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C * * * & ºr * * * * ºf * - ºr * * * * * * * * * * * * * ºr sº , º : - - º º º ſº º * - - - . . . . - * , ºf . C - ... ." * : * * : ; ; ; ; - ::: , ; : - º G - º * * * - - - - - : * > - CICICI CºrºCºrºcºcºcºcºccº cººr & sº • * *- : - “S * TYP- - --—---------- ... I'm it # s ſ ºuTTTTTTTTTT Fºº); H LIBRARYºº YoF THE tnIVERSITYºu'lliºn J.E. §º : . * FräT; ; Jºſiº.jºſº.º. º. § %o % º %32:º : -º º: ſ i N s º f H ſº rº Lº " º +. Mº'. Lºſ Jº, Jº Jº Jº Jº Jº. J/ Nº.º. º.º.º.º. "...º. ºf Nº UR'ſ Aº Aº ſº), Jº Jº.º. -- - - --------—-——º º ; ||||||||||||||||||||||||||||||||||||rº tº ſº tº º ºr cººl º ºx tº tº º ſº º º ſº º ºs º gº º ºr ſº tº gº º sº sº tº º º ºr e º sº tº tº ſº º ºsº G mºl TT : | i - - -:. A TREATISE ON T E L E G R A P H L A W BY ſ \sº willLAM w. COOK OF THE NEW YORK BAR Author of . . COOK ON CORPORATIONS GENERAL COUNSEL THE MACKAY COMPANIES THE COMMERCIAL. CABLE COMPANY PoSTAL TELEGRAPH-CABLE COMPANY COMMERCIAL PACIFIC CABLE CoMPANY Copyright, 1930 BY WILLIAM W. COOK : ; : ; i & Set up, electrotyped and presswork by Wm. Siegrist, Inc. New York City, N. Y. . … - " … . f ſ ; ſ * *_- 3. '. *-*** ~) | * L- ;" > - 2/Y () - y F. ſ - y * : . . . " - | /* 94-3 - | \ | 2 ; º ... " . . * , 's ; "-- * , ! } . ,ff Pºi 2. --~~ ; V # * * ~~~ -- ! ~~ ... --" > . # - ‘’’ J.99. Cº. 64-0 °- / " ' … . / . . . . . . - - i 1. , * - --" + - -- .* ** .. - A. : ... \ 0 - 2c - 3 & , rº, º O … . . . . " oº. *** * $º - an ; c. .. . . . - : - - yºf - *** ‘. } - º . . . . . . i ; : --- } s This little book on Telegraph Law is printed for the benefit of the legal and executive staff of the Postal Telegraph-Cable Company. It is practically a reprint of Chapter 56 of the Seventh Edition of my - work on corporation law, published in 1913, but it is enlarged by the addition of decisions which have been handed down since that date, and by the principles of law which have been established or extended by those decisions. It does not treat of damage claims, growing. Out of delay or error in the transmission of telegrams, one reason being that that subject is in a transition stage, so far as the law is con- cerned. Another reason is that the Supreme Court of the United . - States has just decided, in the Warren-Godwin Lumber Company case, that the Acts of Congress now control the subject of these dam- age claims, to the exclusion of local statutes and decisions, so far as interstate telegrams are concerned, and hence I have not included in this book the bewildering maze of conflicting decisions on that subject in the forty-eight states of the Union. Dated, J anuary 15th, 1920. WILLIAM W. COOK. A º ! * * * . . . / *- _ _2^ *.* --> - * - yº, } % / …~" 3 Zi ... * f * , a - * A 2. A / r - / 2. {A / e5, A/ & 29 Z_i ^ &/ ^ -- ~ */2: ~~ $10. $11. $12. CONTENTS . Are abutting property owners entitled to damages for the construction of a telegraph line on a highway? . Telegraph lines on railroads—Condemnation—Exclusive contracts—Turn- pikes and bridges. . A state or municipal corporation may regulate, but cannot forbid, the Con- struction of a telegraph line On highways. . Tree claim.S. . Accidents from telegraph poles, wires, and electric current—Liability of municipalities—Liability of corporation for injuries caused by its poles—Liability of corporation for injuries caused by its wires—Lia- bility of corporation to its own employees—Poles and wires of one company interfering with those of another—“Induction” and “con- duction.” . Taxation and license fees levied upon telegraph companies. . A telegraph Company must Serve all Who apply—Discriminations—Tele- graph rates. . Compelling production of telegraph messages. . Consolidation, lease, or sale of a telegraph line—Is a telegraph line per- Sonal property? Subways. Cables. Jurisdiction of United States courts in telegraph cases. iii TABLE OF CASES. [The numbers after the dash refer to the page of the text.] Aaron v. Missouri, etc. Tel. Co., 131 Pac. 582 — 110. Abbott v. City of Duluth, 104. Fed. 833; aff’d 117 Fed. 137 — 78. Acme, etc. Co. v. American, etc. Co., 167 S. W. 183 — 3. - Adams v. Central, etc. Ry., 38 Ind. App. 607 — 141. Adams v. Syracuse, etc. Co., 137 N. Y. App. Div. 449 — 97. Adams Exp. Co. v. Boldrick, 141 Ky. 111 — 173. - - Adams Express Co. v. Indiana, 165 |U. S. 255 — 165. Adams Express Co. v. Ohio, 165 U. S. 194 — 165. - Agency of Canadian, etc. Co., Ltd. v. American Can Co., 253 Fed. 152, 157 — 205. Agincourt, etc. Co. v. Eastern, etc. Tel. Co., [1907] 2 K. B. 305 — 219. Ahern v. Oregon Tel. Co., 24 276 — 126. Alabama, etc. Co. v. Cumberland Tel. & Tel. Co., 88 Miss. 438 — 24, 39, 48. Alaska, Min. Co. v. Whelan, 168 U. S. 86 — 139. - - Albany v. Watervliet, etc. R. R., 76 Hun 136 — 125. - Albina Ferry Co. v. The Imperial, 38 R’ed. 614 – 217. . - Alcorn v. Newark, etc. Co., 235 — 5. Allegheny v. Gas, etc. Co., 172 Pa. St. 632 — 76, 177. Allegheny County, etc. Co. v. Booth, 216 Pa. St. 564 — 212. Allen v. Atlantic & Pac. Tel. Co., 21 Hun, 22 — 107. Allen v. Pullman's, etc Co., 191 U. S. 171 — 169. Allentown v. Western U. Tel. Co., 148 Pa. St. 117 – 168, 177. Oreg. 48 Atl. Altpeter v. Postal Tel.-Cable Co., 24 Cal. Dec. 274 — 97. - - Ambre v. Postal Tel., etc. Co., 43 Ind. App. 47 — 131. - - American Atlantic-Cable Tel. Co. Mat- ter, 14 Opinions of Attorney-general, 62 — 215. American, etc. Co. v. Acme, etc. Co., 181 S. W. 257 — 17. - American, etc. Co. v. P.Gersh, 27 Tex. Civ. App. 127 — 116. American, etc. Co. v. St. Louis, etc. Ry., 202 Mo. 656 — 39, 49. American, etc. Tel. Co. v. Oldham, 148 Ey. 320 — 118. American Ex. Co. v. U. S., 212 U. S. 522 — 193. American Exp. Co. v. U. S. Horse Shoe Co., 244 U. S. 58 — 183. American Mfg. Co. v. City of St. Louis, 250 U. S. 459 — 169. American Rapid Tel. Co. v. Connecti- cut Tel. Co., 49 Conn. 352 – 186. American R. Tel. Co. v. Hess, 125 N. Y. 641 — 209. American Tel. & Tel. Co. v. Pearce, 71 Mol. 535 — 31. - American Tel. & Tel. Co. v. Secretary. of State, 159 Mich. 195 — 24, 68, 73, 95, 164, 208. American Tel. & Tel. Co. v. State Roads Comm., 106 Atl. 260 – 65, 179. - American Tel. & Tel. Co. v. Town of New Decatur, 176 Fed. 133 — 92. American Tel., etc. Co. v. Millcreek Tp., 195 Pa. St. 643 – 86. American Tel., etc. Co. v. Morgan, etc. CO., 138 Ala. 597 — 151. American Union Tel. Co. v. Bell Tel. Co., 10 Central L. J. 438; s. c., 11 id. 357, and 22 Alb. L. J. 363 — 186. American Union Tel. Co. v. Harrison, 31 N. J. Eq. 627 – 74. TABLE OF CASES. [The numbers after the dash refer to the page of the text.] American Union Tel. Co. v. Middleton, 80 N. Y. 408 — 26, 208. Amos v. Postal Tel., etc. Co., 80 S. 293 — 178. - Anderson v. Inland Tel. & Tel. Co., 19 Wash. 575 — 139. Andrews v. Delhi, etc. Co., 36 N. Y. Misc. Rep. 23; aff’d, 66 N. Y. App. Div. 616 — 17. Anglea,’s Adm’X v. East Tennessee Tel. Co., 142 Ky. 539 — 132. Anglin v. American, etc. Co., 109 N. Y. App. Div. 237; aff’d, 186 N. Y. 590 — 136. Annapolis, etc. Co. v. Fredericks, 109 Md. 595 — 1 23. Anthony v. Cass County Tel. Co., 165 Mich. 388 — 124. Appeal of New York, N. H. & H. R. R., 80 Conn. 623 — 211. Arkansas, etc. Ry. v. Stroude, 77 Ark 109 — 30. \ Arkansas Tel. Co. v. Ratteree, 57 Ark. 429 — 112. - Armour, etc. Co. v. Lacy, 200 U. S. 226 — 169, 176. Armstrong v. Grant, 46 Hun, 226 – 209. Ascher v. South Shore, etc. Co., 144 N. Y. App. Div. 234 — 18. Ashcroft v. Hammond, 197 N. Y. 488 — 203. Ashland, etc. Co. v. City of Ashland, 217 Fed. 158 — 92, 22.1. Atchison, etc. Ry. v. O’Connor, TJ. S. 280 — 182. 223 Atchison, etc. Ry. v. State, 23 Okl 231 — 30. - Atchison, etc. Ry. V. United States, 170 Fed. 250; rev’g #63 Fed. 111 — 187. Atlanta Tel. & Tel. Co. v. Cheshire, 78 S. E. 53 — 122. Atlantic, etc. Co. v. Consumers’, etc. Co., 70 N. J. Eq. 536 — 80, 151. Atlantic, etc. Co. v. Mayor, etc., 133 Ga. 66 — 171. Atlantic, etc. Co. v. Philadelphia, 190 U. S. 160 — 177, 211. - Atlantic, etc. Co. v. Zimmermann, 182 N. Y. App. Div. 862 — 201, 220. Atlantic, etc. R. R. v. Postal Tele- graph-Cable Co., 120 Ga. 35, 48. Atlantic, etc. Tel. Co. v. Chicago, etc. R. R., 2 Fed. Cas. 176; s. c., 6 Biss. 158 — 46. Atlantic, etc. Tel. Co. v. Union Pac. Ry., 1 Fed. 745 – 59, 206. Atlantic, etc. Tel. Co. v. Western Un- ion, etc. Tel. Co., 4 Daly 527 – 202. Atlantic Coast Line v. Wharton, 207 U. S. 328 — 194. Attorney-general, etc. v. Attorney-gen- eral, 110 L. T. Rep. 484 – 221. Attorney-general v. United, etc. Co., 30 Beav. 287 — 287 — 94. Augusta Ry. V. Andrews, 89 Ga. 653 — 130. 268 — 12, Tel. B . Baetz v. Valentine-Clark Co., 140 N. W. 54 — 139. - Bailey v. Bell Tel. Co., 147 N. Y. App. Div. 224 — 107. Bailey v. Stafford, Inc., 178 N. Y. App. Div. 811 – 57. Baldwin v. Postal, etc. Co., 78 S. C. 419 — 22. Baltic Min. Co. v. Mass., 231 U. S. 68 — 163. Baltimore & O. Tel. Co. v. Western Union Tel. Co., 24 Fed. 319 — 60. Bamberg v. International Ry. Co., 121 N. Y. App. Div. 1 — 125, 150. Bank of Kentucky v. Kentucky, 207 U. S. 258 — 182. r Banks v. Highland St. Ry., 136 Mass. 485 — 73. Bannse v. Northern Pacific Ry., 205 Fed. 328 — 14. Barber v. Hudson River Tel. Co., 105 N. Y. App. Div. 154 — 18, 23, 50, 99. Barker v. Boston, etc. Co., 178 Mass. 503 — 133. Barney v. Metropolitan St. Ry., N. Y. App. Div. 388 — 111. Barrett v. City of New York, 232 U. S. 14; rev’g 189 Fed. 268 — 168, 223. Barrett v. New England, etc. Co., 201 Mass. 117 — 142. . Barrett v. Third, etc. H. R., 45 N. Y. 628 — 147. Bartelt v. Smith, 145 Wis. 31 — 209. 94 vi TABLE OF CASES. • [The numbers after the dash refer to the page of the text.] Barto v. Iowa, etc. Co., 126 IOWa. 241 — 131. Baxter Tel. Co. v. Cherokee, Assoc., 146 Pac. 324 – 80. Bean v. Maine Water Co., 92 Me. 469 — 106. Beaning v. South Bend, etc. Co., 45. Ind. App. 261 — 131. - Beasley v. Texas, etc. Ry., 191 U. S. 492 — 80. Beaver County v. Central, Co., 219 Pa. St. 340 — 65. Becker v. Lebanon, etc. . Ry., 188 Pa. St. 484 — 15. Beekman v. Third Avenue R. R., 153 N. Y. 144, 158 — 75, 82. - Bell v. Kanawha Traction, etc. CO., 98 S. E. 885 — 187. Bell, etc. Co. v. Parker, 187 N. Y. 299 — 99. • Bell Tel. Co. v. Belleville E1. Light Co., 12 Ont. Rep. 571 — 151. .* Bell Tel. Co. v. Commonwealth, 3 Cen- tral Rep. 907, 17 W. N. C. 505 — 186. - - |Bell Tel. Co. v. Detharding, 148 Fed. 371 — 129. Bell Tel. Co. v. Hazelton, 67 Pa. Sup. Ct. 264 — 179. Bell, etc. Co. v. Parker, 187 N. Y. 299 etc. Tel. — 24, 41. Bellevue v. Bellevue Co., 65 Neb. 52 — 89. Bellevue Borough v. Manufacturer's, etc. Co., 86 Atl. 187 -— 83. Benedict v. Western Union Tel. Co., 9 Abb. N. C. 214 — 206. Benedicto v. West India, etc. Tel. Co., 256 Fed. 417 — 216. Benjamin v. American T. & Tel. Co., 196 Mass. 454 – 20, 21. Benthin v. N. Y. C., etc R. R., 24 N. Y. App. TJiv. 303 — 146. Bentley v. Missouri, etc. Co., 142 Mo App. 215 — 119. Berks, etc. Road v. American Tel. & - CO., 87 Atl. 580 — 65. Berley v. Western Union, etc. Co., 82 S. C. 360 — 146. - Bernier v. St. Paul, etc. Co., 92 Minn. 214 — 143. Berry v. Cumberland, etc. Co., 95 Minn. 729 — 134. etc., Berry v. Pullman Co., 249 Fed. 816 – . 148. Bertuch v. United States, etc. Cable Co., 79 N. Y. Misc. 10 — 220. Betz v. Kansas City, etc. Co., 121 Mo. App. 473 — 98. Bevis v. Vanceburg, etc. Co., 121 Ky. 177 – 106. - - . Biddle v. Leavenworth, etc. Co., 87 Kan. 604 — 132. - Billings, etc. Co. v. Rocky Mountain, etc. Co., 155 Fed. 207 — 184. Birmingham Ry., etc. v. Cockrum, 60 S. 304 — 154. • , Birmingham T. Co. v. Southern, etc. Tel. CO., 119 Ala. 144 — 152. Bishop v. Rocky Mt., etc. Tel. Co., 33 Utah, 464 — 117. Blackburn v. Southwest, etc. R. R., 167. S. W. 457 — 124. Blair v. Chicago, 201 U. S. 400, 487 — 4. Blanchard v. Western Union Tel. Co., 60 N. Y. 510 — 219. - Blashfield v. Empire State Tel. & Tel. Co., 147 N. Y. 520; rev’g 71 Hun, 532 – 5, 10, 41. - Bliss v. Ball, 99 Mass. 597 — 102. Blust v. Pacific, etc. Co., 48 Oreg. 34 — 146. Board Of Public Works v. Denver Tel. Co., 28 Colo. 401 — 72. Board of Trade v. Cella Commission Co., 145 Fed. 28 — 199. Board of Trade v. Christie, etc. Co., 198 U. S. 236 — 199. Board of Trade v. Hadden-Krull Co., 109 Fed. 705; aff’d, 124 Fed. 1017 – 200. . Board of Trade v. O'Dell, etc. Co., 115 Fed. 574 – 200. Board of Trade v. Tucker, 203 Fed. 288 — 199. Board of Trade v. Tucker, 221 Fed. 300; modified in 221 Fed. 305 — 199. Board of Trade, etc. Co. v. Darst, 192 Ill., 47 — 11, 36. - Board of Trade, etc. v. L. A. Kinsey Co., 130 Fed. 507 — 199. Board Of Trade, etc. v. Thomson, etc. CO., 103 Fed. 902 — 200. vii TABLE OF CASES. * [The numbers after the dash refer to the page of the text.] Board of Trade Tel Co. v. Barnett, 107 III. 507 — 4, 10, 37, 98. Boise, etc. Co. v. Boise City, 213 U. S. 276 — 172, 182, 222. Boland v. Washtenaw, etc. Tel. Co., 161 Mich. 315 – 98. Bolender v. Southern Michigan Tel. Co., 148 N. W. 697 — 98. Borell v. Cumberland Tel. & Tel. Co., 63 S. 247 — 132. - Borough of Kittanning v. American, etc. Co., 86 Atl. 717 — 83, 179. Borough of New Hope v. Postal, etc. Co., 202 Pa. St. 532 — 178. Borough of Taylor v. Postal, etc.. Co., 202 Pa. St. 583 — 178. Boston, etc. Co. v. Bankers’, Co., 36 Fed. 288 — 206, 208. Boston, etc. Co. v. Boston, etc. Co., 184 Mass. 566 – 93, 213. Bourget v. Cambridge, 156 Mass. 391 — 105. - Bowerman v. Inter-Ocean, etc. Co., 121 N. Y. App. Div. 22 — 22. Bowling Green, etc. CO. Exx, 142 Ky. 678 — 132. Boyce v. Missouri Pacific R. R., 168 MO. 583 — 16. Boyd v. Portland, etc. Co., 37 Oreg. 567 — 114. Boyd v. Portland, etc. Co., 40 Oreg. 126 — 114. Bradley v. City of Richmond, 227 U. S. 477 — 169. - Bradley v. Degnon Con. Co., 224 N. Y. 60 — 8. Bradley v. Southern N. E. Tel. Co., 66 Conn. 559 — 98. - Brahan v. Meridian Home Tel. Co., 97 Miss. 326 — 98. Brammer v. Iowa Tel. Co., 165 N. W. 117 — 2. Bremer v. Manhattan Ry. Co., 191 N. Y. 333 — 18. - Britton v. Central, etc. Co., 131 Fed. 844 — 140. Bronson v. Albion Tel. Co., 111 — 5, 25, 40, 98. Brooklyn City R. R. v. New York, 199 U. S. 48 — 169. - Brooklyn Elevated R. R. v. City of Brooklyn, 2 N. Y. App. Div. 98– 88. etc. Tel. 67 Neb. ^). Dean’s Brooklyn, etc. R. R. v. Nagel, 75 Hun, 590; aff’d, 150 N. Y. 562 — 23, 40. Broome v. New York, etc. Tel. Co., 42 N. J. Eq. 141 — 5. - Brown v. Consolidated, etc. Mo. App. 718 – 115. Brush El. L. Co. v. Kelley, 126 Ind. 220 — 112. Brush, etc. Co. v. Consol., etc. Co., 60 Hun, 446; aff’g 15 N. Y. Supp. 81 — 210. - Buckwalter v. Atchison, etc. Ry., 64 Kan. 403 — 16. - Buncombe, etc. Tel. Co. v. McGinnis, 109 N. E. 257 — 10. Riinke a New York, etc. Co., 110 N. Y. App. Div. 241, aff’d 188 N. Y. 600 — 17, 20. Burch v. Caden Stone Co., 93 Fed. 181 — 113. - Burleson v. Dempcy, 250 U. S. 191 — 198. Burlington Light & Power Co. v. Bur- lington, 106 Atl. 513 — 9. Burns v. City of Emporia, 63 Kan. 285 — 114. Burns v. Telephone Co., 10, O. C. C., N. S. 307 – 6. Burrall v. American, etc. Co., 224 266 — 15. Burton v. Cumberland T. & T. Co., 1.18 S. W. 287–108. - Butler v. Frontier Tel. Co., 109 N. Y. App. Div. 217; aff’d, 186 N. Y. 486 — 8. * Co., 137 III. C Cain. v. Western Union Tel. Co., 18 Cin. Week. Bull. 267; S. c. 2 Am. Elec. Cas. 381 — 199. California. etc. Co. v. Alta, etc. Co., 22 Cal. 398 — 67. Callen v. Columbus, etc. Light Co., 66 Ohio St. 166 – 6. - Calor, etc. Co. v. Franzell, 128 Ky. 715 — 62. - Campbell v. Chicago, etc. R. R., Iowa, 587 — 191. Campbell v. United Rys. Co., 243 Mo. 141 — 118. - - Campbell v. Southwestern Tel. & Tel. Co., 158 S. W. 1085 — 31. 86 Viji TABLE OF CASES. [The numbers after the dash refer to the page of the text.] Campbellsville Tel. Co. v. Lebanon, etc. Tel. Co., 118 Ky. 277 – 57. Canadian Pacific Ry. V. Moosehead Tel. Co., 106 Me. 363 — 38. Canadian Pac. Ry. v. Western Union Tel. Co., 17 S. C. of Can. 151 – 61. Capital Gas, etc. Co. v. Davis’ Adm'r, 138 Ky. 628 — 132. Cargill Co. v. Minnesota, 180 U. S. 452 – 71, 80. - Carpenter v. Capital, etc. Co., 178. Ill. 29 — 4. Carpenter v. Oswego, etc. R. R., 24 N. Y. 655 — 15. Carr v. Burke, 183 N. Y. App. DiV. 361 — 144. Carroll v. Western Union Tel. Co., 160 Mass. 152 – 143. Carrollton Tel. Co. v. Spicer, 197 S. W. 827 — 19, 21. Carter v. New York El. R. R., 134 N. Y. 168 — 12. Cartwright v. Liberty Tel. Mo. 126 – 98. Carver v. State, 11 Ga. App. 22 — 72, 86. Castle v. Bell, etc. Co., 49 N. Y. App. Div. 437 – 9, 213. Cataract, etc. Co. v. City of Buffalo, 131 N. Y. App. Div. 485 — 90. Cater v. Northwestern Tel. Exch. CO., 60 Minn. 539 — 2. Central Dist., etc. Co. v. Borough Homer City, 89 Atl. 681 — 78. Central District, etc. Tel. Co. v. Pitts- burg, etc. R. R., 55 Pa. Sup. Ct., 237 – 90, Central, etc. Co. v. Averill, 199 N. Y. 128 — 62, 67. - Central, etc. Co. v. City of Conneaut, 167 Fed. 274 — 103. Central, etc. Co. v. Sakola, 34 Ind. App. 429 — 115. Central, etc. Co. v. Swartz, 119 N. E. 990 — 172. - Central, etc. Co. v. Wilkesbarre, etc. Ry., 11 Penn. Co. Ct. Rep. 417; s. c. 1 Pa. Dist. Rep. 628 — 87, 158. Central, etc. R. R. v. Western Union T. Co., 3 Fed. 417 — 59. Central of Georgia. Ry. v. Wright, 207 U. S. 127 — 165. Co., 205 Of Central Trust Co. v. Third Avenue R. R., 180 Fed. 710 — 182. Central Union Tel. Co. v. Bradbury, 106 Ind. 1 — 185. Central Union Tel. Co. v. State, 118 Ind. 194 — 185. - Central Union Tel. Co. v. State, 123 Ind. 113 — 185. Chaffee v. Tel. & Tel. Co., 77 Mich. 625 — 120. . Chace Trucking Co. v. Richmond Light, etc. Co., 225 N. Y. 435 — 86. Chalmers v. Paterson, etc. Co., 66 N. J. L. 41 — 110. Chamber of Commerce v. Wells, 100 Minn. 205 — 199. Chamberlain 49. IOWa. Tel. Iowa, 619 — 77. Charleston, etc. Ry. V. Thompson, 234 U. S. 576; rev’g 13 Ga. App. 528 — 193. Chaunt v. Clinton, etc. Co., 130 Wis. 533 — 113. Chesapeake & Potomac Tel. Co. v. State Roads Commission, 106 Atl. 257 — 65, 178. - Chesapeake, etc. Co. v. Mayor, etc., 89 MCI. 689 — 214. - Chesapeake, etc. Co. v. Mayor, etc. of Baltimore, 90 Md. 638 — 214. Chesapeake, etc. Tel. Co. v. Baltimore & Ohio Tel. Co., 66 Md. 399, 414 — 186. Chesapeake, etc. Tel. Co. v. Goldsbor- Ough, 125 Md. 666 — 102. ' Chesapeake, etc. Tel. Co. v. Macken- zie, 74 Md. 36 — 4, 11, 39. Chesapeake, etc. Tel. Co. v. State Roads Comm., 103 Atl. 447 — 178. Chester v. Philadelphia, etc. Tel. Co., 148 Pa. St. 120 — 177. - Chicago, B. & Q. Ry. v. Babcock, 204 U. S. 585 — 165. Chicago, etc. Bridge Co. v. Pacific M. Tel. Co., 36 Kan. 113 — 66. Chicago, etc. R. R. v. Chicago, 166 C. S. 226 — 52, 87. * * Chicago, etc. R. R. v. Darke, 148 Ill. 226 — 160. - Chicago, etc. R. R. v. Hulbert, 205 |Fed. 248 — 121. - Chicago, etc. Ry. Co. v. Babcock, 204 U. S. 585 — 166. : Co., 119 ix TABLE OF CASES. [The numbers after the dash refer to the page of the text.] Chicago, etc. Ry. v. Minneapolis, 232 U. S. 430 — 87. Chicago, etc. Ry. v. State, 24 Okla. 370 — 195. Chicago, etc. Ry. V. Stein Co., 233 Fed. 716 — 183. Chicago, etc. Ry. v. United States, 219 U. S. 486 — 187. Chicago, etc. Tel. Co. v. Tupe Tel. Co., 137 Ill. App. 131 — 208. Chicago Union Traction Co. v. State Board, etc., 114 Fed. 557 — 166. Choctaw, etc. R. R. v. Harrison, 235 |U. S. 292 — 176. Cincinnati, etc. Co. v. Archdeacon, 80 Ohio St. 2'ſ — 13'ſ. Cincinnati, etc. Co. v. Kress, 70 W. Va. 201 — 11. Cincinnati, etc. Co. v. Wilson, 70 W. Va. 157 — 11. Citizens’, etc. R. R. v. Batley, 159 Ind. 368 — 117. Cincinnati, etc. U. S. 336 — 52. Citizen’s Elec. L. Co. v. Sands, Mich. 551 — 91. - City Electric St. Ry. v. Conery, 61 Ark. 381 — 122. Citizens’ Tel. Co. v. Wakefield, .126 S. W. 127 — 132. City of Altoona v. O’Leary, 98 Atl. 798 — 180. - City of Bradford v. New York, etc. Co., 206 Pa. St. 582 – 76, 79. City of Bradford v. New York, etc. Co., 206 Pa. St. 582 – 93. City of Bradford v. Postal Tel. Co., 11 Ry. & Corp. L. J. 54 — 164. City of Birmingham v. Carle, 68 S. 22 — 105. City of Brownwood v. Brown Tel. & Tel. Co., 157 S. W. 1163 — 78. City of Brownwood v. Brown Tel. & Tel. Co., 152 S. W. 709–78. City of Butte v. Montana, etc. Tel. Co., 148 Pac. 384 — 210. City of Chicago v. Chicago Tel. Co., 230 III. 157 — 180. City of Columbus v. Columbus. Gas Co., 76 Ohio St. 309 – 83. City of Danville v. Thornton, 110 Va. 541 — 139. Ry. v. Connersville, 95 City of Dawson v. Dawson Telephone Co., 137 Ga. 62 – 81. City of Denver v. Sherret, 88 Fed. 226 — 103, 107. City of Des Moines v. Iowa Tel. Co., 162 N. W. 323 — 2, 172. City of Erie v. Erie Traction Co., 222 Pa. St. 43 — 207. City of Fremont v. Postal Tel.-Cable Co., 172 N. W. 525 — 174. City of Ft. Smith v. Hunt, 72 Ark. 556 — 170. City of Ft. Worth v. Williams, 55 Tex. Civ. App. 289 – 119. City Of Grand Island v. Postal Tele- glapli-Cable Co., 92 Neb. 253 173. City of Greenville v. Pitts, 102 Tex. 1 — 127. City of Kansas City v. File, 60 Kan. 157 — 117. City of Jamestown v. Home Telephone Co., 125 N. Y. App. Div. 1 — 75. City of Johnstown v. Wade, 30 N. Y. App. Div. 5 — 24, 40. City Of Renosha, v. Renosha, Home Tel. Co., 149 Wis. 338 — 83. City of La Crosse v. La Crosse Gas, etc. Co., 145 Wiš. 408 – 83, 168. City of Lancaster v. Briggs, 118 Mo. App. 570 — 81. City of Leavenworth v. P&an. 58 — 172. City of Logansport v. Smith, 47 Ind. App. 64 — 131. City of Louisville v. Bannon, 99 Ry. 74 — 89. City of Louisville v. Cumberland Tel. & Tel. Co., 224 U. S. 649 – 93. City of Louisville v. Pooley, 136 Ky. 286 — 173. City of Louisville v. Wehmhoff, 116 Ky. 812 — 192. - City of Lowell v. Middlesex County, 152 MaSS. 372 — 182. City of Marshfield v. Wisconsin Tel. Co., 102 Wis. 604 – 77. City of Memphis v. Postal, etc. Co., 145 Fed. 602; S. c. 164 Fed. 600 — 169, 175, 182. City of Mitchell v. Dakota, etc. Tel. Co., 25 S. Dak. 409 — 83. City of Monroe v. Postal Tel-Cable Co., 162 N. W. 76 — 209. Ewing, 80 TABLE OF CASES. [The numbers after the dash refer to the page of the text.] City of Monegomery v. Postal Tel., etc. Co., 218 Fed. 471 – 182, 223. City of New Orleans v. Great South Tel. & Tel. Co., 3 S. 533 — 173. City of New York v. Bryan, 196 N. Y. 158 — 94. City of New York v. Interborough, etc. Co., 125 N. Y. App. Div. 437; aff'd 194 N. Y. 528 — 214. City of New York v. New York, etc. Co., 135 N. Y. App. Div. 260 – 75. City of New York v. New York City Ry., 138 N. Y. App. Div. 131 — 168. City of New York v. Woodhaven Gas | Light Co., 181 N. Y. App. Div. 188 — 82. City of Ogden v. Crossman, 17 Utah 66 — 175. City of Owensboro v. Cumberland Tel. & Tel. Co., 230 U. S. 58 — 81. City of Owensboro v. Cumberland Tel. & Tel. Co., 174 Fed. 739 — 196. City of Pensacola v. Southern Bell Tel. Co., 49 Fla. 161 — 170. City Of Peoria v. Postal Tel.-Cable CO., 113 N. E. 968 — 172. City of Philadelphia v. Atlantic, etc. Co., 102 Fed. 254; 190 U. S. 160 — 177. City of Philadelphia v. Western Union Tel. Co., 89 Fed. 454 — 177. City Of Plattsmouth v. Nebraska, Tel. Co., 80 Neb. 460 – 89, 211. City Of Pomona v. Sunset Tel. & Tel. Co., 224 U. S. 330 — 24, 68, 70, 79. City of Portland v. Portland Gas & Coke Co., 150 Pac. 273 — 174. City of Rochester v. Bell, etc. Co., 52 N. Y. App. TJiv. 6 — 212. - City of St. Louis v. United, etc. Co., 210 U. S. 266 — 169. City of St. Paul v. Freedy, 86 Minn. 350 – 74. City of St. Paul v. Great Northern Ry., 163 N. W. 788 – 87. City of Springfield v. Central Union Tel. Co., 184 Ill. App. 400 — 81, 172. City of Springfield v. Interstate, etc. Tel. Co., 116 N. E. 631 — 172. City of Springfield v. Interstate, etc. Tel. Co., 201 III. App. 227 — 172. City of Springfield v. Postal Tel., etc. Co., 153 Ill. 346 — 172. City of Sullivan v. Cloe, 115 N. E. 135 — 72. City of Toledo v. Western, etc. Co., 107 Fed. 10 — 71, 92. City of Troy v. Western Union Tel. Co., 164 Ala. 482 — 170. City Of Vandalia v. Postal Telegraph- Cable Co., 113 N. E. 65–89. City Of Vermillion v. Northwestern Tel. Co., 189 Fed. 289 – 207. City of Weatherford, etc. Co. v. Veit, 196 S. W. 986 — 149. City of Wichita v. Old Colony Trust Co., 132 Fed. 641 – 71, 206. City of Zanesville v. Zanesville T. & T. Co., 64 Ohio St. 67 — 76. Clancy v. N. Y., etc. R. R., 82 N. Y. App. Div. 563 — 113. Clark v. New Jersey, etc. Tel. Co., 87 Atl. 640 — 193. Clark v. Titusville, 184 U. S. 329 — 169. ". Clark v. Union Electric, etc. Co., 213 S. W. 851 – 148. Clarian v. Western Union Tel. Co., 40 La. Ann. 178 — 141. Claussen v. Cumberland Tel. & Tel. Co., 126 La. 1087 – 108, 114. Clausen, etc. Co. v. Baltimore, etc. Tel. Co., 2 Am. Elec. Cas. 210 — 9. Clay v. Postal Tel.-Cable Co., 70 Miss. 406 — 98. Clements v. Louisiana. E1., etc. Co., 44 La. Ann. 692 — 123. Cleveland v. Bangor St. Ry., 86 Me. 232 — 106. Cleveland, etc. Co. v. Ohio, etc. Co., 68 Ohio St. 306 — 13, 42, 49. Cleveland, etc. Ry. Co. v. Backus, 154 U. S. 439 — 165. - Cleveland, etc. Ry. v. Scott, 29 Ind. App. 519 — 141. Cleveland, etc. Co. v. Stone, 105 Fed. 794 — 200. Cleveland Terminal, etc. R. R. v. Cleveland Steamship Co., 208 U. S. 316 — 218. Clyde S. S. Co. v. City Council, 76 Fed. 46 — 221. Coal & Coke Ry. Co. v. Deal, 231 Fed. 604 — 140. Coburn v. New Tel Co., 156 Ind. 90 — 213. TABLE OF CASES. [The numbers after the dash refer to the page of the text.] Cochranton Borough v. Tel. Co., 177. Cochranton Tel. Co. v. Petroleum Co., 107 Atl. 23 — 68, 207. Coco v. Oden, 79 S. 287 — 193. Collar v. Bingham Lake, etc. Tel. CO., 155 N. W. 1075 — 85. Colorado Postal Tel. Co. v. Colorado Springs, 158 Pac. 816 — 170. Columbus, etc. Co. v. City of Colum- bus, 104 N. E. 534 — 83, 174. Columbus R. Co. v. Dorsey, 119 Ga. 363 — 130. Colusa, etc. Co. v. Monahan, 162 B'ed. 276 — 128. COchranton 41 Pa. Sup. Ct. 146 — 76, Commercial Cable Co. v. Attorney- General, [1912] A. C. 820 — 216, 220. Commercial Cable Co. v. Bauer CO., . 102 N. Y. Misc. 699; rev’g 100 N. Y. Misc. 663 — 220. Commercial Cable Co. v. Burleson, 255 Fed. 99 — 215. Commercial Cable Co. v. Government of Newfoundland, L. R. 2 App. CaS. 610 — 216. Commercial Cable Co. v. Western Un- ion Tel. Co., 45 I. C. C. Rep. 33 — 201, 202. Commercial Pacific Cable Co. v. TJnited States, 48 Ct. of Claims Rep. 461 — 218. Commercial Tel. Co. v. Smith, 47 Hun, 494 — 186. Commercial Tel. etc. Co. v. Prevost, 62 S. 347 — 12. Commercial Union Tel. Co. v. NeW England Tel. & Tel. Co., 61 Vt. 241 —186. Comesky v. Postal Tel. etc. Co., 41 N. Y. App. Div. 245 – 9, 10, 12, 41. Commissioners, etc. v. Cambridge, etc. Co., 99 Md. 501 — 168. Commonwealth v. Boston, 97 Mass. 555 — 73, 94. Commonwealth v. Central, Co., 90 Atl. 338 — 56. Commonwealth, etc. Co. v. Melville, 210 Ill. 70 — 122. etc. Tel. Commonwealth, etc. Co. v. Rose, 214 Ill. 545 — 130. Commonwealth v. Smith, 6 Am. Elec. CaS. 167 — 99. • Commonwealth v. Warwick, 185 Pa. St. 623 — 76, 93, 212. Commonwealth v. Western Union Tel. Co., 112 Ky. 355 — 192. Community Ditches, etc. v. "Tularosa Community Ditch, 120 Pac. 301 — 80. Coney Island, etc. Ry. V. Coney Isl- and, etc. R. R., 38 N. Y. App. Div. 494 — 207. Conklin v. Central, etc. Co., 130 N. Y. App. T)iv. 308 — 136. Conrad v. Springfield, etc. Ry., III. 12 — 130. Consolidated, etc. Co. v. Chambers, 112 Md. 324 — 110, 133, 142. Consolidated, etC. Co. v. Koepp, PQan. 735 — 123. Consolidated, etc. Co. v. Northern, etc. By., 107 Mö. 671 — 29, 32. Consolidated, etc. Co. v. People’s, etc. Co., 94 Ala. 372 — 152. Consolidated, etc. Co. v. Vermont, 207 |U. S. 541; aff’g 66 Atl. 790 — 204. Consolidated Forwarding Co. v. South- ern Pac. Co., 9 Inter. Com. Rep. 182, 204 — 202. Consolidated Telephone Companies of Penn. v. City of Easton, 16 Pa. Dis. Rep. 887 — 179. Consumers’, etc. L. Co. v. Congress, etc. Co., 61 Hun, 133 — 9. Corcoran v. Chicago, etc. R. R., 149 III. 291 – 89. Cornell Steamboat Co. v. Sohmer, 235 TJ. S. 549 — 176. County Court v. White, 91 S. E. 350 — 87. Covington v. First Nat. Bk., 198 U. S. 100 — 182. Cox v. Paul, 175 N. Y. 328 – 180. Crandall v. Consolidated, etc. Co., 127 Pac. 994 — 121. Crawford v. Standard, etc. Co., Iowa 331 — 116. Crew Levick Co. v. Pennsylvania, 245 U. S. 292 — 163. Cromwell v. Connecticut, 50 Conn. 470 — 89. 240 64 139 TABLE OF CASES. [The numbers after the dash refer to the page of the text.] Cross v. Seaboard Air Line Ry., 172 N. C. 119; 90 S. E. 14 — 16. Crutcher v. Kentucky, 141 U. S. 47 — 175. Cumberland, etc. Co. v. Barnes, 101 S. W. 301 — 2. Cumberland, etc. Miss. 666 — 101. Cumberland, etc. Tenn. 730 — 107. Cumberland, etc. Co. v. Graves’ Adm’X, 104 S. W. 356 — 141. Cumberland, etc. Co. v. Hopkins, Ky. 850 — 173. Cumberland, etc. Co. v. Louisville, etc. Co., 114 Ky. 892 — 153. Cumberland, etc. Co. v. Pierson, Ind. 543 — 115. Cumberland, etc. Co. v. St. Louis, etc. Ry., 117 La. 199 — 38. Cumberland, etc. CO. Tenn. 313 — 101. Cumberland, etc. Co. v. West Virginia, etc. Co., 188 Fed. 585 – 80. Cumberland Tel. & Tel. v. Avritt, 120 Cumberland Tel. & Tel. Co. v. City of Calhoun, 151 S. W. 659 — 73, 173. Cumberland Tel. & Tel. Co. v. COSna- han, 62. S. 824 — 134. Cumberland T. & T. Co. v. Kelly, 160 Fed. 316 — 184, 186. Cumberland Tel. & Tel. Co. v. Mag- ness' Adm's, 160 S. W. 1061–132. Cumberland, etc. Tel. Co. v. Morgan’s, etc. R. R., 51 La. Ann. 29 — 62. Cumberland T. & T. Co. v. Martin, 93 Miss. 505—97. Cumberland Tel., etc. Co. v. City of Evansville, 143 Fed. 238–71. Cumberland Tel. & Tel. Co. v. Rail- road Commission, 156 Fed. 834 — 196. Cumberland T. & T. Co. v. City of Evansville, 127 Fed. 187; aff'd, 143 Fed. 238 — 206. Cumberland Tel. & Tel. Co. v. Yazoo, etc. R. R., 90 Miss. 686 — 39. Cumberland Tel. & Tel. Co. v. May- field, etc. Co., 179 S. W. 388 – 149. Cumberland Tel. & Tel. Co. v. United ºtrº Ry., 93 Tenn. 492 — 153, Co. v. Cassedy, 78 Cook, 103 Co. v. 121 170 4). Shaw, 102 Cumberland Tel. & Tel. Co. v. |United Electric Ry., 42 Fed. 273 — 156. Cumberland Tel., etc. Co. v. Poston, 94 Tenn. 696 — 101. Curry v. Kansas, etc. Ry., 58 Kan. 6 — 187. Curwensville Boro v. Huntington & Clearfield Tel. Co., 5 Justices’ LaW Rep. 210 — 179. Cutler v. Putnam, etc. Co., 80 COmn. 470 — 129. Cuyahoga Power Co. v. Akron, 240 U. S. 462 — 221. Cynthiana Tel. Co. v. Asbury, 147 Ky. 307 — 116. - D Daily v. State, 51 Ohio St. 348 — 6, 98. - Dakota Central Tel. Co. v. South Da- kota, 250 U. S. 163 — 198. Dakota, etc. Tel. Co. v. City of Huron, 165 Fed. 226 – 71. Dallas, etc. Co. v. Mitchell, 33 TeX. Civ. App. 424 — 138. Dalton, etc. Co. v. Commonwealth, 88 S. E. 167 — 175. Dalton Machine Co. v. Virginia, 236 TJ. S. 699 — 166, 181, 222. Dannenhower v. Western, etc. Co., 218 Pa. St. 216 — 137. Danville, etc. Co. v. Watkins, 97 Va. 713 — 113. Darling v. Newport, etc. Co., 74 N. H. 515 — 102. Dartnell v. Bidwell, 98 Atl. 743 — 17. Davidson v. Utah, etc. Co., 34 Utah, 249 — 119. Davis v. Electric Def. Co., 19 W. N. CaS. 567 — 186. Davis v. Pacific Tel. & Tel. Co., 127 Cal. 312 — 26, 85. Davis v. Titusville, etc. R. R., 114 Pa. St. 308 — 20. Dawson v. Lawrence, MaSS. 481 — 142. Dayton v. City Ry., 9 Am. Elec. Cas. 267 — 162. Deal v. Coal, etc. Ry., 215 Fed. 285 — 192. De Castro v. Compagnie, etc., 85 Hun, 231; aff’d 155 N. Y. 688 – 214. etc. Co., 188 TABLE OF CASES. [The numbers after the dash refer to the page of the text. Decatur, etc. Co. v. Newson, 59 S. 615 — 121. Dechert v. Municipal, etc. Co., 39 N. Y. App. Div. 490 — 120. De Kalb, etc. Co. v. Dutton, 228 Ill. 178 — 4. Delahunt v. United, etc. Co., 215 Pa. St. 241 — 126. Deland v. Dixon, etc. Co., 225 Ill. 212 — 89. Delaware & A. Tel. Co. v. Committee of Pensauken Tp., 67 N. J. L. 91 — 84. Delaware, etc. Co. v. Colwyn Borough, 60 Pa. Super. 609 – 88. Delaware, etc. Co. v. Jordan, 78 Atl 401 — 22, 98. Delaware, etc. Co. v. Pensauken Tp., 116 Fed. 910 — 84. Delaware, etc. R. Co. v. Pennsylvania, 198 U. S. 341 — 166. Delaware, etc. R. R. v. City of Oswe- go, 92 N. Y. App. T)iv. 551 – 82. Delaware, etc. R. R. v. Van Santwood, 216 Fed. 252 — 195. A Delaware, etc. Tel. & Tel. Co. Peti- tion, 224 Pa. St. 55 — 178, 180, 214 Delaware, etc. Tel. Co. v. Fleming, 102 N. E. 163 — 119. Delaware, etc. Tel. Co. v. State, 50 Fed. 677 — 186. Tempsey v. New York Central, R. R., 146 N. Y. 290 – 187. Denison, etc. Co. v. Patton, 135 S. W. 1040 — 138. Denison, etc. Co. v. Patton, 154 S. W 540 — 146. Denver, etc. Co. v. Denver, etc. R. R. 30 Colo. 204 — 46. Des Moines v. City Ry., 214 U. S. 179 — 85. Detroit, Toledo & C. R. R. v. Western |Union Tel. Co., 166 N. W. 494 — 55. Devine v. Brooklyn, etc. Co., 1 N. Y. App. Div. 237 — 112. Devlin v. Beacon, etc. Co., 192 Pa. St 188 — 117. Dickey v. Maine Tel. Co., 46 Me. 483 — 115. Dixon v. Western Union Tel. Co., 68 Fed. 630 — 140. Dobbins v. Western Union, etc. Co., 163 Ala. 222 — 110. etc. Doboy, etc. Tel. Co. v. De Magathias, 25 Fed. 697 — 220. Dodd v. Consolidated Traction Co., 57 N. J. L. 482 — 97. Dobson v. Postal, 429 — 12. - Domestic Tel. & Tel. Co. v. Mayor, 49 N. J. L. 344 — 95. Donohue v. El Paso, etc. R. R., 214 U. S. 499 — 14. Donohue v. Keystone Gas Co., 181 N. Y. 313 – 99. Donovan v. Allert, 11 N. Dak. 289 – 6. Dormont Borough v. West Liberty St. Ry., 64 Pa. Sup. Ct. 562 – 179. Dorr v. Chesapeake, etc. Ry., 88 S. E. 666 – 187. Doty v. American Tel. & Tel. Co., 123 Tenn. 329 — 43. Dougan v. Champlain Trans. Co., 56 N. Y. 1 — 121. -" Dover v. Gloucester, etc. Co., 155 Fed. 256 — 128. etc. Co., 79 S. C. Dow v. Sunset Tel. & Tel. Co., 157 Cal. 182 — 129. Dow v. Sunset Tel. & Tel. Co., 162 Cal. 136 — 129. Drown v. New England, etc. Co., 80 Vt. 1 — 138. Drown v. New England, etc. Co., 81 Vt. 358 — 139. Dugan v. Erie County, etc. Co., 88 Atl. 437 — 126. - Duke v. Postal, etc. Co., 71 S. C. 95 — 11. - Duncan v. Chrisman, 157 Pac. 1031 — 126. Duquesne Light Co. v. City of Pitts- burgh, 97 Atl. 85 — 210. Duquesne Light Co. v. Duff, 97 Atl. 82 — 6. Durfield v. City of New York, 101 N. Y. App. Div. 581 — 103. Dusenbury v. Mutual Tel. Co., 11 Abb. N. C. 440 — 9. Dutcher v. Rockland, etc. Co., 123 N. Y. App. Div. 765; aff’d 195 N. Y. 540 — 136. D'Uttassy v. Barrett, 219 N. Y. 420 — 183. Dwight v. Elmira, etc. R. R., 132 N. Y. 199; overruling Whitbeck v. N. Y. C. R. R., 36 Barb. 644 – 100. xiv. TABLE OF CASES. [The numbers after the dash refer to the page of the text.] Dwight Mfg. Co. v. Word, 75 S. 979– 129. Dwyer v. Buffalo Elec. Co., 20 N. Y. App. Div. 124 — 136. Dygert v. City of Eugene, 143 Pac. 643 — 126. E East, etc. Co. v. City of Akron, 90 N. E. 40 — 195. - East Boyer Tel. Co. v. Incorporated Town of Vail, 129 N. W. 298 — 68, 72. East River, etc. Co. v. Grant, 57 N. Y. Super. Ct. 553 — 210. East Tennessee Tel. Co. v. Board Of Councilmen, etc., 143 Ky. 86 — 65. East Tennessee Tel. Co. v. Board Of Councilmen, 190 Fed. 346 — 92. East Tennessee Tel. Co. v. City of Harrodsburg, 135 Ry. 216 — 190. East Tenn. Tel. Co. v. Paris Electric Co., 162 S. W. 530 — 56. East Tennessee Tel. Co. v. ParSOnS, 159 S. W. 584 — 107. Eastern, etc. Co. v. Mellon, 116 S. W. 709 — 141. Eastern Extension Tel. Co. v. United States, 231 U. S. 326 — 217. Eastern & South African Telegraph Co., Ltd. v. Cape Town Tramways Co., Ltd., [1902] A. C. 381 — 159. Eastern Oregon, etc. Co. v. Des Chutes R. R., 213 Fed. 897 — 14, 21. Earp v. Phelps, 87 Atl. 806 — 107. Eberhardt v. Glasco, etc. Assoc., 139 Pac. 416 — 118. Economy, etc. Co. v. Hiller, 203 Ill. 518 — 122. Edison Elec., etc. Co. v. Blomquist, 185 Fed. 615 – 85. Edison, etc. Co. v. Citizens’, etc. Co., 235 Pa. St. 492 — 154. Edison, etc. Co. v. Manufacturers’, etc. Co., 202 Pa. St. 209 — 152. Edison, etc. Co. v. Misch, 166 N. W. 944 — 214. º Edmonds v. Monongahela, etc. Co., 90 S. E. 230 — 127. Edsall v. Howell, 86 Hun, 424 — 100. Eels v. American T. & T. Co., 143 N. Y. 133, 143 — 5, 13, 17, 41. }ining v. Georgia, etc. Co., 133 Ga. 458 — 122. Ela v. Postal, etc. Co., 71 N. H. 1 – 117. - Eldridge v. Rochester, Hun, 194 — 21. Flectric, etc. Co. v. Mayor, etc., 36 N. Y. App. Div. 383 – 84. Electric Con. Co. v. Heffernan, Y. St. Rep. 436 – 9. Electric Imp. Co. v. San Francisco, 45 Fed. 593 — 72. Electric Power Co. v. Metropolitan Tel. & Tel. Co., 75 Hun, 68; aff’d, 148 N. Y. 746 – 58. Electric Tel. Co. v. Overseers, etc., 24 L. J. N. S. (Ex.) 146 — 208. Emerson v. Boston, etc. R. R., 75 N. H. 427 — 194. Engstrom v. Edendale Land Co., 138 302 — 12. Ensign v. Central, etc. Co., 79 N. Y. App. Div. 24.4; aff’d 179 N. Y. 539 — 114. Epperson v. Postal, etc. Co., 155 Mo. 346 — 135. Erickson v. Town of Manson, 160 N. etc. Ry., 54 34 N. W. 276 — 117. Erie R. R. v. New York, 233 U. S. 671 — 192. Essex County Elec. Co. v. Kelly, 57 N. J. L. 100 — 144. Evans v. So. Tier, etc. Assoc., 182 N. Y. 543 — 82. Evansville Rys. v. Cooksey, 112 N. E. 541 — 111. Ewing v. Leavenworth, 226 U. S. 464 — 176. Ex parte Brown, 72 Mo. 83 — 204. Ex parte Conway, 48 Fed. 77 — 67, 74, 181. Ex parte Jaynes, 70 Cal. 638 — 204. Ex parte Young, 209 U. S. 123 — 180, 196. - F. Fairbairn v. American, etc. Co., Pac. 637 — 115. Fareham Local Board v. Smith (W. N. [18911, p. 76; 7 T. L. R. 443; 90 L. T. 467) — 3. Fargo v. Hart, 193 U. S. 490 — 166. Faris v. American T. & T. Co., 84 S. C. 102 — 102. 175 XV TABLE OF CASES. [The numbers after the dash refer to the page of the text.] Faulk v. Duquesne Light Co., 103 Atl. 111 — 146. Farmer v. Columbian, etc. Co., 72 Ohio St. 526 – 75, 76, 82, 83, 95. - Farnsworth v. Boro, etc. Co., 216 N. Y. 40 — 82. Farnsworth v. Western Union Tel. Co., 6 N. Y. Supp. 735 — 26, 209. Fechet v. Drake, 12 Pac. 694 – 209. Federal, etc. Co. v. City of Columbus, 118 N. E. 103 — 82. Federal, etc. Co. v. Townsend, 1 N. P. N. S. 289 — 6. Ferguson v. Anglo-Amer. Tel. Co., 178 Pa. St. 377 — 220. Ferguson v. Buckell, 101 N. Y. App. Div. 213 — 100. Ferguson v. McDonald, 63 S. 915 — 170. - - - Fidelity, etc. Co. v. Northwestern Tel. Co., 167 N. W. 800 – 149. Finchley, etc. Co. v. Finchley, etc. Council, 1 Ch. 866; Cf. s. c., 88 L. T. Rep. 215 – 64. te Fishback v. Western, etc. Co., 161 U. S. 96 — 181, 222. - Fitch v. Central N. Y., etc. Co., 42 N. Y. App. Div. 321 — 114. Fitzgerald v. Edison, etc. Co., 207 Pa. St. 118 — 126. - Fletcher v. Rylands (3 H. L. Cases 330) — 159. Flood v. Western Union Tel. Co., 131 N. Y. 603; rev’g 15 N. Y. Supp. 400 — 145. - Flynn v. Boston, etc. Co., 171 Mass. 395 — 143. Fole v. Jersey, etc. L. Co., 54 N. J. L. 411 — 144. - Foote v. Maryland, 232 U. S. 494; rev'g 11.7 Mol. 335 — 176. Forgan, Receivers of Central Union Tel. Co. v. Postal Tel.-Cable Co., P. U. R., B. 402 — 80. Forsythe v. B. & O. Tel. Co., 12 Mo. App. 494 — 7. Fort Madison Ry. v. Hughes, 137 Iowa, 122 — 85. - - Fossume v. Requa, 218 N. Y. 339 — 19. Foster v. Connecticut River, etc. Co., 112 N. E. 226 – 8. -- Fox v. Village of Manchester, 183 N. Y. 141 — 103. Frazier v. East Tenn. Tel. Co., 115 Tenn. 416 — 2. Freeman v. Missouri, etc. Tel. Co., 160 MO. App. 271 — 124. Fresno St. R. R. v. Southern Pac. R. R., 135 Cal. 202 — 14. Friedman v. Gold and Stock Tel. Co., 32 Hun, 4 — 186. Friesenhan v. Michigan, etc. Co., 134 Mich. 292 — 113. Frontier Tel. Co. v. Hepp, 66 N. Y. Misc. 265 — 214. Fry v. Postal Tel., etc. Co., 112 N. E. 214 — 117. Ft. Worth, etc. Co. v. Moore, 55 Tex. Civ. App. 157 — 138. Ft. Worth, etc. Ry. v. Southwestern, etc. Tel. Co., 96 Tex. 160 — 43, 46. Ft. Worth, etc. Ry. v. Sweatt, 20 Tex. Civ. App. 543 — 16. - Fulton, etc. Co. v. Hudson River T. Co., 200 N. Y. 287 — 148. - Fuselier v. Great, etc. Tel. Co., 50 La. Ann. 799 — 16, 31, 99. G Gaar, Scott & Co. v. Shannon, 223 U. S. 468 —— 182. Galveston, etc. Co. v. Texas, 210 U. S. 217 — 164. - Gannett v. Independent Tel. Co., N. Y. Misc. 555 – 9, 75. Ganz v. Ohio, etc. Tel. Co., 140 Fed. 692; rev’g 137 Fed. 947 — 88. Gaslight Co. v. Borough of South River, 77 N. J. Eq. 487 — 79. Gaston v. Gainesville, etc. Ry., 120 Ga. 516 — 22. Gay v. Mutual Union Tel. Co., 12 MO. App. 485 — 7. Geer v. New York, etc. Tel. Co., 144 N. Y. App. Div. 874 — 136. General Railway, etc. Co. v. Virginia, 246 U. S. 500 — 163. - Geneva, v. Geneva Tel. Co., 30 N. Y. Misc. 236 — 212. Geneva, etc. Co. v. Economic, etc. Co., 136 N. Y. App. Div. 219 — 80. 55 Gentzkow v. Portland Ry., 54 Oreg. 114 — 137. - Georgia, etc. R. R. etc. v. Atlantic, etc. Co., 152 Fed. 991 — 35, 43, 47, 60. . ſº xvi. TABLE OF CASES. [The numbers after the dash refer to the page of the text.] Germania, etc. Co. v. Alum, etc. Co., 226 Pa. St. 433 — 195. Getty v. Town of Hamlin, 127 N. Y. 636 — 121. Gibbons v. Brush, etc. Co., 36 N. Y. App. Div. 140 — 146. Gilbert v. Finch, 173 N. Y. 455 — 147. Gilchrist v. Dominion Tel. Co., 3 Pugs. & Bur. (Canada) 553 – 99. Glasgow v. St. Louis, 107 Mo. 198 — . 89. - Glenwood Light Co. v. Mutual Light Co., 239 U. S. 121 — 26, 155, 223. Gloucester, etc. Co. v. Dover, 153 Fed. 139 — 128. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 — 168, 221, 223. Goldsborough v. Postal Tel., etc. Co., 123 Md. 73 — 66. Gordon v. Ashley, 77 N. Y. App. DiV. 525 — 125. w Gordon v. Ellenville, etc. R. R., 195 N. Y. 137 — 107. Gorham v. East Chester Electric Co., 80 Hun, 291 — 97. Graham v. BOSton, 156 Mass. 105. Grand Trunk, etc. Ry. v. South Bend, 227 U. S. 544 — 93. Grand TJnion Tea Co. v. Evans, 216 Fed. 791 — 223. 75 — Granger v. Postal Tel. Co., 70 S. C. 528 — 21. Granger Tel. & Tel. Co. Bros., 165 Pac. 102 — 86. Grant v. Sunset, etc. Co., 7 Cal. App. 267 — 118. Gravel, etc. Tel. Co. v. Lebanon, etc. Co., 139 Ky. 827 — 57. Gray v. Boston, etc. Co., 114 Mass. 149 — 113. Gray v. Danbury, 54 Conn. 574 – 104 Gray v. Western Union Tel. Co., 87 Ga. 350 — 192. , - Gray v. York, etc. Co., 92 N. Y. App. Div. 89 — 8. ^). Sloane Great Northern Ry. v. Quigg, 213 Fed. 873 — 86. Great Northern Ry, v. Sheyenne Tel Co., 145 N. W. 1062 — 56, 184. Great Northern Ry. v. State, 173 Pac 40 — 86. Great Northern Ry. v. Western Union Tel. Co., 174 Fed. 321; see s. c., 195 U. S. 540 — 36, 53. Great Western Power Co. v. Pillsbury, 149 Pa.C. 35 — 129. Green v. Southbound R. R., 112 Ga. 849 — 20. Greene v. City of Reedsburg, 155 N. W. 938 — 105. Greene v. Western Union Tel. Co., 72 Fed. 250 — 140. - Greenwald v. Barrett, 199 N. Y. 170 — 183. * Greenwood v. Eastern, etc. Co., Pac. 336 — 115. Greenwich v. Easton, etc. R. R., N. J. Eq. 217 — 87. Griesemer v. Suburban, etc. Co., 224 Pa. St. 328–137. Griffith v. New England, etc. Co., 72 Vt. 441 — 120. Griffin v. New York Tel. Co., 141 N. Y. App. Div. 1 — 144. Grossheim v. Pittsburgh & Allegheny Tel. Co., 100 Atl. 126 — 114. Guinn v. Delaware, etc. Co., 72 N. J. L. 276 — 124. - Gulf, C. etc. Ry. v. Southwestern T. & T. Co., 18 Tex. Civ. App. 500 – 43. Gulf, etc. Ry. v. Southwestern Tel., etc. Co., 52 S. W. 86 — 43, 51. Gulf State Tel. Co. v. Evetts, 188 S. W. 289 — 138. Gurnsey v. Northern California, etc. Co., 160 Cal. 699 — 14. Gwynn v. Citizens’ Tel. Co., 69 S. C. 434 — 185. 136 24 H Haines v. Crosby, 94 Me. 212 — 61, 67. Halbrook v. Orange, etc. Co., 181 S. W. 751 — 146. Hale v. Henkel, 201 U. S. 43 — 204. Hall v. Inhabitants, etc., 184 Mass. 147 — 103. Halleran v. Bell Tel. Co., 64 N. Y. App. Div. 41; aff’d, 177 N. Y. 533 — 8, 13. - Hamilton v. Bordentown, etc. Co., 68 N. J. T. 85 — 125. . Hanley v. Kansas City Southern Ry., 187 U. S. 617 — 191. - xvii TABLE OF CASES. [The numbers after the dash refer to the page of the text.] Hanna v. Chicago, etc. Ry., 132 Pac. 154 — 30. Hannibal v. MissOuri, etc. Tel. Co., 31 MO. App. 23 — 89, 211. Hardee v. Brown, 56 Fla. 377 – 74, 181. Harrison County Court v. Hope, etc. Co., 92 S. E. 726 — 3. Harrison v. Southern Bell Tel. & Tel. Co., 86 S. E. 5 — 138. Harrison v. St. Louis, etc. R. R., 232 |U. S. 318 — 166." Harrisburg v. Pennsylvania, etc. Co., 5 Am. Elec. CaS. 63 — 177. Hart 1). Allegherly, etc. Co., St. 234 — 137, 150. Hart v. Direct United States Cable CO., 86 N. Y. 633 — 220. Hart v. Smith, 159 Ind. 182 — 166. Harton v. Forest City Tel. Co., N. C. 429 — 108. Hatch v. American Union Tel. Co., 9 Abb. N. C. 223 — 206. - Haupt v. Independent, MOnt. 122 — 84. Hausler v. Commonwealth Electric Co., 240 Ill. 201 — 130. Haverford, etc. Co. v. Hart, 1 Pa. Dist. 571; S. C., 4 Am. Elec. Cas. 148 – 6. Hayes v. Chicago, etc. Co., 218 Ill. 414 – 122. Haynes v. Raleigh Gas Co., 114 N. C. 203 — 125. Hayes v. Telephone Co., 21 O. C. C. 480 — 6. 201 Pa. 146 etc. Co., 25 Hebert v. Lake Charles, etc. Co., 111 || La. 522 — 123. Heckert v. Central District, etc. Tel. Co., 206 Fed. 653 — 128. Hector v. Boston, etc. Co., 174 Mass. 212 — 133. Hector v. Boston, etc. Co., 161 MaSS. 558 — 133. Heffron v. N. Y. C. & H. R. R., 223 N. Y. 473 — 118. Heidt v. Southern, etc. Co, 122 Ga. 474 — 113. Heilman v. Union Canal Co., 50 Pa. St. 268 — 20. Helena, etc. Ry. v. City of Helena, 130 Pac. 446 — 81. FIenderson v. Lexington, 132 Ky. 390 — 89. Henning v. Western Union Tel. 41 Fed. 864 — 121. Hentz v. Long Island R. R., 13 Barb. 646 — 20. Hershfield v. Rocky Mountain B. Tel. Co., 12 Mont. 102 — 7. Heskell v. Auburn Light, etc. Co., 209 N. Y. 86 — 135, 139, 144. Hewlett v. Great Central Ry., 114 L. T. Rep. 713 — 106. - Hewett v. Western Union Tel. Co., 4 Mackey 424 — 7. Hicks v. Western Union Tel. Co., 157 N. C. 519 —- 136. HIll v. Ullion, etc. Co., 169 S. W. 345 — 134. Hindley v. Manhattan Ry., 185 N. Y. 335 — 17. Hinnershitz v. United Traction Co., 199 Pa. St. 3; 206 Pa. St. 91 – 64. Hipple v. Edison, etc. Co., 87 Atl. 297 — 137. Hobbs v. Long Distance, etc. Co., 147 Ala. 393 — 1. Hockett v. State, 105 Ind. 250 — 185. Hodgins v. Bay City, 156 Mich. 687 — 134. Hodges v. Western Union Tel. Co., 72 Miss. 910–173. - Hodges v. Western, etc. Co., C. 225 — 31. Hoffman v. Flint, etc. R. R., 114 Mich. 316 — 20. Hoffman v. King, 160 N. Y. 618 — 120. Hoffman v. Mitchell, 201 Fed. 506 — 88. Holden v. Gary Tel. Co., 109 Minn. — 143. Hollis v. Brooklyn, etc. Co., 18 N. App. Div. 821 – 121. Holmes, etc. Co. v. Armstrong, 97 N. Y. Misc. 184 — 68. - Holmes Electric, etc. CO. v. Williams, 181 N. Y. App. Div. 687 – 82. Homestead Co. v. Des Moines Electric Co., 248 Fed. 439; rev’g 226 Fed. 49 — 188. - Home Tel. & Tel. Co. v. City of Los Angeles, 181 Pac. 100 — 182. Home Tel. Co. v. Fields, 150 Ala. 306 — 121. - - Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278 – 196. Co., 133 N. 59 Y. xviii. TABLE OF CASES. [The numbers after the dash refer to the page of the text. Home Telephone Co. v. Mayor, etc., 118 Tenn. 1 — 76. Home 'Tel. & Tel. Co. v. Moodie, 145 Pac. 635 — 85. Home Tel. Co. v. People’s Tel. 125 Tenn. 270 — 189. Home Tel. Co. v. Sarcoxie, etc. CO., 236 MO. 114 — 190. Home Tel. Co. v. Weir, 101 N. E. 1020 — 114, 123, 130. Hood v. New York Central, etc. R. R. 163 N. Y. App. Div. 833 — 17. Horan v. New York, N. H. & H. R. R., 171 N. Y. App. Div. 180 — 135. Hord v. Pacific Tel. & Tel. Co., Wash. 119 — 146. Horning v. Hudson, etc. Co., 111 N. Y. App. Div. 122; aff’d 186 N. Y. 552 — 125. Horton v. Williams, 99 Mich. 423 – 89. Hot Springs, etc. Co. v. City of Hot Springs, 70 Ark. 300 — 170. Houston, etc. R. R. v. Postal Tel., etc. Co., 18 Tex. Civ. App. 502 — 43. Hovey v. Michigan, etc. Co., 124 Mich. 607 — 117. Howard v. Flathead, etc. Tel. Co., 141 Pac. 153 — 119. Hoyt v. Southern N. E. Tel. Co., 60 Conn. 385 — 101. Hudson County, etc. Co. v. Hudson River Tel. Co., 130 N. Y. App. Div. 343 — 149. Hudson & M. T. Co. v. Township Com- mittee, etc., 80 N. J. L. 158 – 91. Hudson River Tel. Co. v. City of Johnstown, 37 N. Y. Misc. 41 — 211. Hudson River Tel. Co. v. City of New York, 210 N. Y. 394 — 90. Hudson River Tel. Co. v. Watervleit, etc., Ry., 135 N. Y. 393, 410 — 157, 161. Hudson Telephone Co. v. Jersey City, 49 N. J. L. 303 — 92. - Hudson Valley R. R. v. Mechanicsville E1., etc. Co., 180 N. Y. App. Div. 86 — 149. Huffman v. Marcy, etc. Tel. Co., 143 IOwa 590 — 185. Hull v. Burr, 234 U. S. 712 – 221. Hulse v. Home Tel. Co., 164 MO. App 126 — 143. Hume v. Rogue River Packing Co., 51 CO., 68 Oreg. 237 — 16. Humes v. City of Fort Smith, 93 Fed. 857 — 181. - Humes v. City of Fort Smith, 93 Fed. 857 — 221. Humes v. Proctor, 73 Hun, 265; aff’d 151 N. Y. 520 — 101. Hunt v. New York, etc. Exchange, 205 |U. S. 322 — 199. - Hurlbert v. Union Tel. Co., 169 N. W. 308 — 101. I Idaho, etc. Co. v. Oregon, etc. R. R., 8 Idaho 175 — 62. IllingsWorth v. Boston, etc. Mass. 583 — 133. Illinois Cent. R. R. v. Mississippi R. R. Comm., 229 Fed. 248 — 163. Illinois Central R. R. v. Centerville Tel. Co., 186 S. W. 90 – 64. Illinois, etc. Co. v. Cleveland Tel. Co., 119 Fed. 301 — 200. Illinois, etc. Co. v. Meine, 242 Ill. 568 — 10, 36. Illinois, etc. R. R. v. Hoopes & Sons, 233 Fed. 135 — 183. Ince, In re, 20 L. T. 421 — 204. Indiana R. & W. Ry. v. Allen, 113 Ind. 308 — 20. Indiana, etc. Ry. v. McBroom, 114 Ind. 198 — 15. Indianapolis, etc. Co. v. Arlington Tel. Co., 47 Ind. App. 657 — 15, 19, 21, 161, - Inhabitants v . Suburban, etc. Co., 59 N. J. Eq. 563 — 92. Inhabitants, etc. v. N. Y. etc. Tel. Co., 57 N. J. Eq. 123 — 74. In re Cumberland, etc. Co., 125 — 184. In re Topping Avenue, 187 MO. 146 — 81. Interboro R. T. Co. v. Gallagher, 44 N. Y. Misc. 536 — 87. International, etc. Co. v. American, etc. Co., 137 N. W. 395 – 95. International, etc. Co. v. Maxwell, 27 Tex. Civ. App. 294 — 112. International News Service v. Asso- ciated Press, 248 U. S. 215 — 199. International Paper Co. v. Delaware, etc. Co., 33 I. C. C. 270 — 193, Co., 161 116 La. xix TATELE OF CASES. [The numbers after the dash refer to the page of the text.] Iowa Tel. Co. v. City of Keokuk, 226 Fed. 82 — 70. Iowa Tel. Co. v. City of Keokuk, 226 Fed. 82 — 196. interstate Com. Com. v. Chicago G. W. Ry., 209 U. S. 108, 119, 120 — 196. Interstate Com. Com. v. Louisville & N. R. T., 227 U. S. 88 — 194. Interstate, etc. Co. v. Town of Towan- da, 221 I11. 299 — 79. Irvine v. Postal Tel.-Cable Co., 26 Cal. App. Dec. 840 — 187. Irwin v. Great S. Tel. Co., 37 La. Ann. 63 — 2. J Jackson v. American, etc. Co., 139 N. C. 347 — 23. Jackson v. Wisconsin Tel. Co., 88 Wis. 243 — 119. Jackson-Hazard Tel. Co. v. Holliday's Adm’r, 143 Ky. 149 — 107. Jeffrey v. Union, etc. Co., 153 S. W. 498 — 134. Jenkins v. Louisville, etc. Co., 120 S. W. 276 — 108. Johnson v. Hawthorne Ditch Co., 143 N. W. 959 — 6. Johnson v. New York, etc. Co., 76 N. Y. App. Div. 564 — 8. Johnson v. Northwestern Tel. Exch. Co., 48 Minn. 433; s. c. 54 Minn. 37 — 109. Johnson v. Public Service Ry., 85 Atl. 165—108. Johnston v. Syracuse, etc. Co., 193 N. Y. 592 — 144. Johnson v. Thompson, etc. Hun, 469 — 9. Co., 54 Johnson-Brown Co. v. Delaware, etc. R. R., 239 Fed. 590 — 183. Jones v. Delaware, etc. R. R., 208 N. Y. 40 — 18. Jones v. Newport News, etc. Co., 65 Fed. 736 – 80. Jones v. Postal, etc. Co., 91 S. C. 273 — 138. Jordan v. Delaware, etc. Co., 75 Atl. 1014 — 98, 101. Julia Bldg. Assoc. v. Bell Tel. Co., 88 MO. 258 — 7. EO - Rahn v. Kittanning, etc. Co., 85 Atl. 1117 — 126. Kakeldy v. Columbia, etc. R. R., 37 Wash. 675 — 16. Kaltever v. Sullivan, 18 Tex. Civ. App. 488 — 89. |Kankakee, etc. Ry. v. Whittemore, 45 Ill. App. 484 — 122. Kansas v. Burleson, 250 U. S. 188 — 198. Ransas City v. Gilbert, 65 Kan. 469 — 105. Kansas, etc. Co. v. Haske11, 172 Fed. - 545; aff’d 224 U. S. 217 — 71. Kansas City v. Hyde, 196 Mo. 498 — 89. Ransas City Ry. V. Kansas, 240 U. S. 227 — 171. Kansas P. Tel., etc. CO. v. Leaven- worth, etc. Bridge Co., 131 Pac. 143 — 65. Ransas City, etc. Ry. v. Rogers, 203 Fed. 462 — 140. Ransas City S. Ry. v. Second St., etc. Co., 166 S. W. 296 — 51. Kansas City, etc. Ry. V. Sessions, 147 Pa.C. 791 — 163. Kansas City, etc. Ry. v. State, 27 Okla. 806 — 195. -. Karpinski v. Borough of South River, 88 Atl. 1073 — 109. Kath v. East St. Louis, etc. Ry., 232 Ill. 126 — 141. Kavanaugh v. City of St. Louis, 220 MO. 496 — 79. Reefe v. Lexington, etc. Ry., 185 Mass. 183 — 81. Keelyn v. Carolina, etc. Co., 90 Fed. 29 — 209. Kellogg v. Denver, etc. Co., 18 Colo. App. 475 — 141. Kennealy v. Westchester, etc. Co., 86 N. Y. App. Div. 293; aff'd 181 N. Y. 582 — 136. Kennedy v. Lansing, 99 Mich. 518 — 104. Kentucky, etc. Co. v. Searcy, 181 S. W .662 — 132. Kern, etc. Co. v. Associated, etc. Co., 217 Fed. 273 — 223. Kester v. Western Union T. Co., 108 Fed. 926 – 7. TABLE OF CASES. [The numbers after the dash refer to the page of the text.] Kibbie Tel. Co. v. Landphere, 151 Mich. 309 — 85. - Kimball v. City of Cedar Rapids, 100 Fed. 802–61. Kindred v. Union Pac. R. R., 225 U. S. 582 — 20. King, etc. Co. v. Lynch, 232 Fed. 485 — 80. - Kinloch Tel. Co. v. City of St. Louis, 188 S. W. 182 — 105, 149. . Rip v. N. Y., etc. R. R., 67 N. Y. 227 — 41. - Kirby v. Citizens’ Ry., 48 Md. 168 — 87. Kirby v. Citizens’, etc. Co., 17 S. Dak. 362 — 2. Kittanning Borough v. American, etc. Gas Co., 93 Atl. 15 — 179. Knapp v. Barrett, 216 N. Y. 226 — 111. FCnapp v. St. Louis, 156 MO. 343 — 89. Knowlton v. Des Moines, etc. Co., 117 Iowa, 451 — 131. † -$–1- After a property owner has consented orally or in writing to the con- struction of a telegraph line on the street, and such consent has been acted on, he cannot then revoke the consent, even though he was paid the time the railroad company took possession.” A purchaser of land upon which there is a railroad Constructed without permission from the former Owner has no right Of action unless the same has been assigned to him. Northern Pacific R. R. v. Murray, 87 Fed. 648 (1898). See Porter v. Met- ropolitan E1. R. R., 120 N. Y. 284 (1890); Heilman v. Union Canal Co., 50 Pa., St., 268 (1865): McFadden 47. Johnson, 72 Pa. St. 335 (1872); Davis w. Titusville, etc. R. R., 114 Pa. St. 308 (1886); Zimmerman v. Union Canal Co., 1 W. & S. (Pa.) 346 (1841); Schuylkill Nav. Co. v. Tho- burn, 7 S. & R. (Pa.) 411 (1821); 10 Amer. & Eng. Ency. Of Law (2d ed.), 1188. Stoops v. Kittanning Tel. Co., 242 Pa. St. 556 (1914); Marianna, etc. R. R. v. Maund, 62 Fla. 538 (1911); Rindred v. Union Pac. R. R., 225 U. S. 582 (1912); McCutcehn v. T. & P. Ry. Co., 118 La. 435 (1907); L. & N. R. R. v. Lambert, 110 S. W. 305 (Ky. 1908); Wagner v. Purity. Water Co., 241 Pa. St. 328 (1913); Lewis on Eminent Domain, & 653B and C; also S 665 D; Indiana R. & W. Ry. v. Allen, 113 Ind. 308 (1887); Sherlock v. N. & A. C. Ry. Co., 11 5 Ind. 22 (1888). A pur- chaser of land upon a portion of which a railroad has been constructed and is in Operation Connot maintain eject- ment nor Collect damages. He takes the land Subject to the burden of the railroad. Green v. South-bound R. R., 112 Ga. 849 (1901). One purchasing land adjoining a railroad takes it Cu/m. On 67'e and cannot claim damages for the taking; nor is a relaying of the track a taking so as to entitled him to compensation. Hentz v. Long Island R. R., 13 Barb. 646 (1852). A purchaser of land on which there is a telephone line erected without Con- sent of the owner may maintain an action for trespass quare clausum. Benjamin v. American T. & T. Co., 196 Mass. 454 (1907). An abutting property owner on a country highway owning the fee to the street may main- tain ejectment against a telephone company having its poles upon the highway, even though the OWner pur- chased the property eight years after the line was constructed, and even though he waited five years before commencing the suit, the defendant not offering to do equity or perform any act on its part. Little v. Ameri- can, etc. Co., 96 N. Y. App. Div. 559 (1904). Where an owner of property gave a mere license, apparently With- out consideration, to a telephone COm- pany to attach its wires to the roof of his house, this does not bind his grantee. The grant is a revocation of any license. The Company may be held liable in an action for treSpaSS and the damage may be the amount paid to other persons for a simliar li- cense. Bunke v. New York, etc., Co., 110 N. Y. App. Div. 241 (1905); aff’d, 188 N. Y. 600. A person purchasing property having a telephone line On the highway in front of it cannot recover damages On acocunt of Such telephone line, except damages for change of location or additions to the line after the purchase. His rights, however, are the same whether he Owns the fee Of the Street Or not. Southwstern Tel. & Tel. Co., v. Smithdeal, 136 S. W. 1049 (Tex. 1911). In Michigan a Steam railroad Con- Structed on the Street with the COn- sent of the city, but without con- demnation as against property OWn- ers, is liable to a person who pur- chases property after the railroad WaS constructed, and the damages may be for past years based upon diminished rental. Hoffman v. Flint, etc. R. R., 114 Mich. 316 (1897). A mortgagee of property may on acquiring title to it object to trolley poles which had been erected, on the property. Phelps v. Berkshire St. Ry., 210 Mass. 49 (1911). $–1– TELEGRAPH-Exw- nothing therefor." One tenant in common cannot make a grant of a right of way as against the other.” As to who may complain, see also } \ 905, 914, Gaak-aa-GOpp. * Even a mere parol license to the telephone Company to erect its poles On private property becomes an irre- VOCable license if the telephone COm- pany expends money and labor in erecting such poles. Indianapolis, etc. Co. v. Arlington Tel. Co., 47 Ind. App. 657 (1911)). The Oral consent of a property Owner to a pole line being constructed across his lot cannot be revoked after the company has con- structed the line. Carrollton Tel. CO. v. Spicer, 197 S. W. 827 (Ky. 1917). A holder of an Outstanding Option on land cannot enjoin a railroad from continuing to Occupy the land, the Owner giving the Option having COn- sented thereto, even though without Compensation. Eastern Oregon, etc. Co. v. Des Chutes R. R., 213 Fed. 897 (1914). While a deed of land revokes a license for the maintenance of poles On the land, yet a permit from the Government is not revoked by a pat- ent of such land to an individual. Washington, etc. Co. v. Harbaugh, 253 Fed. 681 (1918). A railroad Com- pany has been held to be estopped from revoking a license which it gave to a Water-works company to lay pipes along its right of way, to which the railroad had title in fee, the water- works having expended much money thereon. National Water-works Co. v. Kansas City, 65 Fed. 691 (1895). The oral agreement of a property Owner that a corporation having the power to condemn a right of Way Over his land may take such right of Way With- Out compensation and without Con- demnation cannot be revoked by him after the road has been constructed. Uncanoonuck, etc. Co. v. Orr, 67 N. H. 541 (1894). In Georgia by statute a parol license is not revocable when the liecrise has incurred expense in utilizing it. The license then gives rise to an eaSement running with the land. Pacific, etc. Co. v. Chattanooga, A husband may have no power to etc. R. R., 179 Fed. 238 (1910). The oral agreement of several landowners that each would erect telephone poles on his land and all should contribute to the expense of Stringing telephone wires thereon for mutual use, does not Create an easement on the 1and of any One of them but is merely a pole license which any one may revoke as to his Own land at any time. Yeager v. Tunning, 79 Ohio St. 121 (1908). In Massachusetts an oral grant or li- cense may be revoked at any time. Morse v. Copeland, 68 Mass. 302 (1854). Of gourse,…ih-those-states where—a permit-or-ligense, either-orāl OT Written, may be revoked, even as against arquasi public corporation, (see p. 17, supra), "the-company is better off, if it has no permitºor li- sprovided-ino-statute” intervefies see ºpe-1/#leºsupra). As to the revo- cation of a license after a railroad has been constructed, see Elliott on Rail- roads, $ 949. * Palmer v. Palmer, 150 N. Y. 139 (1896); Eldridge v. Rochester, etc. Ry. ; 54 Hun, 194 (1889). Where a railroad company enters into posses- SiOn Of property With the consent Of One tenant in Common who is acting for himself and Other tenants in COm- mon, the value of the rails and ties Will not be considered in a Subsequent Condemnation proceeding. Matter of Norwood, etc. R. R., 47 Hun, 489 (1888). Even though a power com- pany is a tenant in common with an- Other of land, yet it cannot erect poles and wires On such property as against the Other’s dissent. Susque- hanna, etc. Co. v. St. Clair, 113 Md. 667 (1910). One tenant in common may authorize a telegraph Company to construct its lines across the prop- erty. Granger v. Postal Tel. Co., 70 S. C. 528 (1905). A grant of right of way by One Of two tenants in common is voidable by the co-tenant. Benjamin w. American Tel. & Tel. Co., 196 Mass. 454 (1907). “21. 22T TEEEGRAPH"LAW" grant a right of way over his wife's land.” A grant of a right of way for a telegraph line is valid, even though it does not describe the route by metes and bounds, but it may be impeached for fraud or for misuse.” * A husband has no power to author- ize a telephone company to cut trees On the highway in front of property belonging to his wife, there being no representations by her that he owned the property or that she knew of it. Delaware, etc. Co. v. Jordan, 78 Atl. 401 (Del. 1910). ^ A grant from a property Owner to a telephone company to construct its line “over and along the property” Of the former may be explained by parol evidence as to whether it was intended to apply to the highway or to the private property. Morison v. American Tel. & Tel. Co., 126 N. Y. App. Div. 575 (1908). A grant from a property Owner to a telegraph com- pany authorizing the construction of a telegraph line on the highway may be explained by parol. Nichols v. N. Y. etc. Tel. & Tel. Co., 126 N. Y. App. Div. 184 (1908). Although a grant to a telegraph company gives the right to Construct a line anywhere on the prop- erty, it may be shown by parol evi- dence that the line was to be located in a particular place. Mason v. Postal, etc. Co., 71 S. C. 153 (1905). Where no specific route is specified in a grant of a right of way to a rail- road Company, but the latter occu- pies a particular route with the acquiescence or consent of the grantor, this identifies and locates the route itself. Gaston v. Gainesville, etc. Ry., 120 Ga. 516 (1904). A grant to a telephone company to erect a line “Over and along the property Which I Own or in which I have an interest,” with a right to place poles along the highways adjoining the property, does not give a grant to erect a line diagonally across the grantor's lot. Zimmerman v. Ameri- can, etc. Co., 71 S. C. 528 (1904). Even though a grant from a property OWner to a telephone company states that the poles should be set on the fence line, yet, if on account of the trees, the telephone company places them in the road five or seven feet from the fence line, the owner can- not COmpel the company to remove the poles. Bowerman v. Inter-Ocean, etc., Co., 121 N. Y. App. Div. 22 (1907). Where the terms of a grant of a right of way to a telephone com- pany aré Suncertain, oral proof may ShOW their meaning. Morison v. American, etc. So., 115 N. Y. App. Div. 744 (1906). a Water COm- pany has no right to operate a tele- graph or telephone line, except for Water purposes, a grant of a right of Way to it for a telegraph or telephone line cannot be assigned by the water COmpany to a telephone company and used by the latter for a telephone for COmmercial business, and hence the property OWner may enjoin the tele- phone Company from constructing its line. Northeastern Tel. & Tel. Co. v. Hepburn, 73 N. J. Eq. 657 (1908). Where a property Owner Sues a tele- graph Company for constructing its line On his property, he may show that he was induced to sign by fraud a grant of right of way, and that he Was illiterate and did not have the deed read to him before signing. Baldwin v. Postal, etc. Co., 78 S. C. 419 (1907); Voyles v. Postal, etc. Co., 78 s. c. 430 (1907). Swhere a grant by a property Owner to a telegraph COmpany to erect its line was Ob- tained by fraud, it is not binding, but the fraud must be clearly proved. Mason v. Postal, etc. Co., 71 S. C. 153 (1905). In a suit by a property Owner in ejectment to recover a part of the highway occupied by a telephone com- pany’s poles and for damages, the defense that the plaintiff had granted a right Of Way is not good if such grant was obtained by misrepresenta- tions. Wilcox v. American, etc. Co., 176 N. Y. 115 (1903). A telephone COmpany may be liable for the acts of its employees in unlawfully ar- -$-1- _š-4- T.E.E.EGRAPEI-LAW- Where a telegraph company has a right of way by grant or prescription on a public highway, it may erect additional poles to strengthen the line without paying additional compensation to the abutting property OWIſleI’ Awho owns the fee of the street and may string additional wires." Where a power company has a right to maintain a pole line on private land, it impliedly has the right of access thereto to make repairs and renewals.” Upon the closing or discontinuance of a street a telegraph company is protected as to its line on the street.” Nearly all the states have enacted statutes for the condemnation by telegraph companies of a right of way on highways.” In condemn- ing a right of way many property owners may be joined in one proceed- ing, or separate proceedings may be had against each, under the usual statute for condemnation.” resting a landOWner SO as to have him out of the way in order that telephone poles may be erected. Jackson v. American, etc. Co., 139 N. C. 347 (1905). Even though a telephone company has purchased a right of way across a farm, yet if it negligently ruins a Spring by blasting it is liable in damages. Lit- tle v. American, etc. Co., 6 Penn. (Del.) 374 (1907). Where a telephone company removes a pole which it has erected in private property without authority, the damage for the time it Was On the property is nominal, un- less Special damage is proven. South- western, etc. Co. v. Whiteman, 36 Tex. Civ. App. 163 (1904). * Western Union, etc. Co. v. Polhe- mus, 178 Fed. 904 (1910). Barber v. Hudson River Tel. Co., 105 N. Y. App. Div. 154 (1905). Telegraph poles and CrOSS arms on a right of way ac- quired by prescription may be used to Support telephone wires if longer cross-arms are not substituted. Pos- tal Tel.-Cable Co. v. Forster, 144 Pac. 491 (Oreg. 1914), holding also that Such prescriptive right of way justi- fies the telegraph company in allow- ing a telephone company to string telephone wires on the poles. Put-see ppºré03-92-infºrd. Where a traction com- pany buys out an electric street rail- Way and increases the poles, wires and Other apparatus, it must pay the wner Of the fee for Such additional A telegraph company condemns only a use. Wadsworth Land Co. v. Piedmont Traction Co., 78 S. E. 299 (N. C. 1913). * Washington, etc. Co. v. Harbaugh, 253 Fed. 681 (1918). --- * See prºgøy infra.” ". . * For references to the Statutes of the Various states authorizing tele- graph companies to condemn the right of way, see § 2; "infra. The Condemnation of the right to erect a telephone line On a street is not a Condemnation in the usual sense of the term, ina.Smuch as there is no tak- ing of property for the exclusive use of the party condemning. Nicoll v. New York & N. J. Tel. Co., 62 N. J. L. 156 (1898); aff’d, 62 N. J. L. 733. See State v. American, etc. Co., 43 N. J. L. 381 (1881). A condemnation proceeding by a telephone company under the New York Statutes will lie, even though the municipal consent has not yet been obtained, or even though Such consent was obtained and has lapsed by the expiration of a period fixed in the consent. New Union, etc. Co. v. Marsh, 96 N. Y. App. Div. 122 (1904). It is no defense to condem- nation proceedings by a telephone company to acquire a right of way immediately adjacent to a railroad right of way, that the statute author- izes the telephone company to con- demn a right of way on the railroad right of way. State v. Superior Court, 137 Pac. 311 (Wash. 1913). * Brooklyn, etc. R. R. v. Nagel, 75 ~23--~~. right of way and for only one line of poles. A half rod in width is not excessive." In a condemnation proceeding for a telephone line, the wires, number and location of the poles, and the height and manner in which the wires are to be strung, should be specified.” A telephone company in condemning a right of way for its poles, wires and trimming of trees must allege the precise distance to which the trees are to be trimmed.” A statute authorizing a telegraph company to construct a telegraph line along public roads and highways does not authorize a telephone company to condemn a right of way on private land." Even though a telephone company has no right to condemn and it organizes a telegraph company, which institutes the condemnation proceedings, it is no defense that the latter is but a dummy of the former.” A for- eign telephone or telegraph company has no power to condemn a right of way in New York state." FA telegraph and telephone company whose real business is to furnish telephone service, is considered a telephone company and is not entitled to the benefits of the Post Road act of Congress. The words “telegraph corporations” do not always in- clude telephone corporations." The Post Road act of Congress of 1866 does not confer the right of eminent domain or the right to enter upon private property without the consent of the owner. Hence a tele- graph company cannot under that act alone condemn a right of way on a railroad.” But where there is no condemnation statute in the state Hun, 590 (1894); affºd, 150 N. Y. 562; **- City of Johnstown v. Wade, 30 N. Y. App. Div. 5 (1898). Matter of Appli- cation of Prospect Park, etc. R. R., 67 N. Y. 371 (1876). *Lockie v. Mutual Union Tel. CO., 103 Ill. 401 (1882). * Suffolk, etc. Co. v. Gammon, 113 N. Y. App. Div. 764 (1906). * Bell, etc. Co. v. Parker, 187 N. Y. 299 (1907). * Pennsylvania, etc. Co. v. Hoover, 209 Pa. St. 555 (1904). * Alabama, etc. Ry. v. Cumberland, etc. Co., 88 iss. 438 (1906). See also y <2*-infraº * Whitaker v. Kilby, 55 N. Y. Misc. 337 (1907). - * City of Pomona, v. Sunset Tel. & Tel. Co., 224 U. S. 330 (1912); Rich- mond v. Southern Bell Tel. & Tel. CO., 174 U. S. 761 (1899); Sunset Tel. & Tel. Co. v. City of Pasadena, 161 Cal. 265 (1911). A New York company or- ganized to conduct both a telegraph and telephone business cannot compel the secretary of state of Michigan to issue to it a certificate of authority to transact both a telegraph and tele- phone business in Michigan, it ap- pearing that the Michigan statutes do not authorize a company to incorpor- ate for both of these purposes, and the statutes authorize foreign corpor- ations to do only such business as a domestic corporation may do. YAmer- ican Tel. & Tel. Co. v. Secretaky of State, 159 Mich. 195 (1909). Seeknote 3, p. 3815, Geek-on"Corp: - * Western Union, etc.. Co. v. Penn- Sylvania R. R., 195 U. S. 540 (1904). The POSt Road act is found in §§ 5263-5269 of the Rev. Stat. of U. S. See also the very important act of March 1, 1884, in 23 U. S. Stat. at Large, ch. 9, p. 3, making post routes of “all public roads and highways while kept up and maintained as $—4- *auranaen Law. 25* available to telegraph companies to construct its lines on the high- ways, the abutting property owner cannot stop construction by an in- Junction. He is relegated to his remedy at law for damages." A con- demnation proceeding may be abandoned at any time prior to actual payment of the award.” Only nominal damages are awarded in condemnation proceedings for a telegraph line on a highway, unless special damage is shown.” It is a dangerous thing for a property owner to take the law into his own hands and cut down a telegraph line. In most of the states it is a criminal offense to cut or injure telegraph lines, poles, or wires.” It such.” See § 2; “infra: "In the case Richmond v. Southern, etc. Co., 174 |U. S. 761, 772 (1899), the court stated that the Post Road act of Congress of 1866 did not give telegraph companies a right to use private property or pub- lic property except upon payment of COmpensation therefor. This case holds also that the Post Road act of Congress is not aplicable to tele- phone companies. The fact that a telegraph company has accepted the POSt Road act of Congress and that its telegraph line used for interstate Commerce has been cut down, may not give a federal court jurisdiction of an injunction suit there being no diver- sity of citizenship. Postal Tel.