except Finch and Peckham, JJ., who were in favor of a reversal of the orders. The report of the referee, Mr. Isaac Lawson, was made on August 6, 1890, and his decision was in favor of the defendants. He found as matters of fact that the plaintiff could obviate the difficulty to some extent, but not wholly, by adopting the McCluer system ; that it could obviate the difficulty entirely by making each of its circuits a metallic one ; that the defendant could obviate all the damage by adopting the double trolley or the storage battery, and that this would cost less than it would cost the plaintiff to adopt the complete metallic circuit ; and yet he held as a matter of law that the plaintiff had failed to establish a cause of action against the defendant. § 14. The Same Continued. — An appeal was taken to the general term from the judgment entered on the report of the referee, and in September, 1891, the judgment was reversed and a new trial was ordered. 3 Mayham, J., who did not sit on the former hearing, read the opinion of the court. Assuming that both the telephone and the railroad company held valid grants from the proper authorities, he said the inquiry was whether either of them could so conduct its business as to injure or impair the business of the other. He referred to a decision of the general term above referred 1 Watervliet Turnpike & R. R. Co. v. Hudson River Teleph. Co., 9 N. Y. Supp. 177; 31 N. Y. St. Rep. 524; 121 N. Y. 397; 24 N. E. Rep. 832. s 61 Hun 141 ; 39 N. Y. St. Rep. 952. 148 ELECTRIC WIRES [§ 14. to, 1 in which it was held that the authority of the railroad to operate their line embraced electricity although this motive power was unknown when the grant was made, and he said that under this decision there was no longer any question of the right of either party to the exclusive use of the street, because both had a grant of power to employ the same invisible agency in the same street, and each must therefore protect itself against the injurious effect of the use of it by the other; but, he said, while this must be the law as to the street, it by no means followed that the same rule applied to private property, or that the rail- road, even if it had a right to pervade the street with its current, could adopt a power which could not be confined to this, but would spread out upon the property of the abutting owners and cause disturbance in the stations of the telephone company and its subscribers. The referee expressly found, he said, that the stations were located on private property and that the telephone service was not disturbed by " conduction or leakage " of the railroad current, except when it flowed upon private property of the company or its subscribers. He applied to this the principle that one who for his own benefit brings upon his own premises anything which, if it escapes, will do damage, is bound, at his peril to confine it to his own premises. He referred also to the prin- ciple that from a general grant it cannot be presumed that the legislature intended to authorize acts to the injury of third persons where no compensation is provided, and to the principle that, when a grant is made to conduct a business and there are two ways of conducting it, one injurious to third persons, and one which is not, a court of equity will enjoin the use of the former. He said it appeared from the case that the single trolley system was not the only way by which electricity might be applied to the propulsion of street cars, and as the defendant could avail itself of the grant in another way not injurious to the plaintiff, it could not be permitted to justify the injury under the statute and ordinance. He said that when the case was before courts on the motion to dissolve the injunction, it was assumed that the telephone company could change its system from a ground current to a metallic current with much less expense than the defendant could change from a single to a double trolley system, but that from the trial of the action and the report of the referee, it now appeared that the defendant could obviate the difficulty complained of with very much less expense than the 1 56 Hun 67 ; §13 supra. § 1 5-] IN STREETS AND HIGHWAYS. 149 same could be done by a change of the plaintiff's system ; and, besides this, it appeared that although the defendant's charter was granted in 1862, the plaintiff's capital was employed in the business long before either party knew that the defendant could use electricity ; for these reasons, and because the plaintiff had not an adequate remedy at law, the judgment of the referee dismissing the bill for injunction was reversed and a new trial was ordered. Landon, J., concurred. Learned, P.J., concurred, but based his decision on what he considered the effect of the determination of the, court of appeals in declining to dissolve the injunction. Judge Learned said that it was of no avail for the court of appeals, while dismissing the defendant's appeal, to say it had grave doubts whether on the facts stated the plaintiff had a good cause of action, because when the court dismissed the appeal it did in fact decide that the plaintiff had stated a good cause of action. In a later decision of the court of appeals, however, 1 the doc- trine declared in the telephone case was stated to be as follows : " To dissolve an injunction with the inevitable result of defeating the plaintiff's remedy without a trial, we must be entirely satisfied that the case is one in which by settled adjudications the plaintiff upon the facts stated is not entitled to final relief." It would seem, therefore, that the question between the telephone and the electric railway is still open for argument in the court of appeals, to which it is understood that an appeal in this case between the two companies has been taken. § 15. East Tennessee Telephone Co. v. Knoxville St. Ry. Co. — In East Tennessee Telephone Co. v. Knoxville Street Railway Co., in the Chancery court of Knox county, Tennessee, what may be called an eloquent opinion was read by Chancellor Gibson, on April 21, 1890. The suit was brought by the telephone company to enjoin the railroad company from using the earth as a return circuit and from interfering with the electrical condition of the air to the injury of the telephone company. The bill alleged that the telephone company had obtained the privilege of erecting poles in the streets for a telephone line and had a vested right to use a strip of earth along the line of the poles as a return circuit, exclusive of every subsequent user destructive thereof or incon- sistent therewith. The Chancellor denied that the right to erect poles gave an 1 Young v. Rondout & Kingston Gas Co., Dec. 1, 1891, 41 N. Y. St. Rep: 109. 150 ELECTRIC WIRES [§ l6, exclusive right to the earth or air for electrical purposes, and said the plaintiffs in effect claimed a perpetual monopoly of the earth on which the city was built for all the uses of an electrical circuit, and that the fact that they used a delicate current was no reason for denying to the people of Knoxville the benefits of all the discoveries and inventions that might be made in the use of electricity in all time to come. The streets are held in trust for the people for the purposes of passing along them and propelling vehicles over them, " and the city has no right to allow the streets to be used for any purpose inconsistent with those rights of travel and transportation. Telephone poles have no connection with travel and transportation, and have no just rights on our streets and are at best mere tenants at will." The courts must see to it that the rights of the people are not surrendered to any person or corporation whatever. § 16. Cumberland Telephone Co. v. United Electric Railway Co. — The question came before Judge Brown in the Circuit court of the United States in Cumberland Telephone Co. v. The United Elec- tric Railway Co. 1 The bill was filed to enjoin the use of electri- city by the street railways of Nashville under any system which makes use of the earth for its return circuit ; the bill described the injuries done to the complainants' system, and alleged that they would be avoided by the use of the metallic circuit ; the defendants denied that the complainants were entitled to the monopoly of the earth for the return current, and insisted that they should make use either, of a complete metallic circuit or of the McCluer device. Judge Brown (now one of the Justices of the Supreme court of the United States) said it was not denied that there was serious injury to the telephones, but that it must be borne in mind that the science of electricity is still in its experimental stage ; that a device which is to-day the best, cheapest and most practicable, may in another year be superseded by something incomparably better fitted for the purpose ; and that it is quite possible that the legal obligations of the parties may change with the progress of invention, and whichever party, by the adoption of a new device, could obviate the difficulty might be obliged to do so, leaving the question of expense and damages to be settled by the courts ; and we must therefore consider the case with refer- ence to the present state of the art, and with the possibility that in another year circumstances may so change as to reverse com- 1 42 Fed. Rep. 273. § 1 7-] IN STREETS AND HIGHWAYS. 