-Cable Co. v. Nolan, 240 Fed. 754 (1917); saying: “The deprivation of the right in Such telegraph corporations to Condemn property for their uses, When- ever necessary, might deprive them of the right to do business at all, as WOuld to a large extent be the effect of a denial of that right in the pres- ent case,” which denial by a State Statute is VOid as being in conflict With ‘Such Post Road act of Congress. * State v. Superior Court, 171 Pac. 248 (Wash. 1918). proceedings may be abandoned at any time, even after judgment. Nichols on Eminent Domain, 2d ed., § 418; Lewis on Eminent Domain, 3d ed., § 955. :- * ...'. - sº-º-º-º-º: * * See, p. 30-strºrº--~~~~~ …” *A railroad employee who cuts a but see Stephens v. Ohio State Tel. #élephone wire which crosses the rail- Co., 240 Fed. 759, 768 (1917), k road thirty-five feet above the tracks The inited-statesgourt may have and five feet above the telegraph jurisdiction of a suit by-a-railroad company to enjoin condemnation pro-Teven though the railroad had not con- ceedings by a telegraph company, even though neither party is a resident of the district wherein the suit is brought. Louisville & Nashville R. R. Co. v. Western Union Tel. Co., 234 U. S. 369 (1914). * Bronson v. Albion Tel. Co., 67 Neb. 111 (1903). A non-resident telegraph company which has accepted the Post Road act of Congress may under the California statutes condemn a right of way on a railroad in Califor- nia and any statute to the contrary Would be unconstitutional. Western Union Tel. Co. v. Superior Court, 15 Cal. App. 679 (1911), the court Wires may be prosecuted criminally, Sented to the erection of the telephone Wire and the right had not been con- demned, there being no telephone poles on the railroad property. Mc- Gowan v. State, 40 S. 142 (Ala. 1906). The court said that even though the telephone wire violated the property rights of the railroad Company, “this would not authorize the defendant, under the instructions Of the railroad company, to take the law into his own hands, in plain vio- lation of the statute. The statute is Clear and unambiguous in its Ian- guage, and makes it an offense for any One to wilfully cut a telephone line. It makes no exception, and cer- Condemnation (. ) has been held that a telegraph company which erects its line on private property cannot enjoin the owner from cutting the line down, even though the company has commenced condemnation proceedings," but this conclusion may well be doubted.” In New York by statute the court may stop interference by the property owner.” A railroad may maintain a bill of injunction in the federal court against property owners who are interfering with its right of way, where such right of way is worth the jurisdictional amount, even though the land itself constituting the right of way is not worth that amount.” The amount involved in a suit by a pole and wire company against another pole TELEGRAPH LAw ... . . . . . . . - Š-1 and wire company constructing its line in too close proximity en- dangering employees and the public, may be not the probable expense to the defendant of making a change but the value of complainant’s business in the use of its poles and wires.” tainly the facts in the Case before us do not create One, but leave the de- fendant undoubtedly within its pro- visions.” Where a telephone com- pany Constructed its line on private land under a verbal consent, and along the highway by authority of the statutes, and afterwards a rail- road Occupies the same route and Orders the telephone company to re- move its line, and for failure there- for the railroad itself removes the line, the railroad company is liable in double damages under the statute against wilfully destroying a tele- graph or telephone line. St. Louis, etc. Ry. v. Batesville, etc. Co., 80 Ark. 499 (1906). An indictment against an individual for malicious mischief in cutting down telegraph poles, even though the CrOSS-arms overhung the limits of the highway was sustained in State v. McCallister, 7 Penn. (Del.) 301 (1909). Where a person cuts down the poles and wires of a tele- graph line in New Jersey he cannot be arrested therefor in New York. The-poles being real estate, the suit must be brought in New Jersey, and must be an action of trespass q^lare clausu'm fregit. American Union Tel. having been legal. Co. v. Middleton, 80 N. Y. 408 (1880). A receiver for a telegraph Company may hold liable in damages a party that cuts the telegraph wires wilfully ai) d maliciously, and exemplary dam- ages for a reasonable amount may be allowed. FarnSWOrth Q). Western Union Tel. Co., 6 N. Y. Supp. 735 (1S89). A Criminal Statute against disturbing a railroad applies to the 1andow ner who tears up the rails Of a railroad passing over his land with- Out authority. The court said: “His Only justification for his acts was that he owned the land, and that, aS the railroad company had failed to pay him the damages he had been awarded, he had a right to resume possession of it. Whatever the rights of the defendant might have been in an action to recover the land occu- pied by the railroad company, he had no right to take the law into his own hands arid proceed to tear up the rail- road track.” Wichita, etc. Ry. V. Quinn, 57 Ran. 737 (1897). A build- ing mover who cuts telephone wires and is arrested for violating the crim- inal statute, cannot maintain a Suit for malicious prosecution, the arrest Davis v. Pacific * Postal Tel.-Cable Co. v. Nolan, 162 Pac. 169 (Mont. 1916). __--~~2 Cp. cases Omºp-53;ºn:-1: "condemnation Law § 3379. * Louisville & N. R. R. v. Smith, 128 Fed. 1 (1904). * Glenwood Light Co. v. Mutual Light Co., 239 U. S. 121 (1915). - _$ 1-r TELEGRAPH-prºWºº- An electric-light company may enjoin a borough from cutting down its line, inasmuch as the threatened injury is continuous and threatens Tel. & Tel. Co., 127 Cal. 312 (1899). By Act of Congress approved August 10th, 1917, amending the Interstate Commerce Act, it was made a crim- inal offense for a person during the existing War to Obstruct or retard in- terstate or foreign commerce with a penalty of $100 and imprisonment for six months or both. By Act of Con- gress approved April 20th, 1918, it was made a Criminal offense for a person when the United States is at War to injure or interfere with telephone or telegraph plants used to Supply facili- ties of communication to the military Of naval forces Of the United States or any associate nation, punishable by $10,000 fine and imprisonment for thirty years. In the following States and terri- tories it is made a criminal Offense to injure, destroy, Or interfere wil- fully with telegraph lines, poles, wires, SupportS OI’ instruments. These Statutes are due to the im- possibility of keeping Such lines Constantly under the Supervision of the companies which own and Oper- ate them, and are also due to the vital importance to the public of keeping the lines in Operating condition. Alaska : Carter’s Annotated Alaska. Codes, § 165. Punishable by fine not exceeding $500; imprisonment not ex- Ceeding Six months, or both fine and imprisonment, and treble damages to the Owner Of the line. Arizona: Laws of 1905, chap., 65, p. 137. Punishment as for a misde- Iſlea,IlOI". - Arkansas: Acts 1885, Act 64; Act 107, § 9, Punishable by fine $200 or more, imprisonment not more than One year, and double damages to the OWner Of the line. California: Civil Code, §§ 537, 538; Pen. Code, § 591. Damages to owner for negligent injury and hundredfold damages for malicious injury and pen- alty for latter as for a misdemeanor. Colorado: Rev. Stat. 1908, § 994. Fine not exceeding $500, imprison- ment not exceeding one year, or both, and all damages. Connecticut: Gen. Stat., § 1477. Fine, not more than $200, imprison- ment not more than one year, or both. Delaware: Rev. Code, p. 938, ch. 128, § 19. Penalty to the company or any One Suing for it, $25 for first Offense; for every subsequent offense $50. Florida: Rev. Stat., § 2537. Fine not exceeding $100, or imprisonment not exceeding twelve months. Georgia: Code, 1911, § 779. ishment as for a misdemeanor. Illinois: Ann. Stat., ch. 38, par. 249; Ch. 134, par. 5. Fine not ex- Ceeding $500, or imprisonment not ex- ceeding "One year, or both. Indiana: Ann. Stat., § 2035. Fine not more than $500 nor less than $5, and imprisonment not more than six months nor less than thirty days. Iowa; Ann. Code, § 5287. Impris- Onnent not more than five years or fine not exceeding $500, and imprison- ment not exceeding One year. Kansas: Gen. Stats., 1909, § 1794. Fine not exceeding $500, or imprison- ment not exceeding one year, or both. FCentucky: Stat., 1909, § 3744. Imprisonment not less than two nor more than ten years. LOuisiana : Constitution and Re- vised Laws, Vol. I, § 920 (Wolff's Edi- tion, 1904). Fine not more than $500, or imprisonment not exceeding one year, or both. Rev. Stat., 1903, ch. 128, § 8. Maine: Acts 1885, ch. 378, § 10. Imprisonment not more than three years, or fine not exceeding $500. Maryland: Pub. Gen. Laws, 1911, Art. 23, § 364; Art. 27, § 251. Fine not exceeding $500, or imprisonment not exceeding One year, Or both. Massachusetts: Rev. Laws, 1902, ch. 25, § 53. Fine not exceeding $500, Pun- or imprisonment not exceeding two years, or both. - Michigan: Comp. LaWS, 1897, §§ 6664, 6673. Knowingly or wilfully, +* * 2 7~~~~ º -*. rºw -- l J --> ...~ * :*- –28’ TELEGRAPH LAW <ººlºº. 2: $ 1- to be repeated and is without adequate remedy at law, especially where, under the statute, it is unnecessary to obtain the consent of the borough fine not exceeding $1,000, or imprison- ment not exceeding one year, or both. Ib., § 3699. Unlawfully or intention- ally, fine not exceeding $500, Or imprisonment not exceeding One year, Or both. MiſnºmeSOtd.: ReV. Stat., 1909, § 5133. Punishment as for a misde- Iſlea,Il OI’. - Mississippi: Code, 1906, § 1375. Fine not exceeding $500, or imprison- ment in county jail not exceeding Six months, or both. Missouri: Hºev. Stat., 1909. Im- prisonment in penitentiary for tWO years, or $500 fine. Montana: Rev. Codes, 1907, § 8738. Bunishment as for a misdemean Or. Nebraska; L. 1915, p. 306. Penalty and action, $ 123, ch. 4, Criminal Code for wilfully and maliciously interfer- ing with poles, wires or transmission of telegrams. See also Comp. Stat. (1907), p. 1935, § 7755. Nevada: Gen. Stats., §§ 929, 930. Fine not exceeding $500, or imprison- ment not exceeding six months, or both, and liability to the telegraph company in hundredfold the actual damages, and also liability to a civil Suit. New Hampshire: Pub. Stats., ch. 81, § 15. Fine not exceeding $100. New Jersey: Com. Stat., 1911, p. 1778, § 104. Imprisonment at hard labor not exceeding two years, or fine not exceeding $200, or both. Rev., p. 1175, § 7. Also penalty to the com- pany, for the first offense, $100 and all damages, and for the second Offense, imprisonment not exceeding One year. New York : Penal Law, § 1423. Imprisonment not more than tWO years. --- - North Carolina: Code, § 1118. Fine and imprisonment at the discre- tion. Of the Court. North Dakota: Laws 1907, Ch. 247. Punishment as for a misdemeanOr. Ohio: Gen. Code, 1910, § 13402. Fine not more than $1,000, nor less than $200, or imprisonemnt for not less than one nor more than three years, or both. Oregon: Lord’s Laws 1910, § 2259. Fine not exceeding $500, or imprison- Iment not exceeding six months, Or both, and liability to the company in hundredfold the actual damages. Pennsylvania: Stewart's Purd. Dig., 13th ed.: Crimes, p. 982, par. 342. Fine not exceeding $500, and impris- onment, not exceeding twelve months, or both, or either. Rhode Island: Gen. Laws, ch. 345, § 64. Imprisonment not exceeding two years, or fine not exceeding $3,000. South Carolina: Gen. Stats., § 2524. Fine not exceeding $100, or imprison- ment not exceeding thirty days, Or both. South, DQ}cota : Penal Code, 1898, § 708. Punishment as for a misde- Iſlea, Il OI’. T'ennessee: Code, § 1840. Punished as for a misdemeanor: fine not less than $5 nor more than $50, and im- prisonment at the discretion of the Court. Shannon's Code Suppl., p. 135, § 9; p. 136, §§ 1-3. Tegas: Penal Code, 1911, § 1228. Imprisonment not less than two months nor more than five years, Or fine not less than $100 nor more than $2,000. Utah. : Com. Laws 1907, § 4465. Punishment as for a misdemeanor. Vermont: Pub. Stats., 1906, § 4863. Forfeit of $100 to the OWImer Of the line, and also fine and imprisonment as in other cases of malicious acts. |Under the Vermont statute, when an action is brought against a person for injury to the telegraph line, it has been held that it is necessary to ShOW that the telegraph line injured is such an one as comes within the descrip- tion of the statute, but proof that it is the line of an incorporated company, and that it is SO placed as not to incommode public travel along the highway, is sufficient under this stat- ute. Western Union Tel. Co. v. Bul- -š-2- TELEGRAPHºffAW - _-29" before constructing the line.” An electric-light company has no right to erect its line on a railroad right of way without the consent of the railroad, even though it has obtained the consent thereto of the owners of the fee, such consent not being a deed of any right in the land, but a mere license. Hence the railroad is entitled to cut down the poles, and cannot be enjoined on the ground of irreparable injury, where the line has not yet been put into use.” - § 2. Telegraph lines on railroads—Eacclusive contracts—Turnpikes and bridges.—-A railroad company has no power to engage in the tele- graph business, unless specially authorized so to do by its charter. Yet the dispatching of trains and the proper management of a railroad re- quire telegraphic service. struct and operate a telegraph line for railroad purposes.” lard, 65 Vt. 634 (1893); S. C., 67 Vt. 272. TVirginia: Virginia Code (Pollard, 1904), Vol. 2, § 37285. Fine not less than $50 nor more than $200, or im- prioSnment for not more than six months, or both fine and imprison- ment. * Washington: Rem. and Bal. Ann. Codes and Stats., §§ 9315, 9321. Through negligence, liability to the Company for all damages; maliciously liable to the company for five times the damages, and liability to civil Suit. Tapping a private telephone Wire is not damaging or destroying a telephone line within the meaning of the Criminal statute of Washington. State v. Nordskog, 136 Pac. 694 (Wash. 1913). West Virginia: Code, ch. 145, § 266. Imprisonment not exceeding twelve months, and fine not exceeding $500, and liability to the owner for all dam- ageS. Wisconsin: Code, § 4559. Imprison- ment not more than three months, or a fine not exceeding $100. Wyoming: Comp. Stat., 1910, § 5859. Fine not more than $100, to Which may be added imprisonment in the county jail for not more than Six months. * Point Pleasant, etc. Co. v. Borough of Bay Head, 62 N. J. Eq. 296 (1901). In the Case Western, etc. Co. v. Frank- lin, etc. Co., 70 N. H. 37 (1900), where Hence a railroad has legal power to con- Even the telegraph Company sued a Street railway for cutting down poles and Wires which interfered with the run- ning of the cars, the court held that the Question as to whether the Post Road act of Congress protected the telegraph Company against such cut- ting raised a federal question which had not been passed upon by the Su- preme Court of the United States, and hence the Court gave judgment for the defendant. See also Š • o * Consolidated, etc. Co. v. Northern, etc. Ry., 107 Md. 671 (1908). * Unjted States v. Western Union Tel. Co., 50 Fed. 28, 37 (1892); aff’d, 160 U. S. 1. A railroad may construct a telegraph line for railroad purposes, but not to Carry On a general tele- graphic business. Railroad Co. v. Telegrahp Co., 38 Ohio St. 24 (1882), holding also that a contract by which the railroad company transfers only a part of Such general telegraphic business to a telegraph company will not be ordered to be specifically per- formed, inasmuch as the part to be done by the railroad is illegal. The COUIrt held that the railroad might le- gally Sell to a telegraph Company wires for general telegraph business. In MissOuri it is held that a foreign corporation, admitted to do business in the State either by comity or by express statutory provisions, can transact Only the business which a domestic Corporation of like character **** 2–30 though a railroad company has no power to carry On commercial tele- graph business, yet if it does so it is liable for failure to deliver a message," and is liable for faxes levied on the line.” A municipality has no right to restrain a railroad from constructing a telegraph line on its railroad right of way, even though the railroad intends to use the line for other than railroad purposes.” Abutting property owners owning the fee of a railroad right of way are not entitled to damages for the construction by the railroad of a telegraph line for railroad purposes on its right of way.” Nor can abut- ting property owners object to the construction of a telegraph line by a telegraph company on land owned in fee by a railroad.” If, however, the fee remains in the abutting property owners, then they may claim damages for the additional easeilleuſ, of a telegraph line constructed TELEGRAPH. LAW by a telegraph company on the railroad right of way.” is authorized to transact, and hence that a foreign railroad company hav- ing power to build telegraph lines as well as a railroad, cannot build a tele- graph line in Missouri. State v. Cook, 171 Mo. 348 (1903). * Arkansas, etc. Ry. V. Stroude, 77 Ark. 109 (1905). A railroad sued for an error in the transmission of a tele- gram cannot defend on the ground that it was ultra vires for the railroad to be sending telegrams. Hanna v. Chicago, etc. Ry., 132 Pac. 154 (Kan. 1913). * A railroad. When sued for taxes On its telegraph line used for Commercial telegraph business as well as railroad telegraph business Cannot set up that it had no authority to do a commer- cial telegraph business. Minneapolis, etc. Ry. v. Oppegard, 18 N. Dak. I (1908). * Pennsylvania. R. R. v. Lilly Bor- ough, 207 Pa. St. 180 (1903). Even though a railroad is transacting at its railroad Stations a commercial tele- graph business in connection with the Western Union Telegraph Company, yet the railroad may withdraw its telegraph operator and instruments from any particular office and the Corporation commission has no power to Order the Service to be restored. Atchison, etc. Ry. v. State, 23 Okla. 231 (1909). The logic of * Western Union Tel. Co. v. Rich, 18. Kan. 517 (1878). * Where the railroad owns the fee instead of a mere right of way, an abutting property owner is not en- titled to damages for a telegraph line erected thereon by a telegraph com- pany under a Contract with the rail- road Company. Prather v. Western Union Tel. Co., 89 Ind. 501 (1883). A natural-gas company has no in- herent power to construct a telephone line On its right of way, although it is chiefly for its own use. Woods v. Greensboro, etc. Co., 204 Pa. St. 606 (1903). * Even though a railroad company has authorized an electric power transmission company to erect its line On the railroad right of way, yet a property owner owning the fee of the railroad right of way cannot be en- joined by the power company from stopping the construction. A general statute authorizing such an electric company to construct its lines on highways is not applicable. Muncie Elec. Tight Co. v. Joliff, 109 N. E. 433 (Ind. 1915). An abutting property Owner of the fee of a railroad right of Way may enjoin a telegraph and telephone company from erecting its lines on such right of way, even with the Consent Of the railroad company. Such right must first be condemned, *. TEEEGRAPHº-JºãW. this principle of law, however, is very doubtful, especially in view of the fact that a railroad has practically the exclusive right to the use of its entire right of way, as against the owner of the fee.* An electric. light company has no right to erect its line on a railroad right of way without the consent of the railroad, even though it has obtained the consent thereto of the owners of the fee, such consent not being a deed of any right in the land, but a mere license. The railroad is entitled to cut down the poles and cannot be enjoined on the ground of irrep- and a condemnation statute which leaves the property Owner to an action at law for his damages is contrary to the constitution of Maryland. The POSt Road act of Congress gives the telegraph company no right to build Such line, unless the right of way is first acquired by purchase or con- demnation. American Tel. & Tel. Co. v. Pearce, 71 Md. 535 (1889); Phil- lips v. Postal Tel., etc. Co., 130 N. C. 513 (1902), S. C., 131 N. C. 225. The OWner Of the fee of a railroad right Of Way is entitled to damages on ac- Count of a telegraph line being erected On Silch right Of way. Teeter v. POS- tal Tel.-Cable Co., 90 S. E. 941 (N. C. 1916). A landowner who has granted a right of way to a railroad may col- lect damages from a telegraph com- pany for erecting a telegraph line for COmmercial purposes on the railroad right of way. Hodges v. Western, etc. Co., 133 N. C. 225 (1903). Where a railroad grants to a telephone com- pany a right of way on the railroad right of way the owner of the fee may maintain trespass. Pottock v. Central etc. Tel. Co., 31 Pa. Sup. 589 (1906). Where the employees of a telegraph Company having a telegraph line on the railroad adjacent to the road-bed, Cut and destroy the property owner’s fence in several places unnecessarily, he may recover exemplary damages, Western Union, etc. Co. v. Dickens, 148 Ala. 480 (1906). Even though a City has condemned a right of way for the pipes of its water-works sys- tem it cannot erect a telephone line On Such right of way to use between the water-works stations without pay- ing the owner of the fee additional compensation. Spokane v. Colby, 16 Wash. 610 (1897). Even-through a telegraph company constructs its line On a railroad right of way without condemning the right to do SO as against the owner of the fee, yet the Court will not give judgment of eject- ment provided the COmpany pay an amount equivalent to what the dam- ages would have been On Condemna- tion. Fuselier v. Great, etc. Tel. CO., 50 La. Ann. 799 (1898). A property Owner abutting on a railroad right Of way and owning the fee of the right of way cannot recover damages from a telephone company that has COn- Structed its line On the railroad right of way with the consent of the rail- road. Campbell v. Southwestern Tel. & Tel. Co., 158 S. W. 1085 (Ark. 1913). * A “right of way” of a railroad or Other quasi-public Corporation may mean the fee and not merely the right of passage. New Mexico v. TInited States, etc. Co., 172 U. S. 171 (1898). “A railroad's right of way has, therefore, the substantiality of the fee, and it is private property, even to the public, in all else but an interest and benefit in its uses.” Western Union Tel. Co. v. Penn. R. R., 195 U. S. 540, 570 (1904). It has been held in some cases that the owner of a fee subject to the railroad easement has some right to use the land taken not inconsistent with the easement, but the weight of author- ity holds that the use of the railroad Company while the easement exists is exclusive Of the Owner of the fee. Roby v. New York C., etc. R. R., 142 N. Y. 176, 180 (1894). See also $ 906, Gºrvº Fººt ºfºrºsºft--. _2~&” TELEGRAPH LAw. arable injury, where the line has not yet been put into use.” Even though a railroad grants a license to lay gas pipes along the railroad right of way on condition that the license will not be assigned, and a receiver of the licensee sells the same, the railroad cannot revoke the license on this account because the courts do not favor such covenants.” There has been a great deal of litigation over the right of a tele- graph company to condemn a right of way for itself on a railroad right of way. Where the statutes of the state expressly authorize such a condemnation, there is no doubt or difficulty, upon proof being given that the new telegraph line will not interfere with railroad opera- §–2- tions. 'CU11sulidated, etc. Co. v. Northern, etc. Ry., 107 Md. 671 (1908). * Lake Erie, etc. R. R. v. Marott, 100 N. E. 864 (Ind. 1913). NMr. Kingsbury, Vice—President-May, Of Nhe American Tel. & Tel. Co., at 'a hearing of the House Committee on Interstate and Foreign Commerce on September 26, 1919, said in regard to buildrug telephone lines on railroad rights of way: A “Mr. Kingsbury: We have no right to the right of way of the railroad companies except as we secure those rights by contract. º “The Chairman: That? is what I mean. To what extent have you se- cured that right\by contract? “Mr. Kingsbury. To a very small extent, because we'dø not want it on the railroads. f “The Chairman:/\Is there any in- terference with indućtion or anything of that kind? f “Mr. Kingsbury: There might be. There would be interference from in- duction where the telegraph compan- ies are using machine señding or high Voltage. wg have to protéct ourselves against that, especially if we are on the same Šide of the road. it is ung f e to continually chaº § they put in Switches º % more than it does to build on a ighway in the long run.” (Record, €:"M." Baker;-General Superintend- ent of Plant of the Postal Telegraph- Cabie Company, testified, in a suit in the WJnited States District Court in 1917, between that company and the Chicago Great Western Railway Co., as \follows: “The 80mparative cost and conveni- ence of \ maintenance of telegraph rights Of Way On and Off the railroads Very much", depends upon the railroad, that is, On the number of trains that are Operated A Over the railroad, as to getting to the Source of the trouble. If a railroad Whas but few trains it takes much longer to get to the point of trouble than it does on a highway line. I don’t figure that there is any difference in the bost of maintenance Of a line On and off, the railroad. The Only advantage in the highway route would be the ability to get to the SCene Of trouble quickly, and the Ob- vious disadvantage would be the pres- ence of trees, which we would not have any right to trim more than was necessary. */* *. At the Vinception of the telegraphing business all the tele- graph lings were not constructed on railroad rights of way, but it was the endeavor at that time to secure rights of way on railroad companies, rights of way for the construction of such lines.A 4 + + It hasn’t been thé prac- tice/of the Postal Company wherever possible to secure a right of way along thé right Of Way of a railroad com- pany in preference to getting one along .* fa—highway. That—has been-the-prãe- 's º, - ‘...s”. \ * h \ * A º, º \º (Ala. 1915. TELEGRAPH.L.A.W.---. The statutes of the different states vary largely on this subject. References to them are given in the notes below." - sº 33° 3 º” +jee-with-the-western-Union.…” ing, overruling Western Union Tel. Co. \ A- I'would judge that the cost of mainte- nance along the lines of the railway company right Of Way and on a high- way is about the same. As to whether it is a little cheaper along the right of way of a railroad company where the facilities, are more accessible, much depends upon the manner in which we can getAover the road. If we have facilitiés, on the road for handling material and men it may be better. * * * We have Our Stations and linemeſ very muëh nearer to- gether On £he highway lines than we do on the railroad lines, and we can COVer Jºe territory nearly as quickly on an automobile or motorcycle on a Jhigh & va y-as-we-do...on-a-railroad.*** a *Alabama: “A telegraph company may COndemn lands for right Of Way not exceeding 100 feet in width.” Ala. Civil Code 1907, § 3486. But no telegraph line Shall be constructed through a yard, garden, Stable, lot Or barn without the consent of the owner. § 3487. A foreign telegraph company may condemn. § 3884. Property al- ready devoted to a public use cannot be taken for another public use unless an actual necessity is proven, and it is also proven that Such new use will not materially interfere with the existing public use. $ 3867. An amendment to a COndemnation statute that an “actual necessity” for a telegraph COmpany Condemning a right of Way On a railroad must be shown, is not Satisfied by the telegraph company al- leging that such right of way is the most convenient and economical and would not interfere with the railroad and that to build elsewhere would be expensive. The necessity must be a C- tual necessity from “physical or over- powering economical conditions,” es- pecially for short distances On account. of peculiar conditions and not for long longitudinal distances. Louisville & N. R. R. v. Western Union Tel. Co., 71 S. , three judges dissent- .# _4 ºf 44, 5 , a - P may condemn v. Southern & N. Ala. R. R., 184 Ala. 66 (1913) -s-er-244-tº-sº-grº-erºt'ſ): Where a telegraph company has con- demned a right Of Way On a railroad and then sells for a term of years Such right of way to another tele- graph company, and the latter builds upon it, the latter may enjoin the railroad company from cutting down the line. Mere non-user for a long period of the condemned right of Way is not an abandonment of it. Western \ Union Tel. Co. v. Louisville & N. R. R., 81 S. 44 (Ala. 1919). railroads” in the State, may condemn the right under the gen- eral condemnation statutes of the State. The condemnation may be against the railroad without joining the abutting owner of the fee, and without joining a rival telegraph com- COn- '. pany that claims an exclusive In Alabama it was held that where a statute gives; to telegraph Companies a right to con- struct their lines “along any of the a company tract with the railroad company. New Orleans, etc. R. R. v. Southern, etc. Co., 53 Ala. 211 (1875). Condemna- : tion by a telegraph company of a right of way on the right of way of a railroad company was sustained under the Alabama statutes in the Case Mobile, etc. R. R. v. Postal, etc. Co., 120 Ala. 21 (1898), the court holding that Only nominal damages need be paid. A landowner is en- titled in condemnation proceedings to compensation for space occupied by the wires as well as the ground actually occupied by the poles. He is also entitled to compensation for trees which will have to be cut. Long Distance, etc. Co. v. Schmidt, 157 Ala. 391 (1908): - • A riºona. not given power to condemn. Stat. 1901, § 2445. Arkansas: A telegraph “lands” for Digest of Arkansas A telegraph Company is Revised Company right of Way. Statutes, º & 3 ºf : ...tº # * $ § : j y S- ; ; ; ; ; ;s ,' ' '. “....? _34- ~$1.2– In Alabama, Arkansas, California, Florida, Georgia, Idaho, Illi- nois, Indiana, Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Montana, Nevada, North Carolina, North Dakota, Ohio, 1904, §§ 2934-2936. Telegraphiº com- panies may condemn a right of Way on railroads. The agreement in the Condemnation papers of a telephone Company in COndemning a right Of way on a railroad, that it will move its line if at any time it interferes "With the railroad, is binding. St. Louis, etc. R. R. v. Southwestern, etc. Co., 121 Fed. 276 (1903). California: A telegraph company may condemn “real property” for right of way, Cal. Code of Civil Pro- cedure 1907, §§ 1238-1240, including property already appropriated to a less necessary public use. §1240. Rights of way and “lands” and struc- tures thereon held for other public uses “may be connected with, crossed, Or intersected.” “They shall also be subject to a limited use, in common with the owner thereof.” $ 1240, sub. div. 5. A non-resident telegraph com- pany which has accepted the Post Road act of Congress may under the California Statutes Condemn a right of Way On a railroad in California, and any statute to the contrary would be unconstitutional. Western Union Tel. Co. v. Superior Court, 15 Cal. App. 679 (1911), the court saying: “The deprivation of the right in such tele- graph Corporations to condemn prop- erty for their uses, whenever neces- sary, might deprive them of the right 207, L. of 1909. may condemn “any real estate or right of Way Or easement or other right.” Rev. Stat. 1908, § 2461. Also “a CrOSS, upon and under any public high Way,” $ 2451, and “over, upon, under and across all public ‘lands.’” § 2452. Also “over or under the lands, property, privileges, rights of Way and ea.Sements of other persons and cor- porations.” A 2454. But has no power. LO COIldell III upoll a railroad right Uf way except to cross the same, $ 2454. Land Commissioners may grant a right of Way across state lands. Chap. |Under the Old Colo- rado Statute of 1885 a telegraph com- pany COuld condemn a right of way on a railroad (see Union Pacific R. R. w. Colorado Postal Tel. etc. Co., 30 ; Col. 133–1902), but that statute was repealed by L. 1907, ch. 175. Connecticut: A telegraph company may construct lines “upon any high- way or across any waters” (Genl. Stat. 1888, § 3944), but the consent of: adjoining proprietors must be ob- tained, § 3945; or in lieu of such con- a sent the consent of two of the county -" " Commissioners (id.). s Delaware: No poles shall be erected upon “the soil or property of any person” without first obtaining the Written Consent Of the Owner. Del. Cor. Laws, 1899, § 102. The above sec- tion was re-enacted in L. 1903, ch. 394, § 105. See L. 1913, ch. 189, 470. Florida.: A telegraph company may condemn a right of way “on Or beside any public road or highway.” Gen1. Stat. 1906, § 2820. Also upon a railroad right of way. § 2821. Not- withstanding the government is in control of the railroads of the coun- try, a telegraph Company may under a state statute condemn a right of Way On a railroad, but cannot take actual possession except with the con- • sent Of the government or after the Quºrº-5-6a+-Apprº-679-(1944): government relinquishes control. Pos- Colorado: A telegraph company tal Tel.-Cable Co. v. Call, 255 Fed. 850 i } ! i I ! i { - - i i - i i - - | | ! to do business at all, as would to a ...“ - large extent-be the effect of a denial 2 *of that right in-the present case,” 2 : * which denial by a state statute iS Void 3 ºf as being in conflict with Such Post * Road act of Congress. Fh condemna- tion proceedings instituted by a New York telegraph company to acquire a right of way on a railroad in Califor- nia, the legality of the existence of the corporation cannot be questioned, if it is a de jure or de facto corporation. Westeºpºrrier º :-refor-vº-Superior ºf rejºtº- \ 2-, *~~ A2 | i –Š-2- *F±ßéRºPH-TTAW's Oregon, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and possibly also Iowa, Kansas, Maine, New Mexico, (1919). A telegraph company in con- demning a right Of Way On a railroad condemns only on those parts which are Wide enough for the telegraph line. The rights of the telephone Company already having a line on the railroad right of way will be pro- tected later by the judgment entered. Postal Tel., etc. Co. v. Florida. East Coast Ry, 258 Fed. 493 (1919). Georgia : A telegraph company may Condemn a right of way upon “lands,” public highways, railroad rights of way and “private lands.” Code 1911, §§ 2808-2811. Where a tel- egraph line is already on a railroad right of way and the railroad needs that location for its own telegraph line, the telegraph company which has already commenced condemnation Can- not amend and Select a new part of the railroad right of way. Louisville & Nashville. etc. Ry. V. Western Union Tel. Co., 83 S. E. 123 (Ga. 1914). A telegraph company cannot Condemn a railroad right of way on a railroad owned by the state, even though the state has leased it. ern Union Tel. Co. v. Western, etc. R. R., 83 S. E. 135, S. C., 142 Ga. 532 (1914). It is held that a statute may authorize a foreign telegraph Com- pany to Condemn a right Of Way On a railroad, but the statute is void if it does not provide for the damages be- ing assessed by a jury, and provide for Compulsory payment. The rail- road COmpany may enjoin the Con- Struction. Southwestern R. R. v. Southern, etc. Tel. Co., 46 Ga. 43 (1872). After condemnation proceed- ings by a telegraph company to ob- tain a right of way on a railroad right of way are completed, the tele- graph Company may proceed to erect its lines, even though the railroad COmpany takes an appeal. Savannah, etc. Ry. v. Postal, etc. Co., 115 Ga. 554 (1902). See also in general Savannah, etc. Ry. v. Postal, etc. Co., 112 Ga. 941 (1901); Savannah, etc. graph company has West- Ry. . v. Postal, etc. Co., 113 Ga. 916 (1901); Georgia. R. R., etc. v. Atlantic, etc. Co., 152 Fed. 991 (1907); Atlantic, etc. R. R. v. Postal, etc., 120 Ga. 268 (1904). Damages which a telegraph Company must pay for constructing its poles, even over private property, should be merely the value Of the land actually OCCupied by the poles, unless proof is given upon which a reasonable and proper estimate may be made for Consequential damages. Hence, where $250 damages are given, while the land actually taken was only a fraction of an acre, the judgment will be reversed. Postal, etc. Co. v. Peyton, 124 Ga. 746 (1906). Where a tele- tWO telegraph lines on a railroad right of way, one On each Side of the tracks, and the COntract With the railroad under Which they were constructed has ex- pired, the telegraph company cannot Condemn a right of way for both of these lines where One is sufficient and Where the railroad has announced that it intends to build its Own tele- graph line On the location of the other existing telegraph lines belonging to the telegraph Company. In such a Condemnation the lessor as well as lessee of the railroad must be joined as defendants. The possibility that the telegraph company may allow a telephone company to string wires on Such telegraph poles will not be con- sidered because the railroad may deal With Such additional Servitude when attempted. The award will not in- clude any damages for the value of the right of way to the telegraph com- pany. Western & Atlantic R. R. v. Western Union Tel. Co., 138 Ga. 420 (1912). Idaho : A telegraph company may Condemn upon any public highway or any “lands.” Revised Codes of 1908, § 2833. The land commissioners may grant a right Of Way Over state lands. § 1637. A telegraph company may condemn a right of way on private ~35- -36~~ TEEEGRATPETTIAW--- §-2 Oklahoma, South Dakota and Wisconsin, the statutes authorize a tele- graph company to condemn a right of way on railroads. lands, including lands not already de- voted to a more necessary public use. §§ 5210-5213. This statute was ap- plied as authorizing a telegraph Com- pany to condemn a right of Way On a railroad right of way in Oregon, etc. R. R. v. Postal Tel., etc. Co., 111 Fed. 842 (1901). See also Postal Tel., etc. Co. v. Oregon, etc. R. R. 104 Fed. 623 (1900). Where an underlying rail- road mortgage is foreclosed and thereby cuts off the railroad com- pany’s grant of right of way to a tele- graph company, a court of equity may allow the telegraph company to COm- tinue its telegraph line on the rail- road right of way upon paying a rea- sonable and equitable consideration therefor to the purchaser at the fore- Closure Sale, the telegraph COmpany never having agreed to remove its telegraph line from the railroad right of way. St. Paul, etc. Ry v. Western Union Tel. Co., 118 Fed. 497 (1902); s. c., 106 Fed. 243 (1900); explained in Western Union Tel. Co. v. Penn- Sylvania R. R., 195 U. S. 540, 572 (1904). See also Great Northern Ry. v. Western Union Tel. Co., 174 Fed. 321 (1909). The decision in 118 Fed. 497 holds also that a grant by a rail- road Company to a telegraph COmpany of a right of way “for the uses and purposes” of the contract is not an absolute grant, but terminates with the contract, and the provision that the grant should apply to future ex- tensions of the railroad gives the tele- graph company a more equitable right to such right of way on extensions. The above decisions applied to a tele- graph line ruining through the states of Idaho, Minnesota, Montana, North Dakota, Oregon and Washington. Illinois: A telegraph COmpany may condemn upon “any railroad, road, highway, street or alley . . . or lands.” Rev. Stat. 1909, chap. 134, § 2. See St. Louis, etc. R. R. v. Postal Tel. C. Co., 173 Ill. 508 (1898). A condemnation proceeding by a tele- graph company for a right of way on a railroad which it already Occu- pied with its telegraph line, after the telegraph company had offered $5 per mile, was sustained in Western Union Tel. Co. v. Louisville, etc. R. R., 110 N. E. 583 (Ill. 1915). Where a con- tract between a telegraph company and a railroad COmpany relative to the telegraph lines of the former On the railroad right of way has expired and the telegraph company organizes a local company to conderrin the righll. of way occupied by the telegraph line, the railroad company may temporar- ily enjoin such condemnation pro- Ceedings in its suit for a permanent injunction on the ground that the tel- egraph line will interfere with the railroad constructing its Own tele- graph line. Western Union Tel. Co. v. Louisville & N. R. R., 201 Fed. 919 (1912). In Condemnation proceedings by a telegraph Company against an abutting property owner for poles on the Street, the damages cannot include the cost of rebuilding a fence every ten years for One hundred years, such damage being remote and speculative. Board of Trade, etc. Co. v. Darst, 192 Ill. 47 (1901). A telegraph company Condemns only a right of way and for Only One line of poles. A half rod in width is not excessive. Lockie v. Mutual Union Tel. Co., 103 Ill. 401 (1882). The damages which a tele- graph Company Constructing its line in the highway must pay to the owner Of the fee is the value of the land actually occupied by the poles, but not the Value of the strip of land Over which the wires and cross-arms are suspended. He is entitled only to the decrease in the value of that Strip by reason of the Company using it over- head while the owner may use it underneath. An award of $150.55 for tWenty poles on the highway and for CrOSS-arms and wires overhead will be Set aside as excessive. Illinois, etc. Co. v. Meine, 242. I11. 568 (1909). In Mutual Union Telegraph Co. v. Kat- kamp, 103 Ill. 420 (1882), a judgment S-2- TEEEGRAPH-L.A.W., A telegraph company in condemning a right of way on a railroad need not describe the exact location of the poles where the judgment requires them not to interfere with the trains or the proper use of the right of way by the railroad or other telegraph lines already on the railroad right of way, or endanger persons or property, and the judg- ment further binds the condemnor to change its poles to conform to necessary changes or new construction of tracks. The condemnation may include bridges over navigable waters, and also parts of an inter- state railroad right of way. An injunction in one Circuit against the railroad interfering with a telegraph line pending the condemnation may control a telegraph line on the same railroad in another Circuit.” A railroad company cannot enjoin a condemnation proceeding by a of $38.50 for eleven poles was re- versed by the Supreme Court of Illi- nois on the ground that it was ex- cessive. In the Case Board of Trade Tel. Co. v. Barnett. 107 Ill. 507 (1883), the Court held that the damages are nominal unless Special damages are proven. A right of way of a street railway cannot be condemned by an- Other Street railway. Suburban R. R. ºv. Metropolitan, etc. R. R., 193 Ill. 217 (1901), the court reviewing the cases authorizing the condemnation Of Such property as was not used for quasi-public purposes. Cf. Jap.3660- Indiana : A telegraph company may Condemn a right Of Way Over “real estate.” Burns Anno. Stat., 1908, § 5770. The courts hold that this is Sufficient to authorize a telegraph com- pany to Condemn a right of Way On a railroad. Postal, stc. Co. v. Chicago, etc. Co., 30 Ind. App. 654 (1303). A general Statute authorizing a tele- graph COmpany to COndemn a right of way enables it to condemn a right of Way on a railroad right of way where the telegraph poles and wires will not interfere with the railroad use of its right of way. Western Union Tel. Co. ^y. Louisville, etc. R. R., 108 N. E. 951 (Ind. 1915). A telegraph company Cannot maintain condemnation pro- ceedings wherein it offers to shift its line whenever the line interferes with railroad Operations, inasmuch as that is a promise in the future which will affect the damages to be awarded, and is Only a qualified condemnation. Ilouisville & N. Ry. v. Western Union Tel. Co., 111 N. E. 802 (Ind. 1916). Where the Owner Stands by and allows a Structure to be erected, he cannot in Condemnation recover the value of the structure also McClarren v. Jefferson School Tp., 169 Ind. 140 (1907). Iowa: A telegraph company may Condemn a right of way upon public roads or upon ‘lands.” Code of 1897, § 2.158. Kansas: A telegraph company may condemn a right of way over “lands.” Gen1. Stat. 1909, § 1807. Also upon public roads. § 1789. Also “lands” of any corporation whether acquired by purchase or by provision of the charter of said corporation, § 1790. Kentucky: A foreign or domestic telegraph company may condemn a right of way over any “public lands,” “highways” and railroad right of way and structures. Stat. of 1909. § 2510. See Postal, etc. Tel. Co. v. Mobile, etc. R. R., 54 S. W. 727 (Ky. 1900). A Condemnation by a telegraph Company against a railroad was involved in Louisville & N. R. R. v. Lang, 170 S. W. 2 (Ky. 1914). A state statute may * Louisville & N. R. R. v. Western Union Tel. Co., 250 U. S. 363 (1919); aff’g 233 Fed. 82 and 107 Miss. 626. ~37– telegraph company on the ground authorize a telegraph company to Con- demn a right of way on a railroad. Louisville & N. R. R. v. Western Un- ion Tel. Co., 207 Fed. 1 (1913). Where a telegraph company COnstructed its telegraph line on the railroad right of way under a contract which is ter- minated, and the telegraph COmpany now commences condemnation pro- ceedings as allowed by Statute, and the railroad threatens to cut down the felegraph line, the Court will enjoin the railroad from doing so, even though the railroad claims that it wishes to construct its own telegraph line on the same location where the existing telegraph line has been COn- structed Such injunction may be not only as to the telegraph line within the State Where the Inited-States court is sitting, but may also apply to telegraph lines Owned by complainant in other states which connect with the One in the State. Western Union Tel. Co. v. Louisville & N. R. R., 201 Fed. 946 (1912), aff’d, 207 Fed. 1. In a later decision the court again de- clined to dissolve the temporary in- junction, especially in its application to the Western Union lines On the Louisville & Nashville Railroad in Tennessee, Georgia, Indiana, and Illi- nois, as well as in Kentucky. Western |Union Tel. Co. v. Louisville & N. R. R., 201 Fed. 951 (1913). Louisiana A foreign or domestic telegraph company may condemn a right of way along “public roads or works” and along railroads and Over public lands and “lands, privileges and servitudes” of persons and cor- porations. Rev. Laws 1904, § 696. A judgment in the federal court of condemnation by a telegraph Company of a right of way on a railroad is not appealable to the Supreme Court of the United States On the mere aver- ment that the telegraph company has accepted the Post Road act of Con- gress of July 24, 1866, inasmuch as that act does not authorize condemna- tion, the condemnation being based On a state statute and the jurisdiction that the poles would be a menace of the court below being based on di- verse citizenship. Louisville & N. R. R. v. Western Union Tel. Co., 237 U. S. 300 (1915). A statute authorizing the construction of telegraph lines along and parallel to railroads en- ables the telegraph company to con- demn a right of Way On a railroad Tight Of way. The court Said that the post road act authorized the telegraph Company to go upon the railroad right of way, but that the compulsory pro- CeSS Of SO doing must be in the state Statute. Postal, etc. Co. v. Morgan's, etc. R. R., 49 La. Ann. 58 (1897). In a Condemnation proceeding by a for- eign telephone company against a rail- road, the telephone company must prove that it was legally organized, and it is a good defense that it was not legally Organized. Cumberland, etc. Co. v. St. Louis, etc. Ry., 117 La. 199 (1906). See also in general, POS- tal, etc. Co. v. Louisiana, etc. R. R., 49 La. Ann. 1270 (1897). Maine: A telegraph line may “take and hold as for public uses, land necessary for the construction and Operation of its lines. Land may be SO taken and damages therefor may be estimated, secured, determined and paid as in case of railroads.” Rev. Stat. of 1903, ch. 55, § 11. A railroad COmpany in Maine may enjoin a tele- phone company from constructing its telephone line on the railroad right Of Way, even though the railroad Com- missioners have granted that right and the statutes provide that if the parties cannot agree the railroad com- missioners may hear the matter and make an award; but the Statute has made no provision for compensation to the OWner Of the fee or the Owner of the railroad right of way. Canadian Pac. Ry. V. Moosehead Tel. Co., 106 Me. 363 (1910), the court holding, how- ever, that condemnation, perhaps, might have been had under another Statute authorizing the telephone com- pany to take “land” for construction and Operation of its line. Maº'yld?vd A telegraph company § –Š- *****~~~~~ º $ 2 sºmºrºe ----- TELEGRAPH.L.A Wrestºwer- to the trains and tracks of the railroad company, where, according to may condemn a right of way “upon any postal roads and postal routes, roads, streets and highways” and bridges. Pub. Gen. Law 1904, Art. 23, § 324. A telegraph company “may acquire by Condemnation any ease- ments or interest in the land which may be necessary to give effect to the purposes for which such corporation is formed.” $ 366. A telegraph COm- pany not in operation in Baltimore and not having constructed any lines in Baltimore before 1904, Cannot thereafter construct the same except by a special act of the legislature. § 366. In general, see Chesapeake, etc. Tel. Co. v. Mackenzie, 74 Md. 36 (1891). A power company may Con- demn the right to erect poles for Wires to transmit an electric-power Current, and to trim trees which interfere there with. Webster v. Susquehanna, etc. Co., 112 Md. 416 (1910). Massachusetts: A telegraph Com- pany may construct lines “upon and along the public ways” but shall not incommode the public use of public ways. Rev. Laws 1902, ch. 122, § 1. The location of the poles, etc., is under the control of the mayor and aldermen of a city or the selectmen of a town. L. 1906, ch. 117. Michigan, A telegraph company is authorized to construct its lines On the highways “or upon or over the land of any individual—the Owner Of any land through which said telegraph line may pass, and the railroad cor- poration on whose right of way the Same may be constructed, having first given consent.” Comp. D. 1897, p 2108, § 6660. Any person “over or through whose lands” such a tele- graph line is constructed, may have his damages appraised by commis- Sioners appointed by the court, etc Id., p. 2111, § 6672. A telegraph com- pany Cannot continue its line On a railroad right of way, the consent of the railroad company not having first been obtained. Western Union Tel Co. v. Ann Arbor R. R. , 90 Fed. 379 (1898); S. C., 178 U. S. 239. The con- flict of authority on this subject is referred to in Western Union Tel Co. w. Pennsylvania. R. R., 195 U. S. 540, 572 (1904). se MinneSOta A telegraph company may Condemn a right of Way upon any public road. Rev. Laws 1905, § 2927. And upon railroads. Id., § 2926. See Northwestern, etc. Co. v. Chicago, etc. Ry., 76 Minn. 334 (1899). Nor- thern Pac. Ry. V. North American Tel. Co., 230 Fed. 347 (1915); North Amer- ican Tel. Co. v. Northern Pac. Ry., 254 Fed. 417 (1918). Mississippi: A telegraph company may Condemn a right of way upon highways, turnpikes, railroads, ca- nals and public lands. Code 1906, § 925. Also across railroads. § 1876. See Louisville, etc. Ry. V. Postal Tel. Co., 68 Miss. 806 (1891); Postal Tel. C. Co. v. Alabama, etc. Ry., 68 Miss. 314 (1890); Mobile, etc. R. R. v. Postal, etc. Co., 76 Miss. 731 (1899); Alabama, etc. Ry. V. Cumberland, etc. Co., 88 Miss. 438 (1906). A statute authorizing telephone companies to condemn a right of way “along” a railroad right of way, authorizes con- demnation by a foreign telephone Company along the right of way of a railroad. Cumberland Tel. & Tel. Co. v. Yazoo, etc. R. R., 90 Miss. 686 (1907). Private land cannot be con- demned by a telegraph company in Mississippi. MissOuri: Telegraph companies nay condemn upon roads and also land owned by other corporations. Rev. Stat. of 1909, §§ 3326, 3327. Provided the new use shall not materi- ally interfere with the Old use or such use aS the former Owner “is entitled to put such lands to by law.” $ 2368. Postal Tel. etc. Co. v. Southern Ry., 89 Fed. 190 (1898). See American, etc. Co. v. St. Louis, etc., Ry., 202 Mo. 656 (1907). Iands or other property may be condemned by a telegraph company. § 2360. Build- ings or dwellings cannot be taken by a telegraph Company under this power. § 2366. 39- _40-T _TELEGRAPH-AW the papers in the condemnation proceeding, the poles even if they fell Montana : A telegraph company may condemn a right of Way upon the “public roads, streets and highways.” Civ. Codes, 1907, § 4400. A telegraph company may condemn a right of Way on private lands, including lands not already devoted to a more necessary public use. §§ 7330-7333. This statute was applied as authorizing a tele- graph company to condemn a right of way on a railroad right Of Way in Postal Tel. etc. Co. v. Oregon, etc. R. R., 114 Fed. 787 (1902). Nebraska . A foreign or domeStic telegraph COmpany may condemn a right of way upon public roads. Comp. Stat. 1907, § 6271. See in general Bronson v. Albion Tel. Co., 67 Neb. 111 (1903). Nebraska. Tel. Co. v. Western, etc. Co., 68 Neb. 772 (1903), holding that public roads do not in- clude streets and alleys in Cities. Nevada. A telegraph COmpany may condemn any “real property.” L. 1907, ch. 128, § 13. It may also condemn property already devoted to a public use provided the telegraph is a more necessary public use than that to which the property is already de- Voted. Id. New Hampshire: A telegraph COm- pany may Construct lines “in any public highway.” Pub. Stat. 1901, ch. 81, § 1. The location of the poles, etc., is under the control of the Select- ment of a town. § 2. New Jersey: A telegraph company may construct its lines on the high- ways “upon first obtaining the COn- sent in Writing of the OWners of the soil . . and upon, through or Over any other land, subject to the right Of the Owners thereof to full compensa- tion for the same.” L. 1909, ch. 195. The condemnation of the right to erect a telephone line on a street is not a condemnation in the usual Sense Of the term, inasmuch as there is no taking of property for the exclusive use of the party condemning. Nicoll v. New York & N. J. Tel. Co., 62 N. J. L. 156 (1898); aff’d, 62 N. J. L. 733. See State v. American, etc. Co., 43 N. J. L. 381 (1881). Western Union Tel. Co. v. Penn. R. R., 123 Fed. 33 (1903); aff’d, 195 U. S. 540. Western Union Tel. Co. v. Pennsylvania R. R., 195 U. S. 540 (1904), aff’g 123 Fed. 33 and 120 Fed. 362. Where a telegraph line built under a charter authorizing its construction, has been in existence on the public highway for a great many years without objection from the abut- ting owner who owns the fee of the Street, “it is to be presumed that the right so to do, with reference to abut- ting landowners, Was acquired from the predecessors” of such abutting landowners. Western Union Tel. CO. v. Polhemus, 178 Fed. 904 (1910), rev’g 167 Fed. 231. New Mea;ico: A telegraph Company may condemn a right Of Way upon “lands or other property.” Laws of 1905, ch. 97, § 1. New York; ; A telegraph Company may condemn a right Of Way Over “any of the public roads, Streets and highways” and upon “any other land.” Transportation Corp. Law, § 102, Consolidated LaWS. This Statute Was construed as not authorizing Condem- nation by a telegraph company of a right of way on a railroad. New York City, etc. R. R. v. Central Union Tel. Co., 21 Hun, 261 (1880). A condem- nation proceeding by a telephone COm- pany under the New York statutes will lie, even though the municipal consent has not yet been obtained, Or even though such consent Was Ob- taimed, and has lapsed by the expira- tion of a period fixed in the Consent. New Union, etc. Co. v. Marsh, 96 N. Y. App. Div. 122 (1904). In general, See Brooklyn, etc. R. R. v. Nagel, 75 Hun, 590 (1894); aff’d, 150 N. Y. 562; City of Johnstown v. Wade, 30 N. Y. App. Div. 5 (1898). Under the New York Statute the Court cannot reduce the award of Commissioners in the condemnation of a right of way for a telephone Company, but may set it aside. Matter of Central, etc. Co., 36 N. Y. App. Div. 553 (1899). Where a corporation entitled to condemn prop. §–2---- ****** —$–2 X TELEGRAPH. T.A.W. --~~~~ J. over, would not reach the nearest cross-ties, and there is already another erty enters upon the land before con- demnation, and uses the same, the value of any structures added thereto is to be included in damages subse- quently awarded in condemnation proceedings. Village, etc. v. Smith, 184 N. Y. 341 (1906). Cf. § 905, QGMK-ſe Cla-lar arrºr-p- Prº- rote-r; iºn-fa Suffolk, w. Gammon, 113 N. Y. App. Div. 764 (1906). Bell, etc. Co. v. Parker, 187 N. Y. 299 (1907). Whit- aker v. Kilby, 55 N. Y. Misc. 337 (1907). The New York court of ap- peals in the case Eels v. American T. & T. Co., 143 N. Y. 133, 143 (1894), where damages were involved for erecting telephone poles on a country highway, said, in reference to the amount of damages, as follows: “The amount of the Compensation is not now the question, but that, in many cases it can be anything more than merely nominal would seem to be a proposition which would not require great elaboration of argument to make plain. The use would frequently be but a technical encroachment upon the rights of the adjoining owner, and there would be but little fear that anything more than nominal damages would be allowed.” So also in the case Postal Telegraph-Cable Co. v. Bruen, 39 N. Y. Supp. 220 (1896), where the court held that telegraph poles, even upon the country highway, give a right to nominal damages only. In the case Blashfield v. Empire State Tel. Co., 147 N. Y. 520 (1895), the damages were only one dollar a pole. This fact did not appear in the Opinion, but the printed case so shows. In the case Comesky v. Postal Tele- graph-Cable Company, 41 N. Y. App. Div. 245 (1899), the court Sustained an Order of the court below setting aside a verdict of $250 for damages for the erection of two poles on a Street, the suit being by the abutting property OWner. One corporation can- not by eminent domain take from an- other corporation having the same power land held by the latter for pub- lic use, but may acquire a right of way Southern Ry., in such land where the right of Way may be enjoyed without detriment to the public or without interfering with the use to which the land is already devoted, and this applies to land held by a municipality the same as land held by individuals. Matter of Roch- ester Water Commissioners, 66 N. Y. 413 (1876). Thus a city may acquire by Condemnation proceedings a right to lay a Sewer under railroad tracks. Matter of City of Gloversville, 42 N. Y. Misc. 559 (1904). See also Matter of Rochester, etc. R. R., 110 N. Y. 119 (1888). It is no defense to a con- demnation proceeding by a railroad that the company is already occupying the property under a lease for a term of years. Re New York, etc. R. R. v. Kip, 46 N. Y. 546 (1871); Kip v. N. Y., etc. R. R., 67 N. Y. 227 (1876). It is doubtful whether a foreign telegraph Or telephone company has the right of eminent domain. Whitaker v. Kilby, 55 N. Y. Misc. 337, 343 (1907). North Carolina : A telegraph com- pany may Condemn a right of way “along any railroad or other public highway.” Revisal of 1908, vol. 1, § 1571. Also “the right of way over the lands, privileges and easements of Other persons and corporations.” § 1573. See also $ 2575. Telegraph companies may condemn a right of way “along” a railroad. Code, Vol. 1, 1883, p. 769, §§ 2007, 2009. See Postal Tel. C. Co. v. Southern Ry., 89 Fed. 190 (1898); Postal Tel. C. Co. v. 90 Fed. 30 (1898); Southern Ry. v. Postal Tel., etc. Co., 93 Fed. 393 (1899). An order appoint- ing Commissioners to assess damages in a proceeding by a telegraph Com- pany to condemn a right of way on a railroad is not appealable, it not be- ing a final judgment or Order. South- ern Ry. Co. v. Postal Tel.-Cable Co., 179 U. S. 641 (1901). In these con- demnation proceedings by the Postal | Telegraph-Cable Company for a right of way on the Southern Railway Com- pany, an award of $10 was given for such right of way on 242 miles of the –41— 24&T _TELEGRAPH-IIAw § 2 telegraph line on the railroad right of way which does not interfere ~~. railroad, and that amount having been paid to the clerk of the court the tele- graph Company erected its telegraph line on the railroad right of way. See Postal Tel. C. Co. v. Southern Ry., 122 Fed. 156 (1903). North Dakota. A telegraph Com- pany may COndemn a right Of Way. Code 1899, § 5956, upon “all real property,’’ public lands, and “prop- erty appropriated to public use, but SII Ch property shall not be taken unless for a more necessary public use than that to Which it has heen already ap- propriated.” $ 5958. All rights of way mentioned in § 5956 “are Subject to a limited use in common with the owner thereof.” $ 5958. But it must appear, if the property is already ap- propriated to a public use, that the use to which it is to be applied is a more necessary public use. § 5959. This was amended by ch. 75, laws of 1901, to the effect that when a right of Way has been unused for five years the attempt by another person to take it shall be deemed a more public use A property Owner is not entitled to damages for the agricultural use of the street, neither is he entitled to damages for the future value of the interest condemned, nor for the value of the right of way to the telegraph or telephone company itself. Any dam- ages to trees already growing, how- ever, are to be allowed but not future damages to such trees. Tri-State, etc. Co. v. Cosgriff, 19 N. Dak. 771 (1909), Ohio. A telegraph company may Condemn a right of way upon “any public road.” Bates, Anno. Stat., 6th Ed., §§ 3454, 3461; also “any land, whether held by an individual Or Corporation, and whether acquired by purchase or appropriation, or in virtue of any provision in its charter.” § 3456. The right to use lands of a railroad company is limited to land Within five feet Of the Outer limits of the railroad right of way, except where it is impracticable so to do. § 3459. No company shall appro- priate a building or yard for its tele- graph lines nor injure Or destroy any fruit or ornamental tree. § 3457. A telegraph company cannot condemn a right of way on a railroad right of Way, unless the right of way of the railroad be not thereby materially interfered with for the practical use thereof by the railroad company. Cleveland, etc. Co. v. Ohio, etc. Co., 68 Ohio St. 306 (1903), holding also that Where the statute authorizès a telephone or telegraph company to condemn a railroad right of way the railroad Cannot defend on the ground that it is unnecessary. TJnder the Statutes Of Ohio a telegraph company Organized under the laws of New York and not licensed to do business in Ohio, has no power to condemn a right Of Way On a railroad. Postal, etc. Co. v. Cleveland, etc. Co., 94 Fed. 234 (1899). Oklahoma: A telegraph company Imay Condemn a right of way Over “lands and real property” and “high- ways.” Genl. Stat. 1908, § 5948. Railroads are public highways. Const., Art. 9, § 3. Oregon: A telegraph company may Condemn a right of way upon any public road, highway and street (ex- Cept Streets in an incorporated city Or town), public lands, and “lands of private individuals.” B. & C. Codes and Stat. 1902, § 4748. A telegraph Company may condemn a strip not more than 25 feet wide upon “lands.” Laws of 1903, p. 111, and L. 1907, p. 289. This statute was construed in Pacific Postal Tel., etc. Co. v. Oregon & Cal. R. R., 163 Fed. 967 (1908), as authorizing condemnation for a tele- graph line On a railroad right of Way. Pennsylvania : A telegraph com- pany may condemn a right of Way “upon any of the public roads, streets, lanes or highways.” Purdon's Digest, 13th Ed. Supp., p. 6083, § 2. Penn- Sylvania, etc. Co. v. Hoover, 209 Pa. St. 555 (1904). Western Union, etc. Co. v. Pennsylvania R. R., 123 Fed. 33 (1903); aff’d, 195 U. S. 540. West- ern Union Tel. Co. v. Pennsylvania _$–2– Tºrºſcºpff Tºw" \ & - with the railroad itself." The Gaited States-Gount may have juris- ~~º" R. R., 195 U. S. 540 (1904), aff’g 123 Fed. 33 and 120 Fed. 362. Rhode Island: A telegraph Com- pany cannot Condemn a right of way except by Special act of the legisla- ture giving such power to the cor- poration. Constitution 1909, Art. IX, §§ 1 and 2. A telegraph company is prohibited from placing its poles on private property except with the COnsent Of the Owner. Gen1. Laws 1909, ch. 345, § 58. Any town or city by vote of the municipal authorities Imay grant rights and franchises for the use of the streets and highways for telegraph purposes. Id., ch. 91, p. 341. South Carolina: A telegraph com- pany may condemn a right of way upon “public lands, highways,” private lands and railroad right of way. Code of Laws 1902, §§ 2211, 2213. See South Carolina, etc. R. R. v. American, etc. Co., 65 S. C. 459 (1903). South Dakota : Real property may be condemned. Civil Code 1908, § 563, Sub. div. 9. A telegraph com- pany may condemn a right of way Over “lands” belonging to the state; also Streets, highways and public grounds, $ 554. Ten Cn SS66 A telegraph company may condemn a right of way upon highways, public or private lands, railroad right of way and railroad bridges. Shannon’s Code 1896, § 1830. See Mobile & O. R. R. v. Postal Tel C. Co., 101 Tenn. 62 (1898). In Tennessee by statute a telegraph or telephone company may construct its lines over private property and the remedy of the property owner is at law for damages within twelve nonths. Doty v. American Tel. & Tel. Co., 123 Tenn. 329 (1910). A condem- nation proceeding in a Tennessee Court by a New York telegraph com- pany against a Rentucky railroad COmpany Cannot be removed to the United States court if the plaintiff ob- jects. Western Union Tel. Co. v. Louisville & N. R. R., 201 Fed. 932 (1912). Teacas: Telegraph companies may condemn a right of way on “lands” and this is construed as including railroad rights of Way. Civil Stat., Vol. I, pp. 315, 317, ch. 7, Articles 698, 699. See Ft. Worth, etc. Ry. v. Southwestern, etc. Tel. Co., 96 TeX. 160 (1903); Gulf, C. etc. Ry. v. South- western T. & T. Co., 18 Tex. Civ. App. 500 (1898); Houston, etc. R. R. v. Postal Tel. Étc. Co., 18 Tex. Civ. App. 502 (1898); San Antonio, etc. Ry. v. Southwestern Tel. etc. Co., 56 S. W. 201 (Tex. 1900)'; Texas, etc. R. R. v. Southwestern, etc. Co., 57 S. W. 312 (Tex. 1900). In the case Gulf, etc. Ry. V. Southwestern Tel. etc. Co., 52 S. W. 86 (Tex. 1899), the court held that in condemnation proceedings by a telegraph company for a right of way on a railroad right of way the measure of damages was the extent to which the use of the land by the railroad had been impaired, and not the advantage accruing to the tele- graph company, and the court upheld the verdict for $4 per mile. The same Court, in the case Southwestern Tel., etc. Co. v. Gulf, etc. Ry., 52 S. W. 106 (Tex. 1899), held that it was im- material what the right of way was worth to the railroad company, or what it cost to clear it, or that the railroad company intended to make Other improvements, and the court held the damages were measured by the interference of the poles with the use of the right of way. And in the case Texas, etc. R. R. v. Postal, etc. Co., 52 S. W. 108 (Tex. 1899), the same court sustained a judgment for $83.90 for a telegraph right of way on sixteen and three fourthS miles of railroad right of way. A statute authorizing condemnation by telegraph companies is applicable to telephone companies, and where the condemnation is for a right of way on a railroad right of way the measure of damage is the extent * Georgia R. R., etc. v. Atlantic, etc. Co., 152 Fed. 991 (1907). re-º•4. 3 **** 44- TELEGRAPH. L.A.W. • $ 2 diction of a suit by a railroad company to enjoin condemnation pro- ceedings by a telegraph company, even though neither party is a resident of the district wherein the suit is brought." A statute author- izing telegraph companies to construct their lines on the roads and highways, but not providing for compensation, gives a right of way to which the use of the land by the railroad has been impaired. San An- tonio, etc. Ry. v. Southwestern Tel. etc. Co., 56 S. W. 201 (Tex. 1900). The damage is the decreased value to the railroad of its right of way, and not the value of the right of way to a telephone company, and no damage is allowed for future interference by the telephone Company with the railroad fence in Constructing its line. Texas, etc. R. R. v. Southwestern, etc. Co., 57 S. W. 312 (Tex. 1900). Utah : A telegraph company may Condemn a right of way upon “all real property” including property already appropriated to a public use, provided that “such property shall not be taken unless for a more necessary public use” and all rights of way “shall be Subject to a limited use in common with the owners thereof.” Compl. Laws 1907, §§ 3588-3591. Power of eminent domain is conferred upon foreign Corporations after having qual- ified under the laws of Utah by ch. 20, Laws 1909. The above statutes were held sufficient to Sustain con- demnation for a telegraph right of Way On a railroad right of way. Pos- tal Tel., etc. Co. v. Oregon, etc. R. R. 23 Utah, 474 (1901). Verºn Ont.: A telgeraph company may construct lines upon the high- ways Pub. Stat. 1906, § 4837. The location of the poles, etc., is under the control of the selectrnen of the town. §§ 4838, 4839. By Act No. 116, LaWS of 1908, telegraph companies Were brought under the Public Serv- ice Commission. Section 13 of that act gives the commission power to paSS On the necessity of a proposed line passing over the lands of any per- son, and to determine the compensa- tion to be paid for the use of said lands. “A domestic telegraph, tele- phone or electric-light company may erect and maintain its line along the Sides of railroad tracks within the limits of lands owned or held by a railroad Corporation on paying to it reasonable compensation therefor. If they cannot agree upon such compen- sation it shall be determined by com- missioners residing in the vicinity of the railroad, who shall be appointed and ascertain Such compensation agreeably to the provisions of law in Case Of lands taken for railroads.” § 4848. In the case Rugg v. Commer- cial Union Tel. Co., 66 Vt. 208 (1894), it Was held that Only nominal damages WOuld be allowed where travel was not inconvenienced and repairs to the highway not increased and trees not Cut. Virginia: Telegraph Companies may condemn a right of way upon “land.” Code 1904, § 1294h, cl. 3. And also a right of way “along and parallel to” railroads, §§ 1294h-1033d; also Const., § 124. A statute author- izing a telegraph COmpany to construct its telegraph lines “along and parallel to” any railroad authorizes it to con- Struct its line On the railroad right of Way. Postal, etc. Co. v. Farmville, etc. R. R., 96 Va. 661 (1899). Washington : A telegraph company Imay condemn a right of way upon railroad right of way, public roads and “lands.” R. & B. Codes and Stat 1910, §§ 9302, 9304, and 9314. The statutes require railroads to all OW a. telegraph Company to construct its line on and along the right of way of the railroad, and for failure or refusal so to do the railroad company is liable for damages from $1,000 to $5,000 for * Louisville & Nashville R. R. Co. v. Western Union Tel. Co., 234 U. S. 369 (1914). TELEGRAPH LAW .45-...--" --$–2– OVer” such roads as belong to the state, but does not give the right to condemn a right of way on a railroad, such railroad not being a “highway” in that sense." Where the statutes of the state merely authorize telegraph companies to condemn generally without giving expressly and distinctly the right to condemn railroad property for such telegraph right of way, a more difficult question arises. The law seems to be settled, however, that even though the statutes of a state do not expressly authorize a telegraph company to condemn a right of way on a railroad right of way, yet where the statutes authorize a telegraph company to condemn land, or to exercise the right of eminent domain, this is sufficient to sustain condemnation for a tele- graph right of way on a railroad right of way, it being shown that the railroad operations are not interfered with thereby.” Such also ~ rights of way, ch. 631, Laws 1907; º “in any lands,” ch. 662, Laws of 1907. ' Wyoming: A telegraph company may condemn a right of way upon \, any road or street. Ch. 31, Laws of ' 1901, § 1. Also upon “any land” ex- cept railroad right of way, § 2. 2’ * Western Union Tel. Co. v. Penn- sylvania R. R., 123 Fed. 33 (1903); aff’d, 195 U. S. 540. In New York it each offense, and $100 a day, §§ 9302, 93.18. It is no defense to condemna- tion proceedings by a telephone com- pany to acquire a right Of Way imme- diately adjacent to a railroad right of Way, that the Statute authorizes the telephone Company to condemn a right of Way On the railroad right of way. State v. Superior Court, 137 Pac. 311 (Wash. 1913). A condemnation pro- i } Ceeding may be abandoned at any time prior to actual payment of the award. State v. Superior Court, 171 Pac. 248 (Wash. 1918). West Virginia : A telegraph com- pany may condemn a right of way upon “private property.” Code 1909, § 1361. “The county court of any county may authorize any telegraph Or telephone company, organized under this chapter, to erect and maintain telegraph Or telephone poles on any land Condemned or used as a public road, but not in such way as to ob- Struct any such road. But this sec- tion shall not apply to the National Or Cumberland road.” L. 1901, ch. 82. Wisconsin. A telegraph company may Condemn a right of way over “any public road, highway or bridge . Or upon the land of any owner COnSentive thereto.” Stat. Sanborn & Sanborn Supp., § 1778; also private alleys, $ 1778a, and across railroad is held that a statute giving a right to construct telegraph lines on “public roads” does not give the right to con- Struct over a railroad right of way. New York, etc. R. R. v. Central, etc. T. Co., 21 Hun, 261 (1880). * Western Union Tel. Co. v. Louis- ville & N. R. R., 108 N. E. 951 (Ind. 1915); Postal Tel., etc. Co. v. Chicago, etc. Ry., 30 Ind. App. 654 (1903); Pacific Postal Tel., etc. Co. v. Oregon & Cal. R. R., 163 Fed. 967 (1908); 15 Cyclo. of Law and Procedure, p. 625; Oregon, etc. R. R. v. Postal Tel., etc. Co., 111 Fed. 842 (1901), where the circuit court of appeals said (p. 846) : “By section 5210, telegraph com- panies are given the authority to ex- ercise the right of eminent domain. This provision, standing alone, unaf- fected by other statutory enactments, Would confer upon a telegraph com- pany the authority to condemn a right of Way along and upon the right of Way of a railway company, provided that it did not in any way interfere _46- “FEI-FGłºńſſ LAW. $ 2 is the rule if the statute authorizes the condemnation of land. includ- ing land already appropriated for some public use, where the telegraph use is a “more necessary public use.” " The Post Road act of Congress of 1866 does not confer the right of eminent domain or the right to enter upon private property without the consent of the owner. Hence a telegraph company cannot under that act alone condemn a right of way on a railroad.” But on the other with the use to which the right of sylvania R. R., 195 U. S. 540 (1904), way was already dedicated.” See also aff’g 123 Fed. 33; Postal, etc. Co. v. § 906, sºupºid. Contra, New York City, Cleveland, etc. Co., 94 Fed. 234 (1899); etc. Ry. v. Central Union Tel. Co., 21 Northwestern, etc. Co. v. Chicago, etc. Hun, 261 (1880). Under the Texas Ry., 76 Minn. 334 (1899); Postal Tel., statute authorizing telegraph com- etc. Co. v. Southern Ry., 89 Fed. 190 panies to condemn a right of way over (1898). See Western Union Tel. Co. the lands of other corporations, they v. Ann Arbor R. R., 90 Fed. 379 may condemn a right of way on a rail- (1898) ; S. C., 178 U. S. 239. Pensacola road right of way. Ft. Worth, etc. Ry. Tel. Co. v. Western Union Tel. Co., 'v. Southwestern, etc. Tel. Co., 96 Tex. 96 U. S. 1 (1877); Western Union Tel. 160 (1903). It was held in the case Co. v. American Union Tel. Co., 9 Northwestern, etc. Co. v. Chicago, etc. Biss. 72 (1879); s. c., 29 Fed. Cas. Ry., 76 Minn. 334 (1899), that a tele- 790. The post road act is found in graph company might have the right $$ 5263-5269 of the Rev. Stat. of U. S., to Condemn the right of way on a and see 23 U. S. Stat. at Large, ch. railroad right of way where there was 9, p. 3, being the act of Congress of a reasonable and practical necessity March 1, 1884, making post routes of for using such route, even though the “all public roads and highways while Statute did in expressly authorize kept up and maintained as such.” By a telegraph company's to condemn a the Revised Statutes of the United right of way on a railroad-right of States, § 3964, every railroad is made Way, but the court held that in *iº See also prº-3660-3664, Case the evidence did not prove such - Opp. Cf. Atlantic, etc. Tel. reasonable and practical necessity. A Co. v. Chicago, etc. R. R., 2 Fed. CaS. water-power and irrigation company 176 (1874); S. c., 6 Biss. 158. The cir- may Condemn for its reservoir land Cuit Court Of the United States in pass- on which there is a railroad right of ing upon chapter 772 of the acts of way, such right of way never having Congress of 1888 (see 25 U. S. Stat. at been used by the railroad, it being un- Ilarge, p. 382), said: “That act, in necessary to the railroad. Denver, effect, in connection with earlier etc. Co. v. Denver, etc. R. R., 30 Colo. statutes, made the right of way of 204 (1902). every railroad a post road, and pro- * Oregon, etc. R. R. v. Postal Tel., vided that any telegraph company, in etc. Co., 111 Fed. 842 (1901), where it complying with the provisions of the was held that such a special provision act, should be entitled to construct is merely declaratory of the preceding and operate a line of telegraph upon general rule; Postal Tel., etc. Co. v. all post roads. The right thus created Oregon, etc. R. R., 104 Fed. 623 is for the benefit of the telegraph (1900); Postal Tel., etc. Co. v. Oregon, company.” United States v. North- etc. R. R., 114 Fed. 787 (1902); Postal ern Pacific R. R., 120 Fed. 546 (1903), Tel., etc. Co. v. Oregon, etc. T. R., 23 rev’d in 134 Fed. 715, on the ground Utah, 474 (1901). that the court had no jurisdiction over * Western Union Tel. Co. v. Penn.- the defendant in that district. *\, hand a California court has held that the Post Road act of Congress demn, even on a railroad."f The federal court have jurisdiction of a condemnation case where the petition alleges that over three thousand dollars involved, and the necessary diverse citizenship is also alleged.” A condemnation proceeding may be removed to the United States court if the neces. sary diverse citizenship exists and the amount involved is over three thousand dollars.” The fact that a New York telegraph corporation, a parent company, owns practically all the stock of an Idaho corpo- ration, does not prevent the latter exercising its power of eminent do- main in Idaho.” A mortgagee is not a necessary party defendant.” It is not necessary that the board of directors authorize condemnation." renders it obligatoryjon a state to allow a telegraph company to con- …47---~~~~ unconstitutional. Co., 94 Fed. 234 (1899). * A non-resident telegraph Com- pany which has accepted the Post Road act of Congress may under the California statutes condemn a right Of way on a railroad in California, and any statute to the contrary would be Western Union Tel. Co. v. Superior Court, 15 Cal. App. 679 (1911), the court saying: “The depri- Vation of the right in Such telegraph Corporations to condemn property for their uses, whenever necessary, might deprive them of the right to do business at all, as would to a large exten be the effect of a denial of that right in the present case,” which de- nial by a state statute is void as being in conflict with such Post Road act of Congress. * * Postal, etc. Co. v. Cleveland, etc. A judgment in the federal court of condemnation by a telegraph company of a right of Way On a railroad is not appealable to the Supreme Court of the United States on the mere averment that the telegraph company has accepted the Post Road act of Congress of July 24, 1866, inasmuch as that act does not authorize condemnation, the condem- nation being based on a state statute and the jurisdiction of the court below being based on diverse citizenship. Louisville & N. R. R. v. Western Union Tel. Co., 237 U. S. 300 (1915). * Madisonville, etc. Co. v. Saint Bernard, etc. Co., 196 U. S. 239 (1905). A condemnation proceeding may be removed to the federal COurt. if the necessary diverse citizenship and value are involved. Georgia R. R. etc. v. Atlantic, etc. Co., 152 Fed. 991 (1907). Cf. Western Union Tel. Co. v. Louisville & N. R. R., 201 Fed. 932 (1912). Condemnation proceedings instituted in an Illinois state court by an Illinois telegraph company against an IIIinois railroad to acquire a right of way on the railroad cannot be re- moved by the defendant to the gaited court, no federal question be- ing involved. Western Union Tel. Co. 4). Southeast, etc. Ry., 208 Fed. 266 (1913). A suit by a railroad company in the state court against a telegraph company for $682,972.95 for one year's rental by reason of the telegraph Com- pany’s lines being on the railroad right of way after a contract between them had expired, may be remoevd to the federal court if the necessary di- versity of citizenship exists. Louis- ville & N. R. R. v. Western Union Tel. Co., 218 Fed. 91 (1914). * Oregon, etc. R. R. v. Postal, etc. Co. of Idaho, 111 Fed. 842 (1901); "Louisville & N. R. R. v. Western Union Tel. Co., 249 Fed. 385 (1918). * Postal Tel., etc. Co. v. Louisville, etc. Ry., 43 La. Ann. 522 (1891). See §§ 905-906, -Cook-off Corporations., uteS. Jºzº - TELEGRAPH LAW. Where a telegraph company has a right, under the statutes of the state, to condemn a right of way on the right of way of a railroad, the damages to be paid to the railroad company are nominal, inasmuch as the railroad owns only a right of way, and such right of way is not damaged or interfered with by the telegraph company." • * - Alabama, etc. Ry. v. Cumberland, etc. Co., 88 Miss. 438 (1906); Postal, etc. Co. v. Oregon, etc. R., R., 114 Fed. 787 (1902); Union Pacific R. R. v. Colorado, etc. Co., 30 Colo. 133 (1902). The fact that a New York telegraph company owns all the stock of a Utah telegraph company does, not prevent the latter exercising the power of eminent domain under the Utah Stat- Moreover, the de ju're existence of a corporation which is a de facto corporation will not be inquired into in condemnation proceedings, unless fraud in its organization is involved. Postal Tel., etc. Co. v. Oregon, etc. R. R., 23 Utah, 474 (1901). It is no defense to a condemnation by a tele- graph company that it is a dummy company for a foreign corporation. Louisville, etc. Ry. v. Western Union Tel. Co., 110 N. E. 70 (Ind. 1915). TJnder the Ohio statute a dummy street railway company organized by another street railway company, in Order that the former may condemn a right of way, can not maintain con- demnation proceedings. Parkside, etc. Assoc. v. Cleveland, etc. Co., 112 N. E. 596 (O. 1915). Even though a telephone Company has no power to `--> United-States Court in a Suit, yet un- less it is clearly proved that that was the Sole cause of the incorporation the Ejnited-States Court Will take jurisdic- tion. Percy Summer Club v. Astle, 163 Fed. 1 (1908). See also $ 759, Cook On Corp. A railroad may COn- demn a right Of Way for a brailclu track to lime-kilns, even though all its Stock is Owned by a lime-kiln COm- pany, Ulmer v. Lime, etc. Co., 98 Me. 579 (1904). See also $ 905, Goekarzółł. &grº. - * St. Louis, etc. R. R. v. Postal Tel. C. Co., 173 Ill. 508 (1898); Mobile & O. R. R. v. Postal Tel. C. Co., 101 Tenn. 62 (1898); Mobile, etc. R. R. ^). Postal, etc. Co., 120 Ala. 21 (1898); Atlantic, etc. R. R. v. Postal, etc. Co., 120 Ga. 268 (1904); Postal, etc. Co. v. Oregon, etc. Co., 104 Fed. 623 (1900), and 114 Fed. 787 (1902); Postal Tel., etc. . V. Oregon, etc. R. R., 23 Utah, 474 (1901). See also the various de- cisions 9 ºº: gº º ºxº 'sº applying the same rule to a telegraph line in a highway. In Condemnation proceedings by the Postal Telegraph- Cable Company against the Florida East Coast Ry in the United States District Court in Florida in October, condemn a right of way, it may or- 1919, the jury awarded $3,042 for a ganize a telegraph company and cause the latter to condemn, as allowed by the statute. Alabama, etc. Co. v. Cum- berland Tel. & Tel. Co., 88 Misc. 438 (1906). Even though a timber com- pany holds all the stock of a railroad company, yet the latter may exercise the power of eminent domain, espe- cially where other timber owners will be able to use the road. State v. Su- perior Court, 62 Wash. 612 (1911). Although the court may inquire whether the company was organized A merely to give jurisdiction to the telegraph Sand telephone right of Way on the railroad, being at the rate of The award to a railroad will not include any damages for the value of the right of way to the tele- graph company. Western & Atlantic R. R. v. Western Union Tel. Co., 138 Ga. 420 (1912). In New Orleans, etc. R. R. v. Southern, etc. Tel. Co., 53 Ala. 211 (1875), the damages given to the railroad were nothing, the jury finding that no injury would be done to the railroad by the construction of the telegraph line. An award Of . § 2 - - a r" 2 - . ºr i. - r A p . % **. t f :// (N- ! t .2 °º ºf j : * : * : * – C , , , , º, . . . . . . . (* 23-p (ſº a 3 (º <º *: f tº '… tº . . . ." - | iºr sº'. " * re--- six-i.” .*.*.*** - - } £2–5.” f G. r.” --- **. - - f ſº a f : - (- * { - Are : * */ . * &T -- a . . . . . . . 22. 2. '7 (, ‘t’. A ſº º ~ * ſ - f * * # } g-z/- 6–4, &_º - - *** * kºº-º-º-º- gº -TELEGRAPH.L.A. Wºº Rental previously paid by a telegraph company to a railroad com- pany for right of way on the railroad is not admissible in evidence in condemnation proceedings by the telegraph company to acquire a permanent right of way," but there is authority to the contrary.” The telegraph company may abandon the proceedings at any stage.” It has been held that where a telegraph line has been constructed on a railroad right of way, by consent of the railroad company, after the latter had mortgaged its property, a foreclosure of the mortgage may fake away the right of the telegraph company $2,500 for a right of way over one hundred and eight miles of railroad right of Way was Sustained in Louis- ville, etc. Ry. v. Postal Tel. Co., 68 Miss. 806 (1891), the court holding also that, where the railroad company does not answer a letter seeking to buy the right of way, this is sufficient evidence that the parties cannot agree aS to the Same. In Postal Tel. C. CO. ^y. Alabama, etc. Ry., 68 Miss. 314 (1890), an award of $40 per mile for erecting a telegraph line on a railroad right of way was sustained. In Pos- tal, etc. Co. v. Louisiana, etc. R. R., 49 La Ann. 1270 (1897), the court held that the compensation to be paid to a railroad company by a telegraph com- pany for the erection of a telegraph line on the railroad right of way was the value of the use of the property and not the value of the fee. The court held that $8.50 a mile was too small, and that it should be increased to $20 a mile. The measure of compensa- tion is the decrease in the value of the use of the right of way for railroad purposes. Cleveland, etc. Co. v. Ohio, etc. Co., 68 Ohio St. 306 (1903). Under the Missouri statute a telephone com- pany may condemn a right of way on a railroad right of way American, etc. Co. v. St. Louis, etc. Ry., 202 Mo. 656 (1907). The court in this case upheld the sufficiency of the petition, . but reversed the decision below on the ground that substantial damages might be proved by the railroad, thus making the award more than nominal, Where the railroad had been COn- * Louisville & N. R. R. v. Postal Tel.- Cable Co., 85 S. E. 110 (Ga. 1915), the Court holding also that the meas- ure Of damages is the value of the land actually taken and the extent to which the use of the right of way by the railroad company is diminished by its use by the telegraph company. Even though a railroad is already in possession of land under a lease, it may condemn the same and the con- demnation “is not to condemn the rent, or the right to the rent for the term.” Re N. Y. & Harlem R. R. 49. Kip, 46 N. Y. 546 (1871). * In Condemnation proceedings by a telegraph company for a right of way On a railroad, rental paid to the rail- road by other pole companies for sim- ilar rights of way may be shown, and Such rental may be capitalized at 4% to 5 per cent. to Show their value, and the jury is not bound by what the telegraph company has paid other railroads for a similar right of way. North American Tel. Co. v. Northern Pac. Ry., 254 Fed. 417 (1918) ; S. c., 249 U. S. 607. This case, Northern PaC. Ry. V. North American Tel. Co., 230 Fed, 347 (1915), takes the posi- tion that a railroad company may lease the unused portions of its right of way to telephone or other compan- ies, and hence in a condemnation pro- ceeding by a telegraph. Company the rentable value of such right of way may be proved in evidence as well as the amount of rent which the tele. graph company formerly paid the rail- road company for this same right of Way. 3 * See prºgg3, Cook-on-Corp. __” *. sº /. * * * ºs--- dº ſº." - # is a rºt & 2. g - - º, -- . 5 ..º-ºº- - sºrºrº ...sºjº” … . `... - - - 2 gº '', 0- TºBiºBGRAPH LAW - *... §. ºf-sissiºsº- *?-, $º. °S, -- - & `, to remain on such right of way," but the betterºopinion is to the Structed through a low country and sustained in Louisville & N. R. R. v. was wet in places and the timber had Postal Tel-Cable Co., 85 S. E. 110 (Ga. been cleared away at great expense, 1915). In the case Louisville & N. and it was possible for the telephone R. R. v. Western Union Tel. Co., 203 company to rent a right of way at a Fed. 1022 (1913) an award of $6,000 substantial price. A telegraph com- for 35 miles was appealed from by pany may condemn a right of way on the railroad company itself, but was a railroad where the right of way So affirmed. Appeal dismissed in 237 condemned does not interfere with U. S. 300. In the case Louisville & the railroad right of way. $500 dam- Nashville R. R. v. Western Union Tel. ages for two hundred miles of such Co., -249 Fed 385 (1918), s. c., 252 right of way is adequate compensa- Fed. 29: 248 U. S. 576, where the Dis- tion. Oregon, etc. R. R., v. Postal, etc. trict Court awarded to the railroad Co. of Idaho, 111 Fed. 842 (1901). An company $5,000 as damages for the award of $310 for a right of way for construction of a telegraph line for a telegraph company over the right 1,000 miles on the railroad right of of way of a railroad three hundred way, the upper court reversed the de- and ten miles in length was Sustained cision and held that although nominal in Mobile, etc. R. R. v. Postal, etc. damages might be sufficient where the Co., 76 Miss. 731 (1899). An award telegraph line was erected on the edge of $60 in condemnation proceedings of the railroad right of way, and could by a telegraph company for a right not interfere with any present or fu- of way on a railroad for 74 miles, was ture telegraph line erected by the ----------- *-*----e.g., ***-------. v. ***::… at- * The Post Road act of CongreSS entitled to sigh a telegraph line. does not enable a telegraph company, See p-57-nº-i, and $–9,-infra. A which has constructed its line On a foreclosure of a mortgage on a land- railroad right of way by consent of grant railroad does not eliminate Con- the railroad, to continue to maintain ditions on which Congrass originally and Operate its line after a prior granted rights and property to the mortgage upon the railroad has been railroad so foreclosed. Union Pacific Western Union Tel. Co. R. R. v. Mason City R. R., 199 U. S. v. Ann Arbor R. R., 90 Fed. 379 160 (1905). -The-written-receipt-of-a. ºperty-owner-for-money-regeived, telegraph company to enjoin a pur- for erecling a telephone line ºn the chaser of a railroad at a foreclosure highwä. in front of his premises, sale from interfering with a tele- creates a Sperpetual easement for as graph line on the railroad right of many wires as the company Cares to way, the telegraph company alleges put on the linéx and af right given that it has accepted the Post Road thereby to trim ti res/justifies trim- act of Congress of 1866, and that it ming, necessary to protect the Wires. had a right to maintain its telegraph A purchaser of the fro berty is bound line on the railroad right of way un- to take notice of Athe telephone com- der the statutes of the United States, pany’s rights, ever, though the receipt yet this is not an allegation that the was not recorded, the telephane line suit arises under the laws of the itself. howevgf, being in existence United States sufficient to enable the upon the ićhway at the time the defendant to remove the case to the property S Sold. Barber v. Hudson federal court on that ground. Western River Teſ. Co., 105 N. Y. App. Div. Union Tel. Co. v. Ann Arbor R. R., 154 (1905); N. Y., N. H. & H. R. R. v. 178 U. S. 239 (1900). The purchaser Russeſ, 83 Conn. 581 (1910). See of a railroad at foreclosure sale is not -p: yº-r-rººm. - - - - - ... sº ...< * : * ~ * * §- 2" ~-->- contrary." Where, however, the TEP.I.E.G.R.A.P.H.A.L.A.W. * *.x -s, ... ~51-- <: right of the telegraph company was merely for a term of years, and such term has expired, a different rule may prevail. The telegraph company may proceed to condemn, if the statutes provide for condemnation,” and in that case the court railroad itself, and where the tele- graph line Would have to be shifted in case of railroad improvements, and although rental value might not be a proper basis for damages, yet where the telegraph Company’s line has al- ready been COnStructed. On locations which the railroad company itself might naturally need, and where the telegraph employees must use the rail- road right Of Way for repairs, and where there will be delay in shifting the line for railroad improvements, and where incidentally the telegraph line might interfere with minor Oper ations of the railroad, and where the telegraph line will interfere with re- moving Weeds and refuse and clean- ing Of ditches, and will add an ele- mont of danger to railroad Operations by reason of the poles or wires break- ing, all Of these elements may be taken into consideration in fixing the damage. The damages to be awarded in the Condemnation proceeding by a telegraph company for a right of way On a railroad are not decreased by the offer of the telegraph company to shift the telegraph line at any time it in- terferes with railroad operations. Louisville, etc. Ry. v. Western Union Tel. Co., 110 N. E. 70 (Ind. 1915). A railroad is entitled to substantial damages where in case it wishes to Construct its own telegraph line it Will have to adopt a route On its own right Of Way less advantageous than the one being condemned by the tele- graph Company; otherwise the dam- ages are nominal as in the case where there is no pole line on One side of the tracks. Western Union Tel. CO. v. Nashville, etc. Ry., 182 S. W. 254 (Tenn. 1916). Under the Washington statutes a condemning telegraph COm- pany must prove the Value of an ease- ment taken, and where the defendant, in cross-examining petitioner’s Wit- nesses, asks in regard to the expense of clearing brush which grows from six to ten feet annually, the condemn- ing telegraph company will not be allowed to introduce rebutting testi- mony on that point, even though the defendant introduced its Own evidence On that point. Postal Tel., etc. Co. v. Northern Pac. Ry., 211 Fed. 824 (1914). Ross, J., dissenting. Prop- erty leased to a railroad may be COn- demned by the railroad and damageS will not include tracks, round houses, turn tables, etc., which the railroad has put upon the property. Ransas City S. Ry. v. Second St., etc. Co., 166 S. W. 296 (Mo. 1914). See also §§ 905-906, Gerotº-orr-Corp. In the case Gulf, etc. Ry. v. Southwestern Tel., etc. Co., 52 S. W. 86 (Tex. 1899), the COurt held that in condemnation proceedings by a telegraph Company for a right of way on a railroad right Of Way the measure Of damageS Was the extent to which the use Of the land by the railroad had been im- paired, and not the advantage accru- ing to the telegraph company, and the court upheld the verdict for $4 per mile. The same court, in the Case Southwestern Tel., etc. Co. v. Gulf, etc. Ry., 52 S. W. 106 (Tex. 1899), held that it was immaterial what the right of way was worth to * See p. 355, supra, under Idaho. * Where a telegraph company has tWO telegraph lines on a railroad right of way, one on each side of the tracks, and the contract with the railroad under which "they were constructed has expired, the telegraph COmpany Cannot condemn a right Of Way for both of these lines where one is suffi- Cient and where the railroad has an- nounced that it intends to build its Own telegraph line On the location of TEHEGRAPH LAw § 2 may allow the company to remain in possession pending the proceed- ings, or may in a litigation, instituted by the railroad company to oust the telegraph company, proceed to assess the damages. In a prolonged the railroad company, or what it cost to Clear it, or that the railroad com- pany intended to make other im- proVements, and the court held the damages were measured by the inter- ference of the poles with the use of the right of way. And in the case Texas, etc. R. R. v. Postal, etc. Co., 52 S. W. 108 (Tex. 1899), the same Court Sustained a judgment for $83.90 for a telegraph right of way on sixteen and three fourths miles of railroad right of Way. A statute authorizing Condemnation by telegraph companies is applicable to telephone companies, and Where the condemnation is for a right of Way on a railroad right of Way the measure of damage is the extent to which the use of the land by the railroad has been impaired. San Antonio, etc. Ry. v. Southwest. ern Tel., etc. Co., 56 S. W. 201 (Tex. 1900). The damage is the decreased value to the railroad of its right of Way, and not the value of the right of Way to a telephone Company, and no damage is allowed for future in- terference by the telephone company with the railroad fence in construct- ing its line. Texas, etc. R. R. v. South- western, etc. Co., 57 S. W. 312 (Tex. 1900). In condemnation proceedings in the federal Court an appeal does not lie from the order appointing commissioners to appraise the dam- ages due to the construction of a tele- graph line on a railroad, such order not being final. Southern Ry. v. Pos- tal Tel., etc. Co., 93 Fed. 393 (1899); aff'd, 179 U. S. 641 (1901); s. c., 122 Fed. 156 (1903). In the preceding Case an award of $10 was given in Condemnation by a telegraph company of a right of way on a railroad right of Way for the distance of 242 miles. In New York, by statute, a city lay- ing Out a Street across a railroad track need not pay any damages to the railroad company. People, etc. v. N. Y. C. & H. R. R. R., 156 N. Y. 570 (1898). So also at common law, Morris, etc. R. R. v. City of Orange, 63 N. J. L. 252 (1899). The compen- sation to be paid by a city to a rail- road Company for opening a new street aCrOSS the railroad tracks is based on the actual expense caused to the rail- road Company, and not upon the value of the property so taken. Chicago, etc. R. R. v. Chicago, 166 U. S. 226 (1897). In this case the verdict and judgment was one dollar. In a city Street Opening across a railroad track the railroad is entitled to the value of the land taken but not to any pay for the expenses of erecting a new structure to carry its right of way UVer Llle sli eel. Cincinnati, Ctc. Ry. ty. Connorsville, 218 U. S. 336 (1910). the other existing telegraph line belonging to the telegraph COmpany. In Such a condemnation the leSSOr as well as lessee of the railroad must be joined as defendants. The possibility that the telegraph company may allow a telephone company to String Wires On Such telegraph poles will not be COn- sidered because the railroad may deal with such additional servitude When attempted. The award will not in- clude any damages for the value of the right of way to the telegraph company. Western & Atlantic R. R. 4). Western Union Tel. Co., 138 Ga. 420 (1912). * Where a railroad company on the termination of its contract With a telegraph company claims the tele- graph line as a part of the real estate and institutes a suit to enjoin the telegraph company from interfering with it, the telegraph Company may by cross-bill claim the right to con- tinue its line on the railroad right of way by reason of the Post Road act of Congress of 1866, and the court has power to appoint Commissioners to assess the compensation to be paid ~$–2~ <-44 & 84*.*- TELEGRAPH-LAW--. litigation, however, between the Western Union Telegraph Company, and the Louisville & Nashville Railroad Company in many courts this power of a court of equity was not upheld." Where a railroad will to the railroad company for the right of way; and especially can this be done where the statutes of the State authorize telegraph companies to ex- ercise the right of eminent domain, and it is apparent that the operation Of the railroad will not be interfered with by such telegraph line. St. Paul, etc. Ry. v. Western, etc. Co., 118 Fed. 497 (1902), holding also that a grant by a railroad company to a telegraph Company of a right of Way “for the uses and purposes” of the contract is not an absolute grant, but terminates With the contract, and a provision that the grant should apply to future ex- tensions Of the railroad gives the tele- graph company a mere equitable right to such right of way on extensions. Telegraph service rendered to a rail- road under a contract providing for half rates is connected with the COntract in Such a Way that where thé COntract expires and the Court allows the telegraph company to continue its line On the railroad right of Way On the payment of an award to be fixed by Commissioners, the amount of such free service may be deducted from the a Ward. Great Northern Ry. v. Western Union Tel. Co., 174 Fed. 321 (1909). See S. C., 195 U. S. 540 (1904). It Seems that where a railroad company has furnished the labor and a tele- graph Company the material for a tele- graph line On the railroad right of Way, the line to be used jointly by the tWO Companies, the telegraph company Will not be compelled to remove the line, even though the contract relative to it has expired. Great Northern Ry. V. Western Union Tel. Co., 174 Fed. 321 (1909). The Supreme court in Western Union Tel. Co. v. Penn. R. R., 195 U. S. 540, 572 (1904), said that it is difficult to reconcile Western Union Tel. Co. v. Ann Arbor R. R., 90 Fed. 379 (1898) [rev'd on another point in 178 U. S. 239], and St. Paul, etc. Ry. V. Western Union Tel. Co., 118 Fed. 497, (1902) in regard to the Question of whether a telegraph com- pany having once built its line on a railroad right of way could be put off by the railroad company where there was no express agreement that it would remove its lines. *An injunction obtained by a tele- graph company in the federal court in Kentucky as to a railroad interfering With its telegraph lines in several States, Will be dissolved as to any par- ticular State if the courts in that State have decided that the telegraph com- pany Cannot remain. On the railroad right of Way. Moreover, such an in- junction will not lie for the purpose Of keeping possession until condemna- tion, but may lie where an existing ea.Sement is claimed. Louisville & Nashville R. R. v. Western Union, 252 Fed. 29 (1918). See 248 U. S. 576. Equity has no power to allow a tele- graph company to continue its tele- graph line on a railroad right of way upon paying a reasonable compensa- tion, the contract between the two com- panies by which the telegraph line had been constructed having expired by nO- tice from the telegraph company to the railroad company as allowed by the contract, and it appearing that the railroad company wished this Same part of its right of way to construct its own telegraph line. Western Union Tel. Co. v. Louisville & N. R. R., 250 Fed. 199 (1918), aff’g 243 Fed. 687; see 248 U. S. 532, 576; also Western Union Tel. Co. v. Nashville, etc. Ry., 250 Fed. 207 (1918), aff’g 243 Fed. 694; S. C., 248 U. S. 542, 576; also Western Union Tel. Co. v. Atlanta, etc. R. R., 250 Fed. 208 (1918), aff’g 243 Fed. 685; s. c., 248 U. S. 535, 575. Where a contract by which a telegraph company has its telegraph line On a railroad right of way expires, a Court of equity has no jurisdiction to grant an equitable con- demnation of the easement. Western º;;z:5SºTºtº;: -54-1 TELEGRAPH"fºw”. § 2. ~ need the use of its entire right of way, a telegraph company cannot condemn a right of way thereon, especially where the statutes do not expressly authorize such condemnation, and even though a telegraph line is already constructed on such railroad right of way, yet if the contract right to maintain it there has expired, the telegraph company cannot condemn nor have an injunction against the removal of such telegraph line." A telegraph company in condemning a right of way on a railroad condemns only on those parts which are wide enough for the telegraph line. The rights of a telephone company already having a line on the railroad right of way will be protected later by a’ 6, *} the Judgment entered.” Union Tel. Co. v. Louisville & N. R. R., 243 Fed. 687 (1917); S. c. 229, Fed. 234, 238 Fed. 26, 248 U. S. 532, 576. To same effect Western Union Tel. Co. v. Nashville, etc. Ry., 243 Fed. 694 (1917), S. c., 248 U. S., 542, 576. Where the contract right of a telegraph company to have its telegraph line on a railroad right of way expires, a court of equity has no jurisdiction to allow the line * to remain unless the telegraph. Com: pany shows that it cannot condemn, or that condemnation would be incom- plete or inadequate, or that it could not complete condemnation proceed- ings in time to prevent the railroad company forcibly removing the tele- graph line, but the court of equity may enjoin interference pending such con- demnation. Western Union Tel. CO. 43. Louisville & Nashville R. R., 238 Fed. 26 (1917), rev’g 229 Fed. 234; see 248 TT S 532, 576 W. T.I. 4). Atlanta, etc. R. R., 238 Fed. 36 (1917), modifying 227 Fed. 465; S. c. 248 U. S., 535, 575; W. U. v. Nashville, etc., Ry., 238 Fed. 38 (1917), modifying 233 Fed. 605; s... c., 248 U. S. 542, 576; W. U. v. Western Ry., 238 Fed. 38 (1917). Where a State Court dismisses a rail- road’s bill Of injunction against a telf:- graph company condemning a right of way on the railroad, this is a bar to a similar Suit by the railroad COm- pany in the federal court. An injunc- tion granted in one United States Dis- Louisville & N. R. R. v. Western Union Tel. Co., 233 Fed. 82 (1916). Even though a contract between a telegraph company and a railroad company whereby a telegraph line has been constructed on a railroad right of way, has expired, yet where the telegraph line has been there over twenty years. a right of prescription exists, and the telegraph Company may enjoin the railroad company from removing the telegraph line, even though the tele- graph Company could not condemn in that court. Such an easement is an interest in the land in the nature of an incorporael hereditament and dif- ferS from a pure or technical easement. Western Union Tel. Co. v. Georgia R. & Banking Co., 227 Fed. 276 (1915), the court saying (p. 281), “The courts have uniformly held that in the very nature of things the construction of telegraph lines and similar works ne: cessarily implies permanency and per- petuity of use, and that, where same are Constructed under a license or agreement in which the period of the grant is not limited, a perpetual ease- ment is necessarily granted.” The . GOurt held that in the Ann Arbor Case (90 Fed. 379), the bill of the telegraph Company was not framed to support the alternative relief asked for, namely, to establish the right to remain or to pay * Western Union Tel. Co. v. Pennsyl- vania R. R., 195 U. S. 540 (1904), aff'g 123 Fed. 33, and 120 Fed. 362. * Postal Tel., etc. Co. v. Florida East Coast Ry., 258 Fed. 493 (1919). - &t. “ Af § gº. { ...tº ºraciº ; &r . £r ... sº", § 2. ~~ tº ~ ::$ --...º ... TELEGRAPH-Lºw”. --55– A telegraph company which occupies a railroad right of way by contract with the railroad company granting permission for a limited time does not acquire a prescriptive right during that time." Even though a pre-existing mortgage is foreclosed yet the fore- closure sale may include a contract between the railroad company and the telegraph company, and the purchaser is entitled to have such contract continued until its termination.” Where a railroad company has agreed to grant a right of way on its railroad to a telegraph company, but first asks the consent of an- other telegraph company, which claims an exclusive right, and the latter refuses, the court will enjoin the latter, and command the rail- road company to make the grant.” money damageS. Contra Western Un- iOn Tel. Co. v. Georgia. R. & Banking Co., 227 Fed. 465 (1915). A railroad Company cannot enjoin a telegraph Company from prosecuting in a state Court Condemnation proceedings for a right of way on the railroad. West- ern Union Tel. Co. v. Louisville & N. R. R., 218 Fed. 628 (1914). Where a telegraph Company is in possession of a right of way on a railroad and is Condemning such right, it may in the meantime obtain an injunction against the railroad destroying its line, and the injunction may apply to the rail- road destroying the same telegraph COmpany’s lines in other states. Louis- Ville & N. R. R. v. Western Union Tel. Co., 207 Fed. 1 (1913). A court may in its discretion, give reasonable time to a telegraph company to remove its line from a railroad right of way after a Contract between the two companies has expired. Louisville & Nashville R. R. v. Western Union Tel. Co., 252 Fed. 29 (1918); Cp. Western Union v. Louisville & Nashville R. R., 250 Fed. 199 (1918). By an unpublished deci- Sion of the United States Circuit Court of Appeals on January 9th, 1919, in the litigation between the Louisville & Nashville Railroad and the Western Union Telegraph Company, the Court refused to set aside an order of the District Court allowing the Western Union to continue its telegraph line On the railroad right of Way for a rea- sonable time after the Government Surrendered control of the railroads, and later the District Court approved the period of nine months after Such control was relinquished. A railroad company cannot enjoin a telegraph company from using for an existing telegraph line a right of way which that telegraph line already occupies Oil its right of way. Western Union Te!. Co. v. Louisville, etc. R. R., 65 S. 650 (Miss, 1914). Where the jury decides that a telegraph line on a rail- road right of way will not interfere with railroad Operations, Condemnation proceedings by the telegraph company will be sustained. Louisville, etc. Ry. v. Western Union Tel. Co., 110 N. E. 70 (Ind. 1915). A telegraph company. Whose line is already constructed. On a railroad right of way cannot condemn Such right Of way if the line is in the Way of the use by the railroad Com- pany of its right of way for railroad purposes. Western Union Tel. Co. v. Louisville & N. R. R., 108 N. E. 95.1 (Ind. 1915). - * Western Union Tel. Co. v. Atlanta, etc. R. R., 243 Fed. 685 (1917); s. c. 227 Fed. 465, 238 Fed. 36; 250 Fed. 208 and 248, U. S. 535, 575. * Detroit, Toledo, etc. R. R. v. West- ern Union Tel. Co., 166 N. W. 494 (Mich. 1918). * Western Union Tel. Co. v. Postal Tel. Co., 217 Fed. 533 (1914). 56° THEEEGRA::Piſºfºriº A. W. * $–2– A contract between a telegraph company and a railroad company, by which they join in defraying the expense of the construction of a telegraph line on a railroad right of way, to be operated for their joint benefit, cannot be revoked by either party, even though there is no defi- nite time fixed in the contract itself for its duration, where from the terms of the contract it appears that it was intended to be permanent and perpetual. A court of equity has power at the instance of the tele- graph company to enjoin the railroad company from terminating the contract and removing the poles. But the rule may be different as to requiring the railroad company to specifically perform, by con- tinuing to make contributions of money and property and to exercise judgment and skill in performing its part of such contract, and such contract may be terminable by reason of changed conditions impos- ing hardship upon the railroad by reason of its continuance." The usual telegraph-railroad contract under which the telegraph company gives a specified amount of telegraph service to the railroad and the railroad a specified amount of railroad service to the telegraph com- pany is valid under the Interstate Commerce Act, even though the public telegraph and railroad rates are disregarded.” The subject of free passes is considered elsewhere.” * Western Union, etc. v. Pennsyl- vania. Co., 129 Fed. 849 (1904); rev’g 125 Fed. 67. The mutual Covenants Contained in a contract between a rail- road Company and a telegraph COm- pany, by which they join in defraying the expense of a line of telegraph on 3. railroad right of way, to be Operated for railroad and general commercial tele- graph purposes, are a sufficient con- Sideration under the Statute Of frauds for Sustaining the contract, where there has been part performance of such consideration. Western Union, etc. Co. v. Pennsylvania Co., 129 Fed. 849 (1904). A contract between a tele- graph Company and a railroad consol- idating various previous contracts does not necessarily displace the previous COntracts, but the same may continue after the expiration of the new con- tract. Western Union, etc. Co. v. Pittsburg, etc. Ry., 137 Fed, 435 (1905). A telephone contract which may be terminated by a subscriber on thirty days’ notice may be terminated at any time by the company on reasonable notice, even though it is not given that right by the contract. Commonwealth v. Central, etc. Tel. Co., 90 Atl. 328 (Penn. 1914). Where two telephone companies contracted to exchange busi- ness for twenty-five years, and a third one bought one and caused it to break the contract, the court allowed the profits for three years only, especially as the third company might have in- vaded the territory of the One it pur- chased. Southwestern Tel. & Tel. Co. v. Memphis Tel. Co., 163 S. W. 1153 (Ark. 1914). A contract between two pole and wire companies by which either may use the poles of the Other may be terminated by either party at any time on equitable terms. East Tenn. Tel. Co. v. Paris Electric CO., 162 S. W. 530 (Ky. 1914). A contract which may be terminated by One party but not by the Other will not be enforced Specifically. Great Northern Ry. V. * Postal Tel.-Cable Co. v. Tonopah R. R., 248 U. S. 471 (1919). * See § 75.4%fºal, &lar-axº~~~~ § tº . ; > TELEGRAPH.L.A.W. A telegraph line on a railroad right of way is not necessarily real estate in the sense that upon the termination of the contract under which it was constructed the line shall belong to the railroad Com- pany as a fixture on the real estate. The evident intent that such should not be the result will govern. After the termination of the con- tract the telegraph company has a Sheyenne Tel. Co., 145 N. W. 1062 (N. Dak. 1914). Where a contract betWeekl a telegraph company and a railroad company is to apply to railroads there- after acquired by the latter, the con- tract applies even though the telegraph company already had a contract with the railroad so acquired. Western Un- ion Tel. Co. v. Nashville, etc. R. R., 233 Fed. 605 (1916). Where a water- works grant from a city has expired and the city has enjoined in the State court the company from discontinuing operation of the plant, pending the con- struction by the city of its Own plant, the Company may deed to its mort- gagee its equity of redemption, and the mortgagee may then enjoin the City from preventing its discontinuing Oper- ation and dismantling and taking away the plant. Laighton v. City of Car- thage, 175 Fed. 145 (1909). Where telephone wires are strung on poles Owned by a railroad COmpany On an agreement which does not run for any specified time, the telephone Company’s right is a revocable license only, and the wires may be removed at any time by the railroad Company, but no un- necessary injury to them should be dOne in removing them. Westerri Union Tel. Co. v. Carver, 74 S. W. 55 (Tex. 1903). A traffic contract be- tween two connecting telephone lineš which does not specify the term of its duration will expire on the expiration; Of the charter of either of the COrn- panies. Campbellsville Tel. Co. v. Lebanon, etc. Tel. Co., 118 Ry. 277 (1900), holding also that the contract WOuld continue So long as the two Companies and their successors main- tained an exchange at the point where COnnection was made Or at the cities from which extensions were made. A Connecting line agreement between two telephone Companies subject to right to remove its line." A some- termination on thirty days’ notice, terminates thirty days after one noti- fies the other that the city has revoked its license to do business. Gravel, etc. Tel. Co. v. Lebanon, etc. Co., 139 Ky., . " 151 (1910). A contract between two telephone companies for a period of years and thereafter until thirty days' notice Of intention to terminate, runs at least thirty days after a notice giver! after the termination of the period named. Gravel, etc. Co. v. Lebanon. etc. Co., 139 Ky. 827 (1910). An agree- ment between various telephone com- panies to exchange facilities without any time limit being specified, may be discontinued at any time by any one Of them, with the remedy of lawful damages, unless the business is of a public character and the public interest is Such that the arrangement should not be discontinued, in which case Specific performance may be decreed. Moreover, if a physical connection is Voluntarily made with the companies, and the public have acquired an interest in its continuance, this obli- gates the company to continue it. State v. Cadwallader, 172 Ind. 619 (1909). A contract between a rail- road and a coal mining company by which the latter agreed to develop its mines to a stated capacity, and the railroad agreed to purchase the Coal at a certain price, cannot be termi. nated by either party alone at any time, even though it has no provision as to its duration. McKell v. Chesa- peake & O. Ry., 175 Fed. 321 (1910). When a contract is not limited as to duration either party may terminate it on reasonable notice. Bailey v. Staf- ford, Inc., 178 N. Y. App. Div. 811 (1917). * St. Paul, etc. Ry. V. Western, etc. Co., 118 Fed. 497 (1902). Reaffirmed in Great Northern Ry. v. Western Un- ~57*. ~ * ºs- JTFHEGRAPH LAW §–2- what similar question is involved where a contract between a railroad and a telegraph company is declared void on account of its containing an illegal exclusive provision. Difficulty then arises in determining whether the railroad or the telegraph company owns the poles and wires that have been erected under the contract." The right of the telegraph ion Tel. Co., 174 Fed. 321 (1909). Upon the foreclosure of a prior mortgage on a railroad the right of a telegraph com- pany to continue its telegraph line upon the railroad right of way ceases. Western Union Tel. Co. v. Ann Arbor R. R., 90 Fed. 379 (1898). In this Case, under a COntract by which the railroad company had furnished the material and the telegraph company the instruments, the court in the fore- Closure proceedings allowed the tele- graph company to remove such instru- rments. Where by contract a telegraph COmpany COnStructed its line On a railroad right of way, and agreed that its rights therein should not be a S- Signable, and that if it was dissolved Or suspended Operations the railroad might take charge, it was held that th9 railroad took title upon a new company Succeeding to the rights and property Of the Old Company. Latrobe v. Western Tel. Co., 74 Md. 232 (1891). In New York, etc. Ry. v. Western |Union Tel. Co., 36 Hun, 205 (1885). it was held that a railroad mortgage COVered a telegraph line built by the railroad and also a wire placed thereon by a telegraph company under a con- tract by which the railroad had a right to buy such wire. A telephone com- pany is liable for cutting and carrying away without notice electric-power Wires strung on the telephone fixtures On house tops. Electric Power Co. v. Metropolitan Tel. & Tel. Co., 75 Hun, 68 (1894); aff'd, 148 N. Y. 746 (1896). Even though a railroad acquires its right of way from the mortgagor and the mortgage is afterwards foreclosed. yet the purchaser at such foreclosure sales does not acquire title to the rails. ties, fish plates, etc., constituting a railroad. Skinner v. Ft. Wayne, etc. R. R., 99 Fed. 465 (1900). A mortgage of an electric company covering after- acquired property covers poles and Wires erected on railroad property, as against a claim of the railroad Com- pany based on an agreement of the mortgagor. Monmouth, etc. CO. v. Cen- tral R. R. etc., 54 Atl. 140 (N. J. 1903). See § 905, Cook-on-Copper...also ºp:-50, *A "railroad employee who cuts a telephone wire which Crosses the rail- road ' thirty-five feet above the tracks and five feet above the telegraph wires Imay be prosecuted Criminally, even though the railroad had not Con- Sented to the erection of the telephone wire and the right had not been COn- demned, there being no telephone poles on the railroad property. Mc- Gowan v. State, 40 S. 142 (Ala. 1906). The Court said that even if the tele- phone wire violated the property rights of the railroad company, “this would not authorize the defendant, under the instructions Of the railroad COmpany, to take the law into his own hands, in plain violation of the statute. The statute is clear and unambiguous in its language, and makes it an offense for any One to wilfully cut a telephone line. It makes no exception, and Cer- tainly the facts in the case before uS do not create one, but leave the defend- ant undoubtedly within its provisions.” * Where a telegraph company fur- nishes the materials and a railroad company the labor to build a tele- graph line they thereby become joint owners of the line unless the contract provides otherwise; but where the telegraph company furnishes both labor and material and the railroad company merely transports the ma- terial and labor free of charge, the telegraph line belongs to the telegraph Company, subject to a reasonable pay- ment to the railroad for Such transpor- tation. St. Paul, etc. Ry. v. Western, etc. Co., 118 Fed. 497 (1902). Reaf- firmed in Great Northern Ry, v. West. TEEE6;ft:A.P.H.I.AW \. company to lease pole space on such a line has been questioned." Even though a telegraph pole line on a railroad right of way belongs to a telegraph company, yet if the poles become rotten and injure a person both the railroad and the telegraph company are liable. A telephone company which has strung wires on such poles is not liable if its wires ern Union Tel. Co., 174 Fed. 321 (1909). In Western Union Tel. Co. v. Burlington, etc. Ry., 11 Fed. 1 (1882), the Court said: “The railway COmpany furnished the poles and all the labor, except a foreman, to construct the line; the telegraph company furnished a foreman to Superintend the WOrk, and also furnished the Wire and in Su- lators. This certainly constituted the tWO Companies joint owners Of the property.” In this case, however, the COUlrt held that Only the exclusive fea- ture of the contract was invalid. In Western Union Tel. Co. v. Union Paë. Ry., 3 Fed. 1 (1880), the court held that an invalid free-pass provision in- validated the Whole COntraCt. The court refused to enjoin the railroad Company from cutting the Wires; etc., and said it would leave the parties where it found them, the Whole contract being void. See also Central, etc. R. R. v. Western U. T. Co., 3 Fed. 417 (1880). In the case, however, Western U. T. Co. v. Union Pac. Ry., 3 Fed. 721 (1880), an injunction was granted. Where the railroad attempts to seize the telegraph line On the ground that the contract is void, the Courts will enjoin such seizure and Will decree a full and fair accounting as to the property and rights. West- ern Union Tel. Co. v. St. Joseph, etc. R. R., 3 Fed. 430 (1880); Western U. T. Co. v. Union Pac. Ry., 3 Fed. 423 (1880). To same effect, Atlantic, etc. Tel. Co. v. Union Pac. Ry., 1 Fed. 745 (1880); Western Union Tel. Co. v. Kansas Pac. R. R., 4 Fed. 284 (1880). In United States v. Union Pac. Ry., 160 U. S. 1 (1895), the court held (p. 53) that the whole contract was void. The case Western Union Tel. Co. v., Western & Atl. R. R., 91 U. S. 283 (1875), holds that an agreement be- tween a telegraph company and the state of Georgia, sole owner of a rail- road, which provides that the company Shall put up and set apart on its poles along Said railroad a telegraph wire for the exclusive use of the railroad; equip it. With as many instruments, batteries, and other necessary fixtures as may be required for use in the rail- road Stations; run the wire into all the Offices along the line of road, and put the Same in complete working order; fixes the terms upon which officers of the road may transmit and receive meSSages through the connecting lines Of the Company; recognizes the right of Way of the company along the line Of road; regulates the use of the wire, and the compensation for it, and binds the State to pay the cost Of Constructing the Wire, and equipping the same at railroad stations not al. ready Supplied with instruments, bat- teries, and other necessary fixtures— does not constitute a sale of Such wire, batteries, and other instruments to the State, but is merely a contract for her exclusive use thereof. º. *Where a municipality takes Over a street railway under an original agreement by which the price is to be Settled by arbitration, nothing being said as to the basis of the price, the railway is to be valued as capable of earning a profit, but not as an income- earning concern. Mayor, etc. v. Dud- ley, etc. Co., 97 L. T. Rep. 556 (1907). On this point see § 931, Geek-on-Copp- * By the usual contract between a telegraph company and a railroad by which the former furnishes the mate- rial and tho latter the labor for a tele- graph line, they are tenants in common and the telegraph Company cannot without the Consent. Of the railroad authorize a person to String telephone wires On the poles, and if it gives such a permit and the railroad stops its execution, the telegraph company is liable in damages to the person to rº-60. TELEGRAPH LAW “Ś-2. did not cause the injury." A court may order its receiver of a railroad to pay a sum to a telegraph company, where the telegraph company otherwise will withdraw the services.” - Exclusive contracts granted by railroads to particular telegraph companies have come before the courts in various phases. It is legal for a railroad to authorize a telegraph company to erect its lines on the railroad right of way, and to give to such telegraph company the exclusive right to those telegraph lines so erected.” But a contract is contrary to public policy and to the Post Road act of Congress of 1866, and is illegal and void, which provides that no other telegraph company shall build a telegraph line on such railroad right of way." Whom it gave the permit. Southern Inv. Co. v. Postal, etc., 156 N. C. 259 (1931 j. Although a telephone com- pany has contierraned a right Of Way Gn a railroad and Constructed its line, it has no power to lease to a telegraph Company the right to String a wire on its poles, and the railroad company may remove the wire, but if after en- joining the telegraph company, which injunction is obeyed by the latter, the railroad company then in the night cuts the telegraph wire into fragments and destroys its value, it is liable for punitive damages as well as actual damages. Postal Telegraph-Cable Co. v. Gulf, etc. R. R., 70 S. 833 (Miss. 1916). Cf., pp-23–92; supra: A tele- graph company having a prescriptive right to maintain poles on private land Imay allow a telephone Company to string telephone wires on the poles. Postal Tel. Co. v. Forster, 144 Pac. 491 (Oreg. 1914). . 