1 5 1 pletely the obligations of the parties. After describing the various devices which might be used by the railway and the tele- phone to obviate the difficulty, he rested his decision on the answer to the question whether when one lawfully using his own property incidentally injures another, " the right of the lat- ter to an injunction does not depend upon something more than the fact that he has suffered an injury, though his right to an undisturbed use of his own may antedate that of the other." He referred to many English and American cases, and said : " The substance of all the cases we have met with in our examination of this question — and we have cited but a small fraction of them — is, that where a person is making a lawful use of his own prop- erty, or of a public franchise, in such manner as to occasion injury to another, the question of his liability will depend upon the fact whether he has made use of the means which, in the progress of science and improvement, have been shown by experi- ence to be the best ; but he is not bound to experiment with recent inventions not generally known, or to adopt expensive devices, when it lies in the power of the person injured to make use himself of an effective and inexpensive method of pre- vention. . . . Unless we are to hold that the telephone company has a monopoly of the earth, and of all the earth, within the city of Nashville, for its feeble current, not only as against the defendants, but as against all forms of electrical energy which, in the progress of science and invention, may hereafter require its use, we do not see how this bill can be maintained." The decision was that if it were shown that the double trolley would obviate the injury to the complainants without exposing the defendants or the public to any large expense, it would be the duty of the defendants to adopt it ; but as the proofs showed that a more effectual and less expensive remedy is open to the complainants, the telephone company ought to adopt it, and was not entitled to indemnity from the railway company. § 17. City and Surburban Teleg. Assoc, v. Cincinnati Inclined Plane By. Co. — In the case of the City and Suburban Telegraph Associa- tion v. The Cincinnati Inclined Plane Railway Co., 1 in the Supe- rior court of Cincinnati an injunction was granted against the railway company on February 12, 1890, and this decision was affirmed by the general term of the Superior court in the following December (opinion by W. H. Taft, J., Hunt J., dis- senting). The decision was put upon the ground that the tele- 1 23 week. Bull. (Ohio) 165. 152 ELECTRIC WIRES [§ l8. phone company had acquired a right to use the streets, and had invested money on the faith of the enjoyment of the present mode of operating their franchise, and that the defendants had no right to disturb them unless they could show that there was no other way in which they could enjoy their franchise to run an electric railway. If by using the double trolley, no matter how expensive it might be, the injury could be avoided, the defendant had no right to ask the plaintiffs to employ a new devise. Unless there was no other way of enjoying their franchise, defendants were guilty of maintaining a nuisance in using the . electric current so as to injure the plaintiffs. An injunction was ordered unless within six months the necessary changes should be made. On appeal to the Supreme court of Ohio this decision was reversed. The opinion of the court was delivered by Dick- man, J., June 2, 1891. 1 The court held that public travel is the chief purpose for which streets are laid out and that the franchise of a telephone company to use the streets is subservient to the rights of the public to use the streets for the purposes of travel ; that the public have the right to avail themselves of new and improved modes of travel, and when franchises are granted for this purpose they confer a right paramount to the franchise of the telephone company, and if the operation of a street railway by electricity disturbs the working of the telephone, the tele- phone companies must readjust their methods to meet the new condition. In regard to the use of the earth for a return circuit, the court said this had been done for forty years before the tele- phone was invented, and although the telephone company had constructed its whole system at great expense with a grounded circuit under lawful authority it acquired no vested right which was beyond the control of the legislature, and a grant to another company of a right to use electricity for another purpose must be construed as a denial of an exclusive franchise if not as a repeal of the former grant. Taking this view of the relations of the parties to each other, the court did not discuss the subject of incidental injury to another in the use of one's own property or franchise. § 18. Conclusions. — It appears from this review of the cases that the contest between the electric railway and the telephone com- panies over the use of the streets has not yet been definitely 1 Cine. Inclined Ry. Co. v. City & Suburban Teleph. Assn., Ohio Sup. Ct, June 2, 1891, 26 Week. Bull. 8 ; 44 Alb. L. J. 86 ; 10 Ry. & Corp. L. J. 82 ; 27 N. E. Rep. 890; 12 L. R. A. 534. § 1 8.] IN STREETS AND HIGHWAYS. 1 53 settled by the courts, and it seems likely that the settlement will be made through the ingenuity of inventors rather than by the efforts of the lawyers and judges. The telephone companies are already adopting very generally the "long distance" system, in which the metallic circuit is employed for the purpose of securing the best electrical results and avoiding all danger of disturbance. It is quite certain that public convenience will demand that the streets shall be used for all the electric currents that may be required, and that some way will be found by which this may be done. In the mean time, it is the duty of the courts to protect existing property from unnecessary injury without needlessly obstructing the application of such a valuable force as electricity to new uses for the public benefit. It is certainly true, as the courts generally have held, that no one mode of public service has the right to a monopoly of the earth or the air in the line of the streets in the use of electricity, and the power of injunction will only be exercised so as to avoid present injury to existing property until practical men have found a way for all to work together in harmony. Whether the power will be exercised even to this extent is not yet settled, and it may be that the courts will decide that every one using this force in the public streets must exercise ingenuity to protect himself from the effect of the use of the same force for lawful ends and by lawful means, only insisting that each must use the best appliances practically avail- able and avoid negligence and wanton injury. 154 ELECTRIC WIRES [§ I. CHAPTER XV. INJURIES FROM UNAUTHORIZED OR DEFECTIVE POLES AND WIRES. § 1. Introductory. — The authority to set up poles and wires in the street is generally made expressly subject to the condition that they shall be so located and constructed, as not unnecessarily to interfere with public travel, and this condition would no doubt be implied whether it were expressed or not. The authority given is always subject to the condition that the lines shall be properly constructed and shall not be dangerous by reason of defective poles, sagging wires, or unguarded currents of electricity. In discussing the subject of the authority by which poles and wires are put up in the streets, we considered in Chapter V how far this obstruction of the highway, such as it is, was justi- fied by the grant of permission to use the street for that purpose. From the cases referred to in that chapter, 1 it appeared, that poles and wires in the street so constructed as to be dangerous, or so placed as to interfere with travel, are regarded as unauthor- ized obstructions and treated as nuisances, unless the construc- tion and location have been specifically authorized ; and that general authority to construct the line is not sufficient to legal- ize a construction or a location which proves to be dangerous. We may now refer to cases on the liability for injuries to persons using the highway arising from unauthorized obstruction or improper location or construction of the poles, and from negli- gence in the maintenance or operation of the wires. § 2. Location of the Poles — Liability for Injuries by Reason of. — Since the erection of a pole, in the highway in such a place as to make a dangerous obstruction, is not legalized by a general grant of authority to set up a line of poles, it follows that a person setting up a pole in such a place is liable to one who is injured by reason of the dangerous location of the pole while he is lawfully using the highway in the exercise of due care. In a case already referred to" in the Supreme court of New 1 Chapter V, $§ 2, 3, pp. 46, 47. 1 Kowalski v. Newark Pass. Ry. Co., 15 N. J. Law Jour. 50; Chapter V, $ 3. §4-] . IN STREETS AND HIGHWAYS. 155 Jersey, Dixon, J., left it to the jury to decide whether an elec- tric railway pole set up in the middle of the street, was in fact dangerous to travelers, even though permission had been given to place the poles where they were in a line between the tracks, and he said that if the pole was in fact so placed as to be danger- ous to a person entering a car about to pass the pole, and this person, exercising due care, was injured, the railroad company would be liable in damages. § 3. The Same— Another Case. — So also, Judge Sabin, of the United States District court charging the jury in an earlier case, 1 referring to a telegraph pole, said : " If it was a dangerous obstruction to the use of the street by the public, the city could not lawfully grant it so as to debar an injured person from recovering any damages he might sustain in consequence of its erection." " The grant of a permit or direction," he said, " to locate a pole or post in a street extensively used as a general thorough- fare both for pleasure drives and for business vehicles, in order to be a valid grant or to be rightfully there, must not only be in accordance with statutes and ordinances, but must also be made subject to the determination of a jury whether the pole or post, so located, is in fact dangerous to the public in the use of the street, including all contingencies incident to the lawful use of the same." The plaintiff, it appeared, was driving a gentle horse, which became frightened and ran away, and the jury were told that if the driver, using all the means in his power to stop the horse, while still in the wagon, ran upon a permanent object of a dan- gerous character in a public street, the company which put up the obstruction was liable for the injury. Where the pole was located, only appears from the remark that it was " on Church street near Tremont near the corner." § 4. The Same — Another View. — The ruling, of course, was based upon the assumption that the pole was in fact in a dangerous position. It is not enough that the pole stands where it may be struck by a runaway horse. In a case in Wisconsin,' where it appeared that the pole, although on the highway, was within four or five feet of the fence, and as near to it as could be without having the cross-arms project over private property, that there were 'Wolfe v. Erie Teleg. and Teleph. Co, 33 Fed. Rep. 320 (1887). 'Roberts v. West. Union Teleg. Co., 77 Wis. 589; 20 Am. St. Rep. 143; 46 N. W. Rep. 800 (1890). 1 56, ELECTRIC WIRES [§ 5- three traveled tracks, and that the plaintiff was driving along the one nearest the pole, when his horse ran away and threw him against it, it was held on demurrer that there was no cause of action. The court said it was plain that the poles did not and could not have incommoded the highway ; " the horses ran away and might have run into the fence if the pole had not been there ; there was nothing in the entire width of the street to prevent the team from passing over it in safety." So also, in the United States Circuit court for the Northern District of Ohio, 1 it was held that a telegraph company having statutory authority to set up poles, exercising reasonable care so as not to incommode public travel, was not required so to locate its poles as to provide against all possible injuries that might be incurred under extraordinary circumstances, and the jury were told to ascertain the location of the pole, and find whether it did so inconvenience the public as to make the loca- tion careless or negligent., The plaintiff was required to use due diligence, and the defendant was held not to be liable for the negligence of the plaintiff's driver. The same principle was affirmed by the Supreme court of the State of New York, in a case in which a telegraph pole was thrown down by means of a collision with a wagon drawn by a runaway horse. 2 The plaintiff was driving along the road shortly afterward, and his wagon was caught by the wires which were thrown across the highway. The court held, that if the pole was placed at a sufficient distance from the traveled portion of the highway to be safe from vehicles passing along under any ordi- nary circumstances, the defendant was not bound so to make or manage its line as to guard against severe collisions, the occurrence of which could not have been reasonably expected. § 5. The Same — Source and Extent of the Liability. — Some of these rulings, it will be observed, were merely those of a judge charging a jury, and the cases cannot be regarded as establishing by authority a definite and satisfactory rule of law. It is no doubt true that a person setting up a pole in the street without due regard for the safety of the public in the ordinary use of a street, may be liable for injuries directly caused by the presence of the pole even though he may have had permission or even authority to erect the pole for a certain proper purpose. The liability arises out of neglect of the precautions required by the 1 Sheffield v. Central Union Teleg. 2 Allen v. Atlantic and Pacific Teleg. Co., 36 Fed. Rep. 164 (1888). Co., 21 Hun 22 (1880). §6.] IN STREETS AND HIGHWAYS. 157 conditions of public travel, and exists because the grant is made either expressly or by implication subject to the requirements of public safety in the use of the streets. 1 It may even be, as was said by Judge Dixon in the New Jersey case," that although the poles are located under the direction of the municipal council with the authority of the legislature, the grant is a mere permis- sion of which the grantee need not avail himself and which he takes subject to the duty to regard the safety of travelers. The duty referred to in that case, however, was the duty of a street railway company to take care of its own passengers, and it may well be that the rights of the general public are limited by the act of the legislature in authorizing the obstruction of the street. It is certain that as against the corporate action of the town the location of the poles by the permission of the munici- pal authorities under legislative sanction is a complete justifica- tion. 3 With respect to the rights of individuals there may still remain an appeal to the courts. This appeal, however, cannot be made on the general question whether the pole is in fact dan- gerous. The real question is whether it is or is not lawful. If it is lawfully placed where it is and as it is, it is not a nuisance and cannot be a cause of action.* The question will rather be whether the authority is not subject to the condition that due regard shall be had for the public safety, and if so, then the ques- tion of the dangerous character of the obstruction should not be left to the jury to determine, upon their own opinion of the propriety of making obstructions of that kind, but must be de- cided in view of the fact that the legislature has authorized the placing of a line of poles for a certain public purpose along and in the street. § 6. The Same — The Legislature May Modify the Eights of the Public in the Street — Electric Railway Poles — Conclusion. — Whether an obstruction is dangerous depends a good deal on the manner 1 Gaslight and Coke Co. v. Vestry of i Mersey Docks Trustees v. Gibbs, St. Mary Abbott's, 15 QiB.D. 1 (1884); L. R., 1. H. L. 93, 112 (1866); Borden- Biscoe v. Great Eastern Ry. Co., L. town and South Amboy Turnpike Co. R., 16 Eq. 636 (1871); Lawrence v. v. Camden and Amboy R. R. and T. Great Western Ry. Co., 16 Q± B. 643 Co., 17 N. J. L. (2 Harr.) 314; British (jgci). Cast Plate Mfrs. v. Meredith, 4 Term 2 Kowalski v. Newark Pass. Ry. Co., Rep. 794 ; Boulton v. Crowther, 2 Barn. 15 N. J. Law Journal, 50; Chapter V, and Cress. 703 ; Cleveland and Pitts- 6 % p. 47. burgh R. R. Co. v. Speer, 56 Pa. St. 3 Chapter V, §§ 1 and 2, p. 46, 47, and 325, 334 ; Stevens v. Middlesex Canal cases there cited. Co., 12 Mass. 466. 158 ELECTRIC WIRES [§ 6. in which the highway is used by the public, and this depends on the extent of the right of the public to make use of it. It must be remembered that the legislature, representing the public, has the power to change the mode of use, or release the public right by vacating the highway altogether. 1 The public must adapt themselves to the new uses of the street and exercise due care to avoid authorized obstructions, and if injury happens from neglect of such precautions no one is liable. It is certainly not true that one who puts up a telegraph pole under authority within the line of the curbstone is liable for a collision with a runaway horse even though the driver be not to blame. A telegraph pole in this position is no more dangerous than a tree or a lamp post — they are all beyond the space allotted for driving, and drivers must avoid them at their peril. Poles along the middle of the ' street for the electric railway seem to present a different question. They stand in that part of the street in which people are accustomed to drive, and they are dangerous to those who use it as if the poles were not there. The legislature, however, has power to divide the street and make two traveled ways. If a street is wide, a park may be laid out along the middle of it with a fence on either side. In London and some other cities the lamp posts are placed along the middle of the crowded streets for the purpose of dividing the traffic into two separate streams, and so when a double line of street car tracks has been laid along the middle of a broad street and a line of poles has been lawfully authorized to be set up at intervals be- tween them, the traffic must adapt itself to them. They mark the limits of the traveled way just as much as the curbstones and fences do, and persons must take care to avoid them. Indi- viduals have only such rights as the public have, and the public rights are within the control of the legislature ; the right of, travel in the street therefore is that which the legislature allows. We are speaking now of the rights of individuals exercising the public rights of travel. The question of the rights of land- owners depends on other considerations, for their rights of prop- erty are protected by the constitution, but the mere right of pub- lic travel may be limited by the legislature to any part of the street it may see proper, or be released altogether, and therefore the question of liability for the injury to a traveler by reason of an obstruction must depend on the question whether the so-called 1 Chapter II, § 3, p. 8, and cases there cited. § 8.] IN STREETS AND HIGHWAYS. 1 59 obstruction is authorized or not, and not on the decision of a court and jury as to whether it is in their opinion dangerous. § 7. Wires Hanging Too Low — Liability For Injuries. — Persons authorized to string lines of wire along and across public roads are bound to use due diligence to place and keep them where they will not obstruct the ordinary uses of the highway or cause injuries to persons traveling upon it. The permission to set up telegraph and electric light wires is generally made expressly subject to the condition that they shall not interfere with the free use of the highway for public travel and transportation, and even without express words such a condition would no doubt be im- plied, and it is always understood that statutory powers of this kind are subject to the condition that they shall be exercised in a careful and proper manner. 1 If, therefore, wires are so put up as to obstruct the ordinary use of the street, or if they are suffered to hang down so as to entangle a traveler and cause injury to one exercising due, care in the use of the street, the statutory authority will afford no justification in an action for damages. The liability may rest on the mere breach of the duty not to obstruct the street ; in such case affirmative proof of negligence is not required, although the company might justify by showing its authority and the exercise of proper care and that the sagging of the wire was due to accident or to causes not reasonably to be expected. 2 The liability may also be placed upon the ground that in maintaining wires over the streets, the defendant has placed there for his own benefit something which, if not cared for, may become dangerous to persons lawfully using the street, and the defendant is there- fore under obligation to keep it in its proper place. 3 And there can be no doubt that a person or company maintaining wires over the streets is liable for negligence with respect to travelers in the construction and maintenance of the line. § 8. The Same — Decisions. — A decision upon the liability for obstructing the highway was made in the early days of the tele- graph in the Supreme Judicial court of Maine, 4 and this, by the 'Mersey Docks Trustees v. Gibbs, 'Thompson on Electricity, 78; L. R., 1. H.L. 93, and other cases cited Fletcher v. Rylands, L. R., 1 Ex. 265; in note 1, § 5, supra. Rylands v. Fletcher, L. R., 3 H. L. 2 Ward v. Atlantic and Pac. Teleg. 330. Co., 71 N. Y. 81, s. c. 27 Am. Rep. 10; 4 Dickey v. Maine Teleg. .Co., 46 Allen v. Atlantic and Pac. Teleg. Co., Me. 483 (1859). 