1 Western Union Tel. Co. v. Owens, 98 S. E. 116 (Ga. 1919). * Newgass v. Atlantic, etc. Ry., 72 Fed. 712 (1894). See also $ 874,-Gook Öh-GOFp. 8 Western Union Tel. Co. v. Chicago, etc. R. R., 86 III. 246 (1877). * United States v. Union Pac. Ry., 160 U. S. 1 (1895); Western Union Tel. Co. v. B. & O. Tel. Co., 23 Fed. 12 (1885); Western Union Tel. Co. 9, B. & O. Tel. Co., 22 Fed. 133 (1884); Baltimore & O. Tel. Co. v. Western Union Tel. Co., 24 Fed. 319 (1884): Pacific P. Tel. Co. v. Western Union Tel. Co., 50 Fed. 493 (1892); Western Union Tel. Co. v. B. & O. Tel. Co., 19 Fed. 660 (1884) ; Western Union Tel. Co. v. American Union Tel. Co., 6.5 Ga. 160 (1880). See U. S. R. S., § 3964, and Ch. 772, acts of Congress, 1887- 1889 (25 U. S. Stat. at Large, 382). An exclusive contract by a railroad With a telegraph company for right of Way on the railroad is void. Western Union Tel. Co. v. Postal Tel. etc. Co. 217 Fed. 533 (1914). Where a railroad COmpany has granted a right of way to a telegraph company, and then an- other telegraph Company objects On the ground that it is entitled to an exclus- ive right of way, a court will order the railroad Company to affirm its grant to the first named company. Western' Union Tel. Co. v. Postal Tel. etc. Co., 217 Fed. 533 (1914). An exclusive right granted by a railroad to a tele- graph company is void. Georgia, R. R. etc. v. Atlantic, etc. Co., 152 Fed. 991 (1907). Where the railroad acquieces in a new telegraph company erecting its lines on the railroad right of way. the Old rival telegraph company, claim- ing an exclusive contract, cannot en- join such construction except to pre- vent interference with its Operation and use of its own lines. Western Un- iOn Tel. Co. v. American Union Tel. CO. 9 Biss. 72 (1879) ; S. c., 29 Fed. Cas. 790. A State may authorize Other telegraph Companies to condemn a right of way on a railroad right of Way, notwithstanding the railroad has contracted with a particular tele- graph company to give the latter an exclusive right to use the railroad $2. TELEGRAPH DAW -64 If, however, the illegal provision is not so interwoven with the entire contract as to be practically inseparable, then the main contract will right of way. New Orleans, etc. R. R. v. Southern, etc. Tel. Co., 53 Ala. 211 (1875). An exclusive contract with one telegraph company is void. Union Trust Co. v. Atchison, etc. R. R., 8 N. M. 327 (1895). In Western Union Tel. Co. v. Atlantic & Pac. Tel. CO., 7 Biss. 367 (1877); S. C., 29 Fed. Cas. 791, the court held that a condemna- tion proceeding in a State COurt brought by a telegraph COmpany to obtain a right of way over a railroad was not legal where a receiver ap- pointed by the federal Court was in possession of the property. The courſ held also that an exclusive contract With the Western Union was not neº- eSSarily illegal, and that the Western Union might apply for an injunction against the condemnation. The Court also held that a reorganized company ratifies a telegraph contract by acting under it. In Canada. Such an exclu. sive contract has been upheld. Cana- dian Pac. Ry. v. Western Union Tel Co., 17 S. C. of Can. 151 (1889). An Indian nation has no power to grant a monopoly to a telephone COmpany within its territory. Muskogee, etc Co. v. Hall, 118 Fed. 382 (1902). The TJnitod States Court in Minnesota Can not take jurisdiction of a suit insti- tuted by the United States govern- ment against a New York Corporation and other parties, where the New York Corporation objects to the juris- diction, the case being One where a Contract between a railroad company and a telegraph company was at- tacked as illegal. United States 4). Northern Pac. R. R., 134 Fed. 715 (1905). Ås. 2 An exclusive grant to a water-works company by a municipality is not valid where it was not expressly authorized by the legislature, and where such pro- vision is in consideration of Certain things to be done by the company, the whole municipal grant falls. Town of Kirkwood v. Meramec, etc. Co., 94 Mo. App. 637 (1902). Even though a con- tract between a Water company and a City for the Supply of water contains an illegal provision giving the water COmpany exclusive rights, yet, if the illegal provision is separable from the rest of the contract, the court will uphold the contract and reject the il- legal provision. Kimball v. City of Cedar Rapids, 100 Fed. 802 (1900). In Q?to 100/rra/n)to proceedings by a StatC against a Water-works company at- tacking its contract with a city the Court may declare an exclusive right in the contract as unauthorized and illegal Without declaring the remainder Of the Contract illegal. State v. Tampa Waterworks Co., 56 Fla. 858 (1908). A perpetual lease which enables One rail- road to run. Over the tracks Of another is enforceable, although the lease con. tains a provision that its Operation shall Cease during any period of time Within which the lessee extends its road into Certain coal territory Or re- Ceives Coal from other railroads run- ning through that territory. This last provision is contrary to public policy. and is Void, but being a condition sub- Sequent does not affect the validity of the lease itself. Metropolitan, etc. Co ty. Columbus, etc. Ry., 95 Fed. 18 (1899). See also, p. 58, n. 1, and snote 4, p. 3833, Geek-on-Corp. #. …A-statute prohibiting the organiza. tion of a competing telegraph or tele phone company without the consent Of an existing company does not pre- Vent the construction of a competing line by an individual. Haines 4) Crosby, 94 Me. 212 (1900). An exclu sive right granted by a railroad conn pany to a telegraph Company for CO" Structing a telegraph 1 ine. On the rail road right of way does not prevent the railroad constructing its own tele- graph line On its right of way. Reid- Newfoundland Co. v. Anglo, etc. Co. [1910] A.C. 560. .", *—An exclusive right given by a pri- vate property Owner to a gas com- pany to COnStruct lines across his premises, being void, neither he nor the grantee is entitled to damages ~ 262- TELEGRAPH-ELAW,---, ... §-2° be upheld and the exclusive feature declared void." A contract between a telephone company and a hotel by which the former is given the ex- clusive telephone privileges in such hotel, is contrary to public policy and is void, but the illegal part does not invalidate the whole contract if the illegal part may be separated. The hotel may disregard the ex- clusive feature and allow other telephone companies to furnish service in the hotel.” ". & Moreover, even if the whole contract is void, the court may grant time during which either company may make other arrangements.” Even though a railroad company has allowed one telephone company to place its instruments in the railroad depots for the transaction of business, yet a competing telephone company is not entitled to a man- damus compelling the railroad to allow it also to install its instruments in such depots.” But mandamus lies at the instance of a telegraph company to compel a railroad company to distribute telegraph material along the railroad right of way where such railroad company does the same for another telegraph company, and a contract between such latter company and the railroad company by which the railroad company agrees not to render this service to any competing telegraph company is illegal and void.” - ****T*- -----------. therefor in condemnation proceedings by another company to cross such land. Calor, etc. Co. v. Franzell, 128 Ky. 715 (1908). * The fact that a contract between a telegraph company and a railroad Contains an illegal provision in vio- lation of an act of Congress does not necessarily invalidate the whole COn- tract. Western Union, etc. Co. v. Tittſburg, oto. Ry., 137 Fod, 435 (1905). Cf. United States v. Union Pac. Ry., 160 U. S. 1, 53 (1895). A contract between a telegraph Com- pany and a railroad company is not entirely void, even though it contains an illegal provision that the railroad company should not permit any other telegraph company to build or Operate a line of telegraph along its road. where such provision was not the main consideration of the contract. Western Union, etc. Co. v. Pennsylvania Co. 129 Fed. 849 (1904). A grant to a telegraph company of an exclusive right of way along a railroad is void as to the exclusive part. Pacific Postal Tel. Co. v. Western Union Tel. Co., 50 Fed. 493 (1892).Y., * Central, etc. Co. v. Averill, 199 N. Y. 128 (1910). See.p. 66, #tfºrd- w * Even though an electric-power COm- pany in its contract to furnish power to a Street railway agrees not to fur- nish power to any competing street railway, and the contract is void, yet it will be compelled to continue to fur- nish power until the Street railway Cali make nfher nrovisions Seaffle, etc. Co. v. Snoqualmie, etc. Co., 40 Wash. 380 (1905). * Idaho, etc. Co. v. Oregon, etc. R. R., 8 Idaho, 175 (1901). * Cumberland, etc. Tel. Co. v. Mor- gan’s, etc. R. R., 51 La. Ann. 29 (1899). A railroad is bound to distrib ute material for the construction of the lines of a telegraph company at a reasonable price where it does the Same for another telegraph Company even though it has an exclusive con- tract with the latter. Mercantile T. Co. v. Atlantic, etc. R. R., 6.3 Fed. 910 (1894). The decisions in Mercantile Trust Co. v. Atlantic, etc. Co., 6.3 Fed 513 (1894) and Mercantile Trust Co. v pº “Ś-2 x *TELEGRAPH LAW" Several of the western railroads have charters from Congress or have received land grants from Congress. The acts of Congress in such cases have usually provided for free right of way to all telegraph companies. Hence any contract by such railroad giving a monopoly or exclusive privilege to one telegraph company is illegal and void." If such a rail- road is in the hands of a receiver, the court will order the receiver to allow any other telegraph company to erect its lines on the railroad right of way.” A telegraph company which has accepted the Post Road act of Congress may condemn a right of way on one of these land-grant railroads, where the statute of the state in which the railroad is located Atlantic, etc. Co., 6.3 Fed. 910 (1894) relative to the transportation of tele. graph poles for One telegraph COm. pany notwithstanding an exclusive right to another company, Were ap- proved in Western Union Tel. Co. v. Postal Tel. Co., 217 Fed. 533 (1914) Where a railroad in accordance with its contract with a telegraph company distributes the poles, wires, employees. etc., of the latter along its line of road and between stations, it may be com: pelled by manda'mals to do the same for a competing telegraph company even though it has no contract with the latter. State v. Atlantic, etc. R. R. 51 Fla. 543 (1906); S. c., 41 S. 705. A Trvanda/m/us which was denied on ag. count of its being in favor of a par- ticular company was reported in State v. Atlantic, etc. Co., 51 Fla. 57S (1906). * United States v. Union Pac. Ry., 160 U. S. 1 (1895), aff’g 50 Fed. 28 and rev’g 59 Fed. 813. Although the acts of Congress require all subsidized railroad Companies to construct and maintain telegraph lines on their roads and to operate the same, giving equal facilities to all, yet such a subsidized road may make a contract with a par- ticular telegraph company, whereby the latter constructs a line of telegraph on the railroad right of way, giving to the railroad company the exclusive use Of One wire and the right to string Other wires for its Own use, and re- quiring the railroad company to pay one third of the cost of constructing such line, and to transport the prop- erty and employees of the telegraph company without charge, which trans- portation without charge is not to be eXtended to any Other telegraph COrłl- pany. United States v. Northern Pacific R. R., 120 Fed. 546 (1903), holding also that the railroad may legally re. quire the senders of messages to des. ignate the route over which such ImeSSages are to be forwarded by Con- necting lines, and may charge for such routing, even though the result is that the business is driven away from the railroad offices. A suit by the government to have such contract an- nulled will not lie. The court held also that chapter 772 of the acts of Con- gress of 1888 (25 U. S. Stat. at Large, p. 382) did not render illegal such a contract. This case was reversed in 134 Fed. 715, on the ground that the COUrt had no jurisdiction Over the de- fendant in that district. The Union Pacific right of way in Colorado is 400 feet wide, even though the full Width has not been Occupied and used. The construction of the railroad itself Was a selection of the exact location of Such right of way. Stuart v. Union Pacific R. R. Co., 227 U. S. 342 (1912). *Mercantile Tel. Co. v. Atlantic, etc. R. R., 63 Fed. 513 (1894); s. c. 63 Fed. 910. A telegraph company may intervene in a railroad foreclosure CaS2 and obtain from the court the right to construct its lines on a railroad right of way, where the charter of the rail- road provided that all telegraph com- panies should be allowed to use Such right of way. Union Trust Co. 4). Atchison, etc. R. R., 8 N. (1895). M. 327 . . 64. 2TELEGRAPH LAW- authorizes condemnation by a telegraph company of a right of way on private property, even though it does not expressly authorize condemna- tion of a telegraph right of way on a railroad.*. Even though a railroad owns the fee of a highway crossing it can- not collect damages dues to a water works company laying water pipes in the highway under the railroad tracks.” ... Electric light wires on the highway may be carried over railroad tracks without liability to the railroad company, but upon an overhead crossing having been constructed by the railroad the wires should go below the tracks.” *>. ~A railroad company owning only a right of way and not the fee cannot object to telegraph or telephone wires crossing such right of way, even though not on a highway, inasmuch as ‘‘the railroad com- pany is not entitled to have its way kept open to the sky.” “ A telegraph company on the highway and having the right to cross railroad tracks may be compelled to take up its wires from under the railroad tracks and to place them overhead, if the railroad finds that the underground method interferes with repairs and the construction of its tracks." Where one railroad has condemned the right to cross another railroad, the former may authorize a telegraph or telephone company to construct its poles and wires on such crossings, the former railroad being given the right to place its own wires on such poles.” A telephone company having a right under the statutes of a state to construct its lines on any of the highways in the state may enjoin a turnpike company from interfering with the construction of a telephone line on such turnpike, it being shown that the poles and wires as con- structed will not interfere with the use of the turnpike as a highway." In any event under the principle of law that one quasi-public coropra- tion may condemn land held by another quasi-public corporation, so far as such land is not necessary for the duties of the latter, a telegraph * Pacific Postal Tel., etc. Co. v. Ore gon & Cal. R. R. , 163 Fed. 967 (1908) * N. Y., N. H. R. R. v. Cohasset Water Co., 216 Mass. 291 (1914). * New York Central, etc. R. R. v. Central Massachusetts Elec. Co., 106 N E. 566 ("Mass. 1914). * Illinois Central R. R. v. Centerville Tel Co., 186 S. W. 90 (Tenn. 1916). * South Eastern Ry. V. European, etc. Tel. Co., 9 Exch. 363 (1854). * St. Louis, etc. Ry. v. Cape Girar- deau, etc. Tel. Co., 134 Mo. App. 40% (1908). * People’s Tel. & Tel. Co. v. Berks & Dauphin Turnpike Co., 199 Pa. St. 411 (1901). Where a considerable part of a street railway On a turn- pike nas beer, completed the abutting property owners will not be granted an injunction against it. Hinnershitz v. United Traction Co., 199 Pa. St. 3 (1901); 206 Pa. St. 91 (1903). a turnpike carries the fee, an electric- | § 2. * Where--. # light company has no right to CrOSS Finchley, Council, the same with its Wires. etc. Co. v. Finchley, etc. $–2. “TELEGRAPH. T.A.W- 2–65. company may condemn a right of way on the outer line of a turnpike." Where a gas company pays a plank-road company an annual sum for a right of way, payment must be continued, even though the plank road is made a public road.* A telegraph company may condemn a right of way over a railroad bridge.” Even though a telephone company has contracted to pay rent to a bridge over which its wires run, yet if the bridge is condemned and made a public bridge, the telephone company may cease to pay the rental, and the municipality will be relegated to its remedy at law." Even though a city buys the entire capital stock of a bridge com- pany instead of taking over the bridge itself, yet it cannot compel a street railway, crossing such bridge, to pay rental therefor.” A. state which has purchased a highway bridge on which there are [1902] 1 Ch. 886. Rep. 215 (1903). * State v. American, etc. Co., 43 N. J. L. 381 (1881). See also $ 906, Gooks on-Gorpººl. * Suburban, etc. Ry. v. Mononga- hela, etc. Co., 230 Pa. St. 109 (1911). A contract for 99 years by which a tele phone Company agrees to pay a turn pike company for right of way cannot be repudiated by the telephone Conn pany after it has paid the rental for eleven years, even though it need not have made the contract in the begin- ning. Berks, etc. Road v. American Tel. & Tel. Co., 87 Atl. 580 (Pa. 1913). Where a telephone company has been paying rental to a turnpike COmpany for its polas on the turnpike and the state acquires the turnpike, it may col lect Similar future rentals, the COn- tract of the telephone company not be- ing limited as to time. Chesapeake & Potomac Tel. Co. v. State Roads Com- mission, 106 Atl. 257 (Md. 1919). A similar decision was made as to renta} which a telephone company was paying for its wires on a bridge Owned by a bridge company and conveyed to the state with the right to collect future rentals, the contract not having eX- pired. American Tel. & Tel. Co. v. State Roads Commission, 106 Atl. 260 (Md. 1919). * The award in a condemnation proceeding by a telegraph company for a right of Way Over a bridge should Cf. s. c., 88 L. T not include alleged damage to personal property On the bridge, there being no evidence to show such damage. Kan- sas P. Tel., etc., Co. v. Leavenworth, etc. Bridge Co., 131 Pac. 143 (Kan. 1913). *Beaver County v. Central, etc. Tel. Co., 219 Pa. St. 340 (1908). The case Beaver County v. Central, etc. Tel. Co. 219 Pa. St. 340 (1908) was dis- tinguished in Point Bridge Co. v. Pitts- burg Rys., 87 Atl. 614 (Penn. 1913) on the ground that a street railway is used locally while a telegraph Com- pany carries on business with other cities or states. In the case East Tenn- essee Tel. Co. v. Board Of Councilmen etc., 143 Ky. 86 (1911), it was held that a city might revoke a permit to a telephone company to erect its poles Gn the Street and run its Wires over a city bridge, even though they had been there thirty years. ofſ |) 3750, Gook-On-Corps * * * Point Bridge Co. v. Pittsburg Rys., 87 Atl. 614 (Pa. 1913). The city can Only exact license fees sufficient to re pair the bridge so far as affected by Street railway use thereof. Mononga- hela Bridge Co. v. Pittsburg Rys., 87 Atl. 619 (Penn. 1913). A purchase by the city of all of the stock of a bridge company does not affect the bridge company’s contract with a street rail- way for the payment of tolls. Point, etc. Co. v. Pittsburg, etc. Ry., 230 Pa St. 289 (1911). 66° TELEGRAPH-ETA-W -$23– telegraph wires for which the telegraph company has paid rental to the bridge company may compel the company to continue to pay a reasonable rental." Where a state commission is authorized to buy a bridge from a private bridge company, and the deed authorizes the commission to collect rentals for the use of the bridge, the commis- sion may continue to collect from a telegraph company the rental for its wires on the bridge for the same amount as the company had been paying the bridge company.” A trolley company need not pay for the cost of a new bridge over which it has run except to the extent that the cost was increased by its use.” On the renewal of a bridge a state statute may require future trolley companies to pay one-third of the cost of construction before using the bridge." A telegraph company cannot condemn the right of way over a bridge, where the wire would interfere with the working of the draw.” A telegraph company that has not accepted the Post Road act cannot condemn the right to cross a bridge over navigable waters, under the act of Congress authorizing such a bridge." In New Jersey it is held that a telegraph company having a contract with a hotel to exclusively do business on the premises may enjoin the hotel from breaking the contract." But in New York it is held that a contract by which a hotel gives to a telephone company the exclusive right to the telephone business in the hotel is against public policy and in restraint of trade, and hence the hotel may allow another com- pany to install its system in the hotel.” ~$–3. A state or municipal corporation may regulate, but cannot * Postal Tel.-Cable Company v. State Eastern Ry. v. National Tel. Co., Roads Commission, 96 Atl. 439 (Md. [1908] 2 Ch. 50. 1915). * Chicago, etc. Bridge Co. v. Pacific * Goldsborough v. Postal Tel., M. Tel. Co., 36 Kan. 113 (1887). Any Co., 123 Md. 73 (1914). bridge Over navigable Waters Con- etC. * Public Service Ry. v. Board, etc., 100 Atl. 610 (N. J., 1917). * Rome Ry. v. Floyd Co., 243 U. S. 257 (1917). * Pacific M. Tel. Co. v. Chicago, etc. Bridge Co., 36 Kan. 118 (1887). A telegraph company has no right to lay its wires over a highway bridge which passes over a railway unless the rail- way consents thereto, the railway hav- ing paid for the bridge and the English Statute requiring Consent where a telegraph line crosses a railway. South structed under the Act of Congress of March 23d, 1906, (34 U. S. Stat., p. 85) must grant equal privileges to all tele- graph and telephone companies for the: use of the bridge and its approaches. * Western Union Tel. Co. v. Rogers, 42 N. J. Eq. 311 (1886). * A contract between a telephone company and a hotel by which the former is given the exclusive telephone privileges in such hotel, is contrary to public policy and is void, but the illegal part does not invalidate the *—3– TELEGRAPH LAw-- *6%xº~. forbid, the construction of a telegraph lime on highways.-A state can- not, by statute or in any other way, grant a monopoly of telegraphic business in the state to one company and exclude all other com- panies. Telegraph business is interstate commerce, and a statute ex- cluding telegraph companies is unconstitutional and is contrary to the Post Road act of Congress. “A state has no authority to say that a telegraph company may not operate lines constructed over postal routes within its borders. * * * A city may not arbitrarily exclude the wires and poles of a telegraph company from its streets, but may impose reasonable restrictions and regulations.” A statute requiring a public vote on the granting of a franchise does not apply to a telegraph company that has accepted the Post Road act of Congress.” Whole Contract if the illegal part may be separated. The hotel may dis- regard the exclusive feature and allow Other telephone companies to furnish Service in the hotel. Central, etc. CO. v. Averill, 199 N. Y. 128 (1910). A hotel may maintain a proceeding be- fore a state commission under the Oregon statute to compel a long dis- tance telephone company which has wires running into the hotel to make physical connection with other tele- phone wires in the hotel belonging to a competing telephone Company. På- cific Tel. & Tel. Co. v. Wright-Dickin- son, etc. Co., 214 Fed. 666 (1914). See ... p. 62, Sºpºarº- + Town of Essex v. New England Tel. Co., 239 U. S. 313 (1915). See also Pensacola, Tel. Co. v. Western Union Tel. Co., 96 U. S. 1 (1877); Western U. Nev. 102 (1869), and cases on, p. 69, etc. The Post Road act is folind in §§ 5263-5269 of the Rev. Stat. of U. S. See also 23 U. S. Stat. at Large, ch. 9, p. 3, making post routes of “all public roads and highway while kept up and Imaintained as such.” See also Western U. Tel. Co. v. Massachusetts, 125 U. S. 530 (1888), where Mr. Justice Miller said: “While the state could not inter- fére by any specific statute to prevent a corporation from placing its lines along its post roads, or stop the USe of them after they were placed there, nevertheless the company receiving the .ing concern. Tel. Co. v. Atlantic & Pac. Tel. Co., 5 … benefit of the laws of the State for the - protection of its property and its rights Was liable to be taxed upon its real or perSOnal property as any Other perSOn Would be.” Where an employee of a telegraph Company which has accepted the Post Road act of Congress is ar- rested on a warrant issued by a jus- tice of the peace for obstructing the highway by erecting the telegraph line on the highway, he will be discharged by the circuit Court of the United States on habeas corpus. Eac parte Conway, 48 Fed. 77 (1891). It has been held in California that the legis- lature may grant to individuals the exclusive right to a line of telegraph between two cities, and that an aS- signee of the persons to whom the grant was made may enjoin a compet- California, etc. CO. v. Alta, etc. Co., 22 Cal. 398 (1863). A statute prohibiting the organization of a competing telegraph or telephone company without the consent of an existing company does not prevent the construction of a competing line by an individual. Haines v. Crosby, 94 Me, 212 (1900). * Where a statute gives to telephone companies the right to use the high- ways and streets, another statute to the effect that no franchise shall be granted by a city unless a majority of the voters vote therefor, does not apply to such corporation, but is in- ** 68-...” TELEGRAPH- LAW Tº $ 3- Questions relative to the jurisdiction of the Interstate Commerce Commission over international commerce are considered elsewhere.” A telegraph and telephone company whose real business is to furnish telephone Service, is considered a telephone company and is not en- titled to the benefits of the Post Road act of Congress. The words “telegraph corporations” do not always include telephone corpora- tions.” A state may compel a telegraph company to pay license fees.” but a telegraph company may maintain a suit to enjoin state officers from forfeiting its license to do business in the state on account of its having removed a suit from the state court to the United States Court, the penalty for which the statute says shall be the forfeifūre of such license.* Municipalities also are powerless to prevent a telegraph company, tended to apply to street railways and other purely local franchises. East Boyer Tel. Co. v. Incorporated Town of Vail, 129 N. W. 298 (Iowa 1911). A statute that a franchise to use thé streets must be voted upon does 110t apply to a general telephone ordi- nance. Smith v. City of Osceola, 159 N. W. 648 (Iowa, 1916). A statute re- quiring a popular vote of a city before a telephone franchise is granted does not apply to a telephone from One City to another city. Talma dege v. TOWrl of Washta, 167 N. W. 596 (Ia. 1918). A local telephone franchise may prop- erly be submitted to a popular vote if the statutes so provide. State v. Su perior Court for Spokane County, 152 Pac. 11 (Wash. 1915). * See § 900, €eek-orré!orp. * City of Pomona v. Sunset Tel. & Tel. Co., 224 U. S. 330 (1912); Rich- mond v. Southern Bell Tel. & Tel. Co., 174 U. S. 761 (1899); Sunset Tel. & Tel. Co. v. City of Pasadena, 161 Cal. 265 (1911). Under the Pennsylvania Constitution neither a telegraph nor telephone company may combine, Con- solidate or merge with a competing company, a telephone company being a telegraph company in that respect. Cochranton Tel. Co. v. Petroleum Tel. Co., 107 Atl. 23 (Pa. 1919). A New York company Organized to conduct both a telegraph and telephone busi- ness cannot compel the Secretary of State of Michigan to issue to it a cer- tificate of authority to transact both a telegraph and telephone business in Michigan, it appearing that the Mich- igan Statutes do not authorize a Com- pany to incorporate for both of those purposes, and the Statutes authorize foreign corporations to do only such business as a domestic corporation may do. American Tel. & Tel. Co. v. Sec- retary of State, 159 Mich. 195 (1909). Even though a burglar alarm com- pany using Wires in the Street is Or- ganized under the Telegraph Incor- poration Act, it is not entitled to the powers and franchises of a telegraph COmpany, and hence is subject to a Special franchise tax subsequently en- acted. Holmes, etc. Co. v. Armstrong, 97 N. Y. Misc. 184 (1916). See, n. 3, p. 3817, Geek-oh-Gorºp- “A * St. Louis v. Western Union Tel. Co., 148 U. S. 92, 101 (1893), sustain- ing a pole-license fee. See pp. 80, 95. * Western Union Tel. Co. v. Julian, 169 Fed. 166 (1909). A State statute requiring a foreign corporation as a COndition of doing business in the State, to agree not to remove suits to the United States Court, is void, as requiring the company to waive its COnStitutional rights. A statute that the license of a foreign company to do business in the state shall be forfeited, if it removes a suit to the United States Court is void. Western Union etc. Co. v. Frear, 216 Fed. aff'd, 241 U. S. 329. , See-ºf-in 199 (1914), i. §-3- TELEGR-A-PEH-IIAW - *69---- which has accepted the Post Road act of Congress, constructing its lines on or under the streets.” Not even a state statute authoriz- ing municipalities to control and regulate such use of the street,” can give a municipality the right to refuse altogether. This is an important principle of law. Municipalities frequently transgress the limits of their powers, and either refuse to allow any construction at all or impose Onerous conditions, which are not regulations but are exactions, having nothing whatsoever to do with regulations as to the safety and convenience of the public. In such cases the telegraph com. pany is not obliged to Submit, but may proceed to construct without any ordinance at all and if interfered with may apply for an injunc- tion or mandamus. Many illustrations of the application of this prin- ciple of law are given in the notes below.” * See, p. 77, n. 2, infºg. trol them, and indirectly, at least, to * For references to the statutes of concede to such other authority the the various states relative to obtain- right to regulate interstate commerce. ing the consent of municipalities to . . . Such companies, under the legis- the construction of tolegraph lilies ill lalion of the Congress, have the right highways, see Croswell on Electricity, to use the post roads of the United pp. 109-114. See also cases on pp. States in conducting their business: 277, n. 2, etc. but Süch use is subject to the police- * Federal Courts, see cases on ºpower Of the localities where they so n. 1, etc. A telegraph company which Operate Which, properly exercised by has accepted the Post Road act of Con- State and municipal authority, must greSS may enjoin a town from inter- be respected by complainant and by fering with the reconstruction of a all Companies similarly situated. The telegraph line on the highway passing rules and regulations promulgated by through the town, even though the Such authority must be reasonable, town has declined to grant a permit Should be free from local prejudice or for the construction of such telegraph favoritism, and enacted in an honest line. New England Tel. Co. v. Town endeavor to best subserve existing of Essex, 206 Fed. 926 (1913), aff’d 239 rights and conditions.” In St. Louis TJ. S. 313. “The occupation of its V. Western Union Tel. Co., 6.3 Fed. Streets by a telegraph company en- 68 (1894); aff’d, 166 U. S. 388, the gaged in interstate commerce, which court said (p. 73): “The defendant has accepted the act of Congress of Company is in the city, With its poles 1866, cannot be denied by a city.” PoS- and wires on the streets, under the tal Tel., etc. Co. v. Richmond, 249 U. paramount authority of an act of tho S. 252, 259 (1919). In the case West- federal Congress. It comes as a gov- ern Union Tel. Co. v. City of Rich- erminental agency, in performing an mond, 178 Fed. 310 (1909); aff’d, 224 important function in interstate com- TJ. S. 160, the court said (p. 319) : “To merce. It neither asks, nor can the hold that said companies mentioned in city demand, any permit or license to Said act of Congress are required to be and remain on such public high- Obtain the consent of the states and way. It has the right to demand the the municipalities through which they use of the plaintiff’s Streets and al- paSS before they are entitled to so use leys, and the plaintiff must submit to the post roads of the United States is such use, with Or without an ordi- to admit the power of an authority nance.” A city cannot impose un- other than the United States to con- reasonable conditions upon a tele- A- Where an employee of a telegraph company,which has accepted the graph company constructing its lines in the streets, and the court will pass on the reasonableness of the condi- tions, but a temporary injunction against the city’s interfering with the construction will not be granted where it would practically decide the whole case on the merits without a trial. Mackay Tel. etc. Co. v. Texar- kana, 199 Fed. 347 (1912), the court saying: “Under those acts of Congress, plaintiff is legally entitled to the use of the streets and alleys of Texarkana for the Construction of its line, The city may impose, under its police power, reasonable requirements on the company as to the manner of COnstruc- tion and maintenance of its line. It does not lie exclusively within the power of either the company or the city to determine what is a reasonable requirement. The inquiry must be open in the court and must depend largely on the actual State of affairs in the city.” A post route is the same as a post road within the meaning Of the Post Road act of Congress. New England Tel. Co. v. Town of Essex, 206 Fed. 926 (1913), aff’d, 239 U. S. 313. In the case Iowa, Tel. Co. v. City of Keokuk, 226 Fed. 82 (1915), the court said (p. 96) : “Companies build- ing telegraph and telephone lines hav- ing only the right to the bare use of fhe highways for the Construction of their lines, I fail to see where any principle of public policy obtains. Telegraph lines and telephone lines are a necessity. They do not interfere with the legitimate use of highways for all other purposes. They cannot well exist without using the highways, and the Only purpose a City might have in excluding a company from a high- way or Street would be to permit all- other to have the use of such highway or Street; but, to permit the use of a street by another, it is not necessary to exclude the first. The rights are not exclusive; the State Or City is not interested in driving Out one occupant to permit another to take its place. The only interest the state or city has is to have good service and fair rates. and the service and the rates are under the absolute control of the state. If a city should be empowered to build tele- phone Systems, the ‘bare right’ of COm- plainant and other companies to use the StreetS COuld not interfere with the exercise of such power. The use of a Street by One company can be so regu- lated or controlled that it will not in- terfere with any other legitimate use, including use for other like purposes.” Whcro tho State statute in nrescrib- ing conditions on which municipalities may grant Street rights excepts tele- graph or telephone companies doing an interstate business, Such a COmpany may construct and maintain its lines in the Streets without obtaining the consent of the municipality, and hence the company may enjoin the city from interfering with its lines and reducing its rates, but must comply with rea: sonable police regulations as to the manner of construction and mainte- nance. Sunset Tel. & Tel. Co. v. City of Eureka, 172 Fed. 755 (1902); Sun- Set Tel, & Tel. Co. v. City of Pomona, 172 Fed. 829 (1909), the court uphold. ing also that the fact that the company does an intrastate as well as inter- state business does not change this rule, and that an injunction lies against the city cutting down the poles. On appeal in the last-mentioned Case the supreme court reversed [72 Fed. 829, and held that while a city under the California Statutes COuld not re- move poles and wires used on its trunk lines for interstate telephone business, yet it might remove poles and wires used to connect with customers. City of Pomona v. Sunset Tel. & Tel. CO., 224 U. S. 330 (1912), Mr. Justice Holmes intimating in a dictum that the power of the city over poles and wires used in interState Commerce Imight be greater than Supposed. The Supreme Court Ordered the bill to be dismissed without prejudice. Notwith. Standing the Post Road act of Con- gress of 1866, and the amendments thereto, a telegraph company that has -$–3~ -qEEEGRAPHTAwº Post Road act of Congress, s arrested on a warrant issued by a justice accepted its provisions Cannot COn- struct its telegraph lines in the Streets of a city without complying with the reasonable regulations Of the city, and Such act Of Congress does not enable a telegraph company to construct a district telegraph system in a city to Collect messages and to carry on a meSSenger, Watchman, fire, burglar and police signal business. City of Toledo 'w. Western, etc. Co., 107 Fed. 10 (1901). A telegraph Company before applying for an injunction against a city in- terfering with the construction of its lines must apply to the COmmon COUn- cil for an Ordinance. Western Union, etc. Co. v. City of Toledo, 121 Fed. 734 (1903). The case Western Union Telegraph Co. v. Richmond, 224 U. S. 160 (1912), aff’g 178 Fed. 310, holds that a municipality may require a telegraph Company to put its Wires underground in “the populous and COn- gested center of the city” (178 Fed. 322), and may require the com- pany to allow the city to string its fire-alarm and police wires on the poles without charge, and use one un- derground duct without charge (224 U. S. 166), and may require the com- pany to Construct a thirty per Cent. Surplus Of underground facilities fol" the use of other companies on proper COmpensation and may require the Company to allow the street committee to permit other companies to put wires On the poles on proper compensation, and may require the company to pay a license fee of $2 per pole per year, but that a provision limiting the com- pany’s rights to fifteen years will not necessarily terminate the Company’s rights at the end of that time. Some Of the dicta. Of Mr. Justice Holmes in the opinion are, inconsistent with 96 U. S. 1 and 125 U. S. 530. Even though an elevator and warehouse company accepts a state license which requires it to obey all regulations prescribed by the state, nevertheless it may re- fuse to obey regulations that are il- legal. Cargill Co. v. Minnesota, 180 D. S. 452 (1901). The fact that the Statute authorizes an electric-light company to lay its wires in the streets does not exempt the company frony COmplying with reasonable police regul- lations in laying such wires, and the COurts Will not manda??)ſtis a City to allow Such laying irrespective of the Ordinances. Missouri v. Murphy, 170 U. S. 78 (1898). The State cannot prohibit the Construction of an under- ground natural-gas pipe line in the highways with the consent of the abutting Owners who own to the Center of the Street, the plan being to carry on interstate commerce, and not interfering with the use by the public Of the Street. Ransas, etc. Co. 7). Haskell, 172 Fed. 545 (1909); aff’d, 224 U. S. 217, Sub nom. Haskell v. Ransas Natural Gas CO. A city’s COn- sent to the construction of a telephone line is not a franchise. Dakota, etc. Tel. Co. v. City of Huron, 165 Fed. 226 (1908). A telephone company pur- chasing from an individual a telephone line may operate it, even after the grant from the city to the individual has expired by its own terms, it ap- pearing that the grant required from the city was for construction, but that the statute did not require a grant from the city for Operation. Dakota. etc. Tel. Co. v. City of Huron, 165 Fed. 226 (1908). Where a telephone com- pany is litigating with a city in regard to the franchise and a Stockholder of the former obtains a new franchise, and the litigation ceases and the Com- pany reconstructs, it is presumed to have accepted the new franchise. Cum- berland Tel. etc. Co. v. City of Evans- ville, 143 Fed. 238 (1906). A statute authorizing cities to regulate and Con- trol or prohibit poles and wires upon the streets, does not give an absolute right to the city, but is one for the reasonable exercise of its police pow- ers. City of Wichita v. Old Colony Trust Co., 132 Fed. 641 (1904). Á municipality may pass regulations in regard to telegraph wires and poles. An Ordinance prohibiting the stretch- ing of electric-light wires upon or over cº- –Š-3- of the peace for obstructing the highway by erecting the telegraph line buildings is legal. Electric Imp. Co. v. San Francisco, 45 Fed. 593 (1891). California: In the case Western Un- ion Tel. Co. v. Superior Court, 15 Cal. App. 679 (1911), the court said (p. 688): “From the principles as thus affirmed, these incontrovertible propo- sitions flow: 1. That telegraph cor- porations that have accepted the re- strictions and obligations prescribed as to such corporations by CongreSS are not , primarily, beholden to any state for their right to transact a tele- graph business therein; that the sole Source of their authority to enter any of the states or territories of the United States, where there are military and, post roads and government Water- ways, for the purpose of doing busineSS therein is in the acts of the federal Congress. 2. That no state has the power, under the indicated circum- stances, to exclude such corporations from the right or privilege of carrying on the business for which they are formed within its borders; that, while the state may impose upon Such cor- porations, as it may upon all COrpOrū- tions of . Whatever kind Or nature, organized-and-existing under the laws of another state, reasonable regula- tions, and to that end prescribe and require certain reasonable prerequi- sites to the exercise of the authority conferred on them by Congress to do business in Such state, yet no state will be permitted, whether under the guise of regulation or otherwise, to enact any legislation the effect Of which would or might, practically, be to prevent them from doing busi- ness in such state, or in effect result in an attempt on the part of such stat6 to regulate commercial intercourse between its citizens and those. Of Other states, or to control the transmission of all telegraphic correspondence with- in its own jurisdiction.” An ordinance by a municipality to a telegraph com- pany that has accepted the Post Road act of Congress is not such a franchise as may be taxed by a city, it being merely a police regulation. Westerr Union, etc. Co. v. City of Visalia, 149 Cal. 744 (1906). Cf. § 6, infra. Colorado: Mandamus by a board of public Works to allow a telephone line to be erected in accordance with afi Ordinance was involved in Board of Public Works, etc. v. Denver Tel. Co., 28 Colo. 401 (1901). - Georgia : Under the Post Road act Of Congress a telegraph company Cannot be prevented by a state or municipality from constructing its lines on the highways, and a lineman of Such a company cannot be Con- victed Criminally of obstructing the highway. Accordingly, Where a mil- unicipality Orders the poles to be re- moved On account Of Street improve- ments it must at the same time give new locations. Carver v. State, 11 Ga. App. 22 (1912). Illinois: The common Council Can- not delegate to the Mayor its discre- tionary power to allow poles and wires' on the streets. City of Sullivan v. Cloe, 115 N. E. 135 (III. 1917). IOwd. Where a Statute gives to telephone COmpanies the right to use the highways and streets, another Statute to the effect that no franchise Shall be granted by a city unless a majority of the voters vote therefor, does not apply to such corporation, but is intended to apply to street rail- ways and other purely local franchises. East Boyer Tel. Co. v. Incorporated Town of Vail, 129 N. W. 298 (Iowa, 1911). See p. 67, 84%, . Ransas: A telegraph or telephone Company having a Statutory right to construct its lines on highways, should first request a municipality to pre- scribe reasonable regulations, and then if the municipality fails to do so the company has a right to construct with- out any regulations. New Hope Tel, Co. v. City of Concordia, 81 Kan. 514 (1910). Kentucky: Where a municipality authorizes the Construction of a tele- graph line On condition of the comi- pany paying a certaiin annual fee, and the company proceeds to construct -$–3–, TEfff;6|ft|APH. LAW on the highway, he will be discharged by the Circuit Court of the United its line, it is bound to pay the fee, even though originally it might have contested the same and even though it did not accept the ordinance in writing, as required by the terms of the ordinance. Postal, etc. Co. v. City of Newport, 76 S. W. 159 (Ky. 1903). The Supreme Court of the United States held, however, in this Case, that a telegraph company which takes over the property of another tel- agraph Company is not bound by a city Ordinance granted to the latter COn- taining a provision that a $100 license fee per annum must be paid. Postal Tel.-Cable Co. v. Newport, 247 U. S. 464 (1918) ; rev’g 160 Ky. 244; s. c., 169 S. W. 700 and 76 S. W. 159. A telephone franchise from a munici- pality in PCentucky can be granted only for twenty years and only after advertising for bids, in accordance with the constitution. Cumberland Tel. & Tel. Co. v. City of Calhoun, 151 S. W. 659 (Ky. 1912). Massachusetts : A Suit by a telegraph Company to enjoin public Officials from interfering with its wires and poles. should not be against the city, if the Officers represent the State. Postal Tel., etc. Co. v. City of Worcester, 202 Mass. 320 (1909). In Suburban Light, etc. Co. v. Boston, 153 Mass. 200 (1891), the court held that a municipality, under a statutory power to designate the Streets, so far as practicable, for poles of electric-light companies, night refuse altogether; but the court pointed out that an electric-light plant is local and in this respect differs from? a telegraph line. Where the statutes of the State prescribe that a telegraph company shall obtain from the munici- pality a writing Specifying the height and places of the wires, which writ- ing is to be recorded in the records of the city, such a statute applies to Wires crossing the road. Hence, if an employee of a telegraph company While Stringing wires without Such previous consent of the municipality is injured by reason of the wire be- ing struck by a street car, he has no recourse against the Street-railway COmpany, and he cannot claim that the Post Road act of Congress gave the company the right to so string the Wires without reference to the State Statute. Banks v. Highland St. Ry., 136 Mass. 485 (1884). Where the Statute leaves the location of the poles to the local authorities, their action is final so far as the right to remove them, or liability to indictment is concerned. Commonwealth v. BOS- ton, 97 Mass. 555 (1867). Michigan. : Where a telephone com- pany has a grant from a city allow- ing the company to construct its Wires and poles in the Street, the City cannot afterwards prevent. Such con- struction by refusing to make regu- lations as to the same and by passing an Ordinance prohibting the erection of poles without the Consent Of the City. The court will give the city a reasonable time to make such regu- lations, and if not then made will en- join the city from interfering with the construction of the poles without any regulations, except such as may be approved by the court. Michigan, etc. Co. v. City of St. Joseph, 121 Mich. 502 (1899). A New York com- pany Organized to conduct both a tele- graph and telephone business cannot COmpel the secretary of State of Mich- igan to issue to it a certificate of au- thority to transact both a telegraph and telephone business in Michigan, it appearing that the Michigan stat- utes do not authorize a company to incorporate for both of those purposes, and the statutes authorize foreign Cor- porations to do only such business as a domestic corporation may do. Ameri- Can Tel. & Tel. Co. v. Secretary of State, 159 Mich. 195 (1909). Minnesota : Where a telephone company is authorized by a municipal grant to erect its poles as located by the commissioner of public works, and he refuses in an arbitrary and unjus- tifiable way to give the locations, its remedy is not to erect the poles with- out reference to him, but to apply for * º *3.*::ss.xt, ~74---- TELEGRAPH "Ti A.W. -$–3– States on habeas corpus." The law is that a telegraph company, which a mand(lºvus. City Of St. Paul v. Freedy, 86 Minn. 350 (1902). MOntana : Where a statute author- izes cities to make reasonable regula- tions in regard to the construction Of telephone lines, and a city refuses to act, a telephone Company may by a manda'mºus Compel a city to designate. the places for the erection of poles. State v. Mayor, etc., 34 Mont. 67 (1906). Manda mºus will not lie to Compel a city to designate streets on Which a telephone line may be erected where the statute gives that right, inasmuch as the only duty of the city is to designate in what part of the Street the poles shall be placed. State ºv. Mayor, etc., 33 Mont. 345 (1905). Where a city refuses to designate the location of poles for , a telephonē COmpany, aS prescribed by Statute, and requires the wires to be laid in underground conduits, mandamus lies to compel it to designate the location Of the poles, and a general Statute applicable to telephone companies to that effect applies to foreign as Well as domestic telephone companies. State w. Mayor, etc., 30 Mont. 338 (1904). New Jersey: Under the New Jer- sey statute, where a through telegraph and telephone line is being constructed, a municipality has no power to refuse to designate its location. On the StreetS. and manda'mºus lies to compel Such des- ignation. New York, etc. Tel. Co. v. Mayor, etc. of Bound Brook, 66 N. J. L. 168 (1901). A municipality having power by Statute to regulate the con- Struction of telephone lines cannot re- fuse altogether to allow Such construg- tion, but Can Only regulate the Con- Struction. Hence an Ordinance that Construction shall only be upon Con- Sent Of a Certain board is illegal. In- habitants, etc. v. N. Y., etc. Tel. Co., 57 N. J. Eq. 123 (1898). A municipality Cannot enjoin the running of an elec- tric Wire across the Street twenty-five Or thirty feet from the ground, where there is no Ordinance against it and it does not interfere with the use of the Street. Mayor, etc. v. Holland, etc. Co., 35 Atl. 344 (N. J. 1896). The power Of the municipality to regulate and to designate the location of poles does not give it power to refuse location and cut dOWh the Wires. American Union Tel. Co. v. Harrison, 31 N. J. Eq. 627 (1879). - New York: In the Matter of the Transfer of Property and Franchises by Telephone Companies the public Service Commission in a ruling made April 17, 1911, said: “The courts of this State have repeatedly recognized that a right to occupy streets and highways throughout the State is conferred by the transportation Cor- porations law and not by local authorities. Local authorities are per- mitted by the law to regulate the exer. cise of this right, but they cannof prevent its exercise unless there is Some Special statute permitting the Same in a given locality. This propo- sition is clearly laid down by the court Of appeals in Village Of Carthage v. Central New York Telegraph and Telephone Co., 185 N. Y. 448. It is recognized by the appellate division Of the fourth department in Rochester Telephone Company v. Ross, 125 A. D. 76, and by the court of appeals in Rochester Telephone Company v. ROSS, 195 N. Y. 429.” A provision in a grant by a village to a water-WOrkS company under the New York statute for the supply of water for municipal and fire purposes, to the effect that the * Eac parte Conway, 48 Fed. 77 (1891). A federal court, however, will not dis- charge a prisoner held by state author- ities unless the Case is One Of urgency. Re Matthews, 122 Fed. 248 (1902). A local agent of an express company who has been arrested for its not paying a license fee to a City may test the vali- dity of the Ordinance by habeas corpus proceedings. Hardee v. Brown, 56 Fla. 377 (1908). S-3- t TELEGRAPH-LAW has accepted and is entitled to the benefits of the Post Road act of village shall have the right to buy the water-works plant at the end of stipu- lated periods by giving a year’s notice, is ultra vires and void and cannot be enforced by or against the village. Matter Of Water Comrs. Of White Plains, 176 N. Y. 239 (1903). A Condition in an ordinance from a municipality to a telephone, company, fixing the rates to be charged to the public, is not binding On the telephone Company, even though it has pro- Ceeded under the Ordinance, where the city has merely statutory right to regulate the poles and wires. Such a power cannot be used to force a Contract for the benefit Of the City Or its citizens. Wright v. Glen T. Co., 112 N. Y. App. Div. 745 (1906), the court approving the decision in Farmer v. Telephone Co., 72 Ohio St. 526. Where a statute gives a gaS COmpany the right to use the Streets With th9 consent of the municipality, a provi- sion in the municipal grant that it shall continue for thirty years Only is ineffective. City of New York v. New York, etc. Co., 135 N. Y. App. DiV. 260 (1909). A telegraph or telephone company incorporated in New York State after 1881 is bound by the Statute of 1881 requiring such companies to obtain the consent of the local authori- ties to the use of the streets in addi- tion to taking out a charter from the State. Matter of New York, etc. Co., 133 N. Y. App. Div. 635 (1909); aff’d, 200 N. Y. 527. Where a city by its charter has power to prevent the erection. Of telephone poles and Wires, it may grant permission on COndition that the telephone Company pays a Certain percentage of its groSS receipts to the City, although the rule. would be different if the city had merely power to regulate the con- Struction. City of Jamestown v. Home Telephone Co., 125 N. Y. App. Div. T (1908). The right of a telephone com- pany in New York to erect its poles ori the Streets comes by direct grant from the State and not from the municipali- ties. Gannett v. Independent Tel. Co., 55 N. Y. Misc. 555 (1907). An incorporated village has no power to Compel a telephone company to place its Wires underground where there is no statute expressly conferring that power upon the Village. The village is entitled merely to regulate the erection, in other Words, the location of the poles and the streets to be OCCupied. Village of Carthage v. Cen- tral, etc. Co., 185 N. Y. 448 (1906). Manda'mºus lies to compel municipal authorities in New York city to allow a telegraph company to repair its lines. . Matter of Seaboard, etc. Co., 68 N. Y. App. Div. 283 (1902). Mari- da/m/us lies to compel a village to grant a permit to a telephone COm- pany to erect its lines where the statute authorizes such erection. People v. Trustees, etc., 35 N. Y. Misc. 675 (1901). A telephone COmº pany in New York has no power to use the Streets of a city for its poles in violation of an Ordinance of the City. Utica v. Utica Telephone Co., 24 N. Y. App. Div. 361 (1897). A city may attach reasonable conditions, which protect the interests and well-being Of the City, but cannot attach COnditions that damages to adjacent property Shall be arbitrated by City assessors, and that the road shall be constructed Within a given time. Such conditions are not reasonable Or lawful, inasmuch as they relate to matters Over Which the legislature has sole control. Re Ring's County Elev. R. R., 105 N. Y. 97 (1887). A city cannot exact a Sum of money for a grant from it. Beekman w. Third Avenue R. R., 153 N. Y. 144, 158 (1897). A telephone company is not obliged to pay the municipality for constructing its lines on the high- ways in such municipality. State, etc. Co. v. Ellison, 121 N. Y. App. Div. 493 (1907). - Ohio: Even though the Statute gives the courts power to direct in what mode a telephone company shall construct its lines in munici- palities, the Court cannot impose a condition as to the rates. State v. … ſºlº- ...T.E.LEGRAPEE-LAWK, Congress does not need any state consent or any municipal consent to Toledo, etc. Co., 72 Ohio St. 60 (1905). Under the Ohio statute if a telephone Or telegraph company is unable to agree with the city as to the use of the streets, the company may apply to the Court for permission to construct its lines, even though the city owns the fee of the Streets. City of Zanes- ville. v. Zanesville T. & T. Co., 64 Ohio St. 67 (1901). See Farmer v. Co- lumbian, etc. Co., 72 Ohio St. 526 (1905). Pennsylamania: After a telephone line has been constructed, as author- ized by a city grant, and a change to underground is thereafter authorized, the city cannot still later refuse to allow the underground except by COEl- sent of the city council. The right to impose conditions ended with the orig- inal grant and thereafter only reason- able regulations could be imposed. Commonwealth v. Warwick, 185 Pa. St. 623 (1898). In the case Punxsutawnev Borough v. Western Union Tel. Co., 18 Pa. Dist. Rep. 308 (1908), in- volving the validity of a pole- license fee, the court said that the defandant having accepted the Post Road act of Congress of July 24, 1866, “had and still has the right and au- thority to occupy the public streets and highways of said municipality with its poles, wires, etc., without first having obtained a license or permit from the municipality SO to do.” See also Wil- liamsport Pass. Ry. v. Williamsport, 120 Pa. St. 1 (1888); Milville v. Ever. green Ry., 131 Pa. St. 1 (1890). Even though a domestic telephone company has erected its lines On the Street of a city without the consent of the city, as required by Statute, and even though it has leased the same to a for- eign telegraph company. which has no right to use the streets for that pur- pose, yet where the poles have been in the streets for twenty-one years with- Out Objection, and have cost a large amount Of money, and various Ordi- nances have been passed in regard to them and license fees collected, a bill Union Telegraph Co. v. in equity by the city to remove the poles will be denied. City of Bradford w. New York, etc. Co., 206 Pa. St. 582 (1903). Where an individual Owning a telephone line accepts in writing an Ordinance imposing a fee of fifty cents per pole per annum, and then sells a, line to a telephone Company, which as- sumés the duties and obligations, the telephone Company must pay the a mount, not as a license fee, but as a contract obligation. Cochranton Bor- Ough v. Cochranton Tel. Co., 41 Pa. Sup. Ct. 146 (1909). An express ac- Ceptance by a gas company of an or. dinance excepting such of its terms as might be held illegal, binds the com- pany to pay an annual sum to the city, as required by the Ordinance, even though the courts hold subsequently that Other COmpanies need not pay an equivalent Sum. Allegheny v. Gas, et?. Co., 172 Pa. St. 632 (1885). South Dakota : A municipality has no power to impose On a telephone company any conditions or establish any regulations other than those per- mitted by the legislature, where the grant comes from the legislature. Missouri, etc. Co. v. City of Mitchell, 22 S. Dak. 191 (1908). Tennessee : A corporation Organized to erect and operate a telegraph line has no power to erect a telephone line, even if it intended incidentally to do a telegraph business. Home Tel. Co. v. Mayor, etc., 118 Tenn. 1 (1907). Washington : A tax by a munici- pality on a franchise of a telegraph Company, which has accepted the Post Road act of Congress, is illegal as a tax On a federal franchise. Western ; Takin, 53 Wash. 326 (1909), the court saying: “The company possessed under its federal franchise the right to do busi- neSS upon all the roads and highways in the county of Pierce, whether within Or Without incorporated cities and to Wns. This right could not be de- nied. The power of the city was lim- ited to its right to regulate the use of Š * * •sa-º-º: rºse". *...* the use of the streets for its lines." TELEGRAPH.L.A.W.--~, Such a company must comply with reasonable regulations but that is all.” the privilege granted by Congress. It might provide that poles and wires should be carried Over Certain StreetS : that the wires should be carried on poles Or buried in the ground; that travel should not be unreasonably Obstructed, and that poles should be of certain height, and other like inci- dents. Beyond this it had no power to go. The Ordinance relied upon did not grant a franchise.” A city Cannot be compelled by manda'mºus to allow a Second telephone company to Construct its lines in the streets, even though the constitution provides that any corporation shall have the right to construct telephone lines Within the State, there being no statute to carry Out Such constitutional provi- Sion. State. v. City of Spokane, 24 Wash. 53 (1901). TWisconsiºn : Where a city grant to a telephone company contains many provisions about rates, etc., which the City has no power to regulate Or Contract in regard to, the state by an action may Oust the telephone com- pany from exercising such a franchise. State v. Milwaukee, etc. Co., 133 Wis. 588 (1907). where a statute author- izes telephone companies to construct their lines in streets and highways, a City cannot attach, as conditions to its Consent, a provision that it shall have the power to regulate rates, and purchase the property at an appraised Value, and string wires on poles free Of charge, and forfeit the property to the city in case the line is not Oper- ated. Such conditions are not proper police regulations. State v. City of Sheboygan, 111 Wis. 23 (1901), Where a city charter gives the board of public Work power to regulate the placing of telephone poles in the street, a tele- phOne Company must comply with the reasonable directions of such board City of Marshfield v. Wisconsin Tel. Co., 102 Wis. 604 (1899). In Wiscon- Sin it is held that the charter power of a city to “regulate, control, and pro- hibit the location, use, and manage- ment of telegraph poles and Wires is not designed as giving to the munici- pality absolute authority to remove Such poles and wires entirely from the City, nor to exclude such companies altogether from carrying on or Operat- ing their business within the corporate limits of the city, but simply to regu- late the same, and to prohibit such lo- Cation in improper places. Otherwise the municipalities of the state would have the power to nullify what the legislature had expressly authorized. Undoubtedly the common council, under the charter, had the right to regulate, in order to guard and secure the public safety and convenience, but their regulations, to be valid, should have been reasonable and fair, and not have gone to the extent of confisca- tion, nor of wholly excluding the plain- tiff from the city.” Wisconsin Tele- phone Co. v. Oshkosh, 62 Wis. 32 (1884). See also, in general, §§ 913, 930, 931, -eeek-on-Corp. Eºgland: Municipal authorities have no implied power to obtain an injunction against a telephone wire CrOSSing a street from chimney to Chimney, unless such wire is dangerous and a nuisance. Wandsworth Board, etc. v. United Telephone Co., L. R. 13 Q. B. D. 904 (1884). If an electric Com- pany has Statutory power to lay wires under the Streets, the manner of thc laying to be as prescribed by the muni- Cipality, the company may lay its wires Without any municipal action, if the - municipality, after reasonable notice, does not regulate the laying. MOntreal v. Standard, etc. Co., [1897] A. C. 527. * See cases On, p. 69, n. 3, stºp?"(l. * See the cases in the Second preced- ing note on-aºsiºika reprintciple of “law. Where a statute gives a telephone com S pany the right to COnStruct its lines On the highways Of the State, such con- Struction may be On the streets of a city without the city’s consent. Cham- berlain v. Iowa Tel. Co., 119 Iowa, 619 --77 - _75 Telephone companies stand on a different basis from telegraph com- panies in that telephone companies are not entitled to the federal fran- chise granted by the Post Road act of Congress." Nevertheless the telephone decisions in regard to pole lines are relevant and many of them are referred to in the notes below.” A municipality cannot exact # tº (1903). Under a statute which gives ** Ato telephone companies the right tº / erect their lines on the highways, no | consent from the municipalities is re- \; - quired. Abbott v. City of Duluth, 104 … . . Fed. 833 (1900); aff'd, 117 Fed. 137. Where the state statutes give to tele- phone companies the right to erect their lines on the highways it is un- necessary for a telephone company td have a grant from a city in order to Construct its lines, there being noth- . . ing in the statute requiring such . . . & grant. A city may regulate the con- rt º struction, but cannot prevent it. "… ' Michigan, etc. Co. v. City of Benton < Harbor, 121 Mich. 512 (1899). Where. ca-6Statute has granted-to- telephone.com- parlies the right to use the streets, the . . consent of the municipality, is not ne- cessary. NThe municipality, notwith- ‘. ... " standing this; may impose reasonable regulations, but it cannot Compel One telephone compañyºto place its wires underground while it allows another * one to gö overhead. Village of Car- thage v. Central, etc. Co., 48.N. Y. -Mísc-423*(1905);...affºd-185-Nº-Yº,48. " An electric-power company authorized # by its charter to erect poles, etc., in ; the streets need not obtain consent of j A the municipality, even though by its K charter it is subject to a general act which does require such consent. TO- . . . . . ronto, etc. Co. v. Corporation of North . . . ." * Toronto, 107 L. T. Rep. 182 (Privy * ... º Council, 1912). A telephone company having the right by statute to build its lines in the streets may enjoin a City from preventing the construction, the city having refused to consider the ap- plication of the company for location of the poles, etc. City of Brownwood . . º, v. Brown Tel. & Tel. Co., 152 S. W. 709 * * , , , , , , (Tex. 1913). A long distance tele- § .*** phone company, like a telegraph com- - s pany, in Texas has by statute the right f to use streets and highways, and the city may regulate but cannot forbid the construction. The regulations must be reasonable and the company cannot be required to accept all the Ordinances of the city, such Ordinances being enforcible in the usual way if legal. I the streets to be used, an injunction lies against the City stopping Construc- tion. City of Brownwood v. Brown Tel. & Tel. Co., 157 S. W. 1163 (Tex. 1913). 1 Richmond v. Southern Bell T. & T. Co., 174 U. S. 761 (1899). ºr." * As to telephone companies, a state statute may of course require the consent of the municipality to be first obtained, in which case an application at least should first be made to the municipality. Even though a tele. phone company must by statute obtain the consent of a municipality, the mu- nicipality cannot impose arbitrary and capricious or unreasonable conditions. Central Dist., etc. Co. v. Borough of | Homer City, 89 Atl. 681 (Penn. 1914). A town may remove the poles where its directions as to location . must first be obtained and no effort to that end has been made. New York, etc. Telephone Co. v. East Orange, 42 N. J. Eq. 490 (1887). It is the duty of a telephone company before erecting its lines as allowed by statute to apply to the city and ascertain the regula- tions which the city wishes to impose. State v. City of Milwaukee, 132 Wis. 615 (1907). The Minnesota statute requiring a telephone company to obtain a franchise from the city be: fore constructing its line in the Streets, applies to a telephone company en- gaged in interstate commerce. North- western, etc. Co. v. City of St. Charles, 154 Fed. 386 (1907). Even though a domestic telephone company has erect- -Š-3- If the city refuses to prescribe *FºEG.R.A.P.HººV". money or free service or the right to reduce rates as a condition of allowing the construction of a telegraph line on the streets.” A tele- ed its lines on the Street of a city Without the consent of the city, as required by statute, and even though it has leased the same to a foreign tele- graph Company, which has no right to use the streets for that purpose, yet Where the poles have been in the streets for twenty-one years without objection, and have cost a large amount of money, and various ordinances have been passed in regard to them and license fees Collected, a bill in equity by the city to remove the poles will be denied. City of Bradford v. New York, etc. Co., 206 Pa. St. 582 (1903). Even though a statute requires the Consent of a city for a street-railway mortgage, yet such consent will be presumed in a suit by the mortgagee to prevent the city forfeiting the fran- Chise. A city has no inherent power to forfeit such a franchise and the trustee may enjoin the city from re- moving the tracks, etc. Ravanaugh 'v. City of St. Louis, 220 Mo. 496 (1909). A board Of aldermen in Massachusetts Cannot make a grant to a telephone Company unless the Statute is COmplied with as to noticó to property owners, and as to a hearing, etc., and this applies to under- ground as well as Overhead construg- tion. Metropolitan, etc. Co. v. Emer- son, 202 Mass. 402 (1909). The Statute authorizing municipalities to prescribe the manner in which corpo. rations shall use the Streets does not authorize an arbitrary refusal alto- gether to allow a gas COmpany to lay its mains in the Streets. Gaslight Co. ºv. Borough of South River, 77 N. J. Eq. 487 (1910). Where by Statute the highway commissioners On applica- tion are to designate the location of telephone poles, but they fail to do so, the telephone company in placing its poles Without such location does so at its peril and must not interfere with the use of the highway to the public; otherwise it will Suffer the statutory penalty for obstructing the highway. InterState, etc. Co. v. Town of Towanda, 221 III. 299 (1906). A telephone and telegraph company having its wires in the Street by authority of the statute need not ob- tain a new Ordinance from the city, even though the Old Ordinance has eX- pired by its own terms, and if the City threatens to chop down the poles, it may be enjoined from doing so. Sun- set Tel. & Tel. Co. v. City of Pomona, 172 Fed. 829 (1909), rev’g 164 Fed. 561. On appeal in the last-mentioned Case the Supreme Court reversed 172 Fed. 829, and held that while a city under the California Statutes could not remove poles and wires used on its trunk lines for interstate telephone business, yet it might remove poles and Wires used to connect with customers. City of Pomona v. Sunset Tel. & Tel. Co., 224 U. S. 330 (1912), Mr. Justice Holmes intimating in a dictum that the power Of the City Over poles and Wires used in interState COmmerce might be greater than supposed. The Supreme Court Ordered the bill to be dismissed without prejudice. * The following decisions are almost entirely telephone, Water-works, street railway, gas and electric light Com- pany decisions. They, however, throw light On the subject. A telegraph company, under the Post Road act of Congress, is not subject at all to Ordinance Conditions about rates, Cash payments, free service, taxes, etc. Federal Courts: A-prevision-in-an qrdinance...that a telegraph-company shall thereafter put its wiresºunder- ground-on such terms as the city may deem proper, is legal because if the city's action thereafter is unreasonable the telegraph” company-may object. Afflion Tel. Co. v. Richmond, ā-310, .321-(1909); "affºd, 224 U.S. 160. A railroad Company accept- ing an ordinance granting street rights with a provision that a certain motive power shall not be used, cannot accept the Ordinance and afterwards claim that the statutes did not allow such a condition to be imposed. Southern ,-79* sigº-T zºº’ JTEEEGRAPHTAW graph company may give long distance telephone service without applying to the State Commission for a permit to give such service.