21 Hun 22. l6o ELECTRIC WIRES [§ 8. way, is the only case on telegraph wires in the streets cited by Scott & Jarnagin in 1868, or referred to in the first series of the United States Digest, ending in 1870. The defendant, a telegraph company, was authorized by stat- ute to put up a line along the public roads, locating its posts and fixtures so as not to incommode the public use of the highway. A wire hung low over one side of the road, and a stage having turned off the usually traveled track toward the postoffice, the upper part of it was caught in the wire and it was upset, and the plaintiff was injured. The court said, the right of the telegraph company to string the wire was subject to the con- dition that it should not incommode public travel, and it was the right of all persons to pass and repass at their pleasure on any part of the highway and not merely on that part which the town is obliged to keep in repair. The defendant, therefore, had no right to make the obstruction, and was liable to the plaintiff for the resulting injury. In a case of Massachusetts, in 1868, 1 the only real question was whether the plaintiff was guilty of contributory negligence, and subject to the decision of this by the jury it was conceded that a telegraph company was liable for an injury to a traveler caused by a wire having fallen from one pole and hanging diag- onally across the street within one or two inches of the ground. The plaintiff tried to lead his horses and wagon over it, but it flew up, the wire caught the axle and upset the wagon, a pole was pulled down and the horses took fright and ran away. The court said, it should have been left to the jury to decide whether the plaintiff was exercising reasonable care in thinking the wire would lie flat and in trying to get over it. It was held in Pennsylvania, in 1888, 3 that a telephone com- pany is liable in damages for injuries caused by a swagging telephone wire impeding travel. Livingston, J., charging the jury in the Lancaster Common Pleas, told them that tele- graph lines over highways must be put up and kept so that the wires shall not impede or obstruct ordinary travel or render it unsafe, and that if by neglect of those failing to keep them so injury is sustained by a person passing over the highway without fault on his part, the company owning the line will be liable in damages, and that it is not necessary, in order to show negli- 1 Thomas v. West. Union Teleg. Varnau, 5 Lancaster Law Review, Co., ioo Mass. 156 (1868). (Pa.) 74, affirmed in s. c. 5 Ibid. 401, * Pennsylvania Telephone Co. v. 15 Atl. Rep. 624. § I4-] IN STREETS AND HIGHWAYS. l6l gence in allowing a wire to hang too low, to prove that the com- pany has been notified that the wire is obstructing the streets and has failed to remove it. The charge was sustained by the Supreme court. 1 It was held in Colorado territory in 1873,' that a company engaged in putting up a telegraph line in a city street was guilty of gross negligence, when it allowed a wire to hang within a few feet of the ground while people were passing and put up no signal and gave no warning. The jury were told that they might give exemplary damages. On writ of error, however, the Supreme Court of the United States said, that in no view of the case was the court justified in telling the jury that exemplary damages could be recovered. The omission to station flag-signals or to give some other proper warning was an act of negligence entit- ling the plaintiff to compensatory damages, but there was no evidence of willful wrong." § 9. The Same Continued — Guy Wires. — The same principle, of course, applies to guy wires used to support the poles as to the electric wires themselves. In a recent case in the New York Supreme court, 4 there was a guy wire fastened to a sunken stone in the edge of a narrow road where persons would naturally be compelled to travel. The wire was not easily seen and was hid- den by the leaves of trees. The plaintiff, in passing another man's wagon, was obliged to drive over the stone and his wheel was caught in the wire. It was held that the defendant's right to use the highway was subject to the right of use for travel, and that the stone with the wire so near the traveled part of the road made a dangerous snare. The court did not consider the plaintiff guilty of negligence and held the defendant liable. So also, in Louisiana,* a telegraph company was held liable for an injury occasioned by guy wires stretched across a part of the road called neutral ground on which it was forbidden to drive. The accident happened to the driver of a fire engine, who was turning his engine to go to a fire plug, which stood on the neu- 1 The decision was confined to the 3 West. Union Teleg. Co. v. Eyser, case of the use of the highway for 91 U. S. 495 (1875), reported in a note ordinary transportation. The judge to Milwaukee and St.- Paul Ry. Co. v. said the rule would not apply to a Arms, 91 U. S. 489. load thirty or forty fe.et high. As to 4 Sheldon v. West. Union Teleg. wires obstructing the moving of a Co., 51 Hun 59 1 (1889). house, see Chapter V, § 4, p. 48. " Wilson v. Gt. So. Teleph. v. Teleg. 2 West. Union Teleg. Co. v. Eyser, Co., 41 La. Ann. 104; 6 So. Rep. 781 2 Colo. Ter. 141. (1889). E. W.— 11. 162 ELECTRIC WIRES [§ 10. tral ground, and to which he had a right to go for the purpose of putting out a fire. The court said, the telegraph company ought to have seen that injury might come from putting wires so low in such a place, and was therefore in fault and liable in damages. § 10. Wires Hanging Too Low — Contributory Negligence. — In the case of Dickey v. Maine Telegraph Company, when it first came before the court in 1857/ it appeared that a telegraph wire became " slack and drooped so low" that a stagecoach in which the plaintiff, Mrs. Dickey, was traveling was caught in it and overturned; On a motion for a new trial, after a verdict for the plaintiffs, the court said: " It was not sufficient for the plaintiffs to prove that the defendants were in fault. To entitle themselves to a verdict the plaintiffs were bound to show that there was no neglect or want of ordinary care contributing to the injury on the part of the female plaintiff," and the court held (following the doctrine of Thorogood v. Bryan, which has since been over- ruled 3 ), that if the driver of the stagecoach were guilty of neglect or want of ordinary care, the plaintiffs would be as much affected thereby as if Mrs. Dickey were the driver. It appeared that the driver knew the wire was too low to pass under, and had several times lifted it while passing, and this time he let it remain in front of the stage while he stopped at the post office and got the mails, and he allowed the , horses to start before the wire was removed. The judges thought he was guilty of gross negligence, and set aside the verdict, but a second verdict having been rendered for the plaintiffs on somewhat different evidence the court allowed it to stand. 3 The true rule in such cases is clearly stated, however, by Judge Hoar, in a case in Massachusetts, 4 that " if a party with full knowledge of the existence of an obstruction or defect in a high- way, willfully or recklessly keeps on, and involves himself in a danger which he had no reasonable ground to believe he could successfully encounter, he acts at his own risk and must take the consequences. But because there is an obstacle to proceeding, it does not follow that it is not consistent with reasonable care to 1 43 Me. 492. ner, 47 N. J. L. 161 (March, 1885) ; 2 8 C. B. 114 (1849). See Mills v. Little, Receiver v. Hacket, 116 U. S. Armstrong, The Bernina, 13 App. 366 (October, 1885). Cas. 1 (1888); Bennett v. N. J. R. R. 3 46 Me. 483-488 (1859). & T. Co., 36 N. J. L. 225 (1873) ; N. 4 Thomas v. West. Union Teleg. Co., Y., L. E. and W. R. Co. v. Steinbren- 100 Mass. 156 (1868). § I O.J IN STREETS AND HIGHWAYS 1 63 attempt to proceed." In this case the plaintiff, driving along a road, saw a wire hanging diagonally across it between two poles two hundred feet apart and coming within two or three inches of the surface of the earth. He found it would lie flat on the ground the whole distance across the traveled way, and the court held that it was properly left to the jury to say whether the plaintiff was justified in supposing that he could lead his horses and wagon safely over it, and whether he used due care in attempting to do so. In the Varnau case in Pennsylvania 1 the judge was sustained in charging the jury that if the plaintiff saw the wire or knew it was there and he could not have driven safely under it and could have driven on a lower road, his failure to do so would be such negligence as would prevent a recovery ; but if he did not know or see it was there, his failure to take the other road would not prevent recovery by the plaintiff. It was also held in this case, that where a traveler on a highway finds his wagon caught by a wire hanging too low, if he does the best he can in the emer- gency to extricate himself, the defendant will not be relieved from liability because the plaintiff might have found a way of escape. When a man finds himself placed in a position of danger by the negligence of another without his fault, and, not having time to deliberate, happens to choose a way to escape which is not the best, the law will not impute to him contributory negligence so readily as if he had time to choose with judgment. All that it requires of him is to do as a prudent man would under the circumstances. So also in a recent case in Louisiana," it appeared that a dray- man, the plaintiff's fellow-servant, knew that an electric-light wire was hanging low, but drove under it in an emergency when the street was obstructed. He was driving a team of five mules drawing a wagon with a large tank upon it, and it was held that the rule as to contributory negligence did not apply. The court said: " Even if there had been error of judgment in the emergency of the moment, it would not have been carelessness or neglect ; 1 Penna. Teleph. Co. v. Varnau, 5 ble unless it is also shown that they Lane. Law Rev. 71, 401 ; 15 Atl. Rep. were put up at the same time with g 3 . those that fell. West. Union Teleg. Where it is attempted to show Co. v. Levi, 47 Ind. 522. negligence in allowing poles to fall, 2 Williams v. Louisiana Light and evidence showing that poles 40 or 60 Power Co., 8 So. Rep. 936 ; 43 .La. rods away did not fall, is not admissi- Ann. (March 23, 1891). <• 164 ELECTRIC WIRES [§ II. had the plaintiff freely chosen to drive under the low-swinging wire, and had he negligently driven the tank against it, the prin- ciple invoked would apply. In the haste of the moment he did that which possibly any prudent man would have done." It is not to be expected that a man in driving, or even in walk- ing along a street, will see a small wire stretched across the way or lying upon the pavement when he has a right to suppose that the street is unobstructed; and the fact that he runs into such a wire is not held, as a matter of law, to be contributory neg- ligence, but the question whether he exercised due care will be left to the jury. In a recent case in Indiana 1 the Supreme court overruled a demurrer to a declaration which alleged that an elec- tric-light wire was negligently allowed to remain on and along a sidewalk, and that while plaintiff was walking carefully along the sidewalk without her fault her foot caught and became entangled in the wire and she was injured. § 11. Defective Materials. — If the posts are made of poor mate- rial or are not strong enough to bear the weight of the wires placed upon them and the strains to which it may be reasonably expected that they will meet with, those who maintain them are liable in damages for injuries caused by the fall of the posts and wires. It was so held in the case in Louisiana just referred to" where the plaintiff was injured by the fall of an electric-light pole which was dragged down by the wire being caught by a passing dray. It appeared that the pole was not of the diameter required by the contract with the city, and that it was not made of heart timber as it should have been, and because of the sap it was badly decayed near the ground, and when the wire was caught the pole was pulled down and fell upon the plaintiff, the court said the pole was defective originally, and that ordinary care must be exercised against the weakening and decay of timber from age or the action of the elements. The company was held liable. In this case the defendant was at fault in letting the wire hang within fifteen feet of the ground, so that it was caught by a heavily loaded wagon; but it has been held that where the proxi- mate cause of the accident is an unexpected external force for which the telegraph company is not responsible, the question of the strength of the materials used is not involved in the case. In 1 Brush Electric Lighting Co. v. Kelley, 126 Ind. 220; 25 N. E. Rep. 812; 9 Ry. and Corp. L. J. 135 (1890). 2 Page 163, note 2. § 12.] IN STREETS AND HIGHWAYS 165 Allen v. Atlantic and Pacific Telegraph Co., 1 a pole standing far enough from the traveled portion of the highway to be safe un- der ordinary circumstances was struck by a wagon drawn by runway horses and fell down so that the wires were thrown across the road in such a manner that they caught the plaintiff's car- riage and upset it, and the plaintiff was injured. The court held that the plaintiff could not recover if the collision were the proxi- mate cause of the breaking and fall of the pole, and that the judge ought to have charged the jury that if the pole would not have fallen without the collision, the plaintiff could not recover, and that the jury ought not to have been left with the impression that although the collision was the cause of the breaking of the pole they " could find a verdict for the plaintiff on account of their speculations as to the original deficiency in the strength of the telegraph pole to resist such a collision." A telegraph company setting one of its own servants to work on a defective pole has been held liable for injuries arising from the defect, if with proper care, the company might have discovered it and the servant was free from negligence. In a case in the Supreme Court of New York" it appeared that the plaintiff 's intestate, while in the employ of defendant, was sent to put a new insulating peg in a cross-arm on one of the defendant's telegraph poles. The cross-arms had holes bored through them in which pegs were set on which to place the insulators. One' hole was about eight inches from the pole, and the other about two feet nine inches. While the man was putting the peg in the outer hole, the arm broke at the other hole, causing him to fall. There was evidence that the arm had been on the pole from six to ten years, and was " cross-grained and brittle " where it broke. It was held, that whether the defendant was negligent in not dis- covering the defect, and whether the intestate should have ob- served and guarded against the defect, and whether he placed more weight on the cross-arm than he should have done, were questions for the jury. § 12. Damages Caused by Severe Storms. — A company main- taining a line of telegraph or other wires and poles is only bound to exercise reasonable care in the construction and main- tenance of its line, and is not liable for the breaking of its poles by a storm of extraordinary severity or by some unexpected external force. The company is not held to insure the safety of its »2i Hun 22 (1880). 1 Flood v. West. Union Teleg. Co., 68 Hun 619 (1891). 166 ELECTRIC WIRES [§ 13. poles, but is only liable in case of actual negligence of reasonable precautions.' It was so held with reference to a storm by the New York Court of appeals in Ward v. Atlantic and Pacific Telegraph Co? The court said : " The defendant is not absolutely bound to make its posts in the street so strong and secure that they cannot be blown down or broken by any storm. It does not insure the safety of travelers in the streets from injuries by its posts lawfully placed there. It is bound to use reasonable care in the construc- tion and maintenance of its line, so that no traveler shall be in- jured by it, and the amount of care must be proportioned to the amount of danger and the liability to accident. The poles must be strong enough to withstand such violent storms as may be reasonably expected, but they are not required to be so strong that no storm can break them, or to withstand such storms as reasonable foresight and prudence could not anticipate." § 13. Dangerous Currents. — Electric wires carrying a dangerous current must be carefully kept in place and properly insulated, and those who maintain them are liable to the public and to their own servants for negligence in this respect. It has recently been held, for example, in Michigan, 3 that it is negligence for an electric-light company so to string its wires that those of one circuit cross those of another, and by a slight sagging come in contact with them, and to maintain a live current in one circuit while its own men are at work handling the wires of the other. In New York where by statute it was provided that a commission should be appointed to take charge of and control all electric wires in the streets and to cause them to be put underground, it has been held that an electric-light company is not excused from keeping its wires in perfectly safe condition by the fact that this commission has refused permission to make necessary re- pairs, and that if the municipal authorities are about to remove the wires as dangerous to the public, the refusal of the commis- sion is not a good ground for injunction against the removal of the wires. Wires not properly insulated, the court said, were dangerous and a nuisance, and were subject to be abated. 4 Electric railway wires carry a powerful current which is dan- 1 See Allen y. A. & P. Teleg. Co., Co., 82 Mich. 457 ; 46 N. W. Rep. 787 above referred to, § 11, note 3. (1890). 2 71 N. Y. 81; 27 Am. Rep. 10 * U. S. Illuminating Co. v. Grant, (I877)- 55 Hun 222; 27 N. Y.St. Rep. 767; 8 Kraatz v. Brush Electric Light 7 N. Y. Supp. 788. § I3-] IN STREETS AND HIGHWAYS 167 gerous under certain circumstances, and a company using such a wire is liable for injuries which, with due care, it might have pre- vented, even though the immediate cause of the injury may have been an accident. Maintaining such a current on a bare wire in the public streets, they are bound to use reasonable precautions against accidents, and must take proper care to keep their wires from falling or from coming in contact with other wires. It can- not be said that they are bound in every case, and in the absence of statutory or municipal regulations, to maintain guard wires so as to prevent telegraph wires from falling upon the trolley wires ; but it has been held that where a telephone wire crossing over a trolley wire is obviously defective, so as to arrest the notice of a prudent man operating the railroad, and no precaution is taken to guard against its fall, if the wire does fall, and the current is carried off and injures a person or an animal in the street, the railroad company is liable as well as the telephone company. This was held in a recent case in Tennessee, 1 in which the imme- diate cause of the fall of the wire was the breaking of a telephone pole by the" fall of a burning building. Turney, C. J., said : " While it was the primary duty of the telephone company to see that wires were in a reasonably safe and sound condition, and protected against the contingency of falling, it was also a duty of the electric company to see that its trolley wire was, in like manner, protected from such contingency. While it was the duty of one company not to use unsound and unprotected wires, it was equally the duty of the other not to operate its road under such defective machinery." a 1 United Electric Ry. Co. v. Shelton, phone wires from coming in contact 14 S. W. Rep. 863 (Sup. Ct. Tenn. with electric light wires, see Ne- 1890). braska Telephone Co. v. New York 2 For a case relating to the precau- Gas and El. Lt. Co., 17 Neb. 284 ; 43 tions proper to be used to keep tele- N. W. Rep. 126. See Chapter XIV, §7. TABLE OF CASES. FAG2 Abendroth v. Manhattan R. R. Co., 122 N. Y. i 62, 83, 105 Abendroth v. Met. Elev. R. R. Co., 54 N. Y. Super. Ct. 417 62, 65 Abendroth v. Met. Elev. R. R. Co., 122 N: Y. i 105 Adams v. Chicago, B. and N. R. R. Co., 39 Minn. 286 15, 98 Allen v. Atlantic and Pacific Teleg. Co., 21 Hun 22 156, 159, 165, 166 American Rapid Teleg. Co.. v. Hess, 125 N. Y. 641, 58 Hun 610 57. J 33 American Teleph. and Teleg. Co. v. Pearce, 71 Md. 535 81, 131, 137 Am. Union Teleg. Co. v. Town of Harrison, 31 N. J. Eq. 627 30, 31, 38, 40, 43 Anderson v. Turbeville, 6 Cold. 15° 65 Appeal of Meadville Fuel Gas Co., 4AU. Rep. 733 11 Arbenz v. Wheeling and Harris- burg R. R. Co., 33 W. Va. 1. .45, 99 Armstrong v. Grant, 31 N. Y. St. Rep. 248 ; 50 Hun 220 57 Atl. and Pac. Teleg. Co. v. Chicago R. I. and P. R. R. Co., 6 Biss. 158 130. 