* Sometimes under stress of necessity and the wish to avoid litigation, Pac. Co. v. City of Portland, 227 U. S. 559 (1913). Where the mayor of a City, before Signing an Ordinance granting rights to a Street railway, insists that the Company execute an agreement to pay a Certain Sum to the City, Such agreement, although not legal in its inception, may be enforced if the company thereafter proceeds to Construct its line, the court holding that ultra vires contracts are binding after benefits have been received. Potter v. Calumet, etc. Ry., 158 Fed. 521 (1908). A state cannot legally re- quire a foreign corporation to aban- don its legal rights in the future. King, etc. Co. v. Lynch, 232 Fed. 485 (1916). Even though an elevator and warehouse company accepts a State license which requires it to obey all regulations prescribed by the State, nevertheless it may refuse to obey regulations that are illegal. Cargill Co. v. Minnesota, 180 U. S. 452 (1900). A similar principle of laW is involved in a conditional grant to a railroad company. The courts hold that such conditions are subject to Changes and modifications there- after arising and are not necessarily binding forever. Texas, etc. Ry. v. Marshall, 136 U. S. 393 (1890); Texas & Pac. Ry. V. Scott, 77 Fed. 726 (1896); Lucas v. N. Y., etc. R. R., 130 Fed. 436 (1904); Northern Pac. R. R. v. Tris- tin, 142 U. S. 492 (1892); Beasley v. Texas, etc. Ry., 191 U. S. 492 (1903); Jones v. Newport News, etc. Co., 65 Jones v. Newport News), etc. Co., 65 Fed. 736 (1895). Old Colony T. Co. v. Omaha, 230 U. S. 100 (1913). A provi- Sion in a city grant that it may be al- tered or amended “as the necessities of the city may demand” does not justify a repeal altogether, and such a resolu- tion is “pure Surplusage,” inasmuch *State Public U. Comm. 4). POStal Tel.-Cable Co., 120 N. E. 795 (Ill. 1918); the court saying: “The evi- dence shows that to enable the appel- lant to use its telegraph wires as a, part of a telephone system it Was ne- cessary to add at the end of each telephone circuit a composite or sim- plex equipment consisting of Coils With a large amount Of iron Wire in them, and also condensers, as Well as to add Switchboards and telephone bOOths and instruments. These WOuld all be in the building with the Ordi- nary telegraph instruments. In Our judgment these additions did not Con- Stitute the Construction of any new plant, equipment, property, or facili- ty, but were only in extension of the Service it was already furnishing.” |Under the Indiana. Utility Commis- sion act, jurisdiction is not conferred On the Public Service Commission to pass upon the question whether Or not a telegraph Company ſultra vires in giving long distance telephone service. Forgan, Receivers is acting Of Central Union Tel. Co. v. Postal Tel-Cable Co., P. U. R. (1918) B. 402. One Competing concern cannot in most jurisdictions question the chartered powers Of its Competitior. Cumber- land, etc. Co. v. West Virginia, etc. Co., 188 Fed. 585 (1911). See also State v. Egg Harbor City, 55 N. J. L. 245 (1893); Community Ditches, etc. v. Tularosa Community Ditch, 120 Pac. 301 (N. M. 1911); New Hart- ford Water Co. v. Village Water Co., 87 Atl. 358 (Conn. 1913); Millville, etc. Co. v. Vineland, etc. Co., 72 N. J. Eq. 305 (1906); Atlantic, etc. Co. v. Consumers’ etc. Co., 70 N. J. Eq. 536 (1905); State v. Cape May, 58 N. J. L. 565 (1896); Philadelphia, etc. Ry.’s Appeal, 102 Pa. St. 125 (1883); New England R. R. v. Central Ry., 69 Conn. 47 (1897); see also p. 3735, note 6, Cook on Corp.; Geneva, etc. Co. v. Economic, etc. Co., 136 N. Y. App. Diy. 219 (1910); Baxter Tel. Co. v. Cherokee, etc. Assoc., 146 Pac. 324 (Kan. 1915). Seekp. 68, note 2, subca. and p. 95, note 1, irrfra: TELEGRAPH.L.A.W. & a telegraph or telephone company accepts an ordinance containing an as it relates to future exercise of the police power only. City of Owensboro v. Cumberland Tel. & Tel. Co., 230 U. S. 58 (1913). A provision in a city grant that poles and wires shall be removed when the city declares it ne- cessary means when there is a public necessity for removing them. Old Col- ony T. Co. v. Omaha, 230 U. S. 100 (1913). Alabama : A Condition in an Ordi- nance that the Company to which it is granted shall be subject to all future ordinances does not authorize the municipality to repeal the Ordinance after a large amount of money has been invested. TOW m Of New Decatur ^). American Tel. & Tel. Co., 58 S. 613 (Ala. 1912). - Georgia : A provision in a grant from a city to a telephone Company fixing the rates does not prevent a state commission allowing the tele- phone company to raise the rates, eS- pecially as the city had no right to in- sert such a provision in its grant. City of Dawson v. Dawson Tel. Co., 137 Ga. 62 (1911). See also, p. 3710, note 1, *Cook. On-Carp- $º Illinois: Where a telephone Company ... accepts an Ordinance which by its terms, is subject to existing general Ordinances, one of which imposes a license fee, the company must pay it. City of Springfield v. Central Union Tel. Co., 184 Ill. App. 400 (1913). FCentucky : Where a municipality au. thorizes the construction of a telegraph line On Condition of the company pay- ing a certain annual fee, and the com. pany proceeds to construct its line, it is bound to pay the fee, even though originally it might have contested the same and even though it did not a C- cept the Ordinance in Writing, as re- quired by the terms of the ordinance. Postal, etc. Co. v. City of Newport. 76 S. W. 159 (Ky. 1903). But see 247 U. S. 464. Massachusetts: Where a city in granting a street-railway franchise imposes conditions beyond the scope of its authority, the conditions are not binding, but the franchise is binding on the city. A condition, how- ever, restricting the fares to be charged is legal and binding. Murphy ty. Worcester, etc. Ry., 199 Mass. 279 (1908). The court said: “It is doubt- leSS true that the municipal Officers, in granting locations and in imposing Such restrictions as they deem to be required by the interests of the pub- lic, act as public officers exercising a Quasi-judicial authority, and not as agents of the city Or town driving a bargain with the promoters of a pro- jected railway.” Where a street rail- Way is authorized by Statute to fix rates of fare subject to its charter and the statutes, a town cannot impose a Condition or agreement as to fares, even though the statute authorized the town to impose such conditions as the public interest required, and even though the street-railway company ac- cepts the location granted on such condition, this does not make a con- tract binding on it. Keefe v. Lexing- ton, etc. Ry., 185 Mass. 183 (1904). Michigan : A telephone ordinance re- Quiring free telephones for city use may be valid because the public may wish to use them to communicate With public offices. Traverse City v. Citi- zens’ Tel. Co., 161 N. W. 983 (Mich. 1917). - Missoºri : Where a city in making a grant to a telephone company imposes a condition that the latter Shall pay to the city two per cent. Of its gross re- ceipts, the telephone company must make such payments. City of T ancas- ter v. Briggs, 118 Mo. App. 570 (1906). A street railway company that accepts a grant from the city is bound by the conditions contained therein and Can- not afterwards say that they are un- reasonable, the city having the power to absolutely refuse any grant WhatsO- ever. In re Topping Avenue, 187 MO. 146 (1905). Montana : A provision that a street railway shall abide by future ordi- nances does not Sustain an ordinance requiring it to light its railroad tracks at its own COSt. Helena, etc. Ry. 19. 83::::::c:*:-sººk.--~~ 3. _82°…” TELEGRAPHºi AW- unjustifiable provision and the question may then arise later whether City of Helena, 130 Pac. 446 (Mont. 1913). New Jersey: An agreement of an electric light company to light public buildings free in consideration of a permit to Occupy the streets is legal at COmmOn law. Public Service Elec- tric Co. v. Board of Public Utility Com’rs, 96 Atl. 1013 (N. J. 1916). Neither a street railway nor its suc- CéSSOTS can claim that annual license fees for each car are an illegal exac- tion, where fine company by the orig- inal Ordinance agreed to pay and for many years has paid such fees. Mayor, etc. v. North Jersey, etc. Ry., 72 N. J. L. 383 (1905). New York: ; A permit from a town board to a gas Company to use the highway Cannot be repudiated by the Company as to conditions on the ground that the town board had no authority to give any permit. FarnS- worth v. Boro, etc. Co., 216 N. Y. 40 (1915). A city official Cannot compel a gas company to pay the salary of city inspectors where the Statute does not expressly authorize such exaction. City of New York v. Woodhaven Gas Light Co., 181 N. Y. App. Div. 188 (1917). Even though a company in- corporated for telegraph business COn- fines itself to burglar alarm business, yet the city, in the streets of which it has its wires, cannot question the le- gality Of its incorporation, that reme- dy being with the state, but the company must obtain from the city permission to use the Streets as re- Quired by Statute, and hence may be required by the city to pay a sum of money therefor. Holmes Electric, etc. Co. v. Williams, 181 N. Y. App. DiV. 687 (1918). The benefits given by a certificate issued by a fraternal bene- fit or life insurance association, can- not be modified by amendments to the by-laws, even though the certificate provided that the applicant should conform to all by-laws then in force Or thereafter adopted, and even though the certificate of incorporation pro- vided that beneficiaries should receive Such Sums as the by-laws from time to time prescribed. Evans v. So. Tier, etc. ASSOC., 182 N. Y. 543 (1905). Even though by statute a telephone com- pany has the right to erect its poles, yet if a city gives it the right to con- Struct underground conduits in parks and other places not on the public Streets, this is sufficient to Sustain a Contract between the city and the com- pany regulating the telephone prices. Rochester, etc. Co. v. Ross, 125 N. Y. App. Div. 76 (1908); aff’d, 195 N. Y. 429. A condition, in an ordinance from a municipality to a telephone COmpany, fixing the rates to be Charged to the public, is not binding on the telephone company, even though it has proceeded under the Ordinance, where the city has merely Statutory right to regulate the poles and wires. Such a power cannot be used to force a contract for the bene- fit of the city or its citizens. Wright w. Glen T. Co., 112 N. Y. App. Div. 745 (1906), the court approving the deci- Sion in Farmer v. Telephone Co., 72 Ohio St. 526. A telephone company is not obliged to pay a municipality for Constructing its lines on the high- Ways in such municipality. State, etc. Co. v. Ellison, 121 N. Y. App. Div. 499 (1907). Even though a condition in a grant by a city to a steam rail- road to occupy a street, to the effect that the city may revoke the grant at any time, may be unreasonable , yet if the railroad accepts it, it is bound thereby and the city may so revoke the grant. Delaware, etc. R. R. v. City of Oswego, 92 N. Y. App. Div. 551 (1904). A city cannot exact a sum of money for a grant from it. Beek- man v. Third Avenue R. R., 153 N. Y. 144, 158 (1897). + Ohio : A city in granting a franchise to a natural gas company to use the streets may require it to pay to the city ten per cent. of its receipts for gaS sold at more than 15 cents per thousand cubic feet. Federal, etc. Co. ^). City of Columbus, 118 N. E. 103 (Ohio 1917). A city may require a &T, - O ~...~s. “’’ TELEGRAPH LAw” º the company may afterwards refuse to carry out the condition. The telephone company as a condition of using the Streets to pay a perCentage of its gross receipts to the city, and if the company assents, even under protest, it cannot afterwards claim that this is in assessments for general revenue. Columbus, etc. Co. v. City of Columbus, 104 N. E. 534 (Ohio 1913). Where a gas company accepts an Ordinance requiring it to pay to the city a Specified sum annually, it Cannot thereafter object to paying it. City of Columbus v. Columbus Gas Co., 76 Ohio St. 309 (1907). Where a telephone company has a right by Statute to construct its lines on the highways, subject to agreement with the municipality as to the mode Of use, the municipality Cannot exact pay therefor, excepting what is neces- Sary to restore the Streets to the former State of usefulness, and the municipality Cannot require free tele- phone service nor require an agree- ment as to telephone rates to be charged to the public. Farmer, etc. v. Columbian, etc. Co., 72 Ohio St. 526 (1905), holding also that even though the telephone Company has agreed thereto, it cannot be required by man- datory injunction to carry out such agreement, because there was no Consideration for the agreement, and especially is a citizen without remedy in such a case. Oklahoma : Even though a telephone company accepts an ordinance giving to the city the right to regulate tele- phone rates, yet such a provision is Void as not being a police regulation, and the telephone company is not bound by it. Pioneer Tel. & Tel. Co. w. State, 127 Pac. 1073 (Okla. 1912). Pennsylvania: An ordinance invalid because unreasonable is not binding On a COmpany, even though it had stipu- lated it would comply with all ordi- nances. Borough of Kittanning v. American, etc. Co., 86 Atl. 717 (Penn. 1913). A gas company which has ac- Cepted an ordinance calling for free gas to churches cannot repudiate that obligation on the ground that it is in- valid. Bellevue Borough v. Manufac- turers’, etc. Co., 86 Atl. 187 (Pa. 1913). South Dakota. A telephone COmpany which has accepted an Ordinance from a city to erect its lines in the StreetS, is bound by a provision in the Ordi- nance that it will pay the city ten per cent. Of its gross receipts above a specified sum. City of Mitchell v. Dakota, etc. Tel. Co., 25 S. Dak. 409 (1910). Teacas: A city cannot exact a Sum of money from a telephone Company as a condition of permitting it to erect its line in the streets. People's, etc. CO. v. City of Gainesville, 141 S. W. 1044 (Tex. 1911). Wisconsin : A provision in an ordi- mance to a telephone company that the city should have free telephone service is void as receiving a leSS compensation for services from One person than from another, even though the telephone company expressly a C- copted the ordinance. City of Ken- osha v. Kenosha, Home Tel. Co., 149 Wis. 338 (1912). The agreement of an electric-power company in COn- structing a dam and purchasing Water rights for that purpose to give free power up to a Certain amount to a village is in violation of the Statute prohibiting discriminations in Com- pensation. President, etc. v. Southern Wisconsin, etc. Co., 149 Wis. 168 (1912). See also $ 901, Ceok-on-Corp. Even though by statute an electric- light company cannot construct its plant in a city until the latter consents thereto, yet this does not authorize the city to impose a condition that the company shall pay it two per cent. Of its receipts. City of La Crosse v. La Crosse Gas, etc. Co. 145 Wis. 408 (1911). Where a city grant to a tele- phone company contains many provi- Sions about rates, etc., which the City has no power to regulate or contract in regard to, the state by an action may oust the telephone Company from exercising such a franchise. State v. Milwaukee, etc. Co., 133 Wis. 588 _84 _TELEGRAPHTAW §-3– weight of authority holds that it may." Another difficulty arises where a company fails to comply with its municipal grant or with an order from the city and thereafter the city threatens to cut down the telegraph or telephone line. In most of the states it is a criminal offense so to do.” An ordinance directing city officials to summarily remove telephone or telegraph poles on the street is illegal, as passing judgment upon the right to maintain such poles, and destroying property without giving an opportunity to be heard.” An electric-light company may enjoin a borough from cutting down its line, inasmuch as the threatened injury is continuous and threatens to be repeated and is without adequate remedy at law, especially where, under the statute, it is unnecessary to obtain the consent of the borough beſure construcling the line.* The mere resolution of the common council ordering a street railway to remove tracks, and directing the city solicitor to take action if they are not removed, is merely an order £- £ºº,” ºr (1907) . The Ordinance cannot reserve the right to fix rates. State v. City of Sheboygan, 111 Wis. 23 (1901). – T* See, preceding note. * See § 4-stºppa. * Southern-Bell T. & T. Co. v. City of Mobile, 162 Fed. 523 (1907). Dela- ware & A. Tel. Co. v. Committee of Pensauken Tp., 67 N. J. L. 91 (1901). See also $$ 913, 931, Cook on Corp. Where a grant to a telephone company provides that the poles shall be set under the direction of the common council, and the company sets the poles Without such direction and refuses to remove them when ordered, the city Imay remove them. Monroe Tel. Co. v. Judlow, 140 Wis. 510 (1909). * Point Pleasant, etc. Co. v. Borough of Bay Head, 62 N. J. Eq. 296 (1901). A temporary injunction against a City Cutting down poles and remov- ing Wires is not an illegal interfer- ence with the control which the city has over its streets. State v. Baker, 62 Neb. 840 (1901). A New York telegraph Company may hold liable in damages a township in New Jersey that wilfully destroys its telegraph line, even though the telegraph com- pany has not complied with the New Jersey statutes relating to do- ing business in that State. Dela- ware, etc. Co. v. Pensauken Tp., 116 Fed. 910 (1902). A city is liable for selling wires which it removes from the Streets, even though it had the right LU reſtlove Sûch Wires. Electric, etc. Co. v. Mayor ,etc., 36 N. Y. App. Div. 383 (1899). The United States circuit Court has held that although telegraph Wires have been illegally cut by the mayor, yet, if the time for which they were Originally authorized has expired, the court will not enjoin the City from preventing the replac- ing Of Such wires. Mutual Union Tel. Co. v. Chicago, 16 Fed. 309 (1883). An injunction Suit will not lie to pre- vent a party from destroying the poles and wires of a district messenger plant, where it is not alleged that the poles and Wire are Of material Value, Or that there is an existing danger, or that the defendants are insolvent. Haupt v. Independent, etc. Co., 25 Mont. 122 (1901). In the case West- ern, etc. Co. v. Franklin, etc. Co., 70 N. H. 37 (1900), where the telegraph company sued a street railway for cutting down poles and wires which interfered with the running of the cars, the court held that the question as to whether the Post Road act of Congress protected the telegraph Com- pany against Such cutting raised a federal question which had not been passed upon by the supreme court of “Ś-3 TÉlugG.R.A.P.EE-EFA Wºr to bring suit, and hence it is not in itself a violation of any contract giving the United States court jurisdiction." - A telephone company may enjoin a person from moving a building on the street in such a way as to interfere with its poles and wires, where the company has offered to temporarily move the telephone line out of the way if the defendant would pay the actual expense thereof.” the United States, and hence the court gave judgment for the defendant. *Des Moines v. City Ry., 214 U. S. 179 (1909). *Kibbie Tel. Co. v. Landphere, 151 Mich. 309 (1908). Where a person who is moving a derrick on the high- way climbs the derrick so as to lift electric light wires out of the way and is killed, the insulation. On the Wires having worn off, the company may be liable. Wade v. Empire, etc. Co., 158 Pac. 28 (Kan. 1916). If a city grant to a telephone Company provides that the COmpany Shall get Out Of the Way Of moving of building On the Streets, the COmpany is bound to do SO. Home Tel. & Tel. Co. v. Moodie, 145 Pac. 635 (Ore. 1915). A man who is mov- ing a derrick On a street and finds that a wire is too low for passing, and thinks it is a telephone wire and attempts to raise it and is killed by the electric current, it being an elec- tric light wire, may hold the Com- pany liable for not having the wire insulated, even though he was warned to be careful. Wade v. Empire, etc. Co., 147 Pac. 63 (Kan. 1915). A tele- phone Company cannot enjoin the owner of a building from moving it on the highway even though it will break telephone wires, but perhaps the telephone Company could sue for damages therefor. New York Tel. Co. v. Dittman, 159 N. Y. Supp. 625 (1916). A building mover who cuts telephone wires and is arrested for Violating the criminal statute, cannot maintain a suit for malicious prose- cution, the arrest having been legal. Davis v. Pacific Tel. & Tel. Co., 127 Cal. 312 (1899). Where a haystacker is being moved along a highway and the top comes in contact with electric power wires and the current runs down a cable on the haystacker and injures a person, he may hold the COmpany liable where by the standard of construction of such power line it Was too low and was not insulated. Shank v. Great Shoshone, etc. Co., 205 Fed. 833 (1913). A telephone com- pany is not bound to move its wires to permit house moving on the Street, and hence if it allows it and the house mover climbs a pole which breaks he Cannot recover damages from the tele- phone company. Collar v. Bingham Lake, etc. Tel. Co., 155 N. W. 1075 (Minn. 1916). A street railway may enjoin a person from moving a house On the Street in such a way as to de- stroy the trolley wire and interrupt for a considerable time the Operation of the railway. Fort Madison Ry. V. Hughes, 137 Iowa, 122 (1907), and notes in 14 L. R. A. (N. S.) 448. It has been held that a telegraph Company cannot recover damage for the breaking of its wires by a house that is being removed. Telegraph Co. v. Wilt, 1 Phila. 270 (1851). Where a city authorizes wires to be not less than twenty feet above the ground, a person moving a house has no right to cut wires which are twenty feet or more above the ground. New York, etc. Tel. Co. v. Dixheimer, 11 N. J. L. J. 246; S. C., 2 Am. Elec. Cas. 302. A city cannot compel a telegraph or telephone company to remove its Wires at its Own expense to make Way for the moving of a house on the high- way, that not being the ordinary use of a street. Edison Electric, etc. Co. v. Blomquist, 185 Fed. 615 (1911). A Street railway cannot enjoin a person noving his building on the Street if the latter offers to pay the expense of raising and lowering the Street railway wires. Western, etc. Co. v. * ~85.… -86 ºf Eºf.C.E.A.P.Hºà:Ws. sº - 4 ~$-3 - * A telegraph company may be compelled by road commissioners to change the location of its poles where the poles interfere with the con- struction of a sidewalk and the working of the road, and by the growth of population such construction and road have become necessary." Stillman, 68 N. Y. Misc. 456 (1910). In the case Western New York, etc. Co. v. Stillman, 143 N. Y. App. Div. 717 (1911), a person moving a build- ing On the street was obliged to pay the expense a trolley line was put to in handling its wires to allow the moving. A telephone company can- not enjoin a party moving on the highway a building 29 feet high, even though it will interfere with the tele- phone wires 19 feet high. New York Tel. Co. v. Dittman, 96 N. Y. Misc. 60 (1916). It is legal to move a pile driver on a street and if the horses drawing it are killed by its coming in contact with electric light wires the jury may hold the electric light com- pany liable where the latter’s foreman Said there was no need of raising the wires. Chace Trucking Co. v. Rich- mond Light, etc. Co., 225 N. Y. 435 (1919). An electric light company may be liable for an injury to a person While lifting its wires Over the Street in order to allow a building to be moved along the Street. Togan v. Empire, etc. Co., 161 Pac. 659 (Kan. 1916). Where a telephone company tells the Owner of a house that it will remove its wires temporarily to al- low the moving of a house on the street, it is liable if it fails to do so. Weeks v. Carolina Tel. & Tel. Co., 84 S. E. 812 (N. C. 1915). As to the Statutes On this subject in Massachu- setts, New Hampshire, Rhode Island, etc., see Croswell on Law Relating to Electricity, §§ 260-265. As to the Massachusetts statute authorizing the cutting of wires on the highway to permit the moving of buildings, see Richards, etc. Co. v. Boston, etc. Co., 188 Mass. 265 (1905). *American Tel., etc. Co. v. Mill- creek To., 195 Pa. St. 643 (1900), the Court Stating that such removal was necessary and legal, irrespective of the fact that an electric street rail- Way had been constructed upon the Street and Was obstructed by such telegraph poles. Where a state in blasting for a highway obStructs a, railroad track and damages telegraph poles and Wires, etc., the state is lia- ble in damages even though it did the work through a contractor and there was no negligence. Great Nor- thern Ry. v. State, 173 Pac. 40 (Wash. 1918). In this instance an injunc- tion had been refused. Great Nor- thern Ry. V. Quigg, 213 Fed. 873 (1914). The remedy under the Penn- sylvania statutes for damages on ac- count of a railroad contractor injur- ing by blasting a telegraph line, seems to be not an action of trespass, there being no positive evidence of negli- gence, but the appointment of a “jury Of view.” POStal Tel. etc. Co. v. Phil. & W. Ry., 71 Pa. Sup. Ct. 354 (1919), S. C. Postal Tel., etc. Co. v. Keystone, etc. Co., 63 Pa. Sup. Ct. 486 (1916). |Under the Post Road act of Congress a telegraph Company cannot be pre- vented by a state or municipality from COnstructing its lines. On the highways, and a lineman of such a Company cannot be convicted crimin- ally of obstructing the highway. AC- cordingly, where a municipality or- ders the poles to be removed on a C- count of street improvements it must at the same time give new locations. Carver v. State, 11 Ga. App. 22 (1912). An electric light Company cannot en- join a city from requiring it to shift its poles where the complaint does not show that the requirement is un- reasonable. Merced Falls, etc. Co. v. Turner, 2 Cal. App. 720 (1906). A telephone Company must at its own expense remove its poles out of the way of improvements to the highway. Granger Tel. & Tel. Co. v. Sloanc Bros., 165 Pac. 102 (Wash. 1917). A telephone company may be compelled by manda'mºus to move its poles back TELEGRAPH-IIAW" 87- *** * * «ç㺠A city, however, cannot order an electric light company to shift its 1ines on the streets to make way for a city electric lighting system not from a highway on account of public improvements. County Court v. White, 91 S. E. 350 (W. Va. 1917). A telegraph Company cannot recover from a railroad its expense of tempo- rariiy Shifting its lines to make way for a change in a grade crossing Where the change was partly for pub. lic benefit. Postal Tel.-Cable Co. v. Delaware, etc. R. R., 104 Atl. 141 (N. J. 1918), aff’d, 106 Atl. 892. A gas Company which is obliged to move its pipes to another street by reason of the Street grade being changed by the city in order to abolish a railroad crossing at grade, cannot recover dam- ages from the city by reason of such change. Scranton Gas, etc. Co. v. Scranton, 214 Pa. St. 586 (1906). A gaS COmpany may be compelled to shift at its own expense the location of its pipes in a city to get out of the Way of a drainage system, which is being erected for the city. New Or- leans G. L. Co. v. Drainage Com., 197 |U. S. 453 (1905). A city in opening a Street across a railroad is liable Only for nominal damages. Chicago, etc. R. R. v. Chicago, 166 U. S. 226 (1897). A waterworks company must at its Own expense move its pipes in the streets out of the way of a sewer Which the city is about to construct. National Water Works Co. v. City of Kansas, 28 Fed. 921 (1886). Even though a railroad owns the fee of a highway crossing, it cannot collect damages due to a water works com- pany laying water pipes in the high- way under the railroad tracks. N. Y., N. H. & H. R. R. v. Cohasset Water Co., 216 Mass. 291 (1914). A water COmpany and a gas company must Shift at their own expense their pipes which are in the way of the construc- tion of a sewer by a municipality. Walker v. Township of North Bergen, 84 N. J. L. 248 (1913). So also a trolley Company must, at its own ex- pense, make way temporarily for the COnStruction Of a city Sewer in the street. Kirby v. Citizens Ry., 48 Md. 168 (1877). An elevated railroad in the Street cannot enjoin the construc- tion of a public comfort station by the city unless the city pays the expense of protecting the elevated structure, the court leaving open the question of whether the company might after- Wards collect the expense in a suit at law against the city. Interboro R. T. Co. v. Gallagher, 44 N. Y. Misc. 536 (1904). Where a city is constructing a canal through a railroad embank- ment, the railroad may be compelled to build a bridge at its own expense. Chicago, etc. Ry. v. Minneapolis, 232 U. S. 430 (1914). See Greenwich v. Easton, etc. R. R., 24 N. J. Eq. 217 (1874), holding that power to change the grade of a highway cannot be exercised merely for the convenience of a railroad. A necessity must exist. In the Case Central, etc. Co. v. Wilkes- barre, etc. Ry, 11 Pa. Co. Ct. 417 (1892); S. C., 4 Am. E1. Cas. 260, the Court held that if the Original loca- tion and construction of telephone wires and poles was reasonable and free from negligence, any subsequent change rendered necessary by the con- Struction. Of a street railway must be paid for by the latter. As to the power of municipal authorities to Order a telegraph or telephone Com- pany to move its poles and wires toº make way for a street railway" or steam railway or change of grade for the benefit of a railroad, seeſ. 153, In, 2. A city cannot condemn the right of way of a Street railway to use it for a Street, even though the city has a gen- eral grant of power to condemn land. Matter of City of New York, 218 N. Y. 274 (1916). A city may recover from a steam railroad the expense of strength- ening an Overhead railroad bridge crossing the street, the change being necessary in Order to enable a Street railway to be operated on the Street. City of St. Paul v. Great Northern Ry., 163 N. W. 788 (Minn. 1917). A city - Y. 526 (1915). the Only to light the streets but to furnish light to the public, inasmuch as in selling light it acts in a proprietary and quasi private capacity." A city may by Ordinance require a telephone company to remove from the main streets to another street a line of poles and wires, where the poles are decayed and the wires have gradually accumulated to a great number.” But an ordinance ordering a telegraph company to remove its poles from a specified street, the purpose being to beautify the town, Cann Ot COmpel a Street railway to move its tracks from the side to the Center Of the Street unless the char- ter Or SOme Statute authorizes the City to exercise that power. People v. Western New York, etc. Co., 214 N. Even though telegraph poles are On a railroad right of way, yet if such right of way is , used for a Street, the City may Order the mov- ing of the poles to the edge of the Curb. Norfolk Southern R. R. v. More- head City, 83 S. E. 259 (N. C. 1914). A municipality has power to Order an electric-light company to remove its poles from the beaten highway to within the curb line, in order not to interfere with the vitrified pavement which is being laid, there being no fraud or oppression connected with Such action. Upon the application of the municipality the court will man- "damnus the company to comply. with Such Order. Monongahela v. Monon- gahela Elec. L. Co., 12 Pa. Co. Ct. 529 (1892); S. c., 4 Am. Elec. Cas. 53. Municipal authorities may compel a telegraph Company to remove its poles to the edge of the street where by rea- SOn Of the construction of a street railway the poles interfere with travel, even though the Original location of telegraph line was proper. Ganz Co., 140 Fed. 692 rev’g 137 Fed. 947. See also :-44444 A, City may compel a gas COmpany to Change at its Own expense the location of its pipes in the street SO as to make way for City water pipes. Pittsburg v. Consolidated Gas Co., 34 Pa. Sup. Ct. 374 (1907). A gas company having its pipes in an un- graded street, even in accordance/with a -new location. violates the contract of the original ordinance under which the com. an ordinance, must lower them at its own expense when the city grades and paves the Street, and a provision in the Contract between the City and the Con- tractor that the latter shall remove Or adjust all such pipes does not inure to the benefit of the company. Hoff- man v. Mitchell, 201 Fed. 506 (1912). A city is not liable to a street-railway COImpany for expenses Of the latter in getting Out Of the Way Of the Con- Struction Of a City Sewer. Brooklyn Elevated R. R. v. City of Brooklyn, 2 N. Y. App. Div. 98 (1896); See also Dillon on Municipal Corporations, 5th ed., § 1271. A town cannot have man- damºus to compel a telephone company to remove a pole unless the town gives TOW m Of New Mar- tinsville-v. Enterprise Tel. Co., 68 W. Va. 726 (1911). In England by statute where a tramway is built over gas pipes, the expense of the latter in making repairs so far as such expense is added to by reason of the presence of the tramway, must be borne by the tramway company. Re Arbitration, etc. &c., [1910] 1 K. B. 114. See) p. 89 and, p. 153, n. 2. *Los Angeles, etc. Co. Angeles, 241 Fed. 912 *Michigan Tel. Co. v. City of Char- lotte, 93 Fed. 11 (1899). Even though a light company has been authorized to use the streets, the city may ex- clude it from One Street if it Offers another Street equally Suitable. Dela- ware, etc. Co. v. Colwyn Borough, 60 Pa. Super. 609 (1915). A city may change the location of the poles of a gas and electric company where public convenie Ince reasonably requires Such 'w. City of Los (1917). Aféd: $–3~" pany erected its poles on such street." The city cannot single out one company, and abritrarily, for the purpose of oppression, compel a relocation of its entire line.**The vacating of a highway does not affect a telegraph company’s right to maintain its telegraph line on such highway, if the company has a grant of right of way from the ... ºxº-º-º-º-º: *4v. property owner or a right by prescription.” The land merely becomes private land and is subject to such grant the same as though the º land had been originally private land. company has no grant or prescriptive right, a property owner may perhaps maintain ejectment, but is not justified in cutting down the rere, however, a telegraph line in those states where that is a criminal offense." ~~~~ change Merced Fails, etc. Co. v. Tur- ner, 2 Cal. App. 720, 84 Pac. 239 (Cal. 1906). See § "TUAW e *City of Vandalia v. Postal Tele- graph-Cable Company, 113 N. E. 65 (Ill. 1916). A city cannot compel a telephone company to remove its poles alid wires and place them under- ground Or else place them in a parallel alley, where neither public health, nor Safety, nor COrigested condition of the Street requires it. City of Platts- in Outh v. Nebraska Tel. Co., 80 Neb. 460 (1908). See also Village of Car- thage v. Central, etc. Co., 185 N. Y. 448 (1906). A city cannot condemn property for the purpose of prevent- ing the construction of an unsightly building. Pennsylvania Mutual, etc. Ins. Co. v. Philadelphia, 88 Atl. 904 (Pa. 1913). - - * Hannibal v. Missouri, etc. Tei. 31 MO. App. 23 (1888). < *McQuigg v. Cullins, 56 O. St. 2649 (1897).ºs. L^ *-See-º-º-º-ete-4*. º: the municipality owns the fee there is doubt as to who can claim the fee of the highway on being vacated. Dillon on Mun. Corp., 5th ed., § 1160, p. 1845. A highway cannot be vacated for the benefit of a private individual. St. Vincent, etc. Asylum v. Troy, 76 N. Y. 108 (1879); Smith v. McDowell, 148 Ill. 51 (1893); Deland v. Dixon, etc. Co., 225 Ill. 212 (1907); Pew v. Litchfield, 115 III. App. 13 (1904); Marietta v. Henderson, 121 Ga. 399 (1904); City of Louisville v. Bannon, Co., ," § §.§ t’* f e - * ~ ºf . . . ." ; . ~~~~& ºf g. 2. $ as *. & ..” %. 99 Ky. 74 (1896); Van Witsen v. Gut. man, 79 Md. 405 (1894) ; Laurel v. City of Rowell, 84 Miss. 435 (1904); Ransas City v. Hyde, 196 Mo. 498 (1906); Kalteyer v. Sullivan, 18 Tex. Civ. App. 488 (1898); Cromwell v. Connecticut, 50 Conn. 470 (1883); Horton v. Williams, 99 Mich. 423 (1894); Dillon on Mun. Corp., 5th ed., § 1160, p. 1838. Op. Meyer v. Teu- topolis, 131 Ill. 552 (1890); Glasgow ^). St. Louis, 107 MO. 198 (1891); Rinapp v. St. T.Ouis, 156 MO. (1900); Bellevue v. Bellevue Co., 65 Neb. 52 (1902). Neither can a high- way or street be vacated for the bene- fit of a railroad. Corcoran v. Chicago, etc. R. R., 149 III. 291 (1894); Mur- phy v. Atchison, etc. R. R., 217 Ill. 594 (1905); Ligare v. Chicago, 139 Ill. 46 (1891); unless the main pur- pose is to avoid a dangerous CrOSS- ~ing. Henderson v. Lexington, 132 Ky. 390 (1908). In Massachusetts where no quasi public corporation is given permanent rights in the streets and Highways, the vacating of a Street does not entitle the Owner of an under- ground Conduit in Such street to COm- pensation. New England Tel. & Tel. Co. v. Boston Terminal Co., 182 Mass. 397 (1903). Where a street on which a telephone line is located is vacated With Out makilig the telephone Com- pany a party,’ the Owner of the fee Cannot compel the telephone company to remove its line without compensa- tion. Touisville & N. R. R. v. Russell- ville, etc. Tel. Co., 173 S. W. 1105 (Ky. % */ 3. ºr lege” . . . ~ * * * Af - .90° , TELEGRAPH LAW A - $23- The supreme court et-the-United-States holds that a municipality may by ordinance require telegraph companies to allow other companies to affix wires to the telegraph poles on payment of compensation to be fixed by the municipality; and also to allow the municipality to affix its own police and fire-alarm wires to such poles without paying any- thing therefor." 1915). Upon the vacating of a street by a borough a telephone Company having a pole line On Such Street Can- not enjoin the owner of the fee of the street from removing the poles and wires, the Owner never having made a grant to the telephone COm- pany and the latter never having COn- demned a right Of Way Or acquired a right of way by prescription. Central District, etc. Tel. Co. v. Pittsburg, etc. R. R., 55 Pa. Sup. Ct. 237 (1913). In the Case Hudson River Tel. CO. v. City of New York, 210 N. Y. 394 (1934), an award of $9,250 to the telephone company for the cost of Changing its line from One high Way to another to make way for a City reservoir, besides $10,500 for damages due to injury to its telephone busi- ness, was affirmed under a statute. Even though the State itself vacates a highway by using it. With Other land for a reservoir in connection with a state canal, thereby necessitating the removal of telephone poles and Wires from the highway, the company Own- ing the pole line is entitled to com- pensation including the value of the easements and structures (less What they sell for), constituting the entire property, but not loss of business. New York Tel. Co. v. State, 169 N. Y. App. Div. 310 (1915), aff’d 218 N. Y. 738. Where the State changes the route of a highway a telephone Com- pany Cannot Claim damages for the expense of shifting its line from the old highway to the new One, but if damages have been awarded to the property Owners, the telephone COIm- pany may be entitled to a part there- Of, if it had grants from the property Owners. New York Tel. Co. v. State of N. Y., (Bd. of Claims), N. Y. L. J., May 20, 1914. A city cannot lay out Put where no such right was reserved in the original and condemn land for an alley to turn over to a railroad for its right of way. State v. District Court, 158 N. W. 240 (Minn. 1916). - *Western Union Tel. Co. v. Rich- mond, 224 U. S. 160 (1912), aff’g 178 Fed. 310, the lower court saying: “The ordinance mentioned is a wise provision, beneficial to the public, not burdensome to the complainant, and makes unnecessary the erection of ad- ditional poles on crowded streets for those purposes.” In the case Postal Tel., etc. Co. v. City of Chicopee, 207 Mass, 341 (1911), it was held that a city might make it a condition of its permit to a telegraph company to erect its telegraph lines in the streets, that the city might place its electric- light Wires on the poles and allow Other companies to do the same On paying Compensation, and that the City need not pay anything, inasmuch as the expense to the company was Small and not more than the cost Of inspection by the city, even though greater Care Was required of telegraph employees on account of the electric- light wires and greater voltage was required by the telegraph company to Carry on its business, this decision being based on the police power of preventing numerous poles and ob- Structing travel, the court holding also that if the company was entitled to compensation from the city it should be in damages, especially where the City wires had been on the poles for ten years. In the case Cataract, etc. Co. v. City of Buffalo, 131 N. Y. App. Div. 485 (1909), it appears that the city of Buffalo in granting rights to the Niagara Falls Power Company, required the latter to allow the city to string wires on the poles, the City to pay no compensation if this Was -$–3– pp.R.EGRAPHºſjæW* ordinance the city cannot attach its electric light wires to telegraph poles and refuse to pay rental." If a city seizes for its own use without warrant of law an underground conduit in the street belonging to a telegraph company the latter may enjoin such seizure.” Where a city cuts down telephone poles because the company declines to have joint poles with another telephone company, a court of equity will enjoin the city from preventing the erection of new poles, and will enjoin the city for its own use, but to pay Compensa- tion if it used the Space for Other thall public purposes or authorized other companies to use it. Where, in an Ordinance authorizing a light COmpany to erect poles in the Street, it is ex- pressly provided that the city may allow other companies to String Wires On the poles Of the former upon pay- ment of compensation to be deter- mined in a manner specified in the ordinance, such provision is legal, and the city may thereafter authorize another company to put its Wires On the poles of the former. Montgom- ery Co. v. Citizens’, etc. Co., 147 Ala. 359 (1906). Although a municipal- ity may legally provide, in its grant to an electric-light company, that the poles may be used by other parties upon payment of a reasonable Sum, yet the municipality cannot after- wards grant such right to another party, unless provision is made to protect the owner of the poles, and the employees of both parties, and also the public. Citizens’ Elec. L. Co. v. Sands, 95 Mich. 551 (1893). See also § 916, Goerke-orrº-Corpº. A municipality cannot impose as a condition on the erection of telephone poles on the high- way that municipal fire and police wires shall be carried free, and that the poles shall not be sold or rented, and that upon non-user the poles shall vest in the municipality, and limiting the grant to twenty years, and requir- ing a bond that the Ordinance will be complied with. Hudson & M. T. Co. v. Township Committee, 80 N. J. L. 158 (1910). It has been held that a city cannot impose On a telephone Company, as a condition of consent to the erection of its line of poles and Wires, that other COm- panies should be allowed to string Wires On the poles at a fixed rental, and that the Company should not place On the poles more Wires than Were necessary for its business. The Stat- ute in this case did not authorize Such conditions, but empowered the city to locate and fix the kind of poles and height of Wires. Manda/mºus lies to compel the city to grant a permit. State v. Flad, 23 MO. App. 185 (1886). Where a statute authorizes telephone Companies to construct their lines in streets and highways, a city cannot attach, as conditions to its consent, a provision that it shall have the power to regulate rates, and purchase the property at an appraised value, and String wires on poles free of charge, and forfeit the property to the city in case the line is not Operated. Such COnditions are not proper police regul- lations. State v. City of Sheboygan, 111 Wis. 23 (1901). *A city which places its electric light wires on poles belonging to an elec- tric light company. In the streets, must pay reasonable compensation for Such contacts, otherwise “it would amount to a taking of its property without compensation.” Burlington Light & Power Co. v. Burlington, 106 Atl. 513 (Vt. 1918). The Supreme Court of New York held the City of Jamestown liable to the Postal Telegraph-Cable Co. for Such rentals. POStal Tel.-Cable Co. v. Jamestown, s:- App. Div. — etc., -eBeer-30,61919). *Postal Telegraph-Cable Co. v. City Council of Augusta, 242 Fed. , 538 (1917); aff'd 246 Fed. 440 (1917). £ tºº. 3 94--...- łºsz, :-- - 292 - wiſſ EELEGRAPiłłºń-W A $.3 from cutting down any other poles." An employee of a telegraph com- pany who, under instructions from his superior, cuts away telephone wires which have been attached to the poles of the telegraph company without authority from the latter, is not criminally liable therefor.” A telephone company having a grant from a municipality to itself and its assigns to erect poles, etc., may allow other parties to string wires upon those poles.” But where a telegraph company, under a permit from a city, constructs poles and wires and allows a local dis- trict messenger company to use such wires, without the latter obtaining a permit from the city, the city may prevent such use by the district messenger company.” Where the right to erect poles has been given by the municipality and acted upon, it cannot be withdrawn by the municipality.” But a * Southern IBell T. & T. Co. v. City be revoked as to Streets not already of Mobile, 162 Fed. 523 (1907). occupied, the Company having pro- c. * Lynch v. People, 137 Ill. App. 444 ceeded to construct its plant in other * (1907). Streets. Russell v. Sebastian, 233 U. * Newman v. Avondale, 31 Week. S. 195 (1914). An electric light com- Law Bull. 123 (Ohio, 1894). Where pany by suit in the federal court may a telephone company has erected its enjoin a city from Summarily ousting line under a grant from a munici- it from the streets which it is occu- ‘pality and afterwards an electric- pying under a grant from the city, light company is given a grant to due process of law being involved. String wires, the electric-light COm- Ashland, etc. Co. v. City of Ashland, pany and the telephone company may 217 Fed. 158 (1914). A federal court agree—that the electric wires be will not follow a decision of the state strung on the telephone poles. The court that a town may revoke its per- municipality cannot object thereto. mission to a telephone company at Inhabitants, etc. v. Suburban, etc. CO., any time, where the telephone Com- 59 N. J. Eq. 563 (1898). See pp. 23, 60, pany has invested $90,000 on the faith 8ttp%g. ºs. † of such permission. The decision of *Western Union, etc. Co. v. City Of the state court was not binding on the Toledo, 103 Fed. 746 (1900); S. Sc., federal court as res judicata. East sub nom. City of Toledo v. Western Tennessee Tel. Co. v. Board of Coun- Union, etc. Co., 107 Fed. 10 (1901). Gilmen;s 190 Fed. 346 (1911). A tele- "Hudson Telephone Co. v. Jersey phone com y Cannot maintain a Suit City, 49 N. J. L. 303 (1887); New in the United-States court to enjoin Orleans v. Great Southern Tel. Co., a city from enforcing an ordinance 40 La. Ann. 41 (1888). See also repealing a prior ordinance and direct- § 913, Cook-on-Ceep. Where a tele- ing suit to be brought to compel the graph line has been on the highway telephone company to remove its poles, for twenty-five years, an ordinance the sole ground of jurisdiction of the revoking the right unless the tele; e . Court being an alleged graph company applied for the right impairment of a contract. American to go underground within sixty days Tel. & Tel. Co. v. Town of New Deca- is illegal and void, the original permit tur, 176 Fed. 133 (1910). A franchise being a contract. Postal Tel., Zátc. Co. or consent from the municipality to v. Ingraham, 228 Fed. 392 (1915). A use the street is not lost by reason of municipal grant to a gas company to the fact that it was used for a time use the Streets to furnish/gas Cannot and ‘then the use discontinued on a C- ** * Y - arººswi; 93 seisseriºrs, --Š-3- TELEGRAPH-EAw". grant from a city government, in accordance with a statute to a com- pany organized to construct and lease telegraph, telephone, electric- light and other electrical wires, through the streets of the city, may be revoked by the city at any time before such permit or license has been accepted and a substantial part of the work done, sufficient to consti- tute a consideration for the contract as a property right." A city can- Count Of Wires being Ordered under- ground. People v. Public, etc. Com., 137 N. Y. App. Div. 810 (1910). An express municipal grant to a telephone company cannot be proved by mere general declarations of witnesses that such grant was made. Town. Of Pelham v. Pelham Tel. Co., 131 Ga. 325 (1908). A statute giving a tele- phone company the right to construct its lines on the highways, gives it the right to construct On City Streets, and a COntract between the COmpany and a city specifying the terms On which the line shall be erected is legal, even though the contract was not authorized by the City in accordance with its usual procedure. Southern Bell T. & T. Co. v. City of Mobile, 162 Fed. 523 (1907); aff’d, 174 Fed. 1020. In discussing the franchise granted by the Post Road act of Con- gress of July 24, 1866, to telegraph Companies, the Court in Western Un- ion Tel. Co. v. Wright, 185 Fed. 250 1910), said that a franchise “is a grant Of right by public authority, the main element of which is, in gen- eral, ‘permission’ to do something which otherwise the grantee would not have the right to do.” Even though a domestic telephone company has erected its lines On the Street Of a City Without the consent Of the city as required by statute, and even though it has leased the same to a foreign telegraph company, which has no right to use the streets for that purpose, yet where the poles have been in the Streets for twenty-One years Without Objection, and have cost a large amount of money, and various Ordinances have been passed in re- gard to them and license fees collected, a bill in equity by the city to remove the poles will be denied. City of Bradford v. New York, etc. Co., 206 Pa. St. 582 (1903). After a telephone line has been constructed, as author- ized by a city grant, and a change to underground is thereafter authorized, the City Cannot still later refuse to allow the underground except by con- sent of the city council. The right to impose Conditions ended with the Orig- inal grant and thereafter only reason- able regulations could be imposed. Commonwealth v. Warwick, 185 Pa. St. 623 (1898). An Ordinance author- izing a gas and electric-light company to use the Streets is a license, and not a franchise, a franchise being a grant from the legislature. People v. Union Gas, etc. Co., 254 III. 395 (1912). A Special charter without limit as to duration granting the right to Con- Struct telephone lines on a specified city makes the right to use the streets for that purpose perpetual, and such right may be maintained by an as- Signee Of the company where the city has allowed the assignee to invest a large Sum of money in construction and the statute authorized the com- pany to dispose of the franchise. The company may enjoin the city from repealing the grant and removing the poles and wires. City of Louisville v. Cumberland Tel. & Tel. Co., 224 U .S. 649 (1912). Cfa fi. 7, p. 3826, Goole-en- Corps. Where the grant of the right to build underground conduits for elec- tric-light wires is subject to the right to Order their removal, an Order of re- moval is legal. BOSton, etc. Co. v. BOS- ton, etc. Co., 184 Mass. 566 (1904). An Ordinance of a city impairing the Ob- ligation of a contract is unconstitu- tional. Grand Trunk, etc. Ry, v. South Bend, 227 U. S. 544 (1913). - * Matter of New York Electric, etc. Co., 201 N. Y. 321 (1911). A city -TELF GRAPH.L.A.W. not maintain a suit to determine whether its consent to the construction of a street railway has ceased, even though the statute requires comple- tion of construction within ten years and those ten years have elapsed." It is not everybody who has the right to construct a telegraph line On a street. A telegraph line constructed without the authority of some statute, federal or state, is a public nuisance, and may be indicted as such.” A New York company may withdraw a permit which has not been exercised within a reasonable time. N. Y. Electric, etc. Co. v. Gay- nor, 218 N. Y. 417 (1916), After a city ordinance revoking an unused fi all Chisc, haſ boon Sustained hy fine courts, the company cannot obtain a new adjudication by a suit in equity to set aside the action of the city council. New York Electric, etc. CO. v. Gaynor, 167 N. Y. App. Div. 314 (1915). A street franchise which be- comes Operative upon the city Con- senting thereto is a property right but by implication involves an obli- gation of the street railway Company to perform, and hence if there is non- user or mis-user, the grant may be forfeited, and whether the forfeiture be by repeal or quo warranto is a ques- tion of state law. Hence, the right of a subway company to construct Sub- ways granted in 1878 may be repealed in 1906 if not already availed of. New York, etc. Lines v. Empire City Sub- way, 235 U. S. 179 (1914). The public service Commission law of New York applicable to franchises theretofore granted but not already exercised is constitutional. People v. Wilcox, 207 N. Y. 86 (1912). A provision in the New York Public Service Commis- sions law that a franchise not previ- ously actually exercised cannot be exercised except with the consent Of the Commission, is to be read in COn- nection with the next Words, and ap- plies only when the exercise of the franchise has been Suspended for more than a year. Village of Fredonia v. Fredonia, etc. Co., 84 N. Y. Misc. 150 (1914). - * City of New York v. Bryan, 196 N. Y. 158 (1909). * Where the Statutes authorize a organized to conduct both a tele- --- domestic, but not a foreign, corpora-. tion to erect telegraph poles, poles erected by a foreign corporation which has not accepted the Post Road act are a public nuisance, and the m{Inicipality may be indicted for not removing them, even though it had Consented to their erection. Common- wealth v. Boston, 97 Mass. 555 (1867). A telegraph line erected on a highway Without legislative authority is a nui- Sance, and may be indicted as such. Queen v. United, etc. Tel. Co., 31 L. J. Mag. Cas. 166 (1862) ; ) s. c., 9 Cox, Cr. Cas. 137, 174. The remedy in Such a case, however, is not an in- junction at the instance of a property Owner. Attorney-Géneral v. United, etc. Tel. Co., 30 Beav. 287 (1861). A municipality has no right to restrain a railroad from constructing a tele- graph line on its railroad right of way, even though the railroad intends to use the line for Other than railroad purposes. Pennsylvania. R. R. v. Lilly Borough, 207 Pa. St. 180 (1903). The TOwa telephone and telegraph statute as to the use of streets was construed in State v. Nebraska, etc. Co., 127 Iowa, 194 (1905). A statute author- izing the construction of telephone and telegraph lines on the “public roads” does not authorize construc- tion in cities and villages, and hence a company which has constructed its line in a village with Out Other further authority Cannot enjoin another tele- graph company from constructing its lines in Such village on the ground that the new line will interfere with the working of the old one. Ne- braska Tel. Co. v. Western, etc. Co., 68 Neb. 772 (1903). A municipality cannot authorize a real-estate corpora- tion to construct a Street railway ...--~~" §-3- TELEGRAPH-LAw--- -95------ graph and telephone business cannot compel the secretary of state of Michigan to issue to it a certificate of authority to transact both a tele- graph and telephone business in Michigan, it appearing that the Michi- gan statutes do not authorize a company to incorporate for both of those purposes, and the statutes authorize foreign corporations to do only such business as a domestic corporation may do." A municipality has no power to authorize the construction of a telegraph line in the municipality, unless the statutes give it that power.” Under a charter power to pass ordinances “for the benefit of the trade and commerce” of the city, a city may authorize a telephone company to use the streets for its poles and wires.” - . . _--- - - 2?--~s t----- The municipality cannot regulate the tolls or charges,Kunless ex- , % & A. pressly authorized by statute so to do;" and a condition to that effect ºf £7. , in the municipal grant may be ineffective." A reduction of telegraph ***...*_º. A ſº. 3...f. - ,-, ** - R, “.. 39. ** - . . e. e where the statutes do not provide for it. International, etc. Co. v. American, etc. Co., 137 N. W. 395 (Minn. 1912). * American Tel. & Tel. Co. v. Sec- retary of State, 159 Mich. 195 (1909). See pp. 68, 80. * Domestic Tel. & Tel. Co. v. Mayor, 49 N. J. L. 344 (1887). See also State ^). Trenton, 54 N. J. L. 92 (1892); State v. Newark, 54 N. J. L. 102 (1892). kosh, 62 Wis. 32 (1884). --~~ Colony T. Co. v. Omaha, 230 TJ. S. 100 (1913). …” "sº-ºn-T * A condition in an ordinance from a municipality to a telephone Com- pany, fixing the rates to be charged to the public, is not binding on the telephone company, even though it has proceeded under the ordinance, Where the city has merely statutory right to regulate the poles and wires. Such a power Cannot be used to force a COntract for the benefit of the City Or its citizens. Wright v. Glen T. Co., 112 N. Y. App. Div. 745 (1906), the COurt approving the decision in Farm- er v. Telephone Co., 72 Ohio St., 526. Even though the statute give the courts power to direct in what mode a telephone company shall construct its lines in municipalities, the court Cf. Old ur cannot impose a condition as to the rates. State v. Toledo, etc. Co., 72 Ohio St. 60 (1905). A provision in a grant by a village to a water-Works company under the New York statute for the Supply Of Water for municipal and fire purposes, to the effect that the village shall have the right to buy the water-Works plant at the end of Stipu- lated periods by giving a year's notice, is ultra vires and void and cannot be enforced by or against the village. Matter of Water Comrs. of White Plains, 176 N. Y. 239 (1903). A tele- phone company is bound by a condi- tion in a municipal grant which it accepts limiting the rates. Murray v. New York Tel. Co., 81 N. Y. Misc. 636 (1913). Where a city grant to a tele- phone company contains many provi- sions about rates, etc., which the city has no power to regulate or contract in regard to, the state by an action may Oust the telephone Company from exercising such a franchise. State v. Milwaukee, etc. Co., 133 Wis. 588 (1907). Where a statute authorizes telephone companies to construct their lines in Streets and highways, a city cannot attach, as Conditions to its consent, a provision that it shall have the power to regulate rates, and pur- chase the property at an appraised value, and String Wires on poles free of charge, and forfeit the property to -> * s ; ; ; .96– rates by a state statute to a point below the actual cost of the service is unconstitutional." It has been held that state commissioners may regu- late telegraph rates on messages between two points in the state, but that they &annot compel an interstate telegraph company to Open an office at a specified place.” A telegraph company may close an office which is run at a loss, even though the statutes authorize state commis- sioners to regulate this subject.” A state cannot regulate the hours of work of telegraph operators engaged in transmitting interstate tele- grams.” ...º. - ...A." --" AE AT city may regulate dealers in copper and wire junk and also require a license fee for carrying on such business,” A. junk dealer may be indicted under the New York statute for receiving stolen copper wire of a telephone company without trying to ascertain whether the seller had a legal right to sell." Fºuestions relative to one company claiming priority in location over another company, or growing out of the poles and wires of one interfering with those of another, are considered elsewhere," and also questions relative to bridges and turnpikes;” and also questions as to the right of the state to charge for the use of highways and bridges;” and also questions relative to the jurisdiction of the Interstate Commerce Com- mission over international commerce are “Cómisidered…elsewhere.” A telegraph company may give long distance telephone service by use of the composite circuit without obtaining the consent of a state com- mission.* - Tree claims.-Although there is some doubt on the subject, it seems clear that a telegraph company authorized to construct its line of telegraph upon the public highway may cut away such limbs of trees as are in the way of the telegraph line, and the proper operation of its wires in the transmission of the electric current. The most im- portant case on this subject arose in California, where it was held that a telegraph company having its telegraph line on the highway the city in case the line is not oper- ing junk dealers from buying copper ated. Such conditions are not proper wire, etc., belonging to a telegraph ºs... `police regulations. State v. City of or telephone company without first :* :5 cº" •-fi º : **. ,-- - ** c ºx | shºwsan, 111 Wis. 23 (1901). See inquiring diligently as to where it • * : - -tsº tº also pages 79, note 1, •saurº. came from is constitutional. ROSen- . . .” -----. See-$7, infra. thal v. New York, 226 U. S. 260 4% i- “See § 7, infra. (1912). , 2-—- q 3° T see : , º, see § 7, infra. ~ 2 * See § 2, supra. : 9 92-ºº: E. 698 (Ga. 1918). sº sº * -- * * People v. Rosenthal, 197 N. Y. 394 see s 900, Cee-on-eart- (1910). The criminal law prohibit. "Seexp. 80. ! :*e. .* ºf 3 “ f 5 * Aſ ; : r. 2. *—º & , .º. º. º. £e t “e § *- {} Mº, (-| * .# ...: ſ *…" }% q \ # *g: , TELEGRAPH. LAW - $4.4 º _TELEGRAPH LAW may trim back the trees in order that the wires may work properly and efficiently, no unnecessary trimming being done." In some of the Altpeter v. Postal Tel-Cable Co., 164 Pac. , 35, 24 Cal. App. Dec. 274 (1917). A telephone Company is not liable for cutting Overhanging limbs, Such Cutting being necessary to keep the wires free, and the company hav- ing been Ordered by the city to remove its poles to the place where cutting was required. Southern Bell Tel. CO. v. Constantine, 61 Fed. 61 (1894). A street-railway company may lawfully cut branches of trees which overhang the Street and are in the Way. Dodd 'w, Consolidated Traction Co., 57 N. J. L. 482 (1895). A city in erecting Street lamp-posts between the Sidewalk and the beaten highway may trim trees Without paying the abutting property Owner. Town of Hazelhurst w. Mayes, 84 Miss. 7 (1904). Where a telephone Company On the highway has trimmed the undergrowth for seven years before plaintiff purchased the property the company is not lia- ble afterwards for statutory penalties for subsequent similar trimming, it not being either Wilful Or malicious. Cumberland T. & T. Co. v. Martin, 93 Miss. 505 (1908). In Gorham v. East- chester Electric Co., 80 Hun, 291 (1894), the judge charged the jury that the Company, under its grant from the city, had the right to trim away the limbs of the tree SO as to free its Wires from Contact with them, but Weire bound, in exercising that right, to proceed with Ordinary care. and submitted to the jury whether there Was an unnecessary cutting away Of the limbs of the tree. The measure of damages was held to be the diminution in market value Of the plaintiff's premises caused by the Cutting of the trees. An electric- light company in erecting its poles has no right to cut branches of trees “except it showed an existing neces- sity therefor in the fulfillment of its COntract and the enjoyment of its franchise.” Hence, if the poles might have been set elsewhere Or the Wire 3 Strung SO as not to come in contact With the branches, or if, by insula- tion, the escape of electricity by com- ing in Contact with the branches could be avoided, the company is liable for cutting the branches. “The right to touch the trees at all must be justified by an existing necessity, and if the purpose can be accom- plished Without extreme or extraor. dinary means, then no right would exist to interfere in any manner With the trees.” Van Siclen v. Ja- maica, etc. Co., 45 N. Y. App. Div. 1 (1899); aff’d, 168 N. Y. 650. An electric-light Company may be liable for trimming a shade tree on the Street, even though the property Owner does not Own the fee Of the Street, un- less the trimming was reasonably ne- Cessary in lighting the Street. Adams w. Syracuse, etc. Co., 137 N. Y. App. Div. 449 (1910). While there may be reasonable trimming if necessary, yet if the trimming is on account of the Wires Sagging the company is liable. Thompson v. Belmond Tel. Co., 162 N. W. 612 (Ia. 1917). A property owner cannot by mandamus compel a telephone Company to remove its poles, from the highway in front of his property On a CCOunt Of the wires in- terfering with trees, unless he shows that the trimming Of the trees will be unnecessary and unreasonable. South- Western Tel. & Tel. Co. v. Smith deal, 136 S. W. 1049 (Tex., 1911). Where a telephone company is required by Or- dinance to move its poles from the Street and place them. On the sidewalk, it is not liable for the trimming and Cutting of trees, even though more trimming was done than was neces- Sary. Southern Bell Tel. Co. v. Francis, 109 Ala. 224 (1896). A street railway may remove shade trees when necessary, provided an Opportunity is first given to the owner to remove them. Miller v. Detroit, etc. Ry., 125 Mich. 171 (1900). A telephone or telegraph Company, having the right _98T ~q EEEGRATH" iſ WT \ §-4- \ states it has been held that a company is liable in damages for cutting away limbs or trees, even though such limbs or trees were in the way of the telegraph line." Similar rules apply where a telegraph company to Construct its line On a highway, has a right to cut the branches of trees along the highway to prevent obstruc- tion of its wires, and is liable only for an abuse of such right. Wyant v. Central, etc. Co., 123 Mich. 51 (1900). An injunction does not lie to restrain a telegraph Company from trimming trees On the Street in Nebraska, where there is no Statute authorizing tele- graph COmpanies to Condem In a right of Way. The property owner will be relegated to his remedy at law. Bron- Son v. Albion Tel. Co., 67 Neb. 111 (1903). * In Ohio it is held that where the telegraph company has not legally acquired a right of way on the high- Way, it has no right to cut down trees or cut off branches in the highway. Criminal proceedings will lie. Daily 'w. State, 51 Ohio St. 348 (1894). A telephone Company may be liable for trimming trees which were inside the fence line, even though the branches project Over the street, $35 damages being given in this case for trimming and badly mutilating an Oak tree. Boland v. Washtenaw, etc. Tel. Co., 161 Mich. 315 (1910). $250 was sus- tained as damage for Cutting Shade trees in the highway by a telephone company in Bolender v. Southern Michigan Tel. Co., 148 N. W. 697 (Mich. 1914), the abutting property Owner Owning the fee of the street A telephone Company Cannot, even with the consent of the selectmen of the town, cut or trim trees Outside of the highway in order to make way for a telephone line On the highway, even though the telephone company has moved its line from One side of the highway to the Other on the Order of the Selectmen in Order to make Way for an electric Street railway, and the tree branches Overhanging the high- way interfered with the Construction. Bradley v. Southern N. E. Tel. Co., 66 Conn. 559 (1895). In the absence of a statute or ordinance authorizing trimming of trees on the highway by electric-light company it is liable to the abutting Owner. Slabaugh v. Omaha. Electric, etc. Co., 87 Neb. 805 (1910). A telephone company is liable to a property Owner for cutting and trimming trees on the street in front Of his property, even though the city has authorized Such cutting. Brahan v. Meridian Homo Tel. Co., 97 Miss 326 (1910). Where a telephone com- pany has no grant Or right of way from an abutting property Owner for the construction of a telephone line On the highway, it is liable for any damage it does to the property by Cutting Or trimming trees On the high- Way in front of the property. Jordan ^y. Delaware, etc. Co., 75 Atl. 1014 (Del. 1909). A husband has no power to authorize a telephone company to Cut trees On the highway in front of property belonging to his wife, ſhere being no representations by her that he owned the property or that she knew of it. Delaware, etc. Co. v. Jordan, 78 Atl. 401 (Del. 1910). In Board Of Trade Tel. Co. v. Barnett, 107 Ill. 507 (1883), the company was held liable for $78 for cutting into a hedge and cutting down two hedge trees. A telegraph company is liable for removing trees or limbs from the margin of a highway On which its line is erected. Clay v. Postal Tel.