132. I37.IS8 Atlantic Teleg. and Teleph. Co. v. Smith, 1 Am. R. R. and Corp. Rep. 73 82,131, 137 Atl. and Pac. Teleg. Co. v. Union Pacific Teleg. Co., 1 Fed. Rep. 745 '38 Atlantic City Water Works v. At- lantic City, 39 N. J. Eq. 366, 374. 8, 9 Atlantic City Water Works Co. v. l Consumers' Water Co., 44 N. J. Eq. 427-432 8, 10 PAGE Attorney-Gen'l v. Edison Teleph. Co., 6 Q;, B. Div. 244 122 Attorney-Gen'l v. United King- dom Elect. Teleg. Co., 30 Beav. 2S 7 46,51 Attorney-Gen'l v. Lombard and South St. Pass. R'y Co., 32 Leg. Int. (Pa.) 238 " i S Attorney-Gen'l v. Metrop. R. R. Co., 125 Mass. 515 15, 96 B. and O. Teleg. Co. v. Morgan's La. and Tex. Teleg. Co., 37 La. Ann. 833 136 B. and O. Teleg. Co. v. West. Union Teleg. Co., 24 Fed. Rep. 3*9 135 B. and W. Railroad Co. v. Hartley, 67 111. 439 80 Barber v. Saginaw Union St. R. R. Co., 83 Mich. 299 115 Barnett v. Johnson, 15 N. J. Eq. 481 63,67, 136 Barney v. Keokuk, 94 U. S. 324. . 65 Bennett v. N.J. R. R. and T. Co., 36 N.J. L. 225 162 Bigelow v. Perth Amboy, 1 Dutch!, 25 N.J. L. 297 33 Biscoe v. Great Eastern R'y Co., L. R. 16 Eq. 636 157 Bissell v. N. Y. Central R. R. Co., 23 N. Y. 61 62 Bliss v. Ball, 99 Mass. 597 12, 62 Bloomfield and R. N. Gas L. Co. v. Calkins, 62 N. Y.386. ... 13, 87, 88 Board of Trade Teleg. Co. v. Bar- nett, 107 111. 507 75, 79, 80, 84, 97 Bordentown and South Amboy Turnpike Co. v. Camden and Amboy R. R. and Trans. Co., 17 N.J.L.314 157 (169) 170 TABLE OF CASES. PAGE Borough v. Telephone Co., 22 W. N. Cas. 572 41 Boston v. Richardson, 13 Allen 146 15, 62, 87, 88 Boulton v. Crowther, 2 Barn, and Cress. 703 157 Briggs v. Lewiston and Auburn R. R. Co., 79 Me. 363 96, 102 British Cast Plate Mfrs. v. Mere- dith, 4 Term Rep. 794 157 Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co., 32 Barb. 358 36 Brooklyn City R. R. Co. v. Coney Island R. R. Co., 35 Barb. 364. . 96 Broome v. N. Y. and N. J. Teleph. Co., 42 N. J. Eq. :4i 77, 78, 122 Broome v. N. Y. and N. J. Teleph. Co., 49 N. J. L. 624 33, 79, 124 Brown v. Duplessis, 14 La. Ann. 842 96 Brush Electric Illuminating Co. v. Subway Co., 15 N. Y. 81 58 Brush Electric Light Co. v. Jones Brothers' Electric Light Co., 23 W. L. Bull. 329 32, 43 Brush Electric Lighting Co. v. Kelley, 126 Ind. 220 164 Burlington v. Dennison, 42 N. J. L- 165 33 Butler v. Passaic, 44 N. J. L. 171. . 33 California St. Teleg. Co. v. Alta Teleg. Co., 22 Cal. 398 127 Camden Horse R. R. Co. v. Cit- izens' Coach Co., 31 N. J. Eq. 525 iS.71.98 Campbell v. Met. R. R. Co., 82 Ga. 3 2 ° 96,97 Carli v. Stillwater St. Ry. Co., 28 Minn. 373 16 Carson v. Central R. R. Co., 35 Cal. 325 96 Cent. Branch Union Pacific R. R. Co. v. West. Union Teleg. Co., 3 Fed. Rep. 417 138 Cent. Union Teleg. Co. v. Sprague Electric Railway and Motor Co. and the Akron Street Railway Co., Ohio Com. Pleas 143 Cent. Un. Teleph. Co. v. Brad- bury, 106 Ind. 1 122 PAGE Chamberlain v. Elizabethport, etc., Co., 41 N. J. Eq. 43 14 Chambers v. Ferry, 1 Yeates 167. 115 Chesapeake and Potomac Teleg. Co. v. Bait, and Ohio Teleg. Co., 66 Md. 399 122 Chesapeake and Potomac Teleph. Co. v. MacKenzie, 21 Atl. Rep. 690; 74 Md 81 Chicago and E. I. R. Co. v. Loeb, 1 18 111. 203 45 Chicago and Vincennes R. R. Co. v. People, 92 111. 21 15 Cine. Inclined Plane Ry. Co. v. City and Suburban Teleph. Assn., 26 Week. Bull. 8 151, 152 Cincinnati St. R. R. Co. v. Cum- minsville, 14 Ohio St. 523 96, 97 Cincinnati St. R. R. Co. v. Smith, 29 Ohio St. 291 10 Citizens' Water Co. v. Bridgeport Hydraulic Co., 55 Conn. 1 8 Citizens' Coach Co. v. Camden Horse R. R. Co., 33 N. J. Eq. 267 15,71,98 Citizens' St. R'y Co. v. Jones, 34 Fed. Rep. 597 11 Citizens' Water Co. v. Bridgeport Hydraulic Co., 55 Conn. 1 9 City v. Electric Light Co., 8 C. C. Rep. (Pa.) 178 40, 41 City v. Teleg. and Teleph. Co., 40 La. Ann. 41 36 City and Suburban Teleg. Assoc. v. Cincinnati Inclined Plane Ry. Co., 23W'kly Bull. 165 151,152 City of Hannibal v. Missouri and Kansas Teleg. Co., 31 Mo. App. 23 36 City of St. Louis v. Bell Teleph. Co., 96 Mo. 623 23, 74 Cleveland and Pittsburg R. R. Co. v. Speer, 56 Pa. St. 325, 334. ... 157 Clinton v. Cedar Rapids and M. R. R. Co., 24 Iowa 455 99 Clinton v. Clinton and Lyons H. R. R. Co., 37 Iowa 61 96 Commonwealth v. Boston, 97 Mass. 555 24. 36,46 Commonwealth v. Central Pass. R'y Co., 52 Pa. St. 506 31 TABLE OF CASES, 171 PAGB Cook v. City of Burlington, 30 Iowa 94 15 Cosby v. Owenboro, io Bush 288. 99 Costigan v. Penna. R. R. Co., N. J. Sup. Ct., 15 N. J. L. J. 90 99 Coverdale v. Charlton, 42 B. D. I0 4 44 Craig v. Rochester City and B. R. R. Co., 39 N. Y. 404 97, 98 Crawford v. Delaware, 7 Ohio St. 459 : 65, 105 Cumberland Telephone Co. v. United Electric Railway Co., 42 Fed. Rep. 273 150 Daly v. Ga. So. and Fla. R. R. Co., 80 Ga. 793 u, 98 Damour v. Lyon, 44 Iowa 276. ... 15 Davenport v. Kleinschmidt, 13 Pac. Rep. 249 11 Davis v. Mayor of New York, 14 N. Y. 506 1S , 45 Davison v. Gill, 1 East 69 43 Delhi v. Evans, 36 Ind. 90 99 D. and R. G. R. R. Co. v. Bourne, 11 Colo. 59 98 Denver and S. F. R. R. Co. v. Domke, 11 Colo. 247 100 Des Moines St. R. R. Co. v. Des Moines Broad Gauge R. R. Co., 74 Iowa 585 105 Detroit v. Detroit R. R. Co., 43 N. W. Rep. 447 30 Detroit City R. R. Co. v. Mills, Circuit Court of Wayne Co., Mich., 84 Mich. 634 1, 9, no, 116 Dickey v. Maine Teleg. Co., 43 Me. 492 ; 46 Me. 483 159, 162 Dodge v. Davenport, 57 Iowa 560 13 Domestic Teleg. and Teleph. Co. v. Newark, 49 N. J. L. 344-346. .8, 26 Drady v. Des Moines and Ft. O. R. R. Co., 57 Iowa 393 99 Drake v. Hudson River R. R. Co., 7 Barb. 508 45. 99 Dubuque v. Maloney, 9 Iowa 450 12 Dusenbury v. Mutual Teleg. Co., 11 Abbott's New Cases 440 78 East End R. R. Co. v. Doyle, 88 Tenn. 747 9°. 97. i° 2 East Portland v. Multomah, 6 Ore- gon 62 • 8 PAGE East River Electric Light Co. v. Grant, 25 Jones & S. 553 56 East Tennessee Teleph. Co. v. Knoxville St. R'y Co., Chan- cery, Tenn 149 East Tennessee Teleph. Co. v. The Chattanooga Electric Railway Co., Chancery, Tenn 144 Edison General Electric Light Co. v. Cincinnati, 3 Goebel (Ohio) 3°4 '■■ 55 Eichel v. Evansville St. R. Co., 78 Ind. 261 15, 96 Electric Construction Co. v. Hef- fernan, 34 N. Y". S. R. 430. . . .24, 90 Electric Impr. Co. v. San Francis- co, 45 Fed. Rep. 593 39 Electric Impr. Co. v. Scannell, 45 Fed. Rep. 596 40 Electric Light Co. v. City, 4 Del. (Pa-) "7 3 2 . 4°. 4 1 Electric Ry. v. Grand Rapids, 84 Mich. 257. . 32, 42, 116 Electric Tel. Co. v. Overseers of the Poor of Salford, 34 L. J. (N. S.), Magistrates' Cases 146. .... 77 Elliott v. Fairhaven and Westville R. R. Co., 32 Conn. 579 96 Ellis v. Sheffield Gas Co., 23 L. J. Qi B. 42 87 Ely v. Campbell, 59 How. Pr. 333 12 Farrell v. Mayor, etc., of N. Y., 5 N.Y. Supp. 672 12 Farrell v.Winchester Ave. Ry. Co., 61 Conn. 127 113 Finch v. Riverside and Arlington R. R. Co., 87 Cal. 597 96 Flanagan v. Plainfield, 44 N. J. L. 118 41 Fletcher v. Rylands, L. R., 1 Ex. 265 159 Flood v. West. Union Teleg. Co., 68 Hun 619 165 Florida Southern R. R. Co. v. Brown, 23 Fla. 104 98 Fobes v. Rome, Watertown and O. R. R., 121 N. Y. 505 63, 99, 105 Ford v. Chicago and N. W. R. R. Co., 14 Wis. 616 100 Forsythe v. B. and O. Teleg. Co., 12 Mo. App. 494 73. 84 172 TABLE OF CASES. PAGE Galbreath v. Armour, 4 Bell App. Cas. 374 iS.24.87 Gaslight and Coke Co. v. Vestry of St. Mary Abbott's, 15 C^, B. D. 1 iS7 Gay v. Mutual Union Teleg. Co., 12 Mo. App. 485 45, 73, 84 Gilbert's Case, 70 N. Y. 361 134 Gilbert v. Greeley, S. L. and P. R. R. Co., 13 Colo. 501 100 Giordano v. Manhattan R. R. Co., 31 N. Y. St. Rep. 134 63, 65, 105 Glasby v. Morris, 18 N. J. Eq. 72. . 62 Goodson v. Richardson, L. R., 9 Ch. App. 221 89 Grand Rapids and I. R. Co. v. Hei- sel, 38 Mich; 62 96, 97 Grand Rapids, etc., R. R. Co. v. Heisel, 47 Mich. 393 no Grand Rapids Electric Teleg. Co. v. Grand Rapids, Edison, etc., Co., 33 Fed. Rep. 659 10 Gray v. St. Paul and Pac. R. R. Co., 13 Minn. 315 98 Green v. Cape May, 41 N. J. L. 45 33 Halsey v. Rapid Transit St. R. Co., 47 N. J. Eq. 380 20 33. 66 > 7». 78, 79. 9°. 95. 98, 107, in Harrison v. Mt. Auburn Cable R. R. Co., 17 Week. Bull. 265 104 Hauss Lighting Co. v. Jones Bros. Elec. Co., 23 Week. Bull. 137. .32, 43 Haynes v. Thomas, 7 Ind. 38. . .65, 105 Henkel v. Detroit, 49 Mich. 249. . 61 Hewett v. West Union Teleg. Co., 4 Mackay (D. C.) 424 45, 76, 132 Higbee v. C. and A. R. R. Co., 20 N. J. Eq. 435, 439 62 Hiller v. A. T. and.S. F. R. R. Co., 28 Kan. 635 96 Hinchman v. Paterson Horse R. R. Co., 17 N. J. Eq. 7s . . 15, 71, 96, 98, 100 Hine v. N. Y. El. R. R. Co., 27 N. Y.St.R.R.303 62 Hiss v. Balto. and Hampden Pass R. Co., 52 Md. 242 IS. 96 Hobart v. Milwaukee City R. R. Co., 27 Wis. 194 96, 100 Hoboken Land and Improvement Co. v. Hoboken, 36 N. J. L. 540, 55 1 66, 105 PAGB Hoboken Land and Imp. Co. v. Kerrigan, 31 N. J. L. 13 62 Hochalter v. Manhattan R. R. Co., 31 N. Y.St. Rep. 112 63, 64, 105 Hockett v. State, 105 Ind. 250. . . . 122 Hodges v. Baltimore Pass. R. R. Co., 58 Md. 603 96 Hogencamp v. Paterson H. R. R. Co., 17 N. J. Eq. 83 96 Hudson River Teleph. Co. v. Wa- tervliet Turnpike Co., 56 Hun 67 118, 144, 146 Hudson Teleph. Co. v. Jersey City 49 N. J. L. 303 35,46 Hunt v. Chicago Horse and Dum- my R. R. Co., 121 111. 638 31 Hussner v. Brooklyn City R. R. Co., 114 N. Y. 433 96, 102 Indianapolis v. Indianapolis Gas Light Co., 66 Ind. 396 12 Indiana and Cin. R. R. Co. v. Law- renceburgh, 34 Ind. 304 30 Indianapolis B. and W. R. R. Co. v. Hartley, 67 111. 479 97 Indianapolis Cable St. R. R. Co. v. Citizens' St. R. R. Co., 127 Ind. 369 11, 104 In re Rochester Electric Ry. Co., 33 N. Y. St. Rep. 695; 123 N. Y. 35i 30.34. " 8 In re Third Ave. R. R. Co., 24 N. E. Rep. 951 ; 121 N. Y. 336. . 104, 118 Iron Mountain R. R. Co. v. Bing- ham, 87 Tenn. 522 11, 97 Irwin v. Great South Teleg. Co., 37 La. Ann. 63 45 Jackson County Horse R. R. Co. v. Rapid Transit Co., 24 Fed. Rep. 3° 6 9 Jersey City and Bergen R. R. Co. v. Jersey City and Hoboken R. R. Co., 20 N. J. Eq. 61 14. 1 Si 21, 3°. 96, 98. 100 Jersey City v. Jersey City Bergen St. R'y Co., N. J. Law Journal for March, 1892 41 Johnson v. Thompson-Houston Co., 7 N. Y. Supp. 716 89 Johnson v. Thompson-Houston Electric Co., 54 Hun 469 24 TABLE OF CASES. 173 PAGE Julia Building Association v. Bell Teleph. Co., 88 Mo. 258 24. 45. 74. 75. 84. 94. 99. i°S> J 3° Kansas v. Baird, 98 Mo. 215 ; 11 S. W. Rep. 243 30 Kellinger v. Forty-second St., etc., R. R. Co., 50 N. Y. 206. . 96, 98 Kincaid v. Indiana Nat. Gas. Co., 1 21 Ind. 577 13, 89 " Kistner v. Indianapolis, 100 Ind. 210 16 Koch v. North Ave. Ry. Co. (Md.), 23 Atl. Rep. 463 113 Kowalski v. Newark Pass. R'y Co., 15 N. J. Law Journal 50. . . 47. r 54. 157 Kraatz v. Brush Electric Light Co., 82 Mich. 457 I 166 Lackland v. R. R. Co., 34 Mo. 259 74. 9 6 > 97i 99 Lahr v. Metropolitan Elev. R. R. Co., 104 N. Y. 268 13. 6 3> 6 4> 8 3> 9 s . I0 5 Lamm v. Chicago, St. Paul and M. R. R. Co., 45 Minn. 71 99 Lancaster v. Edison Electric 111. Co., 8 C. C. Rep. 178 40, 41 Lawrence v. Great Western R'y Co., 16 CL B. 643 IS7 Lewis v. Jones, 1 Pa. St. 336 115 Little, Receiver v. Hacket, 116 U. S. 366 162 Lockhart v. Craig St. R'y Co., 139 Pa. St. 419 "4 Lockie v. Mut. Union Teleg. Co., 103 111. 401 123 . Lonergan v. Lafayette St. R'y Co., Indiana 18, 26, 1 11 Lorie v. North Chicago City R. R. Co., 32 Fed. Rep. 270 104 Lostutter v. City of Aurora, Ind., 12 L. R. A. 259 12, 14 Louisville and Frankfort R. R. Co. v. Brown, 17 B. Monroe 763 14 Louisville Bagging Mfg. Co. v. Central Pass. Ry. Co., Ky., 19, in Louisville Gas Co. v. Citizens'' Gas Co., 115 u - s - 68 3 8 >9 Louisville, N. CvT. Ry. Co. v. Postal Cable Co., 68 Miss. 806. . 124 Lumbard v. Stearns, 4 Cush. 60. . 122 PAGE MacFarland v. Orange and New- ark Horse Car R. R Co., 13 N. J- Eq. 17 45 McCormick v. District of Colum- bia, 4 Mackay (D. C.) 396 76 McDonald v. Newark, 10 N. J. Law Journal 84; 49 N. J. Eq. 136 61 McKevitt v. Hoboken, 45 N. J. L. 402 12 McLain v. Brush Electric Light Co., 9 Cin. Bulletin 65 89 McLean v. Chicago, I. and D. R. R. Co., 67 Iowa 568 99 McQuaid v. Portland and Vancou- ver R. R. Co., 18 Oreg. 237. . . . 62, 66, 73, 83, 97, 102 Mahady v. Bushwick R. R. Co., 91 N. Y. 148 15 Manhattan Electric Light Co. v. Grant, Mayor of N. Y., 56 Hun 642 s 8 Marietta and Cincinnati R. R. Co. v. West. Union Teleg. Co., 38 Ohio St. 24 136, 137 Market St. R. R. Co. v. Central R. R. Co., 51 Cal. 583 ... 96 Meadville Fuel Gas Co's Appeal, 4 Atl. Rep. 733 11 Memphis Bell Teleph. Co. v. Hunt, 16 Lea (Tenn.) 456 84 Merchants' Union Barb Wire Co. v. C. B. and Q± R. R- Co., 70 Iowa 105 34 Mersey Docks Trustees v. Gibbs, L. R, 1 H. L. 93, 112 157, IS9 Metropolitan Teleph. and Teleg. Co. v. The Colwell Co., 67 How. Pr.365 7 8 Michener v. Philadelphia, 18 Pa. St. 535 I2 Milburn v. Cedar Rapids R. R. Co., 12 Iowa 246 15 Milhau v. Sharp, 27 N. Y. 611 10, 13. 45. 8 9 Milwaukee and St. Paul R'y Co. v. Arms, 91 U. S. 489 161 Mills v. Armstrong, The Bernina, 13 App. Cas. 1 162 Minturn v. Larue, 23 How. (U.S.) 135 9 174- TABLE OF CASES. PAGE Mortimer v. N. Y. Elev. R. R. Co., 25 N. Y. St. R. S72 62 Morris and Essex R. R. Co. v. Newark, 10 N. J. Eq. 352 71, 99, 101 Mt. Adams and Eden Park In- clined R'y Co. v. Winslow, 20 Week. Bull. 420 18, 107 Muhlenbrinck v. Commissioners, 42 N. J. L. 364... 41 Mutual Union Teleg. Co. v. Chi- . cago, 16 Fed. Rep. 309. . . .36, 38, 50 Nebraska Teleph. Co. v. New York Gas and Electric Light Co., 17 Neb. 284 142, 167 Nelson v. Laporte, 33 Ind. 258. ... 13 Newell v. Minneapolis, Lyndale andM. R. R. Co., 35 Minn. 112. . . 102 New Orleans City R. R. Co. v. Crescent City R.R. Co., 12 Fed. Rep. 308 11 New Orleans Gas Co. v. Louisi- ana Light Co., 115 U. S. 650. ... 8, 9 New Orleans, Mobile and Texas R. R. Co. v. South and Atl. Teleg. Co., S3 Ala. 21 1 134, 137 New Orleans Water Works Co. v. Rivers, 115 U. S. 674 . . v . . . 8, 9 New York and New Jersey Teleph. Co. v. Broome, 50 N. J. L. 432. . 124 New York and New Jersey Teleph. Co. v. Dexheimer, 14 N. J. L. J- 29S New York and New Jersey Teleph. Co. v. East Orange, 42 N. J. Eq. 49° 31.33 New York, L. E. and W. R. Co. v. Steinbrenner, 47 N. J. L. 161. . . 162 New York City and Northern R. R. Co. v. Central Union Teleg. Co., 21 Hun 261 137 New York v. Davis, Mayor of New York, 3 Duer 119 10 Nichols v. Ann Arbor and Y. St. R. R. Co., 87 Mich. 361 97, 103, 118, 119 North Hudson Co. R'y Co. v. Hoboken, 41 N. J. L. 71 41 North Balto. Pass. R'y Co. v. North Ave. R'y Co. (Md.), 23 Atl. Rep. 466-470 113 PAGE Norwich Gaslight Co. v. Norwich City Gaslight Co., 25 Conn. 19 8, 9. 13. 89 N. R. R. Co. v. Garside, 10 Kan. 552 96 O. O. C. and C. G. R. R. Co. v. Larson, 40 Kan. 301 96 Paterson and Passaic H. R. R. Co. v. Paterson, 24 N. J. Eq. 158. . .30, 96 Peck v. Smith, 1 Conn. 103 62 Pelton v. East Cleveland R. R. Co., 22 Week. Bull. 67. . .20, 108, 119 Penn. R. R. Co's Appeal, 115 Pa. St. 514 26 Penna. R. R. Co. v. Lippincott, 116 Pa. St. 472 100 Pennsylvania Teleph. Co. v. Var- nau, 5 Lancaster Law Review 1 , 74 160, 163 Pensacola Teleg. Co. v. West. Union Teleg. Co., 96 V. S. 1 126, 127, 130, 131 People v. Bowen, 30 Barb. 24 89 People v. Gilroy, 9 N. Y. Supp. 686,833 104,118 People ex rel. N. Y. Electric Lines Co. v. Squire, 107 N. Y. 593. ... 56 People v. Kerr, 27 N. Y. 188. . . .96, 98 People ex rel. McManus v. Thomp- son, 65 How. Pr. 407 25, 88, 90 People ex rel. Thompson v. Mc- Manus, 65 How. Pr. 407 25, 90 People v. Mayor, etc., 59 How. Pr. 277 12 People v. McManus, 32 Hun 93 25.90 People v. Metrop. Teleph. Co., 31 Hun 596 46, 49 People v. Mutual Teleg. Co., N. Y. Daily Reg 47 People v. Newton, 112 N. Y. 396. . IS. i°4 People v. O'Brien, m N. Y. 1 . . . . 15 Peoples' Gaslight Co. v. Jersey City, 46 N. J. L. 297 34 Peoples' Pass. Ry. Co. v. Baldwin, 37 Leg. Int. 424 35 Peoples' Pass. Ry. Co. v. Mem- phis, 15 S. W. Rep. 973 to, 15 Peoples' R. R. Co. v. Memphis R. R. Co., 10 Wall. 38 . . . . 30 TABLE OF CASES. 175 PAGE Perry v. New Orleans M. and C. R 'y Co., 55 Ala. 413 16 Perkins v. Moorestown and C. Turnp. Co., 14 N. J. L. J. 197. . . 100 Piddicord v. Baltimore, etc., R. R. Co., 34 Md. 463 96 Pierce v. Drew, 136 Mass. 75 74. 94. "2, 132, 136 Philadelphia v. West. Union Teleg. Co., 11 Phila. Rep. 327 36, 38 Philadelphia v. West. Union Teleg. Co., 2 Wkly. N. C. 455 126 Philadelphia and Trenton R. R. Co. Case, 6 Whart. 25 7, 26 Phillipsburgh v. Central Penn. Tel. Co., 22 W. N. C. 572 41 Pond v. Met. Elev. R. R. Co., 112 ,N. Y. 186 63,64,83, 105 Porter v. Met. Elev. R. R. Co., 120 N. Y. 284 63; 64, 83, 105 Porter v. R. R. Co., 33 Mo. 128. .74, 96 Potter v. Saginaw Union St. R. R. Co., 83 Mich. 285 115 Prather v. West. Union Teleg. Co., 89 Ind. 501 137 Queen v. Charlesworth, 16 Q;. B. 1012 .i3. 8 7 Queen v. Train, 9 Cox. Cr. Cas. 180 87 Quincy v. C. B. and Q^ R. R. Co., 92 111. 21 34 Railroad Co. v. Bingham, 87 Tenn. 522 83, 102 Railway Co. v. Cuykendahl, 42 Kan. 234 96,99 Railway Co. v. Lawrence, 38 Ohio St. 41 97 Randall v. Jacksonville St. R. R. Co., 49 Fla. 409 96 Randle v. Pacific R. R. Co., 65 Mo. 362 45, 97 Reedv. Camden, 53 N.J. L. 322 11 Regina v. Sheffield Gas Co., 22 Eng. Law and Eq. 518 24 Regina v. Sheffield Gas Co., 22 Eng. Law and Eq. 200 87 Regina v. United Kingdom Elec. Teleg. Co., 9 Cox Cr. Cas. 173. 24. 45. 5i Reichert v. St. Louis and S. F. Ry. Co., si Ark. 491 .14.98 PAGE Richmond County Gas Light Co. v. Middletown, 59 N. Y. 228. . . . 13 Richmond F. & R. R. R. Co. v. Richmond, 96 U. S. 521 30 Rinard v. Burlington and W. R. R. Co., 66 Iowa 440 99 Roake v. Am. Teleph. and Teleg. Co., 4iN.J.Eq. 35 76,79 In re Rochester Electric Ry. Co., 123 N. Y. 351 30,34,118 Roberts v. West. Union Teleg. Co., 77 Wis. 589 47, 155 Rocky Mountain Bell Teleph. Co. v. Salt Lake City Railway Co., Utah 144 R. R. Co. v. St. Louis, 66 Mo. 228. 97.99 Ruttles v. Covington, Ky. Ct. of App., 10 S. W. Rep. 644 98 Rylands v. Fletcher, L. R., 3 H. L. 33° 159 Saginawi Gas Light Co. v. City of Saginaw, 28 Fed. Rep. 529. ... 9 Salisbury v. Great Northern R'y Co., 5 C. B. (N. S.) 174-208 44 Salter v. Jonas, 39 N. J. L. 469. ... 62 Savannah v. Savannah and Thun- derbolt R. R. Co., 45 Ga. 602. . 96 Savannah v. Hancock, 91 Mo. 57; 3 S. W. Rep. 215 30 Savannah, Albany and Gulf R. R. Co. v. Shiels, 33 Ga. 6oi 14 Scranton Electric Light Co. v. Scranton, 4 Del. (Pa.) 117. . . .40, 41 Scudder v. Trenton Del. Falls Co., Saxt. 694, 729 122 Sears v. Marshalltown St. R. Co., 65 Iowa 742 15, 96, 99 Sheffield v. Central -Union Teleg. Co., 36 Fed. Rep. 164 156 Sheldon v. West. Union Teleg. Co., 51 Hun 591 161 Sixth Ave. R. R. Co. v. Kerr, 45 Barb. 138 15 Smith v. Central District Printing and Telegraph Co., 3 Ohio Ct. 259 8o Smith v. Metrop. Gas Light Co., 12 How. Pr. 187 89 Smith v. R. R. Co., 87 Tenn. 626. . 83, 102 176 TABLE OF CASES. PAGE Sbuth Carolina R. R. Co. v. Steiner, 44 Ga. 546 65 South Eastern R'y Co. v. E. and A. Electric Printing Teleg. Co., oExch. 363 137 South Western R. R. Co. v. South- ern and Atl. Teleg. Co., 46 Ga. 43 131. 134 Sower v. Philadelphia, 35 Pa. St. 231 33 Springfield v. Conn. River R. R. Co., 4 Cush. 63 98, 100 Stack v. East St. Louis, 85 111. 377 105 Stange v. Dubuque, 62 Iowa 303 . 99 Stange v. Hill and West Dubuque Street R. R. Co., 54 Iowa 669. . 96 Stanley v. Davenport, 54 Iowa 463 IS. 96, 99. J" 2 Starr v. Camden and Atlantic R. R. Co. 4 Zab., 24 N. J. L. 592. . 71 Starr v. Camden and Atlantic R. R. Co., 24 N. J. L. 592 98 State v. Cincinnati Gas Light and Coke Co., 18 Ohio St. 262. .9, 10, 12 State v. Domestic Teleg. and Teleph Co. v. Newark, 49 N. J. L. 344 2 3 State v. Flad, 23 Mo. App. 185. . . 32 State v. Jersey City, 3 Dutch. (27 N.J. L.) 493 33 State v. Laverack, 36 N. J. L. 201 . 61 State v. Milwaukee Gas Light Co., 29 Wis. 454 8,9 State v. Paterson, 45 N. J. L. 267. 33 State v. Postal Teleg. Co., 47 Fed. Rep. 633 122 State, Benson, pros. v. Hoboken, 33 N. J. L. 280 41 State, Broome, pros. v. New York and New Jersey Teleph. Co., 49 N. J. L. 624 31,34 State, Duke, pros. v. Central N. J. Teleph. Co., 53 N. J. L. 341 . . 122, 137 State, Gleason v. Bergen, 33 N. J. L-72 33 State, Green, pros. v. Trenton, 15 N. J. Law Journal 39 ; 23 Atl. Rep. 281 22, 34, 47, 106, 114 State, Halsey, pros. v. Newark, 32 Atl. Rep. 284 ; 15 N. J. Law Jour- nal 45 22, 34, 47, 106, 114 PAGE State, Hoboken Land Imp. Co., pros. v. Hoboken, 35 N. J. L. 208. 7 State, Hunt v. Lambertville, 45 N. J. L- 279 33 State, Montgomery v. Trenton, 36 N. J. L. 79 14,15 State, Paterson v. Barnett, 45 N. J. L. 62 33 State, Story v. Bayonne, 35 N. J. L- 335 33 State, Trenton and N. B. Turnpike Co., pros. v. Am. and European Commercial News Co., 43 N. J. L. 381 122, 123, 124 State, Van Vorst v. Jersey City, 3 Dutch. (27 N. J. L.) 493 33 Stein v. Bienville Water Supply Co., 34 Fed. Rep. 145 9 Sterling's Appeal, m Pa. St. 35. . 13, 14, 88, 89 Stevens v. Middlesex Canal Co., 12 Mass. 466 157 Story v. N. Y. Elev. R. R. Co., 90 N. Y. 122, 179, 189 63, 64, 65, 83, 88, 98, 105 Stowers v. Postal Teleg. Cable Co., Sup. Ct. Miss., 44 Alb., L. J. 133 81 Street Railway v. Cumminsville, ' 14 Ohio St. 524 96, 97 St. Louis v. Bell Teleph. Co., 96 Mo. 623 23, 74 St. Louis v. Bell Teleph. Co., 98 Mo. 622 42 St. Louis v. West. Union Teleg. Co., 39 Fed. Rep. 59 41 St. Louis A. and T. H. R. R. Co. v. Belleville, 20 111. App. 580. . . 