- Cable Co., 70 Miss. 406 (1892). Where the location of an electric- light pole is not fixed by municipal order the company has no right to trim shade trees in locating Such pole. Malone v Waukesha, etc. Co., 120 Wis. 485 (1904). A telephone company having no right to use the StreetS is liable for trimming trees On the Street. Cartwright v. Liberty Tel. Co., 205 MO. 126 (1907). In the case Betz ^). Kansas City, etc. Co., 121 MO. App. 473 (1906), a telephone company was held liable by a property OWner 4-- x-ºff” * JTELEGRAPH. "T3 AW on a railroad right of way cuts the trees of an abutting property owner." A telephone company in condemning a right of way for its poles, wires and trimming of trees, must allege the precise distance to which the trees are to be trimmed.” for unnecessarily cutting a tree in the street. In Missouri the abutting property Owner OWning the fee of the street is entitled to damages for a teleph One line On the Street, and may hold the company liable for removing trees on the street. State v. Graeme, 130 Mo. App. 138 (1908). Where the abutting property Owner OWns to the middle of the street he may collect damages from a telegraph COmpany for excessive Cutting Of trees. West- ern, etc. Co. v. Krueger, 36 Ind. App. 348 (1905). A gas company is liable to an abutting property Owner for the destruction. Of trees by gas, even though the trees are in the street and the property owner does not own the fee of the Street. Donohue v. PCeyStOne Gas Co., 181 N. Y. 313 (1905). A telephone company is liable for trim- ming the branches of trees Overhang- ing the street, thereby causing the trees to die. Southwestern, etc. CO. v. Branham, 74 S. W. 649 (Tex. 1903). A telephone company is liable for entering premises and cutting a Way limbs of shade trees overhanging the street, where the poles might easily have been placed so as to avoid the trees, and where the cutting might have been Confined to the line Of the Street, instead of cutting away the whole limb. Memphis Bell Tel. Co. ^). Hunt, 16 Lea (Tenn.), 456 (1886). In Tissot v. Great Southern Tel. & Tel. Co., 39 La. Ann. 996 (1887), where the poles and wires might have been put on the Opposite side of the Street, and instead thereof the limbs of four full-grown magnolia. Shade trees, for a space from twenty-five to forty feet in Circumference, were cut out, the COurt Said that more than actual dam- age might be recovered, but reduced the damages from $750 to $400. Where the statutes prohibit the cut- ting Of Shade trees unless necessary, the necessity must be allegd by the The written receipt of a property owner for a defense. Gilchrist v. Dominion Tel. Co., 3 Pugs. & Bur. (Canada), 553. In Commonwealth v. Smith, 6 Am. Elec. Cas. 167 (Pa. 1881), where a lineman was tried criminally for trimming trees that interfered with Wires that had been in use a, long time, the court charged the jury that ina.Smuch as the COmpany apparently had the right to have their telegraph line On the Street, the lineman was not liable unless he unnecessarily and maliciously Cut branches from the trees. The Court held also that it was immaterial in this criminal prosecution whether the Company might have avoided the trimming by Substituting higher poles. In the Case Fuselier v. Great, etc. Tel. Co., 50 La. Ann. 799 (1898), the Court allowed Small damages for the cutting of trees which were of Small Value. * Where a telegraph company. On a railroad right Of way cuts trees upon adjacent land, supposing they were dangerous to the telegraph line, when in fact they were not, the company is liable in damages. A judgment for $100 damage was sustained. West- ern Union Tel. Co. v. Satterfield, 34 Ill. App. 386 (1889) ; S. C., 2 Am. Elec. Cas. 296. Where the telegraph lińé is built by the railroad and a tele- graph Company jointly on the railroad right of way an abutting property OWner Can recover damages for Cut- ting trees On such right of way from the telegraph Company only, and Only Such part of the damage as is due to the telegraph Company, the railroad Company having the implied right to erect a telegraph line for railroat, purposes without paying damages. Western Union Tel. Co. v. Rich, 19 Kan. 517 (1878). * Bell, etc. Co. v. Parker, 187 N. Y. 299 (1907). A telephone company having condemned the right of way defendant as ~99.-- …” ...” money received for erecting a telephone line on the highway in front of his premises creates a perpetual easement for as many wires as the company cares to put on the line, and a right given thereby to trim trees jutisfies trimming necessary to protect the wires." The proper measure of damages for cutting trees is the difference between the value of the land before the trees were cut and its value after the trees were cut.” In New York treble damages are allowed On the highway may trim back the trees, the compensation paid to the property Owner including such trim- ming. Wray 17, Moff. 83 Atl. 866 (N. J. 1912). A power company in con- domining a right of way may rondemn the right to cut trees on contiguous territory. Yadkin, etc. Co. v. Wissler, 76 S. E. 267 (N. C. 1912). A foreign electric power company which has COnStructed a pole line may condemn trees for 150 feet on each Side of the line, but Only when it is shown that the trees are a menace to the line. Northwestern, etc. Co. v. Zimmerman, 135 Pac. 330 (Ore. 1913). * A purchaser of the property is bound to take notice of the telephone COmpany’s rights, even though the re- ceipt was not recorded, the telephone –line itself, however, being in exist- ence upon the highway at the time the property was sold. Barber v. Hudson River Tel. Co., 105 N. º: Div. 154 (1905). See also $ 4+8ttprð. Where a telephone Company in COn- structing its lines over a private right of way cuts timber outside of the space granted to it and drives Over wheat on adjacent land it is liable in damages. Phillips v. American, etc. Co., 71 S. C. 571 (1905). * Where fully grown forest trees are cut, the measure of damages is their value alone; but in New York, in such a case, the measure of dam- ages is the difference in value of the land before and after the cutting Or destruction. As to partly-grown tim- ber, the New York rule prevails in other states also. The New York rule applies also to shade Or Orna. mental or fruit trees. The plaintiff suing for the burning of fruit trees cannot show the value of trees as fruit-bearing trees connected with the soil, but must show their value free from the soil, or must show the differ- ence in the value Of the realty by rea- son of the injury. Dwight v. Elmira, etc. R. R., 132 N. Y. 199 (1892), over. ruling Whitbeck v. N. Y. C. R. R., 36 Barb. 644 (1862). Edsall v. Howell, 86 Hun, 424 (1895), follows the rule as -º-º:**** A-4 to damages laid down in Dwight v. Elmira, etc. R. R. In a suit for dam- ageS for tree Cutting the Owner may show the value of the property before and after the trespass. Western Un- ion Tel. Co. v. Rasche, 99 Atl. 991 (Md. 1917). In an assessment of damages for tree cutting under the Pennsylvania statute of 1891, the measure is the difference in the value Of the property before and after the Cutting. Marshall v. American T. & T. Co., 16 Pa. Super. 516 (1901). In Nixon v. Stillwell, 52 Hun, 353 (1889), the Court reversed a judgment for $200 as being excessive for eight bass- wood trees in a suit between two ad- joining farmers. The measure of damages for Cutting timber from for- est land is the market value of the timber, unless the land has value for Summer homes, which value must be Clearly shown and a witness who knows merely the value of two places is not qualified to testify as to the difference between the value Of the land with the trees On and its value with the trees off. Ferguson v. Buck- ell, 101 N. Y. App. Div. 213 (1905). A telephone COmpany Cutting timber for a right Of Way through a game pre- serve may be held liable for diminu- tion in value, not merely of the Strip of land occupied, but of the lands as a whole up to the time Of the commence- Iment Of the action. Morison v. Amer- wº-?--- _–Š-4- by statute." In a few cases punitive damages have been allowed.” Even though a telephone line is on the highway and the abutting property owner is not entitled to damages on account of the poles, yet if the wires and an aerial cable destroy branches of trees the company is liable.” The general rule of law relative to shade trees on the high- way is that where they stand within the curbing of the sidewalk they are not a nuisance, unless they obstruct the travel along the street, and hence, not being a nuisance, the abutting property owner may ican, etc. Co., 115 N. Y. App. Div. 744 (1906). The measure of damages for unreasonable cutting Of trees by a telephone Company is the difference between the value of the land as it would have been - if the cutting had been reasonable and what it was after the cutting, and is not the dif- ference between the value before and after the cutting. Meyer v. Standard, etc. Co., 122 Iowa, 514 (1904). In Hoyt v. Southern N. E. Tel. Co., 60 Conn. 385 (1891), $150 was allowed as damages for a telephone COmpany cutting a large Ornamental elm shade tree thirty years old in a Street. * Under the New York Statute three times the amount Of the verdict is given to the plaintiff as a matter Of right, unless the jury expressly find that the injury “was casual Or in- voluntary,” etc. Humes v. Proctor, 73 Hun, 265 (1893); aff'd. 151 N. Y. 520. In McCruden v. Rochester Ry., 25 N. Y. Supp. 114 (1893); aff’d, 28 N. Y. Supp. 1135, triple damages were al- lowed against a street-railway com- pany for cutting shade trees; that is, three times the difference in value Of the land, in front of which the trees stood, before and after the cutting down of the trees. Triple damages for trimming trees On the highway were allowed against a telephone company in Hurlburt v. Union Tel. Co., 169 N. W. 308 (Wis. 1918). * Punitive damages may be col- lected in a tree-cutting case where the act was grossly negligent. Cum- berland Tel. etc. Co. v. Poston, 94 Tenn. 696 (1895), where higher poles might have been used and no cutting was necessary. - berland, etc. Co. v. Shaw, 102 Tenn. 313 (1899), punitive damages were allowed for the cutting of a tree where the Owner had forbidden the same. Exemplary damages cannot be recovered against a telegraph COm- pany for Cutting shade trees On the highway, where the tenant of the abutting property Owner gave Oral permission to do Such cutting and such permission was acted upon in good faith. Western Union T. Co. v. Smith, 64 Ohio St. 106 (1901). The jury may give punitive damages for the malicious, wilful, or wanton and unlawful trimming of eight maple trees and One pear tree On the highway by a telephone company and also COmpensatory damages, the latter to be measured by the difference between the value of the property before and after the cutting, $250 being given in this case. Jordan v. Delaware, etc. Co., 75 Atl. 1014 (Del. 1909). In the Case Cumberland, etc. Co. v. Cassedy, 78 Miss. 666 (1901), where a telephone company with the consent of the city council and marshal Cut Shade trees On the Street, although forbidden to do so by the abutting property owner, punitive damages were allowed, but the allowance of $500 for actual and punitive damages for cutting out eight feet from the top of Ornamental shade trees, the actual damage being Small, was declared excessive. * St. Paul, etc. Co. v Tri-Stafe Tel. & Tel. Co., 142 N. W. 807 (Minn. 1913). A cable company may be liable for the killing of a tree by reason of an electric light current running through the cable company’s wires into the tree. Rowe v. Commercial In the case Cum- a Cable Co., 103 N. E. 479 (Mass. 1913). e101– *- ~ gºe" TELEGRAPH LAw prevent their removal as such." A property owner cannot recover from a telephone company for the trimming of trees where he had given the usual grant of right of way with the privilege of trimming the trees.” A property owner's permit, however, to trim trees not less than eighteen inches does not authorize trimming the trees back from ten to sixteen feet from the wires where it is shown that there was an oral agreement limiting the amount of trimming.” states there are statutes regulating the trimming of trees on the high- - ſay.” - * See Dillon, Mun. Corp., 5th ed., § 1134 and § 721. Compare Bliss v. Dall, 90 Magg. 597 (1868). - * Nachand v. Cumberland Tel. & Tel. Co., 134 Ky. 257 (1909). Permis- Sion to trim trees does not give the right to cut them down entirely. New- lands v. Iowa. Ry. & Light Co., 159 N. W. 244 (Ia. 1916). * Nichols v. N. Y., etc. Tel. & Tel. Co., 126 N. Y. App. Div. 184 (1908). Even though a telephone company has a grant authorizing it to cut trees at least eighteen inches back from the wires, and to cut down trees necessary to clear the line, yet if the agreement was obtained in bad faith or without authority, the company is liable for the cutting. Faris v. American T. & T. Co., 84 S. C. 102 (1909). * CO7,776 Clicquºt: General Statutes, Revision of 1902, §§ 3903, 4441, 4442 Indiana : Horner’s Annotated Stat. utes, Vol. I, 1901. Kentucky: Kentucky Statutes, Car. roll, 1899. Maine: Revised Statutes (1903), ch. 55, § 8. - Maryland : Public General Laws (1904), Vol. I, Art. 23, § 331. A stat. ute that companies having poles and wires on the highways of a city shall not trim trees except under the Su: pervision of State inspectors is legal Where it is not shown that the charge made by the state therefor is unrea. Sonable or excessive. Chesapeake, Tel. Co. v. Goldsborough, 125 Md., 666 (1915). Massach/M.Sett.S : Acts and Resolves of Mass. Of 1905, Ch. 279, as follows: Section 1. The highway commis " sion shall have the exclusive care and control of all shade trees Within tho limits of Stato highways, and may trim, cut or remove such trees, or license the trimming, cutting or re- In Oval Of Such trees. . . . . Section 3. Whoever without all- thority cuts down or removes a shade tree within the limits of a state high- way or maliciously injures, defaces or destroys any such tree, shall, for- feit not less than $5 nor more than $100 to the use of the commonwealth. Michigan : Compiled Laws of Mich (1897), Vol. 2 (6660), § 3. Mississippi: Codes of 1906, (44.13). - Missouri : Rev. Stat. 1909, § 10531. Nebraska. Compiled Statutes (1907), 490, § 3; 7747, § 90; 7748, § 91. Nevada ; Rev. Laws 1912, § 5506. New Hampshire: Public Statutes (1891), ch. 81, § 5. Where an electric- light company trims trees without the owner's consent, or by order of the selectmen, as required by the New Hampshire statute, it is liable in 4978 :::1 23.8% In some of the trespass. Darling v. Newport, etc. Co., 74 N. H. 515 (1908). Ohio: Gen. Code 1910, § 9173. Oregon: Billinger and Cotton's Anno. Codes and Statutes, Vol. I, § 348. - Pennsylvania: Session Laws 1909, No. 58, p. 97. - Rhode Island: Gen. Laws 1909, p. 1262, § 23. Tennessee: Code (1896), § 6525. Utah. : Comp. Ilaws 1907, Vermont : Public Statutes (1906), § 4841. - s 1126. TELEGRAPH LAW .#03--- . Accidents from telegraph poles, wires, and electric current—- Liability of municipalities—Liability of corporation for injuries caused by its poles—Liability of corporation for injuries caused by its wires—Liability of corporation to its own employees–Poles and wires of one company interfering with those of another.—At common law quasi-corporations, such as counties, townships, and New England towns, are not liable for damages occasioned by defective roads and obstructions thereon. As to cities and incorporated towns generally, they are not liable when the traveled way is without obstructions which endanger the safety of travelers using ordinary care." Thus, a city is not liable for an injury due to a defective electric-light pole which a company maintains in the street, unless there is proof that the city has been negligent after notice of defects in the pole.* A municipality is not liable for injuries due to hanging telephone or elec- tric-light wires in the street unless it has notice thereof, or the condi- tion is apparent and the danger obvious.* A man with a team who turns out in the night to avoid an automobile and runs into a telephone pole cannot hold the town liable where he was familiar with the road and the beaten roadway was nineteen feet wide and the pole was on a line with the other poles.* A town is not liable for damage to a per- & Virginia: Code (1904), Vol. I, by her teeth, but actually by a con- , , § 1294h. Cealed harness, and the wire breaks * ... Washington: Rem. & Bal., 1910, and the performer strikes a pedestrian tº $ 5620. On the street, the city is liable. Wisconsin : Statutes (1898), Vol. I, 131 tºp. 1011, § 1345. - - * Dillon on Municipal Corp., 5th ed., §§ 1687-1719. Where the current of an electric-light Company charges a highway with electricity, the com- Wheeler v. City of Ft. Dodge, Iowa, 566 (1906). * City of Denver v. Sherret, 88 Fed. 226 (1888). In the case, however, of Mooney v. Luzerne Borough, 186 Pa. St. 163 (1902), the court, in passing pany and the city cannot be joined in the same suit as joint tort-feasors, ina.Smuch as the liability Of the latter is Statutory and Of the former is at COmm On law, and that of the latter is secondary. Mooney v. Edison, etc. Co., 185 Mass. 547 (1904). Suit lies against a city and a trolley company and a telegraph company for damages due to a heavy rainfall causing a tele- graph wire to break and fall across a trolley wire and conduct a trolley current. Lewis v. Harvey, 168 Pac. 856 (Kan. 1917). Where a city al- 1OWS a Wire to be stretched from the roof of a building downward and out- Ward across a street for a performer to slide down the same, supposedly upon the liability of a municipality On a CCOunt Of accidents due to wires Of Corporations occupying the streets, Said: “It is the duty of a municipali- ty to exercise a careful supervision Over the adjustment and regulation of the electric wires suspended over its Streets, and it is liable for injuries resulting from neglect of Such duty.” . Overruling West Chester v. Apple, 35 Pa. St. 284 (1860). As to the liability of a city for the breaking of a pole in the street, see Durfield v. City of New York, 101 N. Y. App. Div. 581 (1905). * Fox v. Village of Manchester, 183 N. Y. 141 (1905). * Scofield v. Town of Poughkeepsie, 122 N. Y. App. Div. 868 (1907). Even +04:- TELEGRAPH-Law ºš-5- son who falls into a hole dug by a telephone company in the street and left unguarded for an hour and a half, unless it is shown that the town had actual notice thereof." But where at the request of a city having electric wires a telephone company digs a hole for an electric-light pole so that the poles may be kept away from the telephone wires, and the city for three months leaves the hole open, it alone is liable for injury to a person falling into it.” A town is not liable for damages to a trav- eler by reason of being thrown from his carriage against a telegraph pole, such pole having been authorized by law and the selectmen.” Both a city and a trolley company may be liable for a trolley pole be- tween two trolley tracks, even though it was not negligently located when first constructed but the gradual congestion of the streets has changed the situation.*_f- *Where by reason of the widening of a highway a telephone pole is moved back and the work is done negligently and causes harm, both the municipality and the party moving the pole are liable, even though the latter may not have been legally obligated to pay the expense of shifting the pole.” The statutes of the state may render the muni- cipalities liable in such cases." -f RA municipality may be liable for an injury caused to a person by though a conductor on an electric 518 (1894). Where a municipality ex- Street car is injured by a tree Stand- ing Close to the track, yet the town is not liable where the conductor had been past the tree many times and did not consider it dangerous. Hall 'v. Inhabitants, etc., 184 Mass. 147 (1903). * Mayor, etc. v. House, 104 Tenn. 1 (1900). Where the earth sinks around a newly erected telephone pole and a person is injured by Step- ping into the hole, the telephone Com- pany is liable and also the city if the City issued a permit for the pole and the depression has existed for Some time. Merritt v. Kinloch Tel. Co., 215 Mo. 299 (1908). - * Central, etc. Co. v. City of Con- neaut, 167 Fed. 274 (1909). * Young v. Inhabitants of Yar- mouth, 75 Mass. 386 (1857). The municipality is not liable for an in- jury to a passenger on a trolley road Standing On the running board and struck by a trolley pole near the tracks. Kennedy v. Lansing, 99 Mich. pressly assents to the particular lo- Cation of an electric-light pole in the highway, and a person is injured and holds the municipality liable, the lat- ter Cannot have recourse to the elec- tric-light company, inasmuch as both are joint wrong-doers. Trustees of Geneva v. Brush Electric Co., 50 Hun, 581 (1889). In this case a runaway horse ran against an electric-light pole and the municipality was held liable, but it was held that it could not have recourse to the company that did not own the pole, but merely rented the right to place wires on it. * Stern v. International Ry., 220 N. Y. 284 (1917). Where a borough raises the grade of a road under a railroad bridge and a person using the road Strikes his head against the bridge, the borough is liable, but the railroad Company is not. Gray v. Danbury, 54 Conn. 574 (1887). * Thompson v. Bradford Corporation, etc., 113 L. T. Rep. 506 (1915). * A municipality, bound by statute 47 Cº-> G 3 'l 2/ - Z/ y *TELEGRAPH"LAW" … . {} 105 - 3” -Š-58, e *y .# *" # 3?' 8]] abandoned telephone wire which for several-months had sagged into the street and finally became charged from an electric-light wire." Where a woman runs into a guy wire across the path on a street after dark, sheſ may hold the city liable.” wº/ city is held liable for a depression around a telephone pole due to negligence of the telephone company the city may in some cases have recourse to the telephone company.” - - ^. - § 5al Liability of corporation for injuries caused by its poles.— Even though a pole has been lawfully erected, yet it may be a question for the jury as to whether the location of the pole was dangerous to the public.” If wagons have run into a street railway pole several times to keep its streets in condition reason- ably safe for travelers, is liable where boys are injured by a live electric- light Wire which negligently is per- mitted to hang in the street. Gra- ham v. Boston, 156 Mass. 75 (1892). Where a telephone wire hangs in a Street and conveys an electric-light Current, a person who is injured in picking up the Wire for the purpose of throwing it out of the Street may hold the city liable. Bourget º Cam- bridge, 156 Mass. 391 (1892). * Mooney v. Borough, etc., 186 Pa. St. 161 (1898). A city is liable for an injury due to a telegraph wire Which breaks and falls in the Street and conducts an electric-light cur- rent, even though no notice was given to the Officers of the city, but it appears that a policeman placed the end of the wire on one side and then went to report, instead of remaining and warning people from the wire, Kansas City v. Gilbert, 65 Kan. 469 (1902). Where a city places a tele- graph Wire for city purposes on the poles of an electric-light company and afterwards abandons the use of the Same, and the wire is broken and One end falls into the Street and remains hanging for several days, and a trol- ley Current passes through it and kills a person, the city is liable. Twist v. City of Rochester, 37 N. Y. App. Div. 307 (1899); aff'd. 165 N. Y. 619. * Williams v. City of Parson, 87 Kan. 649 (1912). A person injured by trip- ping over a wire at night, the wire being on a grass plot between the Sidewalk and the curb, may hold the City liable. City of Birmingham v. Carle, 68 S. 22 (Ala. 1915). Even though a guy wire rusted out after eight years’ use, yet the city which OWned it is not liable for a person who tripped over it, if the injury was Only fifteen minutes after the wire broke. * Kinloch Tel.Co. v. City of St. Louis, 188 S. W. 182 (Mo. 1916). Where a city sued on account of a person Stumbling Over a telegraph pole in the Street and the telegraph company is afterwards brought into the suit, the latter may plead the statute of limita- tions, even though it was no bar as to the Suit against the city. McEvoy v. City of Waterbury, 104 Atl. 164 (Conn. 1918) - *Wolfe v. Eſſie Tel. & Tel. Co., 33 Fed. 320 (1887). In Sheffield v. Cen- tral Union Tel. Co., 36 Fed. 164 (1888), where the question of negli- gence was submitted to the jury, the court said: “In the location of its poles in the highway the defendant was required to exercise reasonable care, so as not to incommode persons having a right to use the road for all purposes of travel. This use means the ordinary and reasonable use of the highway for all purposes for which highways are usually used by the public. It was not required to so locate its post or pole as to provide against all possible injuries that might ;”. . r: - Green v. City of Reedsburg, Aſ 155 N. W. 938 (wis, 1916), seep. Hº S-06- TELEGRAPH-LAW- Š-5a • * on account of its location, and the company knew it, and in putting in a new pole made it still more dangerous, the jury may find the company liable for negligence in the location of the pole." A telephone company which places its poles so near the traveled portion of a highway that a person seated on a wagon, with his feet extending about one foot from the side of the wagon, is injured by coming in contact with the pole, is liable for such injury.” The be incurred Or happen under extra Or- dinary circumstances; then ascertain the location of the pole, and find whether it did so inconvenience the public, and make Such location Care- less and negligent. The plaintiff had ---a right-to-the use of the highway for purposes Of travel without being in- commoded by the pole of the defend- ant, located in the public highway.” It is for the jury to say whether a trolley pole was so located as to un- necessarily and unreasonably endan- ger any perSOn traveling in that Wi- cinity, Or whether it should have been changed after experience had shown it to be dangerous. Cleveland v. Ban- gor St. Ry., 86 Me. 232 (1894). Even though a Country road is changed, yet if the Old road continues to be used, a telephone company is liable for plac- ing one of its poles in the middle of the old road, causing an injury to a person striking the pole on a dark night while driving on the old road. Watts v. Southern Bell, etc. Co., 100 Va. 45 (1901). Where a person cuts down a tree and it falls on telephone wires and breaks a telephone pole which is rotten at the bottom, and the telephone pole in falling injures a person, the telephone company is liable on account of having a defec- tive telephone pole On the high Way. Pacific, etc. Co. v. Parmenter, 170 Fed. 140 (1909). A water-works company may be liable for an injury to a pedestrian striking his knee against a hydrant in the sidewalk, if Such location of the hydrant is unrea- Sonable and it is not shown that the municipality authorized that particu- lar location. Bean v. Maine Water Co., 92 Me. 469 (1899). The fact that a child is injured by Spikes in a tele- company may be liable for damages graph pole, placed there for climbing purposes, is not negligence per Se On the part Of the Company. Simonton ^y. Citizens’, etc. Co., 28 Tex. Civ. App. 374 (1902). Where the hat of a pas- senger is blown off and he rises to sig- nal the COnductor, and by reason of the swaying of the car he sways and his head comes in contact with one of the trolley poles, he may hold the company liable. Schmidt v. Coney Island, sº." N. Y. App. Div. 391 (1898). a pole is erected Out of line With the other poles SC as to leave only sixteen feet for ve- hicles, and a party . is injured by driving into such pole, the company is liable. Bevis v. Vanceburg, etc. Co., 121 Ky. 177 (1905). A railroad may be liable to a driver Who runs into a post on the highway placed there by the railroad, even by Statu- tory authority, where by reasonable precautions the railroad could have prevented the accident. Hewlett v. Great Central Ry., 114 L. T. Rep. 713. (1916). * Lambert v. Westchester, etc. Co., 115 N. Y. App. Div. 78 (1906); aff’d, 191 N. Y. 248. * Little v. Central, etc. Co., 213 Pa. St. 229 (1906), The question whether a telegraph company is guilty of negligence in the location of its tele- graph pole on the highway is one of fact and not of law, and it is liable if it is located so as to incommode the public and injure a person riding past. Phelps v. Board of Com’rs, 117 Md. 175 (1912). A telegraph company. may be liable for injury to a person who, while sitting in the dark on the sideboard of a hay wagon, runs into. a telegraph pole on the side of the road, where the telegraph pole Was. ff * § 5a- f f ºp.B.E.E;éRAPH. T.A.W .* ,----" wº. 107 due to a horse win! frightened by construction material on the street.* Where, bowever, a pole is lawfully erected, º is located so as not to obstruct the public use, and where is but a runaway horse would strike it, the company is not liable.” dangerously near the beaten part of the highway. Earp v. Phelps, 87 Atl. 806 (Md. 1913). * A telephone company is liable for damage due to a horse being frightened by its cable spool on the Street, where it does not show that the Spool was in use at the time. South- western Tel. & Tel. Co. v. Doolittle, 138. S. W. 415 (Tex. 1911). A telephone COmpany is not liable for the fright- ening of a horse even if the company leaves for a week on the highway two Small coils of bright wire to be strung On ifs poles. East Tennessee Tel. Co. q). Parsons, 159 S. W. 584 (Ky. 1913). A telephone reel three feet long and four feet in diameter with lead pipe coiled upon it may be used by the tele phone company on the street to string the pipe on poles to inclose telephone wires, and the company is not liable for damage due to horses being frightened by it. Simonds v. Maine, etc. Co., 104 Me. 440 (1908). A railroad is not liable because a hOrse becomes frightened by its hand-car which has been removed from the railroad track upon the highway at a Crossing for a sufficient time to per- mit a train to pass. Webster v. Chi- cago, etc. Ry., 158 Fed. 769 (1907). * Roberts v Wisconsin Telephone Co., 77 Wis. 589 (1890). A railroad COmpany being engaged in work of a public nature authorized by law is not liable “for consequential damages oc- Casioned by it to others unless caused by misconduct, negligence or un- Skillfulness.” Gordon v Ellenville, etc. R. R., 195 N. Y. 137 (1909). An electric-light company maintain- ing a pole in the street is not liable for an injury due to the pole falling by reason of decay, where such defect in the pole was not visible and not known to the company: City of Den- ber v. Sherret, 88 Fed. 226 (1898). A telephone company is not liable for in- improbable that any The jury to a person on horseback who in the night-time runs into a pole on the highway, unless it is shown that the pole was negligently located. Cum- berland, etc. Co. v. Cook, 103 Tenn. 730 (1900). Where a telegraph pole is located away from the beaten part Of the highway so as to be safe for teams, Ordinarily, and a runaway team strikes the pole and breaks it, the Company is not liable, even though the pole was originally de- ficient in strength. Allen v. Atlantic & Pac. Tel. Co., 21 Hun, 22 (1880). Even though a telephone pole is Only two and a half feet from the traveled roadway and the whole roadway is twenty-four feet wide, yet the COm- pany is not liable to a woman injured by a horse running away with her and throwing her against the pole. And even though the highway Commis- Sioner had Ordered the poles nearer the side of the road, yet if the prop- erty Owners Objected on account of shade trees, and the commissioner of highways acquiesced in the poles as located, neither the company nor the town is liable. Bailey v. Bell Tel. Co., 147 N. Y. App. Div. 224 (1911). If a pole is unlawfully erected in the Street, a perSOn who is injured by his runaway horse running into such pole may hold the company erecting the pole liable for the injury. Wolfe v. Erie Tel. & Tel. Co., 33 Fed. 320 (1887). Although a team runs away and Strikes a telephone pole and kills the driver, his representatives cannot hold the telephone COmpany liable in damages if its poles were reasonably located SO aS Inot to interfere With travel. Jackson-HaZard Tel. CO. v. Holliday’s Adm’r, 143 Ky. 149 (1911). Where a runaway horse on a country highway Strikes a pole which has been placed out of line and near the beaten highway, it is for the jury to say whether it was negligently located. A.” &^ Tºstract rendering the company liable. \ ; F) \ T-43. And even the fact that a pole. fact that an unusual storm causes a ---THEEEGRATHTTXV’ telegraph pole to break and fall is not proof of negligence. It must be proved that the pole was not orig- inally reasonably sufficient, or was carelessly permitted to become insufficient by decay." Where a road overseer plows near a telephone pole in the street, and eight or ten days thereafter the pole falls by rea- son thereof and injures a person, the comp notice of the work done by the overseer.” is not liable if it had no 2 a person in order to move a building across the street climbs a telephone pole to remove a Postal Tel.-Cable Co. v. Young, 189 S. W. 707 (Ky. 1916). Even though a burglar enters a house from a tele- phone pole on adjacent land, the tele- Inh One Company is not liable. Jenkins ^y. Louisville, etc. Co., 120 S. W. 276 (Ky. 1909). A street railway is not liable for an injury to a person who Stumbles over one of its tracks which Is exposed by reason of the highway becoming depressed at that point, where the depression was not due to negligence of the company and there is no Statute or ordinance or con- Johnson ty. Public Service Ry., 85 Atl. 165 (Nº. 1912). - ' Ward v. Atlantic & P. Tel. Co., 71 N. Y. 81 (1887). So also where wires break down by reason Öf an extraor- dinary Storm. See cases \i p. rotten at the base, falls and injures a perSOn, does not prove gross negli- gence On the part of the company, there being no proof that its linemen knew that the pole was rotten. South- ern Bell Tel. & Tel. Co. v. Miller, 68 S. 184 (Ala. 1914). Where a telegraph pole breaks and the wires fall across the highway, and a carriage runs into them, negligence on the part of the Company is not proven by showing that poles forty rods away were rot- ten, it not being shown that all the poles were of the same kind, put up at the Same time, and equally exposed. Western Union Tel. Co. v. Levi, 47 Ind. 552 (1874). Even though a pole breaks during an unusual storm and it is proved that the pole was unsubstantial, yet this does not prove that the pole was unfit and insufficient (1909). under ordinary circumstances, and hence there. is no liability. South- Western, etc. Co. v. Ingrando, 27 TeX. Civ. App. 400 (1901). windstorm causes a tree to fall on a telephone line on the highway, and breaks the poles and throws them on the road, and a short time afterward a traveler in the dark runs against a pole and is injured, the Company is not liable even though it had no permit º' from the public authorities to erect the line, it appearing, however, thät the poles were reasonably safe. Bur- ton v. Cumberland T. & T. Co., 118 S. W. 287 (Ky. 1909). Whereſa trol- ley pole falls there is a presumption of negligence. Toby v. Scranton Ry., 245 Fed. 365 (1917). Where weak or decayed poles are blown down by a Storm the company is liable for injury dOne. & Tel. Co., 126 La. 1087 (1910). V a telephone wire strung on street-rail- way poles is broken by a violent Storm in the afternoon and it falls across a trolley wire and conducts a Current, and early the next morning a child is killed by it, neither company is liable, inasmuch as the trouble could not have reasonably been foreseen. Strack w. Missouri, etc. Co., 216 Mo. 601 Even though in a Storm a telephone wire breaks and crosses an electric-light wire and injures a pe- destrian, the telephone company is not liable unless it is shown that it is CuS- tomary to have guards between the tWO Sets Of Wires and that such guards WOuld have prevented the accident. Stark v. Pennsylvania Tel. Co., 225 Pa. St. 390 (1909). * Harton v. Forest City Tel. Co., 146 N. C. 429 (1907). Where a severe Claussen v. Cumberland Tel. A f :w s 2 # * , # * § º f ... < *. # , ºf TELEGRAPH"[A Wº 109- $ 5a- * tºxic - 2’ (;’ wire and the Bole falls and injures him, the telephone company is not liable, even ſº property owner had not authorized the telephone pole on the street.* If a contractor under the usual contract for the construction of a telephone system is not an independent contractor, the telephone company may be liable for its negligence.” The failure of a company to properly sustain a pole by guy wires may render the company liable.” A person driving on the highway who is injured by a telephone pole falling upon him, may hold personally liable the president, who is also general manager and inspector and repairer of the lines, where the decay in the pole was visible and he had negligently inspected it a short time before. He may be held liable jointly with the company." A telephone company that owns a telephone pole is not responsible for an injury from an insulator falling from a cross-arm on such pole, the cross-arm and in- sulator being the property of a telegraph company and being in the exclusive possession of the latter company." But a telephone com- * Morris v. Rounsaville Bros., 132 jured the plaintiff, it was held that Ga. 462 (1909). tho company was liablo. In the Sec- * Larsen v. Home, etc. Co., 164 Mich. 295 (1911). A corporation own- ing an electric light plant is liable for the negligence of its contractor in Stringing wires, inasmuch as the work Was in doing that which could only be done lawfully under charter pow- ers. Karpinski v. Borough of South River, 88 Atl. 1073 (N. J. 1913). A railroad company cannot by stipula- tion. With a contractor relieve itself from its obligation to protect the pub- lic from danger in connection with the Work on a public highway. Wea- zie v. Penobscot R. R., 49 Me. 119 (1860). A telephone company is lia- ble for the negligence of its contrac- tor in constructing the line in the Street. Vosbeck v. Kellogg, 78 Minn. 176 (1899). - * In Johnson v. Northwestern Tel. Exch. Co., 48 Minn. 433 (1892); S. c. 54 Minn. 37 (1893), where a pole on a Corner was held in place by guy Wires running on to private property, and the guy wires had been cut by the OWners of the property, and the COmpany neglected for an unreason- able length of time to give other Sup- port to the pole, which fell and in- Ond decision Judge Mitchell said that undoubtedly defendant was bound to foresee that Shadwell property Owner) might remove those guys, but it could not anticipate that he would do it negligently SO as to allow the pole to fall into the street with Out Warning to passers-by. Neg- ligence, not wanton, Cannot Ordinarily be said to be the proximate cause of an injury when the negligence (which could not have been reasonably antici- pated) of another independent human agency has intervened and directly Caused the injury. Hence it was not clear but that On the State of facts the negligence of Shadwell was the • - e Arº- & sole proximate cause of injury. But,” however that may be, the question was settled on the former appeal. For many cases relative to acylents due to guy Wires See § -p-4–. * Murray v. Cowherd, 147 S. W. 6 (Ky. 1912). * Quill v. Empire State, etc. Co., 159 N. Y. 1 (1899). See also Weskell v. Auburn Light, etc. Co., 209 N. Y. 86 (1913). A telephone company is not liable for injury due to a city wire which was tied to the telephone pole (the private TELEGRAPH LAW pany leasing to another telephone company the right to string wires on the former company’s poles is liable to the estate of an employee of the latter who is killed by a pole falling while he was removing his company’s telephone wire in connection with the rebuilding of the pole line, a defect in the pole not being apparent, and the lineman not being bound to ascertain the condition of the pole." A lineman of an electric-light company who climbs a pole owned by a telephone company on which there are electric-light cross-arms and wires, cannot hold either company liable for the breaking of a cross-arm belonging to the telephone company when he had no rea- son to suppose that the cross-arms had been inspected and he did not inspect the cross-arm himself and there was no proof that the cross-arm when originally erected was defective or that the electric- light company knew of any defect.” So also where a trolley pole slips and breaks an electric-light globe and a person below is in- jured, the electric-light company is not liable if the trolley company was negligent.” Where a street-railway trolley pole is put just outside the curb, because the property owner will not allow it inside, and a truck runs against it and injures a person, his remedy is not against the trolley company.” If the employees of an electric-light company, in taking down a pole, are unable to control it, and it falls and injures a child, the company is liable.” A telegraph company which saws off a telegraph pole on the side of the street and leaves a stump three feet high may be liable to a pedestrian who runs against it in the night, even though he knew it was there.” and became loose and fell. Mickle v. 29 R. I. 221 (1908). Southern Bell T. & T. Co., 69 S. 105 (Ala. 1915). Even though a telegraph pole line on a railroad right of way belongs to a telegraph company, yet if the poles become rotten and injure a person both the railroad and tele- graph Company are liable. A phone company which has strung Wires On Such poles is not liable if its wires did not cause the injury. Western Union Tel. Co. v. Owens, 98 S. E. 116 (Ga. 1919). "Aaron v. Missouri, etc. Tel. Co., 131 Pac. 582 (Kan. 1913); holding also that a general warning to a line- man is no defense. * Consolidated, etc. Co. v. Chambers, 112 Md. 324 (1910). * Nelson v. Narragansett, etc. Co., tele- * Lanigan v. Brooklyn Heights R. R., 125 N. Y. App. Div. 622 (1908). * Ryle v. Southern E1. L. Co., 174 Pa. St. 570 (1896). An explosion of gas in a manhole of a telephone Com- pany may render it liable if it did not use reasonable care to prevent it. Chalmers v. Paterson, etc. Co., 66 N. J. L. 41 (1901). "Dobbins v. Western Union, etc. Co., 163 Ala. 222 (1909). Even though a telephone company uses an abandoried telephone pole, and it then abandons its use and another company uses it -and Subsequently some one takes it down and an injury occurs, the first-named company is not liable. Powers v. Independent, etc. Tel. Co., 19 Idaho, 577 (1911). TELEGRAPH-IIAw- *111… $–5a- Although an electric-railway pole is located in the middle of the street, even by consent of the local authorities, yet, if a person about to enter a car is injured by the pole, it is for the jury to say whether the pole was dangerous and whether there was negligence." Where a certain trolley pole is nearer the track than the other poles and injures a conductor, the company may be liable.* A fleshy person who, while on the running board of a street car, is struck by a trolley pole, can- not hold the company liable.” It is the duty of a pedestrian passing from a street car to a sidewalk to exercise his faculty of sight before going right ahead without looking to see whether there is anything to interfere.” Where a person, in stepping over a telegraph pole lying in the street, slips and is injured, it is for the jury to say whether the pole was the proximate cause of the in- jury.” A person crossing a street away from the regular crossings must exercise more than ordinary care.” Under a statute render- ing telegraph and telephone companies liable for injury due to their poles they are liable without proof of negligence, but it is a good de- fense that plaintiff was guilty of contributory negligence." The liabili- ty of a telegraph company for collisions with its messenger boys turns largely on the facts.” The liability of a telegraph company to its own * Kowalski v. Newark Pass. Ry., 15 (1915). N. J. L. J. 50 (1892). Both a city and a trolley Company may be liable for a trolley pole between two trolley tracks, even though it was not negli- gently located when first constructed but the gradual congestion of the streets has changed the situation. Stern v. International Ry., 220 N. Y. 284 (1917). A street railway may be liable for the death of a freight con- ductor who puts his head out of the car on a curve, and is struck by a trolley pole. Evansville Rys. v. Cook- sey, 112 N. E. 541 (Ind. 1916). * Washington Ry. & Elec. Scala, 244 U. S. 630 (1917). * Teitz v. International Ry. Co., 186 N. Y. 347 (1906). A passenger who knows that a trolley pole is near the tracks cannot recover damage for Striking the pole while he was On a car and was trying to pass a large person standing on the running board. Milliken v. Rhode Island Co., 99 Atl. 1023 (R. I. 1917). Co. v. * Knapp v. Barrett, 216 N. Y. 226 * Zopfi v. Postal T. C. Co., 987 (1894). "As to the right of a pedestrian to Cross a street away from the cross- ing, see Watts v. Borough of Plym- outh, 99 Atl. 470 (Pa. 1916). Barney ty. Metropolitan St. Ry., 94 N. Y. App. Div. 388 (1904); Zenner v. Brooklyn, 60 Fed. etc. R. R., 173 N. Y. App. Div. 194 (1916), aff’d 225 N. Y. 710. " Riley v. New England, 184 Mass. 150 (1903). - * A telegraph Company is liable for injury due to one of its messenger boys negligently running into a per- son at night, even though the boy WaS riding his own bicycle and was on his way from his home to the telegraph Office. Kuemichel v. Western Union Tel. Co., 145 N. W. 788 (Minn. 1914). A telegraph company was held liable for a collision between a messenger boy and a person in Postal Tel.-Cable Co. v. Minderhout, 71 S. 89 (Ala. 1916). A telegraph company is liable for any damage due to . One of its etc. Co., \ Tel. Co., 11 N. Y. Supp. 817 `... by reason of a fire, the Włres t WA, J.12^ ar .* ** - 1. .* .” emplºy. on account of a pole falling is considered elsewhere.” § -5bf Liability of corporation for injury caused by its wires.—The wires of a telegraph, telephone, or electric-light company are also a source of accident. If the wires are left in the way of travel, either permanently or while making repairs or constructing the line, without proper precautions being taken, the company is liable for any injury that may be caused thereby.” A telephone company is not liable for an meSSenger boys Colliding with a per- son in the ºstreet. Postal Telegraph- Cable Co. v. Murrell, 201 S. W. 462 (Ky. 1918). It may be for the jury to decide whether a telegraph company is liable for the negligence of its mes- Nº. boy in running into a person. rostal Telegraph-Cable Co. v. Scott, 7.9\S. 767 (Fla. 1918). * See §-5e-infra. * A pedestrian injured by tripping on an electric-light wire which crossed and lay upon the sidewalk may hold the company liable. The pedestrian was not bound to see the wire. Brush E1. L. Co. v. Kelley, 126 Ind. 220 (1890). It is for the jury to say whether there is contributory negli- gence where a wire is about tWO inches above and across the street, and the driver of a wagon leads his horses across and then steps on the wire while the front wheels go over, and then tries to drive the rear wheels over, but the wire catches and the horses run away and are injured. Thomas v. Western Union Tel. Co., 100 Mass. 156 (1868). Where a wire is across and on a street, and the Company’s employees endeavor to raise and throw Such Wire Over a passing team and Wagon, and in doing SO strike the Wagon and frighten the horses and cause injury, the company is liable. Staring v. Western Union (1890). are broken and become embedded in ice in the Street and the ends are Cut off, a person who trips on one of them may recover damages for the injury, even though he knew that pieces of the wires were so frozen into the high- way. Nichols v. Minneapolis, 33 Minn. 430 (1885). Where employees drop a telephone Wire and it falls on a horse and causes him to jump and throw the driver out and injure him, the COmpany is prima facie liable. Arkansas Tel. Co. v. Ratteree, 57 Ark. 429 (1892). Where a telegraph wire is attached to a building, and by rea- SOn Of the building being removed the Wire sags into the street during the process of moving the building, and a person driving by is injured, the Owner Of the wire is liable. Neu- ert v. Boston, 120 Mass. 338 (1876). A person thrown from a wagon by striking a rope stretched across the Street by a telephone company may recover damages, even though he Was not looking ahead. Longley v. NeW England, etc. Co., 205 Mass. 46 (1910). Where a trolley wire is being strung and lies on the ground, running from one pole to another, and is suddenly thrown into the air and catches a boy and kills him, the company is liable. Devine v. Brooklyn, etc. Co., 1 N. Y. App. Div. 237 (1896). An electric- light company may be liable where its Wires are erected Close to a post which conducts the electricity and kills a person, even though the COn- tractor had not yet turned over the newly constructed plant to the com- pany. The company cannot have contribution from the contractor, they being joint tort-feaSOrS. Interna- tional, etc. Co. v. Maxwell, 27 TeX. Civ. App. 294 (1901). Where a per- Son on horseback runs into a telephone wire at night and the horse is in- jured, the court should charge the jury that if an ordinary prudent man would have left the wire where it was the company is not liable. South- Western Tel. & Tel. Co. v. Thompson, 157 S. W. 1185 (Tex. 1913). A brake- # :* "r A § º % TELEGRAPE **:::: * A.W.,...... ;:4. injury done by the pulling of a chimney into the street caused by a derrick striking a wire which extended across the street to the chimney, the wire being thirty-nine feet above the ground at the chimney point and one hundred feet from the ground on the opposite side of the street." Cases often arise where the wires are broken by a storm. The general rule is that if such storm was not extraordinary, the company is liable for any damage done.” man. On a Steam railroad who knows that a trolley Wire Crosses the rail- raid not far above the cars cannot recover damageS due to his coming into COntact with Such Wire. Dan- ville, etc. Co. v. Watkins, 97 Va. 713 (1900). Where an electric company places its wires on a building in vio- lation of a city Ordinance, it is liable for causing the death of a person by its current, even though the Wire had been broken from the insulator. Wales 'v. Pacific, etc. Co., 130 Cal. 521. (1900). As to a suit against the company and also an employee for negligence, see Burch v. Caden Stone Co., 93 Fed. 181 (1899). electric-light plant and allows its wires to sag over a railroad, thereby injur- \ ing a brakeman, it is liable. Todd \ v. City of Crete, 79 Neb. 671 (1907). a telephone company in erect- ing a wire in the street allows it to sag and it becomes charged with elec- tricity and injures a person Who Was walking across the Street, the company , is liable, no warning having been given f' and the place being where people were Where a city Owns all. If a wire breaks and is not repaired Clancy v. N. Y., etc. R. R., 82 N. Y. App. Div. 563 (1903). See-Hö7-s: W. +185:- * Leeds v. New York Tel. Co., 178 N. Y. 118 (1904). Where a tele- graph Wire is attached to a chimney Without the Owner’s consent, and pulls it Over, and a person is injured and Sues the Owner of the building, and he notifies the company, and it refuses to defend, and he settles, he may have … recourse against the telegraph-cóm- pany. Gray v. Boston, etc. Co., 114 Mass. 149 (1873). …” * See cases in § Were broken down by an extraordin- ary St0rm. Where a Storm causes a tree to fall and break down an elec- tric-light wire, and the same storm breaks a telephone wire, which Con- ducts the electric-light current and does damage, the liabilities of the companies depend upon negligence in constructing and maintaining the wires, a reasonable time after the storm not having elapsed to remedy the danger. Heidt v. Southern, etc. Co., 122 Ga. 474 (1905). Even though ºp. 498; where poles a guy wire sags by reason of an eX- ceptionally severe Storm, and even though many wires and poles were affected and the company repaired the º, liable to be injured. Southern Bell, * etc. Co. v. Howell, 124 Ga. 1050 (1906). * Where a telephone company is negli- gent in constructing and maintaining its wires it is liable for a wire falling into the street and injuring persons, even though the company had no notice that `the Wire Was down. Polito Witz v. Citizens', etc. Co., 115 Mo. App. 57 (1905). +rere a wire is not Strung as high in the highway as is required by Statute, and a person is injured by it, the company is liable. Chaunt v. Clinton, etc. Co., 130 Wis. 533 (1907). Proof that trolley wires have fallen into the Street and caused damage makes a prima facie case of negligence. damage as rapidly as possible and had no notice in regard to this particu- lar wire, yet it is a question for the jury to decide whether the company is liable for damage caused by the wire. Friesenhan v. Michigan, etc. Co., 134 Mich. 292 (1903). Where a Storm in the evening breaks the limb of a tree, which then presses a tele- phone wire on a trolley wire, whereby the Current is COnducted Some dis- tance and in the morning passes through the trolley wire and causes --º-º-º-º-º-º------- §-āb- by the company within a reasonable time, the company is liable to any one who is injured thereby." A company is liable where its wires injury to a child, it is for the jury to Say Whether the wires should have been repaired sooner. Warren v. City, etc. Ry., 141 Mich. 298 (1905). The question. Of Whether an electric-light Company is liable for damages due to its Wire having been broken down by a Storm during the night is for a jury. Wolpers v. N. Y., etc. Co., 91 N. Y. App. Div. 424 (1904). Where the poles and Wires of an electric-light company are properly erected and maintained, the company is not liable for damage due to a wire breaking during an ex- traordinary storm and injuring a per- son by reason of the current, unless the company fails to discover and remedy it within a reasonable time, but where the Storm is an Ordinary Storm the company is liable any Way. Boyd v. Portland, etc. Co., 40 Oreg. 126 (1901). The excuse of an elec- tric-light company for not quickly repairing a wire that had been blown down in a storm, that they did not have sufficient force to do so, raises a question for the jury. Boyd v. Port- land, etc. Co., 37 Oreg. 567 (1900). Even though a telephone Wire is torn from a pole by a storm and hangs for three days in the air, yet if the company had no notice thereof and the electric circuit was not broken SO as to give such notice, the Company is not liable for damages due to such wire Catching the top of a carriage and Overturning the Carriage. Fitch v. Central N. Y., etc. Co., 42 N. Y. App. Div. 321 - (1899). Where storm which was not extraordinary or unusual, caused a decayed tree to a; ing cut by a Stranger. Sullivan v. Narragansett, etc. Co., 73 Atl. 306 (R. I. 1909). Where weak or decayed poles are blown down by a storm, the Company is liable for injury done. Claussen v. Cumberland Tel. & Tel. Co., 126 La. 1087 (1910). . * A telephone company is entitled to a reasonable time in which to make repairs after notice of defects before it is responsible for negligence, but it is not necessary to prove that the com- pany had actual notice of the break- age. Home Tel. Co. v. Weir, 101 N. E. 1020 (Ind. 1913). Where a severe Storm late in the afternoon breaks a telephone wire and it falls On a high tension wire, the telephone company is entitled to reasonable time to dis- COver the danger, but sixteen hours’ delay may be unreasonable. Grossheim ^y. Pittsburgh & Allegheny Tel. Co., 100 Atl. 126 (Penn. 1917). A tele- phone COmpany is liable for a wire Which sags down on the Street and catches a buggy top where by Ordi- nary Care the Company would have discovered the wire in time to pre- vent the accident. Sinclair v. Colum- bia Tel. Co., 195 S. W. 558 (Mo. 1917). It is for a jury to say whether a tele- phone Wire was defective, that sagged dOWn into the road and caught a pass- ing horse, but if the company exer- cised Ordinary care in keeping its plant reasonably safe, it is not liable for an unknown defect causing dam- age after nightfall. Wells v. Cumber- land Tel. & Tel. Co., 198 S. W. 721 (Ky. 1917). Where a party owns a telephone wire on his premises and fall on a telephone wire, and the wires allows it to sag, and a person is in- Sagged over the road and caught the top of a carriage and injured a per- son in the carriage, it is for the jury to say whether the company was neg- ligent in not inspecting the tree. En- sign v. Central, etc. .Co., 79 N. Y. App. Div. 244 (1903); aff'd, 179 N. Y. 539. An electric-light company is not li- able for an injury due to its wires be- jūred, he is liable. Shenandoah, etc. ..º. 91 S. E. 740 (Va. 1917). an electric-light wire falls in the Street and remains there for Some time and then causes injury, it is for the jury to say whether the City was negligent and liable. Burns 'w. City of Emporia, 63 Kan. 285 (1901). Where for three days a Š-5b. are strung so low as to catch passing vehicles." broken telephone Wire hangs On prop- erty adjacent to a street and an elec- tric Street railway Current is COn- ducted by it and injures a person, the telephone Company is liable. Lynch- burg, etc. Co. v. Booker, 103 Va. 594 (1905). Where a telephone company allows a Wire to become broken and remain in a dangerous condition for five months, and it comes in contact with an electric-light wire, and causes the death of a person, it is liable, even though a recent Storm was the cause of the contact. Central, etc. Co. v. Sokola, 34 Ind. App. 429 (1905). An electric-light Company is not liable for its current passing on to a broken telephone wire and killing a person where both Wires were in first- class Condition before a violent storm which broke the telephone wire and TEEEGRATPEfºſi AW’’ The same is true as brought the two into contact, but if the Storm Was at 8.30 P.M. and the electric-light Company did not test its wires until the next morning when the injury was done, the electric-light com- pany may be liable. Brown v. Con- Solidated, etc. Co., 137 MO. App. 718 (1908). Where a property owner erects a telephone wire to COnnect With a telephone line and it is main- tained by the telephone company both may be liable if the Wire Sags and injures a person. North Arkansas Tel. Co. v. Peters, 148 S. W. 273 (Ark. 1912). As to the necessary allega- tions in a complaint against a tele- phone company for allowing its Wire to sag in the Street and cause injury, See Cumberland, etc. Co. v. Pierson, 170 Ind. 543 (1908). A trolley Com- pany is not presumed to have been * An electric light company is liable if its wire over the highway Catches a hay-stacking derrick Over 30 feet high on the highway and the electric Current injures a person on the derrick. Fairbairn v. American, etc. Co., 175 Pac. 637 (Cal. 1918). A p0Wer COmpany may be liable for in- jury due to its wires crossing the highway catching a hay stacker 27.1% feet high. Shank v. Great Shoshone, etc. Co., 205 Fed. 833 (1913). A farm- er is entitled to drive from any part Of his farm into the highway and if caught by a low telephone wire the telephone Company is liable. Wegner v. Kelley, 157 N. W. 206 (Ia. 1916). Wires On the highway need not be high enough to allow access to abut- ting land at all points, but only at Ordinary points Of ingreSS. Or egreSS. Wegner v. Kelly, 165 N. W. 449 (Ia. 1917). Where a telephone wire eleven feet above the road catches a grain bin on a wagon and causes damage, the presumption is that the Wire had been that low long enough to consti- tute notice to the telephone company. Walmsley v. Rural Tel. Assoc., 169 Pac. 197 (Kan. 1917). An electric light company is bound to string its Ann. 295 (1891). Wires high enough above the road SO as not to Catch a hay derrick. Green- wood v. Eastern, etc. Co., 136 Pac. 336 (Ore. 1913). A telegraph com- pany is liable for an injury due to its Wires hanging SO low in the Street as to catch the top of a stage. Dickey v. Maine Tel. Co., 46 Me. 483 (1859). Where a telephone wire is so low across a highway as to catch a fur- niture van, the company is liable. Pennsylvania Tel. Co. v. Varnau, 15 Atl. 624 (Pa. 1888). wi.” truck- man turns out for another team, and his load strikes an electric-light Wire fifteen feet high and the pole breaks and injures him, the company is lia- ble, the pole being unsound. Williams ^). Louisiana, etc. Power Co., 43 La. Where a statute requires wires to be twenty feet above road crossings and the Wire Sags to thirteen feet and catches a load of hay, the company is liable. Weaver v. Dawson, etc. Co., 82 Neb. 696 (1908). An electric-light company may be liable for an injury by its cur- rent to a person moving a building On the street. Winegarner v. Edison, etc. Co., 83 Kan. 67 (1910). *-413-zººsººk. TELEGRAPH-E-A-W to a wire that is strung so low over a railroad as to catch a brakeman on top of a freight car." The company is liable for injuries caused § negligent even though a person is in- jured by its broken trolley wire. Lan- ning v. Pittsburg Rys. Co., 229 Pa. St. 575 (1911). Where an electric-light Wire falls On a pedestrian it raises a presumption of negligence on the part of the company. Walter v. Baltimore, etc. Co., 109 Md. 513 (1909). Where On account of Snowdrifts a team is driven to the Side of the road and Obliquely between two poles and under the Wires of a telephone line, and runs Into telephone Wires, which had broken down several days previously, it is for the jury to decide whether the telephone Company is liable, even though the plaintiff had seen the wires down in going the other way during the day, it appearing that the com- pany was notified several days previ: Ously that the Wires were down. Snee 'w. Clear Lake Tel. Co., 24 S. Dak. 362 (1909). Even though a telephone com- pany inspected its line two weeks be- fore a fallen Wire injured a person, and the Wire transmitted messages until the time of the accident, it is for the jury to decide whether the Company Was negligent in not finding that the Wire was detached and hang- ing in the highway. Crawford v. Standard, etc. Co., 139 Iowa, 331 (1908). Where a telephone pole leans Over the highway and a rotten CrOSS- arm causes a wire to sag and injure a person, the telephone company is lia- ble. Cynthiana Tel. Co. v. Asbury, 147 Ky. 307 (1912). A telephone com- pany is liable for an injury done to a driver by a telephone wire Sagging across the Street where the telephone company might have discovered the condition by Ordinary care, and suffi- Cient time had elapsed to enable it to discover it. Thompson v. Reed, 135 N. W. 679 (S. Dak. 1912). Where an electric-light lamp owned by the city falls in the middle of the night and at Six o'clock the next morning a child comes in contact with the wire and is injured, the city is liable. Potera v. City of Brookhaven, 95 Miss. 774 (1909). Even though a thunderstorm breaks a telephone wire after nine o’clock at night, and an electric-light current is conveyed thereby and injures a person after six o'clock the next morning, yet this is not presumptive proof of negli- gence on the part of the telephone company. Parmlee v. Tri-State T. & T. Co., 103 Minn. 530 (1908). Where, * A telephone company which strings its Wires across and over railroad tracks is liable to a brakeman if he is Caught by them while standing on a Car. Southwestern Tel. & Tel. Co. v. Clark, 192 S. W. 1077 (Tex. 1917). Where a telephone company furnishes the Wire and constructs a telephone line on poles Owned by another per- Son, and rents the line to such other perSon, and divides with him the re- Ceipts, the telephone company is lia- ble for injury due to the wire Cross- ing a railroad and striking an em- ployee of the railroad. American, etc. Co. v. Rersh, 27 Tex. Civ. App. 127 (1901). An employee may hold his railroad liable for his being caught by a telephone wire belonging to a telephone company When he, Was On top of a car. Meyers v. Detroit, etc. R. R., 166 Mich. 403 (1911). Where a broken telephone wire hangs Over a railroad, and an employee of the re- ceiver of the railroad is injured, both the telephone company and the re- ceiver are liable, but the receiver Can- not have recourse over against the telephone company. Southwestern, etc. Tel. Co. v. Crank, 27 S. W. 38 (Tex. 1894); aff’d, 87 Tex. 104 (1894). A telephone company is not liable for a, wire which a patrOn Strings Over a railroad and it injures a brakeman, even though it connects with the tele- phone lines. Southwestern Tel. & Tel. Co. v. Corbett, 148 S. W. 826 (Tex. 1912). eş=5b.-- º: * * * # 4A g?‘ī-* > * / f At | ------sº Tº ºf Tx . A - Ex:Exº Anºuana fºLºſ A. VV by a guy wire which has been negligently placed." Where a person driv- ing a horse even in the dark, but under control, runs one of the wheels twenty days after a Storm which Carried down telephone poles and wires the horse and cart of a mail Carrier comes in contact with a wire, - and he is thrown, from the cart, he may recover damāges, although the company had been busy at work dur- ing the twenty days clearing away the wires. Bishop v. Rocky Mt., etc. Tel. Co., 33 Utah, 464 (1908). wº a,Il electric-light wire breaks and hangs into the street for three weeks and the current therein injures a child, both the City and the Company are lia- ble. City of Kansas City v. File, 60 Kan. 157 (1899). Where an electric- light Company in altering its line al- lows a wire to lie on the sidewalk and thereby a current is transmitted *~ from a live wire, it is liable for not “s, e wº “having such loose wire guarded and for not warning passers-by. Devlin v. Beacón, etc. Co., 192 Pa. St. 188 (1899). Where a person cuts down a tree and it falls on a telegraph wire and breaks it, and a person is injured by the wire, it may be a question for the jury as to whether the poles were located on the safe side of the Street, and proper guards for the wires ar- ranged; in other words, whether the proximate cause of the injury was the mode of construction, and not the fell- ing of the tree, and whether the tele- graph company should have reason- ably foreseen such an occurrence. Ela ºv. Postal, etc. Co., 71 N. H. 1 (1901). Where a telegraph wire sags for two days Over a country highway by rea- Son of a rotten cross-arm the Com- pany may be liable for an injury caused by a wagon running into it. Postal, etc. Co. v. Jones, 133 Ala. 217 (1902). A street railway may be lia- ble for One of its wires breaking and Causing an injury, even though the injury was caused at the time of the breaking. The question as to whether the breakage was due to negligence is for the jury. Citizens’, etc. R. R. v. T}atley, 159 Ind. 368 (1902). Where a trolley wire breaks and falls in the street and gives a shock to an indi- vidual, the presumption that the Com- pany was negligent is not met by the testimony of its employees that the Wire had been properly inspected, it being shown that a certain device would have stopped the electric cur- rent if such device had been in Opera- tion. O'Flaherty v. Nassau, etc. R. R. 34 N. Y. App. Div. 74 (1898); aff’d, 165 N. Y. 624. The question of whether a telephohe Company is liable for an injury to a horse due to a wire hang- ing in the street while being repaired is for the jury. Hovey v. Michigan, etc. Co., 124 Mich. 607 (1900). Where for two weeks a broken telephone wire hangs into and on the street, and the end coils and a person trips On it and is injured, the company is liable. Southern Bell Tel. Co. v. Lynch, 95 Ga. 529 (1894). * Where a telephone guy wire is two feet outside the traveled way and the highway is based on prescription, the company is not liable for injury due to a wagon Striking the wire, in- as much as the rights of the public are limited to the traveled way used by prescription. The burden is on the plaintiff to prove that the guy Wire was within the road limits. Shackford v. New England, etc. Co., 91 Atl. 931 (Me. 1914). Both a city and a telephone company may be lia- ble for a guy wire so placed in the Street as to catch a person in the face. Erickson v. Town of Manson, 160 N. W. 276 (Iowa, 1916). A tele- graph company may be liable for in- jury to the eye of a boy due to a guy wire which was hanging from a telegraph pole. Fry v. Postal Tel., etc. Co., 112 N. E. 214 (Mass. 1916). Even though a runaway horse runs the wagon against a guy wire which runs from a telephone pole towards the beaten highway four feet four inches, yet where the traveled road is thirty feet wide and the entire road ºf Ex- of 47- ~~~~. - - - J.H.8° TELEGRAPHºfſåW of the buggy against a guy wire placed by a telephone company just outside the traveled portion of the highway, and there is no explana- tion as to why the traveled part of the highway was not used, the tele- forty-four feet, and the pole was on the extreme edge of the road, the Com- pany is not liable. Eberhardt v. Glas- CO, etc. ASSOC., 139 Pac. 416 (Kan. 1914). Where a telephone guy wire is anchored 31 inches from the edge Of the beaten highway so as to en- danger the safety of automobiles or travel On the highway, the company is liable for damage due to an auto- mobile running into it at night, the Statute expressly providing that tele- phone lines shall not incommode the public use of the highways. Pacific Tel. & Tel. Co. v. Hoffman, 208 Fed. 221 (1913). Even though a guy wire at the time Of its erection does not interfere with public travel, yet if the growth Of the Community and the in- Creased use Of the Street renders it dangrous, and it is run into at night by a buggy and the occupants injured, the company is liable. Postal Tel.- Cable Co. v. Herrington, 221 Fed. 226 (1915). A guy wire on depot grounds may render a railroad liable to a per- SOn Who stumbles over it in the dark and is injured. Heffron v. N. Y. C. & H. R. R., 223 N. Y. 473 (1918). A fireman who wraps hose around a telegraph guy post cannot recover for damages due to the strain breaking the post, which was rotten, causing the hose to fall on him. American, etc. Tel. Co. v. Oldham, 148 Ky. 320 (1912). A telephone company may be liable to a policeman who stumbles OVer a guy wire On the Street in the dark, even though it is not located where the public generally travel. Lafayette Tel. Co. v. Cun- ingham, 114 N. E. 227 (Ind. 1916). A telephone Company may be lia- ble for a guy wire on a public high- Way even though it is not in the beaten road. Unglaub v. Farmers’, etc. Tel. Co., 164 N. W. 104 (S. D. 1917). A telephone company is liable to a person who is injured by a guy Wire in a public alley so placed as to be indiscernable and dangerous to Ve- hicles. Louisville, etc. Co. v. Gasper, 123 Ky. 128 (1906). A guy wire twenty-five feet from a pole and at a point Where a person in the dark go- ing to the depot runs into it, may render the COmpany liable. Grant v. Sunset, etc. Co., 7 Cal. App. 267 (1808). In Sheldon v. Western Union Tel. Co., 51 Hun, 591 (1889), aff’d, 121 N. Y. 697, a guy wirc ran from the top Of a telegraph pole near the fence to a peg near the edge Of the road. Two trees nearly concealed the Wire. A person driving a team turned Out for another team. The wire caught the wagon and he was injured. The Company was held liable. A tele- graph and telephone company is liable to the driver of a fire-engine for injuries due to his driving against a guy wire about six feet from the ground, even though the pole and . wire were on ground which vehicles were forbiden to travel On. The fire- engine is an exception in this respect. Wilson v. Great Southern T. & T. Co., 41 La. Ann. 1041 (1889). Where an electric-light company knows that a guy Wire is Conducting the current, it is liable for the death of a boy Caused thereby, even though the boy had been warned in regard to it. South Omaha, etc. Co. v. Vocasek, 62 Neb. 710 (1901). A trolley com- pany is liable for its electric current running through one of its guy wires on to a private Wire and injuring a person. Campbell v. United RyS. Co., 243 Mo. 141 (1912). Even though a person drives his carriage into a guy wire stretched across the road by a telephone company while erecting a pole, he is not necessarily guilty Of contributory negligence. Mogk v. New York, etc. Co., 78 N. Y. App. Div. 560 (1903). A person who in the night when it is SO dark that she could not see a telephone pole two feet away crosses the road in the middle of the - & º >xºrzº §ºrrºr:§-‘5 ſº —s-àb- TEEEGrºverrºrisw 119° phone company is not liable inasmuch as it cannot be ascertained whether the proximate cause of the injury was the placing of the guy wire so near the road or was the plaintiff’s negligence." A telephone company is not liable on account of a horse becoming frightened and leaving the beaten part of the street and coming in contact with a guy wire inside of the curbing. The court said that the guy wire was not in that part of the street which the city had determined should be devoted to horses and vehicles. The court further said that the guy wire was located in that part of the street which is recognized by authorities referred to by it as the proper place for a guy wire.” Where a telephone company leaves an abandoned wire running from one building to another and lightning is thereby conducted, result- ing in the loss of one building, the company is liable.” And where a telephone company attaches a guy wire to the corner of a barn and the barn is subsequently destroyed by fire, caused by lightning, the jury may find the company liable therefor, if there was no lighting arrester on the guy wire to protect the barn and the fire was first dis- block and runs into a telephone guy made reasonably safe for pedestrians Wire between the sidewalk and the crossing the Street. Poumeroulie v. curb, cannot hold the company liable. Postal, etc. Co., 152 S. W. 114 (Mo. .. Bentley v. Missouri, etc. Co., 142 Mo. 1912). A telephone company in erect- .* * App. 215 (1910). Where there is no ing a guy wire on the street is bound £ Sidewalk and the whole width of the to use ordinary care that the way is £- tº it street is open for vehicles, a telephone left reasonably safe for pyblic IIS6. Company may be liable for a guy wire Raines v. East Tennessee/ Tel. Co., which runs from its pole to the edge 153 S. W. 224 (Ky. igiºſ As to lia- of the highway and causes injury to a bility for not properly sustaining a f; . person driving on that side of the pole by guy wires, see-S$-5-p-1053-5a,” & “ highway on a dark night. Davidson enzº 9:-----~~~~~~~~ *** - - -, v. Utah, etc. Co., 34 Utah, 249 (1908).” “Howard v. Flathead, etc. Tel. Co., ; , A telephone company may be liable 141 Pac. 153 (Mont. 1914). $, is go?' *} for the injury to a person who stum- * Delaware, etc. Tel. Co. v. Fleming, bles over a guy wire anchored over the 102 N. E. 163 (Ind. 1913). See-440te, * edge Of the Sidewalk where the guy $4494.g. s. 2'-- wire was not encased in boxes which “Jackson v. Wisconsin Tel. Co., 88 were frequently used to render the Wis. 243 (1894). A telephone com- wires more conspicuous and thus pany may be liable for injury due to prevent people running into them. atmospheric electricity passing into City of Ft. Worth v. Williams, 55 Tex, a building through wires which it Civ. App. 289 (1909). Where a has abandoned. Southern, etc. Co. v. WOman runs into a guy wire across the McTyer, 137 Ala. 601 (1908). A tele- phOne company may be liable for lº º º dark, she Imay damage done by lighting which º *Y liable. Williams ?: passes through its wires to an end City of Parson, 87 Kan. 649 (1912). that is dangling unused in a house. A telegraph Company in erecting a guy Owen v. Portage, etc. Co., 126 Wis. wire on the street is liable if it is not 412 (1905). Sk20- -THEEerºxºff ºf Awº- §-5b.:* covered near the guy wire." But a property owner who acquiesces in a telegraph company erecting its line on the street cannot hold such company liable for loss by fire, even though the wires prevented the fire being subdued.” A telegraph company has been held liable for the burning of a building due to the wires of the telegraph company breaking and thus transmitting an electric current which set fire to the building. The fact that the company did not know its wire was broken is no defense.” Where an electric wire breaks and falls across a build- ing, setting it on fire, the owner of the building may endeavor to remove the wire, and if he is injured in so doing he may hold the company liable.* *Wells v. Northwestern Tel. Co., 101 Me. 371 (1906). Where lightning passes through a telephone wire and kills a person, it is a question for the jury as to whether all possible Safe- guards were used by the telephone Company. Griffith v. New England, etc. Co., 72 Vt. 441 (1900). A tele- phone company is not liable for a fire caused by lightning running through its wires unless it is shown to have been negligent. Wood v. Cumber- land Tel. & Tel. Co., 151 S. W. 29 (Ky. 1912). . A telephone company may be liable for a fire caused by its wires transmitting lightning. Penin- sular Tel. Co. v. McCaskill, 60 S. 338 (Fla. 1912). * Chaffee v. Tel. & Tel. Con. Co., 77 Mich, 625 (1889). * Miles v. Postal, etc. Co., 55 S. C. 403 (1899). A telephone company is liable for a fire caused by a high ten- sion current running through a tele- phone wire. The company creating the high tension current may also be liable. St. George, etc. Co. v. South- ern, etc. Tel. Co., 100 Atl. 358 (Conn. 1917). A company Operating a power line and a separate parallel telephone line may be liable for a fire caused by its current passing through the tele- phone line to a private telephone line. Sickels v. Mt. Whitney, etc. Co., 170 Pac. 599 (Cal. 1918). A power com- pany may be liable for a fire where telephone wires are suspended over its wires and conducted the Current to a building and set it on fire, it being But even though wires prevent a fire ladder being placed the duty of a power company to pro- vide proper guards. Phenix, etc. CO. v. Virginia-Western Power Co., 94 S. E. 372 (W. Va. 1917). Where a tele- phone wire sags onto a trolley Wire and Sets fire to a house, the telephone company may be held liable. Pioneer Tel. & Tel. Co. v. Tulsa, etc. Co., 159 Pac. 477 (Okla. 1916). A street rail- way may be liable for its current passing into a telephone wire and causing a fire. Richmond, etc. Ry. V. Rubin, 102 Va. 809 (1904). An elec- tric company equipping a building with electric wires may be liable to the owner of the building for fire due to defects in the insulation of the wires, where the contract for wiring did not expressly release the company from such liability. Dechert v. Muni- cipal, etc. Co., 39 N. Y. App. Div. 490 (1899). An electric-light company is liable in damages where a person is burned to death by a fire caused by defective installation of the electric- light wires. Miller v. Ouray, etc. Co., 18 Colo. App. 131 (1902). An electric- light company furnishing light is not liable for a fire caused by defective installation by a contractor. National, etc. Co. v. Denver, etc. Co., 16 Colo. App. 86 (1901). A party causing the destruction of a building by fire is nevertheless not liable for the destruc- tion of other buildings which catch fire from the first-named building. Hoffman v. King, 160 N. Y. 618 (1899). * Leavenworth Coal Co. v. Ratch- ford, 5 Kan. App. 150 (1897). q.ELEGRAPHE-EAW" ~121- $–5b. against a building, and so a person has to jump and is injured, he cannot hold liable the company owning the wires, it having offered to go underground, but could not get the instructions and approval of the municipal authorities.* A trolley wire falling on account of an adjacent fire does not render the company liable.” Proof of changes made after an accident is properly excluded. The negligence is to be determined by what existed at the time of the accident.” Where, by reason of the crossing of telegraph and trolley or electric- light wires, the electric current injures or kills a person or an animal, there is a difference of opinion as to the liability. The decisions on this subject in the various states differ so greatly, even on similar facts, that it is difficult to formulate general rules, but a collection of the decisions is given in the notes below.” * Porter v. Municipal Gas Co., 220 N. Y. 152 (1917). * Hollis v. Brooklyn, etc. N. Y. App. Div. 821 (1908). * Dougan v. Champlain Trans. Co., 56 N. Y. 1 (1874); Laughlin v. Bras- sil, 187 N. Y. 128 (1907); Getty v. Town of Hamlin, 127 N. Y. 636 (1891). AS to Whether subsequent repairs may be shown in evidence, see 10 Ab- bott’s N. Y. Encyclo. Dig. 106. * Federal courts: A telephone wire which remains hanging for several WeekS Over a highway, and during a Storm conducts electricity so as to injure a person, renders the company OWning it liable for the damage. Southwestern Tel. & Tel. Co. v. Robin- son, 50 Fed. 810 (1892). Where a telegraph wire, for fifteen days, hangs across an electric-light wire and into the Street, a person injured by the electric-light current passing through the telegraph wire and into him may recover damages from the telegraph company, but not if he grasped the wire after being warned. Henning v. Western Union Tel. Co., 41 Fed. 864 (1890). Where an electric light wire OVer a railroad sags and is struck by railroad cars negligently handled, and breaks and falls into the Street and injures a person, the railroad com- pany is liable. Chicago, etc. R. R. v. Hulbert, 205 Fed. 248 (1913). Alabdºma Where a telephone com- pany, in abandoning a line, leaves a Co., 128 Wire hanging in a tree, and it con- ducts an electric-light current to a fence and kills a person, it is liable. Home Tel. Co. v. Fields, 150 Ala. 306 (1907). Where a telephone wire falls On a trolley Wire and negligence is proven, and the current injures a perSon, both Companies may be sued in the same Suit and both held liable. McKay v. Southern Bell Tel. Co., 111 Ala. 337 (1896). An electric-light Com- pany may be liable for the death of a person touching a disused telephone Wire which dangled from the electric- light wires. Decatur, etc. Co. v. Newson, 59 S. 615 (Ala. 1912). Where an electric light wire touches a tele- graph pole and the wire finally breaks and kills a man the telegraph Com- pany may be liable. Western Union Tel. Co. v. Jones, 73 S. 470 (A1a. 1916). A telegraph company may be liable for having its poles so close to an electric light wire that the electric light wire touches the pole and drops and kills a person, Western Union Tel. Co. v. Jones, 66 S. 691 (Ala. 1914). Arizona : A telephone company is liable where its wire Conducts an electric-light current and kills an individual using the telephone. Cran- dall v. Consolidated, etc. Co., 127 Pac. 994 (Ariz. 1912). Arkansas: A telephone company is liable jointly with a street-railway company where a wire of the former TEEEGRATPE’īAW It may be said in general, however, that notwithstanding the fact that telegraph and telephone wires carry very slight electrical currents falls on a wire of the latter and a perSon is injured by the current. City Electric St. Ry. v. Conery, 61 Ark. 381 (1895). Where electric-light Wires break down about midnight, and the Company discovers about two O'Clock that the wires are down some- Where, but does not shut off the cur- rent, and at Six o'clock a boy, al- though Warned not to do so, picks up a dead wire, and, in throwing it down, the dead wire strikes the live wire and the boy is killed, it is for the jury to Say whether the company is liable. Texarkana G. & E. Light Co. v. Orr, 59 Ark. 215 (1894). Delaware: Where a guy wire be- longing to a trolley company breaks and a motorman knows of it, but the COmpany does nothing for several hours, and a current is conducted through the wire and kills a person, the company is liable. Neal v. Wil- mington, etc. Ry., 3 Pen. (Del.) 467 (1902). -- Georgia. A telephone company is liable for injury done by a trolley Current which runs through a tele- phone wire which has been left dan- gling in the street. Atlanta Tel. & Tel. Co. v. Cheshire, 78 S. E. 53 (Ga. 1913). Where telephone and electric Street railway wires are On the same poles, the former above the latter, and a telephone wire breaks and falls across the electric-light wire and kills a horse below, both companies are lia- ble, the telephone company for allow- ing its Wire to become worn and Weak, and both Companies because Of not having their wires insulated and a proper guard wire. Eining v. Georgia, etc. Co., 133 Ga. 458 (1909). A tele- phone Company may be held liable to an individual who in passing along the street picks up a telephone Wire to throw it aside and is injured by an electric current passing through it. Southern Bell Tel. & Tel. Co. v. Davis, 76 S. E. 786 (Ga. 1912). Where a trolley Company discovers within a reasonable time that one of its wires has been broken by the wires of an- Other company, and immediately sends an employee to repair it, it is not liable for an accident that occurs in the meantime. Read v. City, etc. Ry., 115 Ga. 366 (1902). Illinois: Where by the terms of a telephone company’s grant the city has a right to string telephone wires on the poles and does so, and one of them becomes broken and causes the death of a person by conducting an electric-light current, the telephone COmpany is not liable, where the city has been held not liable. Hayes v. Chicago, etc. Co., 218 Ill. 414 (1905). An uninsulated electric-light wire in an Open Space under a sidewalk may render the company liable to a boy injured by it. Commonwealth, etc. Co. v. Melville, 210 Ill. 70 (1904). Where an electric-light wire sags on- to a telephone wire and causes harm, both Companies are liable, the tele- phOne Wire being uninsulated, espe- Cially where the contact takes place in the night and nothing is done to repair it before the next morning. Economy, etc. Co. v. Hiller, 203 Ill. 518 (1903). An injured party may Sue any Or all Of Several CorpOra- tions jointly liable, and may obtain judgment and then issue execution against One or all, and nothing Short Of the Satisfaction. Of the demand Or a release under Seal is a defense to the others. Tandrup v. Sampsell, 234 Ill. 526 (1908). Where a tele- phone wire is above a trolley Wire, and the trolley itself slips off the trolley wire and breaks the telephone wire, and the latter falls on the trol- ley wire and also to the ground, Com- pleting the circuit and killing a horse, the telephone Company is lia- ble. Rankakee, etc. Ry. V. Whitte- more, 45 Ill. App. 484 (1892). India'na. A telephone company is entitled to a reasonable time in which to make repairs after notice of de- §-5 b :* _gzº $-5b. TELEGRAPH.º.B.A. Wºº- / 193- Á —too slight to injure a person or animal—yet ſhere by reason of cross- ing or breakage of wires by storm or º or electric- fects before it is responsible for neg- ligence, but it is not necessary to prove that the Company had actual notice of the breakage. Home Tel. Co. v. Weir, 101 N. E. 1020 (Ind. 1913). IO100 : A power company is not lia- ble for the death of a person by rea- SOn Of its Current being conducted by a hanging Wire which someone had placed over the power wire without that Company’s knowledge or consent, Where it was shown that no insula- tion WOuld prevent the escape of elec- tricity from the high voltage. Wells ^y. Chamberlain, 168 N. W. 238 (Ia. 1918). Kansas: An electric-light company is not necessarily liable for an injury caused by its current passing through a private telegraph wire which it had allowed an individual to string On its poles. The fact that the wire had become uninsulated at that point is not proof of negligence. Consoli- dated, etc. Co. v. Koepp, 64 Kan. 735 (1902). Suit lies against a city and a trolley Company and a telegraph COmpany for damages due to a heavy rainfall causing a telegraph wire to break and fall across a trolley wire and conduct a trolley current. Lewis ty. Harvey, 168 Pac. 856 (Kan. 1917). Where a person who is moving a der- rick on the highway climbs the der- rick so as to lift electric light wires Out of the way and is killed, the in- sulation on the wires having worn off, the company may be liable. Wade ^y. Empire, etc. Co., 158 Pac. 28 (Kan. 1916). The owner of a telephone wire is not liable for its conducting light- ning and killing a horse which stood under the Wire On the Side of the road during a storm, even though the Wire Sagged to within four feet of the ground. Simon v. Missouri, etc. Tel. Co., 154 Pac. 242 (Kan. 1916). Louisiana : Where a telephone wire is strung through electric-light wires SO ClOse that the two would touch in OScillating, thereby disturbing the in- Sulation, and this continued for nine months, and in the meantime the tele- phone Wire was no longer used and the Current injures children, both COmpanies are liable, the Court saying in regard to the electric-light cur- rent: “The prisoner of the company is more Sleepless and subtle and in its Stroke more quick and sure, Whence the need of even greater vig- ilance in keeping it safe within its prison Wire.” Simmons v. Shreve- port, etc. Co., 116 La. 1033 (1906). An electric-light company is liable for injury due to its current having passed through a broken telephone Wire and injured a person, where the electric-light Wire at the point of con- tact Was not insulated. Hebert v. Lake Charles, etc. Co., 111 La. 522 (1903). Where a person repairing a roof steps Over an electric-light wire and is killed by the current, the com- pany is liable where the wire seemed to be, but was not, insulated, and the city ordinance required such insula- tion. Clements v. Louisiana, El.., etc. Co., 44 La. Ann. 692 (1892). Maryland: Where electric-light Wires Sag and are uninsulated, it is for the jury to Say whether the COm- pany is responsible for their burning a person. On the Street. Annapolis, etc. Co. v. Fredericks, 109 Md. 595 (1909). Where an unused telephone wire Strung On the poles of a telegraph Company, breaks and falls across an electric-light Wire, Strung on the poles of a Street railway company, and hangs there for two weeks, and then the electric-light current passes through it and kills a person, the telegraph company and the Street railway are not liable, unless negli- gence on their part is shown. West- ern Union T. Co. v. Nelson, 82 Md. 293 (1896). - Massachusetts : Where a passer-by is killed by reason of his putting his hand. On a guy wire 6 feet and 8 ~424. º TEETEGRAPEI” L.A.W. $.5b g power, or trolley current run; through telegraph or telephone wires power-of-tºolkey-etterents—run-through-telegraph-or-telephone-wires inches about the ground running from a telephone pole to an electric light Company pole and conducting electric light current, the town owning the electric light pole is liable. O’Don- nell v. Inhabitants of North Attlebor- Ough, 111 N. E. 374 (Mass. 1916). Michigan. : Where telephone wires Sag down to an electric light wire and the latter is burned in two and falls and injures a child, both the village, aS OWner Of the electric light. Wire, and the telephone company, are liable. Sykes v. Village of Portland, 143 N. W. 326 (Mich. 1913). Company is not liable for an electric Current of a power company running On to its Wires and killing horses, Where the telephone company had properly Strung its wires. Neither is it liable for an electric shock due to an unusual Storm, but it must pro- vide against Storms which Ordinary prudence Would provide against. An- thony v. Cass County Tel. Co., 165 Mich. 388 (1911). Where a telephone Wire breaks and a child throws the end Over an electric-light wire nine- teen feet above the ground and the current injures the child, the electric- light company is not liable, even though the insulation was defective. Stark v. Muskegon, etc. Co., 141 Mich. 575 (1905). Missouri: Even though a house mov- er has no permit to move a house on a Street, yet if he does so and touches a trolley wire strung with telephone wires and is injured by the trolley current he may hold the trolley com- pany liable for having uninsulated wires. Blackburn v. Southwest, etc. R. R., 167 S. W. 457 (Mo. 1914). An electric light company having a wire running through a tree may be lia- ble for injury from its current to a boy who had climbed into the tree. Williams v. Springfield, etc. Co., 202 S. W. 1 (Mo. 1918). Where an electric- light company strings its wire near a telephone guy Wire and a child is in- A telephoné: jured by the current, both companies are liable. Freeman v. Missouri, etc. Tel. Co., 160 Mo. App. 271 (1912). Where a telephone wire strung on Street railway poles is broken by a Violent Storm in the afternoon and it falls across a trolley wire and con- ducts a Current, and early the next morning a child is killed by it, neither Company is liable, inasmuch as the trouble Could not have reasonably been foreseen. Strack v. Missouri, etc., Co., 216 Mo. 601 (1909). Where boys throw a loose wire over an electric- light Wire and the current thereby injures a person, the electric-light COmpany is not liable, even if the Wire WaS uninsulated at that point. Luehr- Imann v. Laclede, etc. Co., 127 Mo. App. 213 (1907). Montana : Where a telephone wire breaks and falls onto an electric-light Wire and conducts the electric-light Current to a guy Wire, and the current runs thence to a wire fence and kills a person, both companies are liable, the electric-light wire not being properly insulated, especially where they did not obey a municipal ordinance re- quiring the separation of such wires by at least four feet. Mize v. Rocky Mountain, etc. Co., 38 Mont. 521 (1909). New Jersey: Even though a tele- phone guy wire is erected before an electric-light wire is erected under it, yet if the guy wire breaks and con- ducts an electric current and kills a person, the telephone company is lia- ble, there having been no guard be- tween the two wires. Guinn v. Dela- ware, etc. Co., 72 N. J. L. 276 (1905). An electric-light company may be lia- ble for an injury due to a branch of a tree falling and breaking one of its wires and thereby conducting the cur- rent to the street. Spires v. Middle- sex, etc. Co., 70 N. J. L. 355 (1904). Where a telegraph wire breaks and falls upon an electric-light wire and wears off the insulation, and the A. fº ºr: A *- tº. * *, *w- # f As ºf 2 × ... tº * *. !!. %. €º º, e.g. A £ 2 & ". . ...-- £3. 3... cº- **.*.*.*.*.*-*. x^ &... * £x." ~ * * * *__ - - º # ** «. / :: ... A 4, & 3. . . ; { • * , Á- gº | { ; , , , t t t < * cº # * & º: , ; 3. cº-º § 3. sº ; **. gº *. º t : 8 ... *, *, *. & ºrt - º Yºº- Š-5b. *-TELEGRAPH sºlºwº, #25* to the jury, and the jury generally proceeds to assess the damages against all of the companies. The supreme court of Pennsylvania, how- electric-light current is conducted Div. 720 (1919). If two corporations through the telegraph wire and kills a person, the electric-light Company is liable for having allowed the tele- graph wire to remain and wear off the insulation, and the telegraph Com- pany is liable if it had not used rea- sonable care to prevent the breakage and reasonable care in discovering the breakage. Hamilton v. Borden- town, etc. Co., 68 N. J. L. 85 (1902). Where a telephone Wire breaks and falls across an electric-light Wire just below it, and then the end falls into the street and a person is injured by it, both companies are liable, inas- much as guard wires should have been erected. Rowe v. New York, etc. Co., 66 N. J. L. 19 (1901). Where a trolley current runs through a tele- phone wire and injures a person Who picks up the latter which was lying in a public highway, it is for the jury to say whether the telephone Company. was negligent in not discovering the fallen wire and whether the trolley company was negligent in not using guard wires. N. Y., etc. Tel. Co. v. Bennett, 62 N. J. L. 742 (1899). Where a person is injured by the Cur- rent of an electric-light wire which is trailing in the street, the presumption is that the corporation owning such wire was guilty of negligence. New- ark, etc. Co. v. Ruddy, 62 N. J. L. 305 (1898). New York: A person who grasps a suspended wire after having seen a horse apparently killed by it, is guilty of contributory negligence and his -estate cannot recover for his death. McNamee v. Western Union Tel. Co., 160 N. Y. App. Div. 784 (1914). The mere fact that a telephone pole is close to an electric light pole, and that a boy climbs the former 8 feet and then passes to the other and re- ceives the electric light current, does not render the telephone company lia- ble, even though the lectric light com- pany may be liable. Robertson v. Rockland, etc. Co., 187 N. Y. App. are jointly guilty of negligence, there may be a general Verdict against both and the trial court cannot set aside the Verdict as to one of them. Bam- berg v. International Ry. Co., 121 N. Y. App. Div. 1 (1907). Where a fire Causes a telephone and also an elec- tric-light Wire to sag and cross and injure a fireman both companies may be held liable. Horning v. Hudson, etc. CO., 111 N. Y. App. Div. 122 (1906); aff'd, 186 N. Y. 552. Where a telegraph or telephone wire falls On a trolley Wire and then. On a horse and the trolley Current passing through the telegraph wire kills the horse, the trolley company may not be liable. Albany v. Watervleit, etc. R. R., 76 Hun, 136 (1894). Where an individual Constructs an electric-light System in a Village, and then transfers it to a CorpOration in Which he holds most Of the stock, he is not personally liable for the death of a person by reason of the crossing of the electric Wire with a telephone wire, causing the electric Wire to melt and fall and convey the current through such per son, even though the negligent con- Struction of the electric System was made by him before the property was transferred to the Corporation. Gor- don v. Ashley, 77 N. Y. App. Div. 525 (1902). Where an electric-light wire burns and falls into the Street and a policeman strikes it and causes it to hit another person and the current injures the latter, the electric-light Company is not liable, the proximate Cause being the act of the policeman. Polito v. Pitriello, 89 N. E. 425 (N. Y. 1909). - North Carolina : Where an electric- light current passes through an elec- tric-light guy wire, thence through a trolley feed wire, thence through an- other unused electric-light guy wire, and kills a boy who grasps it, the company is liable. Haynes v. Raleigh Gas Co., 114 N. C. 203 (1894). * 436 .r.*...* TELEGRAPH LAW ...S. 5b. ever, holds very properly that even though in a storm a telephone wire breaks and crosses an electric-light Oklahoma : Uninsulated electric light Wires may constitute negligence. Sny- der v. Leavenworth, etc. Co., 157 Pac. 442 (Kan. 1916); Duncan, etc. Co. v. Chrisman, 157 Pac. 1031 (Okla. 1916). Oregon. : Where some time after a 1OW Voltage Wire has been legally erected on the street the city strings a high tension electric light wire Within three inches, and a person is injured by its current running on to the low tension wire, both the city and the Company are liable. Dygert ºv. City of Eugene, 143 Pac. 643 (Ore. 1914). Where a telephone company Ceases to use a Wire Strung on an elec- tric-light pole, and the electric-light Company places the Wire on a tele- phone pole, and the electric-light cur- rent then runs through it and injures a person, the telephone Company is liable. Ahern v. Oregon Tel. Co., 24 Oreg. 276 (1893). Pennsylvania: Damages cannot be recovered for injury to a boy who comes in contact with a wire by climb- ing up an awning pole, the wire be- ing eight Or ten feet above the side- walk. O'Gara v. Philadelphia Elec- tric Co., 90 Atl. 529 (Penn. 1914). Where a telephone guy wire becomes loose and touches an electric light wire, and the latter is burned and falls to the ground and kills a man, it is for the jury to decide whether the electric light company was guilty of negligence in failing to inspect properly. Dugan v. Erie County, etc. Co., 88 Atl. 437 (Pa. 1913). Unless it is shown that the negligence of an electric-light COmpany Caused One Of its wires to break and do harm, Or that the company failed to remedy the trouble with due and reasonable alacrity, the company is not liable to a person injured by the current. Kahn w. Kittanning, etc. Co., 85 Atl. 1117 (Penn. 1913). Even though in a storm a telephone Wire breaks and CrOSSes an electric-light wire and injures a pe- destrian, the telephone company is not liable unless it is shown that it is wire and injures a pedestrian, the Customary to have guards between the tWO Sets of Wires and that such guard WOuld have prevented the accident. Stark v. Pennsylvania Tel. Co., 225 Pa. St. 390 (1909). Where a telephone Wire breaks and drops onto an elec- tric-light Wire and causes the death Of a person, the electric-light com- pany is not liable on the ground that it did not have a screen above its Wire, there being no proof that a SU1 eeli is a reasonable procaution or is practicable. Stark v. Lancaster, etc. Co., 218 Pa. SL. 574 (1907). A telephone Company is liable for in- jury to a person by reason of an elec- tric-light current passing through its Wires to a person using the telephone. Delahunt v. United, etc. Co., 215 Pa. St. 241 (1906). The case should be Submitted to the jury where a painter Was killed by uninsulated electric- light Wires On a roof. Fitzgerald v. Edison, etc. Co., 207 Pa. St. 118 (1903). A person working on a roof Who is injured by a non-insulated electric Wire can hold the company liable for the defective insulation that caused the wire to “spit fire” for Several Weeks, and it is immaterial that it was unnecessary for him to go near it or that the wire was placed there Without authority. Will v. Edi- son, etc. Co., 200 Pa. St. 540 (1901). South Carolina : In a suit against a telephone Company. On account of its Wire breaking and conducting an elec- tric-light current and killing a person, it is error to charge the jury that the COmpany Was bound to keep its wires perfectly insulated. Lundy v. South- ern Bell T. & T. Co., 90 S. C. 25 (1911). Where an electric-light company holds itself out as the agent of another com- pany and the latter allows it, the latter may be liable for damages due to an injury from the electric-light Current. Laughlin v. Southern, etc. Corporation, 38 S. C. 62 (1909). Tennessee : Where a trolley wire is below a telephone wire and the latter breaks and falls across the former and ~$–5b. sºaſpºGRAPH-e E3%.W telephone company is not liable unless it is shown that it is customary injures a person the jury may find both companies guilty of negligence. Nashville, etc. Ry. v. Gregory, 193 S. W. 1053 (Tenn. 1917). Where a telephone wire is out of repair, and a burning building falls. On the pole and breaks it, and the wire breaks and falls on a trolley wire, and the trolley Current passes through the telephone wire and kills a horse, both the trol- ley and telephone companies are lia- ble. United E1. Ry. v. Shilton, 89 Tenn. 423 (1890). Teacas: A person working On a roof may hold a telegraph Company liable if its wire which is fastened to the roof breaks 10ose upon his trying to remove it and comes in touch with a trolley current and injures him. Pan- handle Tel. & Tel. Co. v. Harris, 136 S. W. 1129 (Tex. 1911). Where electric-lighting wires owned by a city pass Over a roof, and a policeman touches them, he cannot recover, al- though the owner of the building or his Servants might recover if they were injured, they being more than mere licensees. City of Greenville v. Pitts, 102 Tex. 1 (1908). An electric- light company is liable where a broken wire hangs from one of its poles for two weeks and the current injures a person, even though the wire belonged to some one else. Weh- ner v. Lagerfelt, 27 Tex. Civ. App. 520 (1901). Virginia : Where an electric-light wire breaks and falls into the Street and two hours afterwards a child is injured, the company is liable. Nor- folk Ry. & Light Co. v. Spratley, 103 Va. 379 (1905). Washington. : Where power wires are above telegraph wires and the employees Of the latter throw a rope over one of the power wires and cause it to burn and fall, and the current injures a person, the power company as Well as the telegraph company is liable if the power company’s auto- matic circuit worked and then the Company turned on the current again, but if the lower court dismisses the case as to the power company, the telegraph company cannot complain, the two companies being jointly and Severally liable. Metz v. Washington, etc. Co., 130 Pac. 343 (Wash. 1913). West Virginia : The mere fact that an insulator breaks and causes a highly charged electric wire to Sag and thereafter to shock a person, does not prove negligence, in the face of positive proof that reasonable care was not observed in construction and maintenance. Owen v. Appalachian Power Co., 89 S. E. 262 (W. Va. 1916). Where a trolley company strings its wires 8 inches under a telephone wire and the latter breaks and conducts a trolley Current and kills a horse the trolley company may be liable. Ed- monds v. Monongahela, etc. Co., 90 S. E. 230 (W. Va., 1916). An electric light Company is liable for injury to a person. On the highway by reason of a telephone wire breaking and dropping down across the electric light wire and remaining so for an unreasonable length of time. MOr- rison v. Appalachian Power Co., 84 S. E. 506 (W. Va. 1915). Visconsin. : Even though a guy Wire becomes displaced so as to COnduct an electric-light Current On that Same day and Cause the death of a perSOn, yet this may be sufficient time to charge the company with notice of the defect. Ryan v. Oshkosh, etc. Co., 138 Wis. 466 (1909). Where the insulation on an electric wire is merely to protect the wire itself and a perSOn On the roof is injured there- by, the Company may not be liable, especially if such insulation is such as iS COmmonly USed elsewhere. Ras- mussen v. Wisconsin, etc. Co., 133 Wis. 205 (1907). In a Suit in behalf of an infant against an electric-light COm- pany and a mover of houses, the latter Having permitted a Wire to CrOSS the electric-light wires and convey the Current and cause injury, the house- mover may be liable, even though a Settlement has been made with the 128 JTEEEGRAPH. T.A. Wºº -$7.5b." to have guards between the two sets of wires and that such guard would have prevented the accident." Somewhat different cases arise where the employees of one company, having wires in the street, are injured by an electric current from its own wires or from adjacent wires belonging to another company or from an electric current running from one wire into another. There the liability of the company is not so great, inasmuch as employees are more or less experienced and take the risks of the business and of the negligence of co-employees. Consequently a great variety of cases and questions become involved, and here too it is necessary to study the cases themselves.” electric-light company. Nagle v. Hake, 123 Wis. 256 (1904). * Stark v. Pennsylvania Tel. Co., 225 Pa. St. 390 (1909). * Federal courts: The liability Cre- ated by act of Congress for the death Of an employee of a railroad engaged in interState commerce displaces state Statutes On that Subject. Michigan Central R. R. v. Vreeland, 227 U. S. 59 (1913). A telephone lineman may hold his company liable for injury from an electric light current where he Came in contact with a trolley Span Wire which did not have a proper cir- cuit breaker and was attached to the pole on which he was working and which sustained telephone wires as Well as the span wire. Heckert v. Central District, etc. Tel. Co., 218 Fed. 29 (1914). A telephone company is liable for an injury to one of its line- men due to its allowing city electric light wires to be placed on its poles too close to the telephone wires with- Out installing circuit breakers. Heck- ert v. Central, etc. Tel. Co., 206 Fed. 653 (1913). Where the foreman of an electric-light company in trying to re- move a broken light wire, which in- terfered with his climbing an electric- light pole, was killed by the electric current passing -through such tele- phone wire, his representative may hold the telephone company liable. New England Tel. & Tel. Co. v. Moore, 179 Fed. 364 (1910). The owner of a building may be liable for injury to one of his servants who is injured by The cases given in the note below pertain only to a live wire on the top of the building. Colusa, etc. Co. v. MOnahan, 162 Fed. 276 (1908). Where a telephone line- man is stringing wires and is injured by an electric current passing Over the slack wire, which wire he had Słacked up in accordance With an Or- der of the foreman, the company is liable. New England, etc. Co. v. But- ler, 156 Fed. 321 (1907). Where a telephone lineman climbs a telephone pole and is injured by the current Of an electric-light wire from which the insulation had worn, it is for the jury to say whether he was negligent in not discovering the Wire. DOver v. Gloucester, etc. Co., 155 Fed. 256 (1907). Where a telephone lineman in climbing a telephone pale touches and is injured by an electric-light wire, which is four inches from the pole and not insulated, it is for the jury to decide whether the electric- light COmpany is liable and whether the lineman used due care, it being shown that the pole swayed and that the lineman had looked at the elec- tric-light wire and thought it was in- Sulated. Gloucester, etc. Co. v. DOver, 153 Fed. 139 (1907). An electric-light company is liable for the death of a telegraph lineman who touches an electric-light wire which is only nine inches from a telegraph pole, and the insulation. On Which has been worn or burned away without it being ap- parent. Memphis, etc. Co. v. Bell, 152 Fed. 677 (1907). A telephone “trouble finder” whose duty it is to ascertain --&-5b: HIELEGRAPHE LAW - 129 injuries to employees and other companies’ employees due to the elec- trie current and not to injuries due to defective poles, cross-arms, etc. This last class of cases are considered in the next section. It remains to add that a suit in one state for damages for a tort committed in another state is governed by the ground and measure of recovery." and repair troubles with the Wires, Cannot hold the company liable On account Of the Wire Crossing an elec- tric-light Wire and conducting the current and injuring him, when he knew the dangers and the method of avoiding them. The crossing of the wires did not prove negligence on the part of the telephone company. Bell Tel. Co. v. Detharding, . 148 Fed. 371 (1906). Alabama : A telephone lineman can- not recover damages for injury from an electric light Or wire company’s Wires On account of dangerous prox- imity, if the telephone wires were erected after the electric light or power Wires Were erected, although as to third persons it might be the duty of both companies to remedy the dan- ger. Dwight Mfg. Co. v. Word, 75 S. 979 (Ala. 1917). Arkansas: Where a telephone line is built across private property with- Out the consent of the owner, and the Wire is broken by workmen and Con- ducts a trolley current and injures One of them, either company is liable for the damage, there being no guards to keep the wires apart. Southwest- ern, etc. Co. v. Bruce, 89 Ark. 581 (1909). California : Where a judgment for a tort is against an electric-light Company and a telephone company and is collected from the electric-light COmpany, the latter cannot claim Contribution from the telephone com- pany. Dow v. Sunset Tel. & Tel. Co., 162 Cal. 136 (1912). Where a tele- phone company places a wire danger- law of the latter state as to the Ously close to an electric-light wire, the continuance of that wire in that position renders both companies liable to an employee of the telephone Com- pany Who is injured by the electric- Iight current passing through the tele- phone wire. Dow v. Sunset Tel. & Tel. Co., 157 Cal. 182 (1910). Com- pensation under the California. Work- men's Compensation Act cannot be a Warded to the estate of an experi- enced lineman who was killed by an electric current, who disobeyed or- ders in working without rubber gloves, When such rubber gloves had been furnished him. His conduct was “wilful misconduct.” Great Western Power Co. v. Pillsbury, 149 Pac. 35 (Cal. 1915). Connecticut: An electric-light COm- pany is liable for the death of an em- ployee of a Street-railway Company where the electric-light wires are maintained directly above the Street- railway poles and wires and proper precautions were not taken to pro- tect the employees of the Street rail- way. Cutler v. Putnam, etc. Co., 80 Conn. 470 (1908). GeOrgia : A telephone lineman Who has had several months’ experience cannot hold a city liable for city elec- tric-light wires, even though they Were Strung close to telephone wires and were not insulated, and hence gave him a shock when he touched them, especially where he had been warned. Zachry v. Mayor, etc. of City of Madison, 89 S. E. 594 (Ga. 1916). An electric-light company is liable to the employee of a telephone company * Western Union Tel. Co. v. Brown, 234 U. S. 542 (1914). A state court may entertain jurisdiction of a suit by a non-resident against a non-resi- dent Corporation based on negligence, even - though a COurt in another State has enjoined the Suit. State v. Dis- trict Court, 168 N. W. 589 (Minn. 1918). TEEEGRAPHF-ºff A. W. $.5c.-- Š-5e. Liability of corporation to its own employees.—The liability of a company to its own employees as well as the employees of other who is injured by electric current of the former running onto the wires Of the telephone company, the electric- light Company’s Wires being uninsu- lated, and it is no defense that the telephone Company was also negli- gent. Trammell v. Columbus R. CO., 9 Ga. App. 98 (1911). An electric- light Company is not liable for the death of an employee of a telephone company. On the poles of which the electric-light Wires have been strung, whore the employee was experienced and could see that the electric-light Wires were not insulated. Columbus R. Co. v. Dorsey, 119 Ga. 363 (1904). An employee Of a telephone company engaged On a fire-alarm pole in String 1 ng telephone Wires, who is injured by the current of a trolley “feeder” wire crossing the fire-alarm wire, cannot hold the trolley Company liable. Au- gusta. Ry. v. Andrews, 89 Ga. 653 (1892). Illinois : Where a telephone wire falls across an electric light wire and COnducts a Current to a third Wire and kills an employee of the Com- pany Own.jng the last mentioned wire it is for the jury to decide whether he was guilty Of Contributory negli- gence. Pressley v. Bloomington, etc Ry., etc. Co., 111 N. E. 511 (III. 1916). A foreman of a telephone COmpany who is killed by an electric-light cur- rent conducted by a telephone wire which, in being flipped by him onto a Cross-arm, COmes in Contact with a sagging electric-light wire, may hold the electric-light company liable. Hausler v. Commonwealth Electric Co., 240 Ill. 201 (1909). Where a Street-railway company does not, as required by Ordinance, maintain guard wires at points where its wires are under telephone wires, and a telephone lineman in removing a broken tele- phone wire is injured by the electric current due to the wire falling On the street-railroad wires, he may recover from the street-railway company. Conrad v. Springfield, etc. Ry., 240 Ill. 12 (1909). Where the lineman of a telegraph Company is injured by a Street railway electric Current trans- mitted by uninsulated feed wires placed just below the telegraph wires, but resembling them in appearance, it appearing that the foreman of the telegraph Company knew thereof and that the lineman did not, and the foreman did not inform him, both the Street-railway company and the tele- graph company may be held liable, and even though a verdict has been found against both, a settlement may be made by one, leaving the other Company liable for the entire verdict. It is no defense that an Ordinance re- quired the railway to place guard Wires above its wires. Postal Tel. etc. Co. v. Likes, 225 III. 249 (1907). Where an employee of a telephone Company, while at work, was killed by the current of an electric-light Wire which was not insulated as re- quired by the city ordinance, the elec- tric-light Company is liable. Com- monwealth, etc. Co. v. Hose, 214 I11. 545 (1905). An electric company is not liable for the death of an em- ployee of a telephone company who, in repairing the telephone wires, re- ceived the current of uninsulated elec- tric Wires, where there was no agree- ment between the two companies as to notice to be given to the employees of the telephone company as to when the current would be turned on, and it appearing that the employee knew that the electric wire was carrying a dangerous current. Rowe v. Taylor- ville, etc. Co., 213 III. 318 (1904). India?va A telephone company is entitled to a reasonable time in which to make repairs after notice Of de- fects before it is responsible for neg- ligence, but it is not necessary to prove that the company had actual notice of the breakage. Home Tel. Co. v. Weir, 101 N. E. 1020 (Ind. 1913). An electric-light company and a city and a trolley Company are ‘all liable for the death of a city employee § Be- TELEGRAPH LAW zºº.º-º-º-º-º: wire companies, where injury is done by a high tension electric cur- rent, is considered in the preceding section. We now come to injuries while inspecting city lighting appara- tus by reason of the city and eleStric light company current, where all the wires were on insufficient poles. Rich- mond, etc. Co. v. Rau, 110 N. E. 666 (Ind. 1914). A city lineman who while repairing police and fire-alarm Wires On telephone poles, is injured by an elec- tric-light current, may hold both Com- panies liable, the electric light Wires being in dangerous proximity to the telephone wires and poles. South Bend, etc. Tel. Co. v. Beaning, 105 N. E. 52 (Ind. 1914). A city owning an electric-light plant is liable to the representative of a telephone employee who is killed by the electric-light Cur- rent running into the telephone Wires. City of Logansport v. Smith, 47 Ind. App. 64 (1911). Where electric-light and telephone and city wires are all on the same pole and a city lineman is injured by the electric-light Current passing through a telephone cable Seat, it is for the jury to decide whether the two companies or either Of them are liable. Beaning v. South Bend, etc. Co., 45 Ind. App. 261 (1910). Where a telegraph lineman is injured by the Current of an electric-light wire Strung on the same pole as the telegraph wires, the electric-light company may show that even an insulated Wire would not be safe. South, etc. CO. v. Ambre, 44 Ind. App. 435 (1909). It is for the jury to say whether a tele- graph lineman was negligent in climb- ing a pole with a bare telegraph wire in his hand when he knew that there were electric-light wires On the pole, yet may not have known that the electric-light wires contained a cur- rent in the daytime, and it is a ques- tion for the jury, even though he might have avoided climbing the pole altogether by using apparatus which involved no risk. Ambre v. Postal Tel. etc. Co., 43 Ind. App. 47 (1909). The failure of a lineman to wear rubber gloves is not contributory negligence. Marion, etc. Co. v. Ver- million, 99 N. E. 55 (Ind. 1912). Withdrawing the decision in 94 N. E. 1038. IOwd A telephone lineman may hold an electric light company liable where the latter’s wires were Strung over and across the telephone Wires and were not insulated, even though the injury was due to a telephone wire escaping the lineman and recoiling over the electric light wire. Toney v. Interstate Power Co., 163 N. W. 394 (Iowa, 1917). A telephone company Imay be liable for the death of an elec- tric-light lineman caused by a guy wire Connecting the poles of the two companies and conducting the electric- light Current, but a settlement with the electric-light company releases also the telephone company. Snyder ^y. Mutual, etc. Co., 135 Iowa, 215 (1907). Where a telephone company allows an electric-light company to String Wires on the poles of the for- mer, the telephone company is liable to its employees for injury due to the electric-light current where the electric-light wires were not properly insulated and where the employee was not furnished with tools to test the wires. Barto v. Iowa, etc. Co., 126 Iowa, 241 (1904). Where a 1ine- man of a telephone company, in re- pairing its Wires, allows a wire to come in contact with an electric-light wire on the same pole and is killed, the electric-light company is liable if that COmpany did not insulate its Wires as required by the best prac- tice and by the municipal grant. Knowlton v. Des Moines, etc. Co., 117 Iowa, 451 (1902). Kansas : A telephone company was held liable in Rambo v. Empire, etc. Co., 133 Pac. 553 (Ran. 1913) for the death of One of its linemen in climb- ing a telephone pole and Coming in contact with defectively insulated high tension electric-light wires. The estate of a telephone lineman, who, in ascending a telephone poles, touches an electric-light wire ten or twelve inches from the telephone wire, *#34– -1- & * 132' due to poles, cross-arms, etc. The both On different poles, and is killed, has a cause of action against both COmpanies, the court saying that the telephone company might have pre- Vented the electric-light company Stringing its wires so near. Biddle ºv. Leavenworth, etc. Co., 87 Kan. 604 (1912). Kentucky: Even though an electric light Company having a current too high to be insulated leases pole space for telephone wires, yet if the latter are 8% feet below the electric light Wires and a telephone lilieman throws a telephone wire in the air and it touches the electric light wire and injures another lineman, the electric light Company is not liable. Ken- tucky, etc. Co. v. Searcy, 181 S. W. 662 (Ky. 1916). The estate of a telephone man who repairs a telephone which has been burned out by a high ten- SiOn Current and who has been told about the high tension current, can- not recover damages if he is killed. Cumberland Tel. & Tel. Co. v. Mag- ness’ Adm’x, 160 S. W. 1061 (Ky. 1913). A telephone company is not liable for the death of one of its line- men on account of electric-light wires On the telephone pole where he knew of the uninsulated condition of such electric-light wires, but the electric- light company may be held liable. Anglea’s Adm’x v. East Tennessee Tel. Co., 142 Ky. 539 (1911). Where a telegraph lineman is killed by coming in contact with electric-light wires which are adjacent to the telegraph pole on which the lineman is working, His estate may hold the electric-light company liable if it did not use the highest practicable care and skill to insulate the wires. Bowling Green, etc. Co. v. Dean’s Ex’x, 142 Ky. 678 (1911). A telephone lineman may hold his company liable where he is injured by a power current passing through a guy wire, there being no current breakers on the guy wire and there being some evidence that the telephone company had notice of the power current being there. Citizens’ *TEEEEGRAPHº-W- ...Sºc. - liability of a company to its em- Tel. Co. v. Wakefield, 126 S. W. 127 (Ky. 1910). An expert electrician who knows that a wire is heavily Charged with electricity and yet at- tempts to handle it, using his cap as an insulator, is guilty of contributory negligence and cannot recover. Capi- tal Gas, etc. Co. v. Davis’ Adm’r, 138 Ky. 628 (1910). A telephone com- pany is not liable for the death of an employee of another telephone com- pany who went upon the poles of the former COmpany. Without its knowl- edge. Louisville, etc. Co. 4), Reeler’s Adm’r, 125 Ky. 366 (1907). Where an employee of an electric-light com- pany climbs a pole of that company to make repairs, and accidentally touches a wire strung on the top of the pole by a telegraph company and is injured by completing the circuit of the electric-light current, he can- not hold the telegraph company lia- ble, it having had no knowledge of the danger. Martin v. Citizens’, etc. Co., 92 S. W. 547 (Ky. 1906). Where an employee of a telephone company in fastening a guy wire for that com- pany to the top of one of its poles comes in contact with an electric- light wire without fault on his part and is injured he may hold the elec- tric-light Company liable. Overall v. Louisville, etc. Co., 47 S. W. 442 (Ky. 1898). - Louisiana : Where a Storm at night Causes telephone and electric light Wires to Cross and an experienced em- ployee is sent out to discover and re- port the place but not to effect the Separating Of the wires, he cannot recover from either company for a shock if he touches the telephone wire to see whether it is in contact with the electric light wire. Borell v. Cum- berland Tel. & Tel. Co., 63 S. 247 (La. 1913). Where an employee of a tele- phone Company is stringing a wire on its poles above the wires of an elec- tric Company, and the wires of the . latter are not insulated and by acci- dent the Wire of the former comes in contact with the wires of the latter. $.5e;-- *… * ſº s & … TEEEGRAPH"Iºw:- ployees is not so great as to strangers, inasmuch as employees take and kills the employee, the latter Com- pany is liable. Whitworth v. Shreve- port, etc. Ry., 112 La. 363 (1904). A trolley company is liable for the death of an employee of a telephone com- pany, Where the trolley current passes into the telephone wire and kills Such employee while stringing the tele- phone Wires, there being no insula- tion. Potts v. Shreveport, etc. Ry., 110 La. 1 (1903). Maryland: A lineman of an electric- light company who climbs a pole OWned by a telephone company on which there are electric-light Cross- arms and Wires, cannot hold either Company liable for the breaking of a CrOSS-arm belonging to the telephone Company When he had no reason to Suppose that the Cross-arms had been inspected and he did not inspect the CrOSS-arm himself and there was no proof that the cross-arm when origi- nally erected was defective or that the electric-light company knew of any defect. Consolidated, etc. Co. v. Chambers, 112 Md. 324 (1910). An emploeye of a telephone company who, while at work on one of its poles, is injured by an electric-light current, may hold the electric-light company liable, because it had not placed and insulated its wires SO as to permit him to work in safety. Ziehm v. United, etc. Co., 104 Md. 48 (1906). Massachusetts: An experienced tele- phone lineman who, while changing the location of a messenger wire be- cause it was too near an electric-light wire, stands On a copper roof and is injured by the electric-light current cannot recover. Woodward v. City of Taunton, 203 Mass. 63 (1909). Where an electric-light current is conducted by a trolley wire and kills an em- ployee of the electric-light company, the trolley Company may be held lia- ble, there being no guard wire above the trolley to prevent such an acci- dent. Mahan v. Newton, etc. Ry., 189 Mass. 1 (1905). Where a telephone company is using a street-railway Company’s poles under a contract by which the latter is not to be liable for injury, an employee of the former may not be able to hold the latter liable for an injury due to the trolley electric current. Sias v. Lowell, etc. Ry., 179 Mass. 343 (1901). Where a city strings its fire-alarm wires on electric- light poles with the consent of the company, and an employee of the city is injured by the current, it is for a jury to decide whether the electric- light COmpany is liable. Barker v. Boston, etc. Co., 178 Mass. 503 (1901). An electric-light company is not lia- ble for an injury caused by its wires on a building to a lineman of a tele- phone company, unless it is shown that the electric company had invited or licensed the lineman to go there. Hector v. Boston, etc. Co., 174 Mass. 212 (1899). A lineman, an emplayee Of a city that by contract strings its wires on electric-light poles, may hold the electric-light company liable for injuries due to the latter’s wires not being properly insulated. Illings- worth v. Boston, etc. Co., 161 MaSS. 583 (1894). An employee of a tele- phone company who, in repairing the line on a building, unnecessarily goes On another building, and is injured by the current from wires of an elec- tric-light company, cannot hold the latter liable. Hector v. Boston, etc. Co., 161 Mass. 558 (1894). Michigan. : Where an electric light wire is only from eight to fourteen inches from a telephone wire and should be forty inches, both COm- panies may be held liable for an acci- dent. Sykes v. Village of Portland, 159 N. W. 325 (Mich. 1916). A trol- ley line that strings its high tension uninsulated wires only a foot and a half above telephone wires already erected may be liable to the estate of a telephone lineman who was killed by the current. Teach out v. Grand Rapids, etc. Ry., 146 N. W. 241 (Mich. 1914). A city which has strung its electric-light wires on telephone poles under an ordinance authorizing it to do so is liable for the death of a atº- Aº * ... rº …” TELEGRAPH LAW - the risk of the business, and inasmuch as they cannot hold the com- telephone lineman by reason of the electric-light Current Wire not being properly insulated. Hodgins v. Bay City, 156 Mich. 687 (1909). Where two electric-light wires cross very closely to each other, and an employee WOrking On One Which is dead receives the current by reason of the two Wires meeting, the company is liable. Kraatz v. Brush Elec. L. Co., 82 Mich. 457 (1890). Minnesota. An electric-light Com- pany is liable to an employee of a telephone COmpa 11y W110 is killed by the electric-light current running onto a Wire which was being passed to the deceased by another servant; the Wires of both Companies being on the Same poles, but the telephone wires being above the electric-light wires. The question is for the jury. Musolf v. Duluth, etc. Co., 108 Minn. 369 (1909), holding also that an agree- nent by an injured telephone em- ployee that he will not Sue the tele- phone company unless it is held as a matter of law that he cannot hold lia- ble an electric-light company for the damage, and unless the COnsideration paid to him should be returned to the telephone Company, is a COVenant not to Sue and is not a release barring his remedy against the electric-light COm- pany, and the consideration is not to be deducted from the verdict. Mississippi : Where telephone wires run. Over and at right angles to elec- tric light wires and there are no guards, and a telephone wire breaks and becomes charged, and a telephone lineman in attempting to repair it climbs a telephone pole to cut the wire and afterwards was killed by the electric light current, the estate Cannot hold the telephone Company liable unless the lineman Was inex- perienced, but may hold the city lia- ble as Owner of the electric light wires. Cumberland Tel. & Tel. Co. v. CoSnahan, 62. S. 824 (Miss. 1913). A telephone company may be held liable for the death of One of its linemen due to his having come in contact With high-tension wires it being al- leged that the telephone line was con- structed without regard to its prox- imity to such wires and the company had failed to insulate its wires. Berry ^). Cumberland, etc. Co., 95 Minn. 729 (1909). Missouri: A city owning an electric light line constructed only two feet from a telephone line, may be liable to an employee of the latter who throws a rope Over the cross-arms of both companies in stringing a tele- phono wire. Mahaney aſ City of In- dependence, 183 S. W. 1117 (Mo. 1916). Where an electric light com- pany replaces poles owned by the city on condition that the city and a tele- phone company and the electric light COmpany Wires shall be On the new poles, and a telephone lineman is in- jured by the electric light current thereafter he may hold the electric light company liable. Hill v. Union, etc. Co., 169 S. W. 345 (Mo. 1914). Where an electric-light company and a telephone Company have a joint pole and an employee of the latter is injured by the electric-light current, On account of the electric-light wires not being properly insulated, the electric-light Company is liable. Trout ^y. Laclede, etc. Co., 151 MO. App. 207 (1910). An electric-light company employee Cannot recover damages for an injury due to its current by rea- son of his taking hold of an uninsu- lated telephone wire which had fallen across the electric-light company’s Wire, where he did not use rubber gloves and knew that he would have been Safe if he had used them. Jef- frey v. Union, etc. Co., 153 S. W. 498 {MO. 1913). A severe but not extraor- dinary storm is no defense, and a tele- phOne Company is liable to One of its linemen for injury due to so placing its wires that they conducted an elec- tric-light current. Smith v. Missouri, etc. Co., 113 MO. App. 429 (1905). A lineman engaged in constructing a telegraph line cannot recover damages by reason of an injury to him from an pany liable for the negligence of electric current which passes through a wire, it being shown that the usual current for telegraph purposes WaS not strong enough to cause the injury and that the Current must have COme from some other wires or from light- ning. The fact that the lineman, Who was experienced in the business, felt the unusual current and so informed the foreman, and the foreman there- upon felt the wire and said that the current was of no consequence, and that thereupon the lineman proceeded with his WOrk and was afterwards in- jured by reason of the unusual Cur- rent returning again, does not enable him to recover damages. Epperson v. Postal, etc. Co., 155 Mo. 346 (1899). Nebrask:0 Where an Ordinance re- quires electric-light wires to be five feet away from the telephone Wires, and also requires them to be insu- lated, an employee of a telephone COm- pany, who is injured by an electric- light wire, which does not Comply with such Ordinance, may hold the telephone company liable. Olson v. Nebraska Tel. Co., 85 Neb. 331 (1909). A telephone Company may be liable to one of its linemen who is injured by the current of electric-light wires, even though the latter were COn- structed after the telephone line was Constructed, it appearing that the tele- phOne Company had the contract right to have the electric-light wires re- moved. Olson v. Nebraska, Tel. Co., 87 Neb. 593 (1910). New Jersey: If the electric-light COmpany has been accustomed to turn off its current during the day, and it does not do SO On an occasion when a telephone company’s employee is in- jured, the question of negligence may be for the jury. Snyder v. New York, etc. Tel. Co., 73 N. J. L., 535 (1906). Where an employee of a street rail- Way in taking down a feed wire acci- dentally breaks an electric-light wire, Which was strung upon the same poles, and is killed by the electric- light Current, the electric-light Com- pany is not liable even though its TELEGRAPH LAW- fellow-servants. Aside from such Current Was not turned on when the deceased first touched its wire, but Was turned on Subsequently. New- ark, etc. Co. v. McGilvery, 62 N. J. L. 451 (1898). New York: Where a telephone com- pany places a guy wire without a cir- Cuit breaker just above a trolley feed Wire and a telephone lineman is killed by reason of the feed wire sway- ing and touching the guy wire, the trolley Company is not liable even though the insulation of its feed wire had Worm off, the guy wire having been erected after the trolley wire Was in place. Magee v. N. Y. Tel. Co., 213 N. Y. 232 (1914). General in- Structions to a lineman to beware of danger and use rubber gloves does not bar recovery by him for injury from an electric shock where rubber gloves are not usually used in the work in Which he is engaged, and where the COmpany did not enforce the rule as to the use of gloves. Larkin v. N. Y. Tel. Co., 220 N. Y. 27 (1917). Even though an electric light company knows that a telephone company has attached telephone wires to a pole Of the electric light company, yet if the latter did not authorize these at- tachments it is not liable to the estate of a telephone lineman who was killed by touching a defectively in- Sulated electric light wire. Heskell ty. Auburn Light, etc. Co., 209 N. Y. 86 (1913). A foreman is not bound to See that an experienced lineman Wears rubber gloves. Horan v. New York, N. H. & H. R. R., 171 N. Y. App. Div. 180 (1916). Where a telephone pole falls across a trolley wire and a trolley employee is injured by the trolley electric Current running through the telephone wire, he may hold the telephone company liable. The defense of fellow Servants does not apply. Williams v. New York Tel. Co., 81 N. Y. Misc. 310 (1913). A tele- phone Company is not liable to One of its linemen Who is killed by an elec- tric-light current while repairing tele- phone wires on the electric-light pole, 136 osºvº; * C º defenses as these, however, the company may be held liable for its there being no proof that he had pre- viously repaired wires on that pole or was directed to repair them, or had any reason to believe that the electric- light Wires were not properly insu- lated. Geer v. New York, etc. Tel. Co., 144 N. Y. App. Div. 874 (1911). Both a power company and a tele- phone Company may be liable for the death of a street-railway employee who is killed by the electric current Of the power company conveyed after a storm which broke down telephone wires and caused them to fall across a power COmpany wire. Lee v. Still- water, etc. Ry., 140 N. Y. App. Div. 779 (1910). A telephone lineman may hold his Company liable for a shock from a high-voltage wire which his company had allowed an electric-light company to place on the pole, he not having notice that it was there. Raab v. Hudson River Tel. Co., 139 N. Y. App. Div. 286 (1910). phone company is not liable for the death of one of its linemen, who, while Stringing a telephone wire, touched a high-tension trolley wire, even though it is shown there was no guard Or protection or cradle between the wires, there being no evidence that Such guard was feasible or practicable. Conklin v. Central, etc. Co., 130 N. Y. App. Div. 308 (1909). A telephone 1ineman may hold an electric-light company liable where in ascending a pole he was injured by the electric current at a point where the insula- tion had worn off, it appearing that his foreman stated that no rubber gloves were needed. Dutcher v. Rock- land, etc. Co., 123 N. Y. App. Div. 765 (1908); aff'd, 195 N. Y. 540. Where a telephone employee knows of the proximity of an electric-light wire and he had the means and authority to shut off the current, he cannot recover for an injury therefrom, even though the foreman had agreed to shut off the current, but had failed to do so. Ang- lin v. American, etc. Co., 109 N. Y. App. Div. 237 (1905); aff'd, 186 N. Y. 590. An electric street railway may A tele- be liable to an employee of a contrac- tor, engaged to paint its poles, for an injury due to defective insulation. Kennealy v. Westchester, etc. Co., 86 N. Y. App. Div. 293 (1903); affºd, 181 N. Y. 582. Where a trolley company allowed the city to string its wires On the trolley company’s poles, an employee of the city who is injured by the trolley current may hold the trolley Company liable, the insulation having been imperfect for over a year and easily discovered, even though the employee had a pass over the trol- ley lines and had waived liability. Wagner v. Brooklyn, etc. R. R., 69 N. Y. App. Div. 349 (1902); aff’d, 174 N. Y. 520. An electric-light company is liable where it strings its Wires above a telegraph wire and its wire Sags so as to Convey the current to the telegraph wire, to which wire it is conveyed, and kills a lineman em- ployed by the city which owns still Other telegraph wires. Paine v. Elec- tric, etc. Co., 64 N. Y. App. Div. 477 (1901). An electric-light company is liable for injury to One of its linemen by reason of the current being turned On while he was at work, it being shown that he notified the employee in charge of the dynamos not to turn. On the current until the work was fin- ished, and it being shown also that Such employee in charge of the dyna- moS Was incompetent. Malay v. Mount Morris, etc. Co., 41 N. Y. App. Div. 574 (1899). Where a telegraph em- ployee at work on a telegraph pole touches an electric-light wire and is killed, the question of the liability of the electric-light company may be Sub- mitted to the jury. Dwyer v. Buffalo Elec. Co., 20 N. Y. App. Div. 124 (1897). North Carolina. A telegraph COm- pany is liable for one of its linemen being killed by the current of an ad. jacent electric-light wire where a rope was generally used but was not used in this instance. Hicks v. Western Union Tel. Co., 157 N. C. 519 (1911). Where an ordinance requires wires to “Ś.