10 St. Louis R'y Co. v. Southern R'y Co. (Mo.), 16 S. W. Rep. 690 962 30 St. Paul, etc. R. R. Co. v. Schur- meir, 7 Wall. 272 65 Suburban Light and Power Co. v. Boston, 153 Mass. 447. . . . .31, 32, 40 Taggart v. Newport St. Ry. Co., 16 R. 1.668 17. 79. 82, 93, 97, 109, 115, 118 Tate v. R. R. Co., 64 Mo. 150 96 Teachout v. Des Moines B. G. R. R. Cp., 75 Iowa 722 105 TABLE OF CASES. 177 rr, • „ PAGE Teleg. Co. v. City, 22 W. N. Cas. (Pa-) 39 41 Teleg. Co. v. Teleg. Co., 10 Cine. Week. Bull. 201 128 Teleg. Co. v. Wilt, 11 American Law Journal 374 48 Theobald v. Louisville, etc., R. R. Co., 66 Miss. 279 65, 81, 97 Thomas v. West. Union Teleg. Co., ioo Mass. 156 160, 162 Thompkins v. Hodgson, 2 Hun 146. 88 Thompson v. Sunderland Gas Co. L. R., 2 Ex. Div. 429 87 Tiffany v. U. S. Illuminating Co., 67 How. Pr. 73 ; 50 N. Y. Super. Ct. 280 25, 90, 91 Tissot v. Great South Teleg., etc., Co., 39 La. Ann. 996 84, 85 Tracy v. Troy and Lansingburgh R. R. Co., 54 Hun 550 118 Traphagen v. Jersey City, 29 N. J. L. 206, 246 12 Trenton Horse R. R. Co. v. Tren- ton, S3 N. J. L. 132 42 Turnpike Co. v. A. and E. Com- mercial News Co., 43 N. J. L. 381 122,123,124 United Electric Ry. Co. v. Shel- ton, 14 S. W. Rep. 863 167 U. S. Illuminating Co. v. Grant, 7 N. Y. Supp. 788 56 U. S. Illuminating Co. v. Grant, 55 Hun 222 166 U. S. Illuminating Co. v. Hess, 3 N. Y. Supp. 777; 19 N. Y. St. Rep. 883 5 6 Van Home v. Newark Pass. R. R. Co., 21 Atl. Rep. 1034 7 : i 98 Vose v. Newport St. R. R. Co., 46 Am. and Eng. R. R. Cas 91, 97 Wandsworth District Board of Works v. United Teleph. Co., 13 O.B. D. 904 44,77 Wandsworth District Local Board v. Postmaster-General Nev. and Macn. 301 (Commissioner's De- cisions) . . , 52 Watervliet Turnpike and R. R. Co. v. Hudson River Teleph. Co., 9 N. Y. Supp. 177; 121 N. Y. 397 J 47 PAGE Ward v. Atlantic and Pac. Teleg. Co., 71 N. Y. 81 ; s. c. 27 Am. Rep. 10 159, 166 Wartman v. Phila., 33 Pa. St. 202- 210 61 West Jersey R. R. Co. v. Cape May and S. R. R. Co., 34 N. J. Eq. 164 g6 West v. Bancroft, 32 Vt. 367. . . 12,88 West. Union Teleg. Co. v. Am. Union Teleg. Co., 65 Ga. 160 "7. 134 West. Union Teleg. Co. v. Am. Union Teleg. Co., 9 Biss. 72. . . . 127, 128, 129, 130, 137 West. Union Teleg. Co. v. Atl. and Pac. Teleg. Co., 7 Biss. 367. .129, 136 West. Union Teleg. Co. v. B. and O. Teleg; Co., 22 Fed. Rep. 133. 135 West. Union Teleg. Co. v. B. and O. R. R. Co., 20 Fed. Rep. 572. 137 West. Union Teleg. Co. v. B. and O. Teleg. Co., 23 Fed. Rep. 12. . 135 West. Union Teleg. Co. v. B. and O. Teleg. Co., 19 Fed. Rep. 660 127, 131 West. Union Teleg. v. Burlington and S. R'y Co., 11 Fed. Rep. 1 127, 128 West. Union Teleg. Co. v. Cent. Union Teleg. Co., 3 Fed. Rep. 4 r 7 i3S West. Union Teleg. Co. v. Cham- pion Elect. Light Co., 14 Cin. Week. Bull. 327 142 West. Union Teleg. Co. v. Chi- cago, etc., R. R. Co., 86 111. 246. . 135 West. Union Teleg. Co. v. Eyser, 2 Colo. Ter. 141 161 West. Union Teleg. Co. v. Eyser, 91 U. S. 495 161 West. Union Teleg. Co. v. Levi, 47 Ind- 55 2 l6 3 West. Union Teleg. Co. v. Massa- chusetts, 125 U. S. 530 131, 133 West. Union Teleg. Co. v. New York, 38 Fed. Rep. 552 56, 133 West. Union Teleg Co. v. Phila- delphia, Pa., 12 Atl. Rep. 144. .. . 40 West. Union Teleg. Co. v. Rich, 19 Kan. 517 131, 132, 137 1/8 TABLE OF CASES. PAGB West. Union Teleg. Co. v. St. Jo- seph and W. R. R. Co., I Mc- Crary 569 '35 West. Union Teleg. Co. v. Union Pac. R. R. Co., 1 McCrary 418, 582 138 West. Union Teleg. Co. v. Western and Atlan. R.R. Co., 91 U. S. 283 . 138 West. Union Teleg. Co. v. Wil- liams, 2 Am. R. R. and Corp. Rep. 258; 86 Va. 896 72, 80, 82 Wetmore v. Story, 22 Barb. 414. . 45 Weyl v. R. R. Co., 69 Cal. 203 98 Wichita and C. R. Co. v. Smith, 45 Kan. 264 96, 97, 99 Wiggins v. East St. Louis Ferry Co., 107 III.450 97 Williams v. City Electric R. R. Co., 41 Fed. Rep. 556 102,118 Williams v. Citizens' Ry. Co. (Ind.), 29 N. E. Rep. 408 113 Williams v. Louisiana Light and Power Co., 8 So. Rep. 936 163 Willis v. Erie Teleg. and Teleph. Co., 37 Minn. 347 79 PAGB Wilson v. Gt. So. Teleph. and Teleg. Co., 41 La. Ann. 104. . . . 161 Wilson v. Des Moines, O. and S. R. Co., 67 Iowa 569 99 Winter v. Peterson, 4 Zab., 24 N. J- L. 524 62 Winter v. N. Y. and N. J. Teleph. Co., 51 N. J. L. 83 31, 79, 124 Wisconsin Teleph. Co. v. Eau Claire St. Ry. Co., and Sprague Electric Ry. and Motor Co., (Wis.) i 4S Wisconsin Teleph. Co. v. Oshkosh, 65 Wis. 32 122 White v. Godfrey, 97 Mass. 472.. 12 Wolfe v. Erie Teleg. and Teleph. Co., 33 Fed. Rep. 320 47, 155 Wright v. Nagle, 101 U. S. 791 ... 9 Yates v. Town of West Grafton, 24 W. Va. 783 99 Young v. Rondout and Kingston Gas Co., Dec. 1, 1891, 41 N. Y. St. Rep. 109 149 Young v. Yarmouth, 9 Gra/ 586. 24,46 ELECTRIC WIRES IN STREETS AND HIGHWAYS. Recent Cases on the Principal Topics of the Book. .MUNICIPAL CONTROL.— ELECTRIC LIGHT WIRES. Att'y General, ex rel. Board of Gas Light Comsrs. v. Walworth Light & Power Co., Sup. Judicial Court, Mass., 31 N. E. Rep., 482; Hershfeld v. Rocky Mountain Bell Telephone Co. (Montana), 39 Pac. Rep., 883. UNDERGROUND WIRES. People of New York ex rel. New York Electric Line Co. v. Squire, U. S. Sup. Court, 36 U. S. Sup. Court Rep. (L. Coop. Ed.), 473 TELEPHONE LINES AS AN ADDITIONAL BURDEN. Bashfield v. Efnpire State Telephone & Teleg. Co., N. Y. Sup. Ct., 18 N. Y. Sup., 250. Pacific Postal Teleg. Cable Co. v. Irvine, U. S. C. C. S. D. Cal. 49 Fed. Rep., 113. Hershfeld v. Rocky Mountain Bell Telep. Co. (Montana), 39 Pac. Rep., 883. ELECTRIC RAILWAY NOT AN ADDITIONAL BURDEN.— CROSSING STEAM RAILWAY. Rafferty v. Central Traction Co. (Penna.), 23 Atl. Rep., 884. Buffalo R. & P. Ry. Co. v. Du Bois Traction Pass. Ry. Co., Penna. Sup. Ct., 24 Atl. Rep., 179 Saginaw v. Union Street Ry. Co., Mich. Sup. Ct., 52 N. W. Rep., 49. NEGLIGENCE. Graham v. Boston (Mass. Sup. Jud. Ct.), 30 N. E. Rep., 170. Bouget v. Cambridge (Mass. Sup. Jud. Ct.), 31 N. E. Rep., 390. Clements v. Louisiana Electric Light Co. (La. Sup. Ct), 11 So. Rep., 51 Hackett v. Western Union Teleg. Co., 80 Wis., 187. Flood v. Western Union Teleg. Co., N. Y. Court of Appeals, 43 N. Y. St. Rep., 302, reversing S. C, 39 N. Y. St. Rep., 674, referred to in Chapter XI, Section 11. TELEGRAPHS. ON RAILROADS. Postal Teleg. Cable Co. v. Norfolk & W. R. R. Co. (Va. Sup. Ct.), 16 Va. L. T., 222. 14 S. E. Rep., 803. Franklin Teleg. Co. v. Harrison, U. S. Sup. Ct, 36 U. S. Sup. Ct. Rep (L. Co-op. Ed.), 199. Newark, N. J., August 8, 1892. INDEX. [Figures refer to pages, not sections.] Abutter. See Abutting Land- owners. Abutting Landowners. Electric Light Wires — Chapter on, 89. Consent to, 89. Electric railway — Chapter on, 92. Certiorari, 113. Rights with respect to, 20, 21, 22, 92, 104, in, 112, 115, 116. General view of rights of, in the streets — Chapter on, 59. Gas pipes in the streets, 87. Horse railroads, 93, 98. Rights of, in the streets — General view, 59. Rights of, in the streets, 4, 18, 59, 61/62, 90, », 92, 119, 120. (See other subtitles.) Steam railroads, 70, 98, 101. Telegraph and telephone — Chapter on, 69. Rights with respect to, 69, 82, no, 132. Telegraph on a railroad, 136. Underground wires, 83, 86. Urban and suburban streets, 87. See Electric Railway; Electric Light ; Telegraph and Tele- phone; Adjacency; Fee; Streets ; Title. Access, Light and Air. See Ad- jacency, Abutting Landown- ers. Adjacency. Damages for interference with right of, 83,85, 91- Right of, defined and discussed 4, 62, 63, 64, 65, 66, 67, 84, 85. Adjacency — Continued. Right of, with respect to the Elec- tric Railway, 66, 92, 107, 116. Right of, with respect to electric light wires, 66, 91. Rights of, with respect to lands condemned for railroad and canal, 136. See also Abutting Landowners. Authority. By which the streets may be used for electric wires, 7. To set up poles and wires — subject to condition that they shall not in- terfere with public travel, 154. See Municipal Corporations; Municipal Control; Legisla- ture; Common Council. Awnings. Municipalities may authorize or for- bid, 12. Use of streets for, 115. Bell, Graham. Specifications of claim in telephone cases, 122, n. Board of Works. Title of, to the street, power over telegraph wires, 44. Cable Railway. Use of streets for — Rights of abut- ting owner, 103. California. See Statutes. Certiorari. To review ordinance consenting to poles and wires, 113. Change of Motive Power, 17, 18, 19, 20. Circuit. Electric, through the earth or return wires, 139-141. (179) i8o INDEX. Cisterns. In the streets, 12. Cities. See Municipal Corpora- tions. Commerce. Regulation of, 127. Common Council. Ordinance or resolution, consent of by, 17-23- Consent to poles and wires for elec- tric railway, 16-23. See Municipal Corporations. Compensation. Must be made for use of post road, 131- When it must be made, 4. See Abutting Landowners. Condemnation. Designation of streets as a condi- tion precedent, 124. Failure to condemn as a condition precedent, 123. Petition for with respect to tele- graph line, 79, n. Post roads for telegraph purposes, 129-132. Private rights for lines of electric wire — Chapter on, 120. Private rights only need be con- demned, 122. Right of way for a railroad, 136. Right of way for a turnpike, 123. Right of way for a telegraph, 137. Right acquired only such as is neces- sary, 123. .. See also Abutting Landowners. Condition Precedent. Grants subject to, 29, 31. To right to use poles — What may not be insisted on, 3. See Condemnation. Conditional Grant of Legisla- tive Authority, 29. Conditions. What may not be imposed as the price of municipal consent, 32. What may be imposed for use of streets for electric wires, 32. See Condition Precedent. Conductors on Horse Cars. Ordinance requiring, 42, ». Conflicting Uses of Electric Wires. Chapter on, 139. Interference of electric currents, 5. Congress. Act of, relating to telegraphs on post roads, 125, 130. Connecticut. Statutes relating to underground wires, 54. Statutes relating to condemnation, 120. Statutes relating to use of streets for electric wires, 29. Consent. Municipal, conditions of, 3, 28. By ordinance or resolution, 17-23. Of local authorities, 28. Consent of Landowners. As a prerequisite to proceedings to condemn, 118. To telegraph and telephone lines, 71-78. Contributory Negligence. See Negligence. Controversies. With owners of lands, 59. Cooley, Judge. Views of, as to horse railroads as Author Vol. Keasbey, Edward Q,uinton Title Copy The law of electric wire in sir eel: and highways. Date Borrower's Name ■3,