& ~50,-, ..TELEGRA::PiHºà"Wºrs negligence, causing injury to its employees. Such cases arise from be insulated, the absence of such in- Sulation is prima facie proof of negli- gence on the part of an electric-light Company, in a Suit against it, causing the death of an employee of a tele- phone Company, who was stringing a telephone Wire over the electric-light wire, and allowed the telephone wire to Sag on to the electric-light wire. Mitchell v. Raleigh, etc. Co., 129 N. C. 166 (1901). Ohio: Where a telephone employee is injured by the electric current Of an electric-light wire Strung on the tele- phone poles, inasmuch as each COm- pany is under the same obligations to the employees Of the other Com- pany as to its own employees, and the employees of each must exercise the same care with respect to both Of the companies, if the employee of the telephone COmpany used an appliance which he knew was intended for an- Other purpose, and that caused the injury, he cannot recover. Cincinnati, etc. Co. v. Archdeacon, 80 Ohio St. 27 (1909). Oklahoma : Where the current from an uninsulated electric-light wire Causes an injury to a telephone line- man, by reason of the proximity of the wires, the electric-light company is liable to him. Ladow v. Oklahoma etc. Co., 28 Okla. 15 (1911). Oregon : An electric Street railway, which has its wires on telephone poles and for a day and a half allows its wire to be in contact with a telephone wire, may be liable for an injury to a telephone lineman on account of the high-tension current. Gentzkow v. Portland Ry., 54 Oreg. 114 (1909). Pennsylvania: An electric light company is liable for the death of a telephone lineman who in perform- ance of his duty comes in contact with an uninsulated electric light wire which to the knowledge of the elec- tric light Company has been danger- ous for some time. Hipple v. Edison, etc. Co., 87 Atl. 297 (Pa. 1913). An electric-light company may be liable for its current killing the foreman of a trolley Company by reason of a trol- ley pole touching uninsulated wires While the pole is being erected. Gries- emer v. Suburban, etc. Co., 224 Pa. St. 328 (1909). A telephone lineman Cannot hold an electric-light com- pany liable, even though he is in- jured by that company’s current pass- ing on to the telephone wire, it being ShOWn in defense that he had had six- teen years’ experience and failed to use rubber gloves, although he knew that the electric-light wire was on the pole, and it appearing also that the construction by the electric-light com- pany was proper. Reed v. Norris- town, etc. Co., 223 Pa. St. 591 (1909). A telegraph Company may be liable for the death of a trimmer in the employ of an electric-light company Caused by an unused telegraph wire CrOSSing an electric-light wire. Dan- nenhower v. Western, etc. Co., 218 Pa. St. 216 (1907). Where an electric- light employee places one hand on an electric-light wire and the other upon a telephone wire on the same pole, and is injured, he being an experi- enced man, he cannot recover. More- OVer, a non-Suit Cannot be entered against One of these defendants and judgment entered against the other, they being sued as joint tort-feasors, and there being no proof of any joint treSpa SS Or any concert of action. Hart ty. Allegheny, etc. Co., 201 Pa. St. 234 (1902). Rhode Island: An experienced “trouble hunter” for an electric-light company is bound to exercise the highest degree of care, and cannot re- cover from a telephone company even though he is injured while working on a telephone line on which the elec- tric-light wires were strung. Milne v. Providence, etc. Co., 29 R. I. 504 (1909). South Carolina: Even though a guy wire on a telephone pole conducts an electric light current and kills a line- man who was on the guy wire, his estate cannot recover, such use of the guy wire not being usual or proper. 137-sº * * - 138. gº” cºrrº”---...s. TEHEeºfºº #ff LAw Tº the falling of poles, or the breaking of cross-arms, or in the use of appa- Harrison v. Southern Bell Tel. & Tel. Co., 86 S. E. 5 (S. C. 1915). In the case Jones v. Postal, etc. Co., 91 S. C. 273 (1912), the court held that it is the duty of a lineman to inspect a pole before climbing it, and hence the company is not liable if the pole falls, but the court held that where the COmpany also has an in SpectOr exam- ine the poles it is for the jury to say whether the lineman took the entire risk. Teacas: Where a telephone lineman is injured by an cloctric current riſin- ning from electric light wires to a guy wire which the telephone com- pany had erected, both companies may be liable. A release to the telephone company obtained when he was under the influence of medicine and suffer- ing from his injury is not binding. Gulf States Tel. Co. v. Evetts, 188 S. W. 289 (Tex. 1916). Where a wet rope, conducts an electric current from an electric light wire and injures a telephone lineman, the telephone com- pany may not be liable. Southwestern Tel. & Tel. Co. v. Sanders, 173 S. W. 865 (Tex. 1915). A telegraph lineman may hold a power company liable for having its current turned on when he was making repairs, the wires of the two companies being close together. Dennison, etc. Co. v. Patton, 135 S. W. 1040 (Tex. 1911). An experienced telephone lineman cannot complain that while on One of its poles he re- ceived a shock from an electric-light Current by placing his hands On an iron step in contact with the electric- light wire which was supposed to be dead, but which was charged by con- tact at a distance with a wire of a third company which was negligent. The rule that linemen should deal With wires as though they Were charged, put upon him the risk of the business. Ft. Worth, etc. Co. v. Moore, 55 Tex. Civ. App. 157 (1909). Where the personal representative of a lineman of a telephone COmpany sues that company and an electric-light company for injury for damages re- Sulting in his death, due to his touch- ing uninsulated electric-light wires While climbing a telephone pole, the Court may charge a jury. that if they find against both companies they may also find for the telephone com- pany against the electric-light com- pany. San Antonio, etc. Co. v. Bad- ders, 46 Tex. Civ. App. 559 (1907). Where two electric companies have COmbined and use the same poles, each is bound to use ordinary care in protecting the employees of the other from injury hy the former’s current. Dallas, etc. Co. v. Mitchell, 33 Tex. Civ. App. 424 (1903). Where an employee of a telegraph Company is Ordered to pass a rope under electric- light wires and does so knowing the danger, he cannot recover for injuries due to the current. Newnom v. Southwestern, etc. Co., 47 S. W. 669 (Texas, 1898). - Utah : It is for the jury to decide whether a telephone lineman may hold an electric-light ocmpany liable for damage due to the electric-light cur- rent where the electric-light wire was dangerously near the telephone wire. Swan v. Salt Lake, etc. Ry., 127 Pac. 267 (Utah, 1912). Vermont: A telephone lineman may hold both the telephone company and an electric-light company liable for injury due to their wires being so close together as to injure him while Working on a pole which is close to the electric-light pole, the danger not being apparent and the insulation be- ing imperfect. Drown v. New Eng- land, etc. Co., 80 Vt. 1 (1907). A. telephone company may be liable for an injury to one of its employees using an electric-light pole to repair the telephone wires, as ordered by the telephone company, the injury being due to the electric-light current. Miner v. Franklin, etc. Co., 83 Vt. 311 (1910). A telephone lineman may hold his company and an electric-light company liable for injury to him by reason of his coming in contact with the electric-light wires while he was $.5e: .,-- " ". #" § 5G- TELEGR.A.P.H. L.A.W. ratus, or in construction or repair work or in any of the multitudinous ways in which accidents occur." Even though an electric light com- pany knows that a telephone company has attached telephone wires to a pole of the electric light company, yet if the latter did not author- ize these attachments it is not liable to the estate of a telephone line- Iſla.]] Wh9 was killed by touching a defectively insulated electric light wire.*}{Turning to the subject of settlement and release where two or engaged in repairing telephone wires, even though he knew the electric-light Wires were just above the telephone pole he was Working on, and knew that they were of high voltage and Contained a dangerous electric cur- rent, and that the only safe way was to keep away from them. It was the duty of the telephone company to see that the electric-light wires were kept a Safe distance from the telephone poles, and it was bound to know that they were not so kept, and the tele- phone company was bound to know that the electric-light wires had sag- ged, if such was the case. The elec- tric-light company on the other hand Was bound to know that the telephone employees would, while working, COme in contact with the electric-light Wires. The employee, however, was bound to take greater care than “an Ordinarily prudent man.” Drown v. New England, etc. Co., 81 Vt. 358 (1908). Virginia: Where a telephone line- man iS Warned by his foreman not to touch electric-light wires, but he does SO, his estate Cannot recover. Not- tingham v. Ackiss, 110 Va. 810 (1910). A city having its electric-light wires On Street-railway poles is liable if an employee Of the Street-railway Com- pany is injured by the eelctric-light Current while painting the pole, the wire not being insulated. City of Danville v. Thornton, 110 Va. 541 (1910). Washington : Where a telephone COmpany and a Street-railway COm- pany use the same poles, and, by reason Of the breaking of an insulator, a wire of the railway company charged with electricity injures an employee Of the telephone Company, he cannot recover from the latter if he might have ascertained the fact by testing. Anderson v. Inland Tel. & Tel. Co., 19 Wash. 575 (1898). West Virginia. A trolley road is lia- ble to the estate Of One Of its line- men who while on a pole comes in Contact with its current and a tele- phone wire and is killed. Perry v. Ohio, etc. Ry.,, 78 S. E. 692 (W. Va., 1913). Wisconsin: A laborer assumes the risk incident to handling telephone poles which have been stacked up. Baetz v. Valentine-Clark Co., 140 N. W. 54 (Wis. 1913). The represen- tatives of a telephone lineman may hold an electric-light company liable for his death by their current where their span wire attached to a tele- phOne pole had sagged and touched their feed wire. A bulletin. Of the telephone company Warning its em- ployees in regard to poles having electric-light wires is no defense, because that related only to ordinary risks. Leque v. Macison, etc. Co., 133 Wis. 547 (1907). * Federal courts: A Suit in One State for damages for a tort committed in another state is governed by the law of the latter state as to the ground and measure of recovery. Western |Union Tel. Co. v. Brown, 234 U. S. 542 (1914). As to whether a foreman is a fellow-servant, see Alaska Min. Co. v. Whelan, 168 U. S. 86 (1897). A “casual” lineman who is injured by a pole falling, upon which he had climbed, is not chargeable with con- tributory negligence Or assumption of the risk of the business where the * Heskell v. Auburn Light, etc. Co., 209 N. Y. 86 (1913). See also $ 5a. .#39--" " J40” TELEGRAPH-ELAW -** - sº more companies are jointly and severally liable an agreement by an pole Was decayed below the Surface of the ground, and the defect was not Visible by inspection above the ground. Western Union Tel. Co. v. Hickman, 248 Fed. 899 (1918). If a lineman re- Quests a foreman to furnish a “dead- man” and the foreman says it is un- necessary, the lineman does not as- Sume that risk. Coal & Coke Ry. Co. ^y. Deal, 231 Fed. 604 (1916), holding also that a lineman erecting a tele- graph pole on a railroad for wires to direct trains engaged in interstate COmmerce COmeS Within the Federal Employees’ and Federal Employers’ Liability Act. A lineman who is in- jured in taking down poles by reason of the fact that he was not furnished With the proper tools may hold the COmpany liable. Postal Tel. etc. Co. v. Grantham, 187 Fed. 52 (1911). A line- man may recover for an injury, due to a pole falling while being erected, it appearing that the usual appliances for erecting poles were not furnished. Kansas City, etc. Ry. v. Rogers, 203 Fed. 462 (1913). Where a lineman IS injured by the falling of a pole on Which he is at work, and which is rotten below the sidewalk in which it is planted, he may hold the com- pany liable under the Massachusetts employees’ liability statute, where the falling of the pole was due to the directions of one who was not work- ing but was giving directions. Where, however, suit is brought against the OWner of the pole and also the com- pany that was doing the work, the latter Only is liable. Munroe v. Ley & Co., 156 Fed. 468 (1907). A tele- phone company is not liable to one of its linemen who was injured by the falling of a defective pole from which he was removing the Wires in COn- nection with the taking down of the line. Britton v. Central, etc. Co., 131 Fed. 844 (1904). A telegraph Com- pany is liable where its foreman, causes an inexperienced employee to climb a pole and saw it off near the top, thereby causing the employee to fall. Western Union Tel. Co. v. Bur- gess, 108 Fed. 26 (1901). A telegraph employee who, according to Orders, climbs the pole of another Company to get certain wires out of the Way, and falls and is injured by reason. Of One of the iron Spikes On the side of the pole—used to step on in climbing— Coming Out by reason of the rotten- ness of the pole, Cannot hold the tele- graph company liable. Dixon v. West- ern Union Tel. Co., 68 Fed. 630 (1895). A “lineman” engaged as One of the Crew, in Tepal I’llig a teleg 1 apll line under the immediate charge of a foreman having power to hire and discharge the men, assumes the risk of the falling of an insufficiently guyed “gin pole” (One guyed for the pur- pose of setting other poles), which he ascends by Order of the foreman. Greene v. Western Union Tel. Co., 72 Fed. 250 (1892). - A ricansas: Where a telegraph Com- pany is using a railroad handcar to transport telegraph poles to be used in construction, and the poles While the car is in motion rock and injure the conductor of the car who had been assigned to that duty by the railroad company, the telegraph company is liable. Mackay Tel., etc. Co. v. ROW- land, 162 S. W. 54 (Ark. 1913), A lineman who is a minor and inexpe- rienced and is not warned by the company as to the danger of climb- ing poles that may be rotten at the bottom, may hold the company liable for injury due to the falling of a pole. N. Arkansas Tel. Co. v. Steiner, 95 Ark. 275 (1910). Where a telephone company is taking down poles, some of which are decayed, and an employee, after examining a pole, is satisfied that it is safe, and goes up and Cuts the wires, and the pole falls and kills him, the company is not liable. Southwestern Tel. Co. v. WOughter, 56 Ark. 206 (1892). California : A lineman who is injured by a falling tree which has been cut by his associates may not be able to hold the company liable. Vestner v. Northern California, etc. & -56: “ -TELEGRAPH-LAW injured telephone employee that he will not sue the telephone com- Co., 158 Cal. 284 (1910). A cor- poration is not liable for medical as- sistance to one of its injured em- ployees unless the Corporation SO agreed. Rich v. Edison Electric Co., 18 Cal. App. 354 (1912). Colorado: Where a lineman has been engaged for SOme time in remov- ing decayed poles, and is injured by One falling, he cannot recover from the company, especially where he did not examine the pole to see whether ić was sale. Kellogg v. Denver, etc. Co., 18 Colo. App. 475 (1903). Connecticut: An experienced line- man Cannot recover from his em- ployer, a telephone Company, On a C- count Of a pole falling when he removed the wires therefrom, where it was his duty to test the pole before Climbing it. McGorty v. Southern, etc. Tel. Co., 69 Conn. 635 (1897). Idaho: A telephone company is lia- ble for injury to its lineman by rea- son of a pole breaking after he had climbed it to make repairs, the break being due to decay below the surface Of the ground and it not being the duty Of the lineman to test the pole. Ramon v. Interstate Utilities Co., 170 Pac. 88 (Id., 1917). Illinois: A conductor of a Street railway company cannot recover on account of his Striking a trolley pole of the company when he had been passing it daily for eight months. Kath v. East St. Louis, etc. Ry., 232 Ill. 126 (1907), La Strom v. Postal Telegraph-Cable Co., 111 N. E. 555 (Ill. 1916), a telegraph company was held liable for injury to a lineman who fell from a pole by reason of his Spurs breaking Out of the pole, the defense of contributory negligence having been eliminated by the Work- men’s Compensation Act. Indiana : An experienced telegraph lineman who was directed to remove Wires from an old pole to a new one, and who was given no specific direc- tions in regard to the method, and does not rely on any inspection by the Company, cannot hold the com- pany liable if the pole falls when he is On it and injures him. Adams v. Central, etc. Ry., 38 Ind. App. 607 (1906). As to a suit under the In- diana statute by a lineman for injury due to a decayed pole falling, See Cleveland, etc. Ry. v. Scott, 29 Ind. App. 519 (1902). FCentucky: Where a lineman String- ing Wire is injured by a bracket giv- ing Way and the wire jerking him off the pole it is no defense that his fellow Workmen jerked the wire. Eastern, etc. Co. v. Mellon, 116 S. W. 709 (Ky. 1909). Where a foreman of a tele- phone company directs a lineman to tie an electric-light wire to an im- proper insulator with a piece of iron wire and the employee is injured by the current, the telephone Company is liable. Cumberland, etc. Co. v. Graves’ Adm’x, 104 S. W. 356 (Ky. 1907). Where a foreman inspects a pole and then directs a lineman to climb it and the pole falls and injures the latter, the company is liable if the lineman made no inspection himself. Western Union, etc. Co. v. Holtby, 93 S. W. 652 (Ky. 1906). Louisia?va. In Clarian v. Western Union Tel. Co., 40 La. Ann. 178 (1888), a lineman was stretching a Wire on the Outer end of a cross-arm of a pole. While doing so the wire broke, causing the Cross-arm to break, and thus throwing the man off his center of gravity, he having but one Of his iron clamps in the pole, the Other leg having been thrown around the pole, and he fell and was killed. The court held the company liable, and Sustained a judgment for $3,000. The court said the lineman had no Opportunity to test the strength and soundness of the wire and cross-arm furnished him, and that he would not have been employed if he had in- Sisted upon testing them ; and that if there were defects in them it was impossible for him to discover the defects in the time that was afforded him ; and in fact the defects were not discoverable on slight inspection. 144- sº _142 *-ºſ., E.G.R.A.P.HrºfºW’’’ ‘’’, pany unless it is held as a matter of law that he cannot hold liable There was no evidence of want of care in the handling or manipulation of the materials in his work. The fact that the material broke was held to be suffi- Cient evidence that it was unsound and not of Sufficient strength to an- Swer the purposes, the evidence not showing that they were Subjected to any extraordinary Or unusual Strain When the accident Occurred. The lineman had a right to presume that the Wire and its support were not de- fective or unsound. The company Should be held to the greatest care and diligence in selecting material and providing for the safety of its employees, inaSmuch as the business itself is very dangerous. An electric- light COmpany is not liable for the death of a lineman, even though he is inexperienced, where without using the usual safety appliances he Carries a guy wire with his naked hand for the purpose of attaching it to a telegraph pole. Maitrejean v. New Orleans Ry., etc. Co., 120 La. 1056 (1908). Maryland: A telephone company is not liable for injury to one of its ex- pert linemen due to a cross-arm breaking by reason of a knot therein, which knot was covered by paint, the CrOSS-arm having been purchased after being painted. Maryland, etc. Co. 'w. Cloman, 97 Md. 620 (1903). A lineman of an electric-light company Who climbs a pole owned by a tele- phone Company on which there are electric-light cross-arms and wires, Cannot hold either company liable for the breaking of a cross-arm belonging to the telephone company when he had no reason to suppose that the CrOSS-arms had been inspected and he did not inspect the cross-arm himself and there was no proof that the cross- arm. When Originally erected was de- fective or that the electric-light com- pany knew of any defect. Consoli- dated, etc. Co. v. Chambers, 112 Md. 324 (1910). Massachusetts: An experienced line- man of a trolley company cannot re- COVer damages on account of a fall from a pole on the theory that he must have been shocked unless there WaS proof there was negligence On the part of the company causing the shock. Murphy v. Old Colony St. Ry., 120 N. E. 361 (Mass. 1918). An ex- perienced lineman who is directed to remove a guy wire from a pole can- not hold the Company liable for the pole falling where the defect in the pole Could have been easily discovered by him. MacLellan v. Boston, etc. Ry., 108 N. E. 767 (Mass. 1915). Where tlie forelman in gettling a telephone pole does not use guy ropes, and the pole SWings and injures an employee, the Company is liable. Barrett v. New England, etc. Co., 201 Mass. 117 (1909). An electric-light cleaner, who is injured by the fall of an electric. light pole which he has climbed may hold the company liable where there is no proof that the company reason- ably inspected the poles. Such a case is different from that of experienced linemen. Dawson v. Lawrence, etc. Co., 188 Mass. 481 (1905). A line- man of an electric-light company, Who climbs a pole without examining Whether it was sound just below the Surface of the earth, cannot recover for injury due to the pole falling with him. McIsaac v. Northampton, etc. Co., 172 Mass. 89 (1898). Where an expe- rienced lineman is taking down the Wire from a line of decayed poles and the Wires become entangled with a guy Wire, and he asked the foreman What to do and the foreman told him to Cut the guy wire, and he did so, and the pole falls and injures him, he Cannot recover damages therefor, neither he nor the foreman having made any examination of the pole. Tanner v. N. Y., etc. R. R., 180 Mass. 572 (1902). A lineman who is in a tree, and is dislodged therefrom by reason of the pulling of a wire, can- not hold the Ocmpany liable, he not having given notice that he was there and the work not being expert work. Flynn v. Boston, etc. Co., 171 Mass. sº § 5 C. ..s--f - .º.º." ---º-º-º: , - TELEGRAPH “IJAW - ^- an electric-light company for the damage, and unless the considera- 395 (1898). Where in raising a tele- graph pole the “deadman” breaks and the foreman directS the use Of a shovel instead, and it slips and the pole falls, an employee injured Can- not recover damages. Carroll v. Western Union Tel. Co., 160 Mass. 152 (1893). Michigan: In Weidon v. Brush Elec. Light Co., 73 Mich. 268 (1889), a lineman was injured by the falling Of the apparatus by which he Was carried up to the top of the pole to the electric light. It was claimed that the apparatus had become rot- ten and defective by use and exposure for two and a half years. There Was no evidence that the company had examined it for defectS. Four em- ployees Of the company testified that they notified the Superintendent that it was defective. The case Was Sub- mitted to the jury, and a judgment for $750 was sustained by the upper Court. The Court held that the fact that the company had been notified of the defects was fatal, there being Ino evidence of contributory negli- gence. Minºnesota. An electric-light COm- pany was held liable to One of its employees, who was injured by its current while painting a pole, in the case Bernier v. St. Paul, etc. Co., 92 Minn. 214 (1904). It is not the duty of a lineman engaged in repairing CrOSS-arms to test a pole to See Whether it is rotten at its base, and hence if it falls and injures him he may recover damages. Holden v. Gary Tel. Co., 109 Minn. 59 (1909). MissOuri: An electric light company may be liable for injury to One of its linemen by reaSOn Of a CrOSS-arm breaking, and it is a question for the jury as to whether it was the duty of the foreman to inspect the cross-arms, he not having the tools to make such inspection. Rutledge v. Swinney, 169 S. W. 17 (Mo. 1914). A telephone lineman takes the risk of a pole fall- ing where he knows the company makes no inspection and he cuts away the wires on each side and the pole falls. Hulse v. Home Tel. Co., 164 Mo. App. 126 (1912). Where a lineman is not permitted by a foreman to ex- amine a pole, and the examination is made by the foreman, and the pole falls, the company is liable. Miller v. Missouri, etc. Co., 126 S. W. 187 (Mo. 1910). Where an experienced line- man and inspector of poles climbs Out On a Cross-beam, and it breaks, by reason of rottenness, he cannot hold the COmpany liable, he not having made any test and not having used any safety belt. Roberts v. Missouri, etc. Co., 166 Mo. 370 (1901). Nebraska.: A notice by a telephone Company to its linemen that the Com- pany Will not inspect poles, wires, etc., but that the employee must inspect and he must Satisfy himself as to their Safety before Working, does not relieve the company from its duty to furnish a reaSOnably Safe place independent of the poles and wires, to work in, and hence he may hold the company liable if in doing his work he is in- jured by the current of an electric- light wire which is strung within five feet of the telephone wire contrary to an ordinance. Olson v. Nebraska Tel. Co., 85 Neb. 331 (1909). A telephone Company is liable for hospital and doctor’s bills in treating a lineman’s injuries as requested by the foreman, but this liability is Only during the emergency and not for long-continued treatment. Salter v. Nebraska, etc. Co., 79 Neb. 373 (1907). New Hampshire: A telephone line- man who is injured by trying to Straighten a leaning pole may re- Cover, even though he did not use a guy rope which the company had fur- nished for that purpose, especially where the pole was only one half as " far down in the ground as it should have been. Willis v. Plymouth, etc. Co., 75 N. H. 453 (1909). New Jersey: Where a municipality has a right to String wires on tele- phone poles and does so, a municipal lineman who is killed by the falling –443T TELEGRAPH. L.A.W. tion paid to him should be returned to the telephone company, is a of a pole may hold the telephone com- pany liable. Moersdorf v. New York Tel. Co., 87 Atl. 473 (N. J., 1913). Even though a lineman is injured by fol- lowing the directions of the represen- tative Of the company who has gen- eral Supervision and control of the Others, including the foreman, and Who actively participated in the work, yet he is a fellow-servant and the COmpany is not liable, the negligence being in the performance of the duty incidental to the general employment and not in a duty imposed by law upon the mastcr for thc gafety of tho employee. Knutter v. N. Y., etc. Co., 67 N. J. L. 646 (1902). Where a pole Only two years old is being removed from Outside to inside the curb line, and breaks after being removed and While the lineman is still on it, the Company is not liable, and it is not negligence On its part, even though the pole turns out to have been de- Cayed, the decay not being apparent; nor even though the cross-arm had been previously wrenched off by the Strain, it appearing that the lineman Rnew this and had replaced the cross- arm when the pole was reset; nor even though the accident was due to the strain of a guy wire which the 1ineman was drawing taut. Essex County Elec. Co. v. Kelly, 57 N. J. L. 100 (1894). Where an employee, in climbing an electric-light pole to trim the lamp, knows that One round in the Step is broken, and On descending slips thereon and is injured, the com- pany is not liable. Foley v. Jersey, etc. L. Co., 54 N. J. L. 411 (1892). New York: : Even though an electric light company knows that a telephone Company has attached telephone wires to a pole of the electric light com- , pany, yet if the latter did not author- ize these attachments it is not liable to the estate of a telephone lineman who was killed by touching a defec- tively insulated electric light wire. Heskell v. Auburn Light, etc. Co., 209 N. Y. 86 (1913). See also $ 5a. A lineman going upon a cross-arm to make repairs must inspect it before putting his weight upon it; otherwise the company is not liable if it breaks. Johnston v. Syracuse, etc. Co., 193 N. Y. 592 (1908). A lineman cannot re- cover for injury due to the falling of a pole, even though the pole had been constructed by Other linemen and the plaintiff was stringing wires thereon, and even though the attention of the foreman had been called to the fact that the pole had not been properly set, the line itself not being a COm- pleted line, but one in process of COn- Struction. Mullin 47. Genessee, etc. Co., 202 N. Y. 275 (1911), rev’g 136 N. Y. App. Div. 913, the court saying (p. 279) : “It would be manifestly absurd to hold a master to the duty of pro- viding a safe place when the Very work in which the servant is engaged makes it unsafe.” An express COm- pany engaging a truck and driver for a day is liable for his negligence. Carr ^y. Burke, 183 N. Y. App. Div. 361 (1918). Even though a telephone em- ployee working in a manhole has his hand injured by a passing team, the company may not be liable. Restivo ^). Conklin, 171 N. Y. App. Div. 48 i (1916). A telephone lineman who is injured by the fall of a pole which he had not inspected cannot recover where the rules of the Company required him to inspect before ascend- ing, and the company furnished imple- ments to make the inspection. Grif- fin v. N. Y. Tel. Co., 141 App. Div. 1 (1910). The fact that a pole breaks from being struck by a limb of a tree, which a lineman is cutting, does not render the company liable to him where it apparently was sound, even though no inspection was made of the pole. Trimbley v. Central, etc. Tel. Co., 140 N. Y. App. Div. 657 (1910). An experienced lineman cannot hold his telephone company liable for the breaking of a Splice which he helped to make, even though it was made midway between two poles instead of near one of them, it not being shown that that was unsafe, and even §–5c:- TEEEGRAPH LA ... --...-:::::: *-*****-*. covenant not to sue and is not a release barring his remedy against though only “two-clamp” splices Were used instead of three, it not being Shown that three Were neCeSSary Or that any similar accident had hap- pened by using two, or that the mate- rial furnished was defective. If ne- cessary material and a safe place to work are furnished, a splicer must use his own intelligence in details and the employer is not liable for a mere error of judgment by the former as to detail, and the employer need not superintend each Step in the Work to see that the servant has safe condi- tions at all times. Tweed v. Hudson River Tel. Co., 130 N. Y. App. Div. 231 (1909). An experienced lineman cannot hold a telephone company lia- ble for the fall of a telephone pole from which he was taking down the wires where it appears that the pole Was not in use and was apparently sound above the ground, and the line- man knew it was customary to exam- ine Such a pole below the surface of the ground where rot first sets in, and it appears he did not make such exam- ination and knew that the foreman had not examined it. La Duke v. Hudson River Tel. Co., 136 N. Y. App. Div. 136 (1909). The question may be for the jury. The court held that “Where a master is charged with neg- ligence in failing to inspect a pole beneath the ground, which broke and injured a lineman who ascended it, has given evidence that it was its Custom to require its linemen to test poles for themselves, it is error to Charge that no duty of inspection was Cast upon the linemen.” A telephone COmpany may be liable to One of its employees for injury due to a pole breaking when the employee was on it, even though the telephone com- pany did not own the pole. McGuire 'w. Bell Telephone Co., 167 N. Y. 208 (1901). In Flood v. Western Union Tel. Co., 131 N. Y. 603 (1892), rev'g 15 N. Y. Supp. 400, the action was for damages for the death of Flood. He had been in the employ of the defend- ant, a telegraph company, several years, and part of the time as a line- man. The lineman had frequent OCCa:- Sion to climb the poles and work about the arms. A Cross-arm upon the Outer end of which Flood sat engaged in pounding with a hammer, broke under his weight, and he fell to the ground and was killed. The arm had been in use for about six years. It was of the material, size, and ap- parent Strength and safety then in use by all telegraph Companies. De- fendant had a system of inspection of the arms when purchased, and it did not appear that there was anything in the external appearance of this One, When new, which indicated any defect or Weakness, or that there was any defect therein discernible by any Ordinary inspection. Held, that plain- tiff was not entitled to recover. The administrator of a lineman who was transferring wires from old poles to new Ones, and had been Warned, Can- not hold the company liable for his death, all necessary apparatus hav- ing been furnished to him. Voorhees 'w. Hudson River, etc. Co., 109 N. Y. App. Div. 465 (1905). It may be for the jury to decide whether a company properly inspected a pole which fell and injured one of its employees. Row- ley v. American, etc. Co., 83 N. Y. App. Div. 609 (1903). A conductor on a Street car who, while walking along the Sideboard, is struck by another passing car, may bring suit against the Company for negligence, and the question of negligence is for the jury. True v. Niagara, etc. R. R., 70 N. Y. App. Div. 383 (1902); aff’d, 175 N. Y. 487. Where an employee engaged in removing a telegraph line is injured by a pole falling upon him upon the wires being cut, the pole not having been planted deep enough or the earth having worn away from it, the Com- pany is liable. Riker v. New York, etc. R. R., 64 N. Y. App. Div. 357 1901). An employee of an electric- light company, who for several years has repaired lamps On poles, cannot recover for injury due to a lamp fall- ...+45*T -1407 the electric-light company, and the ing upon him, on account of the fas- tening being rotten, rusty, and in bad Condition, even though the foreman had ascended the pole before him and directed him to do the work. Gib- bons v. Brush, etc. Co., 36 N. Y. App. Div. 140 (1899). A railroad may be held liable for an injury to a fire- man Who, while leaning out of the engine, is injured by a telegraph pole Which is only four inches away from the sidc of the locomotive, even though the fireman had passed the poil 1, 111a11y times beforc and his proper place Was on the other side Of the engine. Benthin v. N. Y. C., etc. R. R., 24 N. Y. App. Div. 303 (1897). Oregon: An experienced lineman Who is injured by the falling of a telephone cable, which he is placing On poles, cannot complain that the method used for stringing the cable Was not the best method, inasmuch as he did not object and assumed that risk. Blust v. Pacific, etc. Co., 48 Oreg. 34 (1906). Penn Sylvania: The happening of an accident does not in itself prove con- tributory negligence. Faulk v. Du- quesne Light Co., 103 Atl. 111 (Pa. 1918). It is for the jury to decide Whether a telephone company is lia- ble to its lineman who is injured by the falling of a telephone pole from which he was removing wires, the pole being decayed at the base. O’Donnell w. Bell Tel. Co., 95 Atl. 579 (Penn. 1915). Rhode Island: A Superintendent in charge of employees moving telephone poles is a fellow-servant. Morgridge w. Providence Tel. Co., 20 R. I. 386 (1898). South Carolina: Where a telegraph pole falls while a lineman is at work upon it, the fall being caused by wires being stretched by the foreman and Other workmen, the company is liable, even though the pole was rotten at the base. Berley v. Western Union, etc. Co., 82 S. C. 360 (1909). Tea as: If it is the duty of a lineman (PEEEGRAPH. Jº Wºº---. § 5c. consideration is not to be deducted to inspect a pole before climbing it and he does not inspect it and the pole breaks, the company is not lia- . ble. Halbrook v. Orange, etc. Co., 181 S. W. 751 (Tex. 1915). Where a line- man is injured by a pole falling after he had cut away the Wires, the COm- pany is not liable Where the lineman before climbing kicked the pole at the base to see Whether it Was SOund and discovered no defect. South Western, etc. Co. v. Tucker, 102 Tex. 224 (1908). An electric-light company is not liable to a felephone lineman who in repair- ing the telephone Wires climbs an elec- tric-light pole and Suspends a platform above the electric-light Wires and is injured. Denison, etc. Co. v. Patton, 154 S. W. 540 (Tex. 1913). We'rºn, Ont.: Where an expert line- man climbs a pole without examin- ing it a few inches below the Surface Of the earth where it is likely to be decayed, he takes the risk, even though he was directed by the fore- man to climb the pole for the purpose Of detaching Wires SO as to remove the pole for unsoundness. SiaS v. Consolidated, etc. Co., 73 Vt. 35 (1901). Virginia: Where a pole has been condemned and an employee is di- rected to climb it and cut away the wires, and when he does so the pole falls and injures him, it is a question for the jury as to whether he was guilty of contributory negligence. Southern, etc. Co. v. Clements, 98 Va. 1 (1900). Washington: A lineman whose spurs break loose from a pole in climb- ing on account of rot cannot hold the company liable. Hord v. Pacific Tel. & Tel. Co., 68 Wash. 119 (1912). A telephone lineman who is injured by the fall of a pole on which he is work- ing by reason of an adjacent pole falling on account of insufficient guying of the pole on which he is working, may hold the company lia- ble, even though he made no inspec- tion, the foreman having promised to properly guy the pole. Murphy 'U .S. 5c.” ... TELEGRAPH LAW from the verdict." A settlement with one joint tort-feasor and the giving of a release without reservation discharges the others but not where the release reserves the right to pursue the others.” Pacific Tel. & Tel. Co., 68 Wash. 643 (1912). A legislative declaration that telegraph COnStruction WOrk is extra- hazardous, is binding on the court, and employees SO engaged may come under a state Workmen’s compensa- tion act, and the company may be re- Quired to pay a premium to the State for insurance. Such act, however, does not apply to telegraph Operators handling interstate as well as intra- State messages, their time not being separable. State v. Postal Tel., etc. Co., 172 Pac. 902 (Wash. 1918). * Musolf v. Duluth, etc. Co., 108 Minn. 369 (1909). * Walsh v. New York, etc. R. R., 204 N. Y. 58 (1912). The rule is that as between joint debtors and joint tort-feasors the effect of a general release executed and delivered for a Valuable Consideration to One releases all unless the release reserves the right to proceed against those not in- cluded in the release. See Gilbert Q). Finch, 173 N. Y. 455 (1903), where the court held (p. 466) that “where the release contains no reservations it operates to discharge all the joint tort feasors; but when the instru- ment expressly reserves the right to pursue the others it is not technically a release but a COVenant not to Sue, and they are not discharged.” In the case Barrett v. Third, etc. R. R., 45 N. Y. 628 (1871), it was held that a party receiving an injury from the unlawful acts of others is entitled to but one satisfaction, and an accord and satisfaction or the release or other discharge by the voluntary act of the party injured of one of two or more joint tort-feasors is a discharge Of all. A release of a telephone company from liability for the death of One of its Iinemen by touching the defectively insulated Wire of an electric company does not release the latter. Ridgeway ^). Sayre Electric Co., 102 Atl. 123 (Pa. 1917). A release of a railway Com- A cove- pany “and persons” from liability for damages on account of injury from a telegraph guy wire does not release the telegraph company if the fact that the telegraph company was being re- leased was not explained to the in- jured party. Western Union Tel. Co. v. Walck, 161 S. W. 902 (Tex. 1913). Where power wires are above tele- graph wires and the employees of the latter throw a rope over one of the power wires and cause it to burn and fall, and the current injures a person, the power company as Well as the telegraph company is liable if the power company’s automatic circuit worked and then the company turned On the current again, but if the lower court dismisses the case as to the power Company, the telegraph COm- pany Cannot complain, the two COm- panies being jointly and severally lia- ble. Metz v. Washington, etc. Co., 130 Pac. 343 (Wash. 1913). Where an electric-light pole is only one foot from a telephone pole, it is the duty of the electric-light company to protect telephone linemen from the electric light current, and if a telephone line- man is injured or killed by the Cur- rent, he may sue both companies, and On the trial may dismiss as to the tele- phone company if he wishes. Staab v. Rocky Mountain Tel. Co., 129 Pac. 1078 (Idaho, 1913). A telephone COm- pany may be liable for the death of an electric-light lineman caused by a guy wire connecting the poles of the two companies and conducting the electric-light current, but a settlement with the electric-light company re- leases also the telephone COmpany. Snyder v. Mutual, etc. Co., 135 TOWa., 215 (1907). In the case Snyder, etc. Co. v. Bowron, 156 S. W. 550 (Tex. 1913), a telephone lineman held liable an electric-light COmpany for an in- jury due to its Current, and although the defendant brought in the tele- phOne Company as a cross-defendant, → * : **:A i. vºrº... s. A fºſº" " ' -- 1:47: ... . *. * ~..." . . . . 7- - - - - - 3.42 ºr "" - { > *::::::::::$º-s: 148" TELEGRAPH LAW *::::: --$ 5c.’ nant not to sue one joint tort-feasor does not prevent suit against another joint tort-feasor." Where an electric-light company and a telephone company have been held jointly liable to a person who is injured by the electric-light current passing through a telephone wire, and the judgment is paid by the electric-light company, it may sue the telephone company for the amount paid on the ground that the in- jury was due to the negligence of the latter only.” And where the line- the telephone company was not held liable. - * Nashville, etc. Ry. v. Gregory, 193 S. W. 1053 (Tenn. 1917). A settle- ment by one director of liability for negligence does not release the others where the receiver reserves the right to sue the others. Roseville Trust CO. w. Mott, 96 Atl. 402 (N. J. 1915). A pension, accident and sickness plan of aid to telegraph employees and life insurance to their beneficiaries in Case of death, which require the giving of a release to the telegraph COmpany and its associated companies by the employee or his representative, does not include a release to a railroad company for the death of a lineman who was travelling at half rates un- der a contract between the telegraph company and the railroad company. Western Union Tel. Co. v. Hughes, 228 Fed. 885 (1915). The acceptance by a telephone employee of his Wages and doctor’s bills from the telephone Company and his agreement not to sue that company does not release the Owner of an electric light Wire which did the damage. Mahaney v. City of Independence, 183 S. W. 1117 (Mo. 1916). A covenant not to Sue is not a release of all the joint tort-feasors. Berry v. Pullman Co., 249 Fed. 816 (1918), the court saying: “While we concede that the authori- ties on this subject are not harmon- ious, yet we think the weight of au- thority, at all events the authorities which we are disposed to recognize as sound, treat a covenant not to Sue, Such as that given in this case, as a mere agreement to release the one joint tort-feasor by whom the settlement is made, and not as a release of the cause of action, leaving the other joint tort-feasors liable to the person in- jured. . It is always understood, and in all these cases it is held, that the joint Wrongdoer against whom the Suit was brought, when such a settle- ment With another wrongdoer has been made as pleaded, is entitled, pro tanto, to the amount received in settle- ment by the plaintiff injured as a Credit On any liability which may be found to exist against the one sued.” A railroad employee injured by a trol- ley Wire Over the railroad tracks re- leases the railroad company if he gives a release to the trolley company, even though he reserves the right to sue the railroad company. Louisville, etc. R. R. v. Allen, 65 S. 8 (Fla. 1914). A covenant not to sue one of UWO parties Charged With negligence, releases the Other party, unless the former was free from negligence. The COVenant itself shifts the burden. Of proof to the plaintiff. Smith v. Royd- house, etc. Co., 244 Pa. St. 474 (1914). Even though a telephone lineman is killed, by the electric current of a power Company and his estate makes a settlement with the telephone com- pany and Signs a stipulation releas- ing the telephone company and stat- ing that the claim against the power company is not released, this is a bar to a Suit against the power Company, the release being inconsistent with a covenant not to sue. Clark v. Union Electric, etc. Co., 213 S. W. 851 (Mo. 1919). * Fulton, etc. CO v. Hudson Riv. T. Co., 200 N. Y. 287 (1911). Where a party Obtains judgment against an electric-light company and a telephone company for damages due to the tele- phone wires, by reason of a fire, dropping onto the electric-light COm- pany’s wires and conducting the . current of the latter, and the tele- . § 5c. v. TELEGRAPH LAW 149. man of a telegraph company is injured by a street railway electric current transmitted by uninsulated feed wires placed just below the telegraph wires, but resembling them in appearance, it appearing that the foreman of the telegraph company knew thereof and that the line- man did not, and the foreman did not inform him, both the street railway company and the telegraph company may be held liable, and even though a verdict has been found against both, a settlement may be made by one, leaving the other company liable for the entire verdict.* phone company arranges so that the plaintiff Collects the whole judgment from the electric-light company, the electric-light company may have re- course to the telephone company if the latter “does the act or creates the Condition and the other does not join therein,” in which case the parties are not in pari delicto as to each other, though either may be liable to a third party. Hudson County, etc. Co. v. Hudson River Tel. Co., 130 N. Y. App. Div. 343 (1909). Where an electric light wire negligently sags On- to a trolley wire and causes the latter to burn in two and fall to the Street and kill a horse, and the Owner of the horse holds the trolley company lia- ble, the latter may recover over as against the electric-light company. The rule about joint tort-feasor does not apply because the electric light COm- pany Was the Cause of the accident. Hudson Valley R. R. v. Mechanicsville El., etc. Co., 180° N. Y. App. Div. 86 (1917). a telephone line is erectod close to an existing electric light line and a lineman of the form- er is injured and both companies held liable, the telephone company may be bound to protect the electric light COmpany, its negligence being a C- tive while the negligence of the elec- tric-light company is passive. City of Weatherford, etc. Co. v. Veit, 196 S. W. 986 (Tex. 1917). Where an elec- tric Company and a telephone com- pany have wires on the same pole and a lineman of the former in climbing a pole falls by reason of an insecure fixture of the latter, and recovers judgment against the former, the former may have recourse to the lat- ter by reason of its violation of duty towards the former. Fidelity, etc. Co. v. Northwestern Tel. Co., 167 N. W. 800 (Minn. 1918). Where a tele- phone company pays a judgment Ob- tained against it and the city for damages due to a depression around a telephone pole, it cannot have Con- tribution from the city. Kinloch Tel. Co. v. City of St. Louis, 188 S. W. 182 (Mo. 1916). Where an electric light wire is not insulated and a tele- phone wire is strung so close to it that they come in contact and kill a telephone employee, whose represen- tatives sue both companies and re- cover a judgment against the electric light company, the latter cannot havé contribution from the former. Cum- berland Tel. & Tel. Co. v. Mayfield, etc. Co., 17.9° S. W. 388 (Ky. 1915). ãfter a telephone line has been constructed the city ConstructS an electric light line and the telephone wires sag and touch the electric light wire causing an electric light Wire to break and drop into the street and kill a person, and a judgment is Ob- tained against the company and the City and each pay half without pre- judice to indemnity, the city cannot recover its half from the telephone company, they both being joint tort- feasors. Village of Portland v. Citi- zens’ Tel. Co., 173 N. W. 382 (Mich. 1919), See § 749, evok-on-Corp., as to joint tort-feasors. * And it is no defense that an or- dinance required the railway to place guard Wires above its wires. Postal Tel., etc. Co. v. Likes, 225 III. 249 (1907). -150° JTELEGRAPH-IIAW ... S. 5d. A suit against two companies as joint tort-feasors cannot be dismissed as to one and judgment entered against the other." An injured party may sue any or all of several corporations jointly liable, and may ob- tain judgment and then issue execution against one or all, and nothing short of the satisfaction of the demand or a release under seal is a de- fense to the others.” Even though a Pennsylvania telegraph company and a New York telegraph company have a contract for the inter- change of telegraph business, and have the same officers, yet the latter is not liable for the negligence of the former, resulting in the death of a lineman.” Under the Pennsylvania statute the wife of an injured employee may sue for damages within one year after his death, even though he lived ten years after the injury but had brought no suit.* Injuries to employees due to current of electricity or to an electric current of one company injuring an employee of another company are considered elsewhere.” S. º T. * Punitive damages cannot be recovered unless there was intentional 0. wrongdoing or wilful omission." *------- § 5d. Poles and wires of one company interfering with those of another—“Induction” and “conduction.”—A telegraph company can- not enjoin absolutely the construction of an electric-light line on the same side of the street, on the theory that the lives of employees and r; * Where an electric-light employee places one hand on an electric-light Wire and the other upon a telephone Wire on the same pole, and is injured, ... he being an experienced man, he can- In Ot recover. MOreover, a nonSuit Cannot be entered against One of these defendants and judgment entered against the other, they being sued as joint tort-feasors, and there being no proof of any joint trespass Or any concert of actoin. Hart v. Allegheny, etc. Co., 201 Pa. St. 234 (1902). If two corporations are jointly guilty of negligence, there may be a general Verdict against both and the trial Court Cannot Set aside the Verdict as to One of them. Bamberg v. International Ry. Co., 121 N. Y. App. Div. 1 (1907). Even though two defendants are Sued jointly for damages due to an acci- dent, yet if the plaintiff amends and drops out one of them and the other goes to trial, it cannot subsequently claim that its liability was insepar- able from the other company. Toledo, etc. R. R. v. Perenchio, 205 Fed. 472 (1913). * Tandrup v. Sampsell, 234 Ill. 526 (1908). * Postal Tel-Cable Co. v. Darrow, 250 Fed. 581 (1918); s. c., 248 U. S. 563. * Western Union Tel. Co. v. Preston, 254 Fed. 229 (1918). - * See note 2-pe-3-28,-Suprê. * Exemplary damages cannot be re- Covered for an injury due to the tele- graph company, in its construction work, negligently having a Wire across the street, and about two feet from the ground, whereby a horse was tripped and a man hurt, Where it is shown that the foreman Ordered his assistants to warn people of the danger, and there was no proof of in- tentional wrong or wilful omission. Western Union Tel. Co. v. Eyser, 91 U. S. 495, note (1875), rev’g 2 Colo. 141 (1873). A corporation is not liable for exemplary damages for the TELEGRAPHTAw- sº. - the force of its electrical current will be endangered thereby," but a telegraph company may enjoin an electric-light company from string- ing its wires nearer than eight feet, and may compel it to place a guard under its wires strung above the telegraph wires.” negligence of its agent unless the agent acts by direction of the corpo- ration or it ratifies his act. Western Union, etc. Co. v. Landry, 108 S. W. 461 (Tex. 1908). A mistake in a tele- phOne employee removing a wire of another Company which he supposed belonged to his company is no ground for punitive damages. Memphis Tel. Co. v. Cumberland Tel. & Tel. Co., 231 Fed. 835 (1916). * Western Union Tel. Co. v. Cham- plain, etc. L. Co., 14 Cin. Law Bull. 327 (1885); S. C., 1 Am. Elec. Cas. 822. A telephone company which has erected its poles and Wires cannot en- join a new telephone company from erecting poles and Wires On the same Side of the street, if the new poles and wires are high enough SO as not to interfere by Contact with Or act as conductors of electricity from the wires of the old Company. American Tel., etc. Co. v. Morgan, etc. Co., 138 Ala. 597 (1903). A telegraph COm- pany owning a Subway cannot enjoin another subway company from main- taining its subway close to the former on account of inconvenience and eX- pense in making repairs. The rem- edy is at law. The Court said, how- ever, that “the City could not grant to another the right to use the same space occupied by the plaintiff’s line.” Western Union, etc. v. Syracuse, etc. Co., 178 N. Y. 325 (1904). A gas Company Cannot be enjoined by a competing gas company from laying its pipes in the Streets On the ground that they are being laid in violation of the statute, no special damage to the Competing Company being shown; not even though the pipes are so close as to interfere with the repair of Com- plainant's pipes. Atlantic, etc. Co.. ^y. Consumers’, etc. Co., 70 N. J. Eq. 36 (1905). A court of equity has the right to regulate the manner in which separate Companies having with One another. A Public Service rights on the street shall construct their works SO as not to interfere West Jersey, etc. R. R. v. Atlantic City, etc. Co., 65 N. J. Eq. 613 (1904). Where the occu- pation by an electric-light COmpany of a portion of a street was prior in time, a telephone Company cannot enjoin the use of the street by the electric-light Company for carrying On its business. AS to Streets, however, which had not been occupied by either company, the electric-light company may be enjoined from using the same side of the street with the telephone company for any of its arC- light wires, and from Stringing any of its incandescent-light wires On the same side of the street with the tele- phone wires within eight feet of the latter, and then only for a distance of three hundred yards. Nebraska Tel. Co. v. York Gas, etc. Light Co., 27 Neb. 284 (1889). Where the tele- phone is prior in right and OCCupancy, and the electric-light had Only a later franchise, the Court Will en- join an electric-light Company from placing its wires so close to the tele- phone wires so as to impair the tele- phone service. Paris, etc. Ry. v. S. W. Tel. & Tel. Co., 27 S. W. 902 (Tex. 1894). The electric-light wires may be Ordered to the other side of the street, the telephone being prior in Occupancy, and being injured in Oper- ation by the electric-light wires. Bell Tel. Co. v. Belleville E1. Light Co., 12 Ont. Rep. 571 (1886). * Western Union Tel. Co. v. G+16 rin- sey, etc. Co., 46 Mo. App. 120 (1891). Where the wires of an electric-light Company and of a telegraph Company are On the same poles, the electric- light company is bound to insulate its wires so that the employees of the other company will not be injured thereby. Newark, etc. Co. v. Garden, 78 Fed. 74 (1896). A telegraph com- Jer TELEGRAPH-EAW Commission may order a traction company to remove a high tension power pole and wire line 30 feet away from a telegraph line, even though the power line is on a private right of way purchased by the power company, it appearing that the telegraph line was constructed before the power line and that the power wires in some places were only about 2 feet away from the telegraph wires and carried a current of at least 16,000 volts.” pany may enjoin an electric-light pany from erecting wires so near the Wires of the former as to interfere With the Working of the same. West- ern, etc. Co. v. Los Angeles, etc. Co., 76 Fod. 178 (1896). Ag to Cloctric light poles being erected so as to interfere with telegraph wires, see also Joyce on Electric Law, §§ 511 to 517; Elliott on Roads and Streets, 2d ed., § 827. An electric-light com- pany may enjoin another electric- light Company from placing its wires SO close to the wires of the former as to endanger the lives of the em- ployees of the former. Consolidated, etc. Co. v. People’s, etc. Co., 94 Ala. 372 (1892). One electric-light com- pany may enjoin another electric- light company from stringing its Wires So closely to the wires of the former as to interfere with them and CauSe danger to the company’s em- ployees. Rutland, etc. Co. v. Marble City, etc. Co., 65 Vt. 377 (1893). An electric-light company which has con- Structed its poles and wires on the Streets, in a CCOrdance With a fran- Chise from the city, may enjoin a sub- Sequent electric-light company, hav- ing a grant from the city, from in- terfering with its lines, even though the Second COmpany is under obliga- tion to furnish lights to the city. Pldison, etc. Co. v. Manufacturers’, etc. Co., 202 Pa. St. 209 (1901). In the case Monongahela, etc. Co. v. Rose Hill, etc. Co., 9 Am. Elec. Cas. 838 (Pa. 1906), where one electric- light company constructed its poles through the Wires of another electric- light Company, the Court compelled the former to place cross-arms on its poles upon which the latter company’s wires might be stretched. An electric- 142 Ala. 462 (1905). A telephone company cannot enjoin a sub- light COmpany Occupying the StreetS lawfully with its wires may enjoin a private individual from stringing a Wire directly acroSS the Street between the Wires of the electric-light company it boing Ghown that if Ono of the electric-light wires should break there would be danger to the other wires and also to persons using the current of electricity, and would require closer inspection and additional expense. Wettengel v. Allegheny, etc. Co., 223 Pa. St. 79 (1909). See also $ 913, Geak-On-Gerp, An electric-light com- pany in its bill in equity to enjoin an- Other electric-light Company from erecting its poles and wires too near, must point Out Specifically the facts Constituting irreparable injury. Mont- gomery, etc. Co. v. Citizens’, etc. Co., An injunction will be granted at the instance Of a telephone company, not in regard to the interference with the electric Cur- rent, but in regard to the interference with the poles. Birmingham T. CO. v. Southern, etc. Tel. Co., 119 Ala. 144 (1898). See also $ 925, Geek-on- Gerºp, An employee of a telegraph COm- pany who, under instructions from his Superior, cuts away telephone wires which have been attached to the poles of the telegraph company Without all- thority from the latter is not crimin- ally liable therefor. Lynch v. People, 137 Ill. App. 444 (1907). 1 Western Union Tel. Co. v. Burling- ton Traction Co., 99 Atl. 4 (Vt. 1916). In the case Western Union Telegraph Company v. The Cleveland, Paines- ville, etc. R. R. (Ann. Rep. of O, 1913, p. 11), the Public Service Commis- Sion of the State of Ohio Ordered the railroad company to change their construction so as to clear the tele- -º-º-HEijFGRAPH"Ti㺠W* sequently organized telephone company from constructing its poles between the poles of the former, feet above the wires of the first company." the wires being some twenty-five An electric street railway in constructing its poles is not justified in so interfering with the poles of a telephone company already erected as unnecessarily to inter- £ere with the latter, and changes rendered necessary should be paid for by the street railway.” graph company’s wires not less than 6 feet; also to insert Suitable Strain insulators in every strain guy; and further Ordered the railroad company to Cause an inspection to be made by COrnpetent linemen at regular inter- Vals not to exceed 10 days, of all and every part of its high tension line between certain points, and that this inspection be made to include and COVer insulatOrs, guy wires, pins, CrOSS-arms, grOund wires and its Sup- port, and the wire connecting the ground wire with the earth; and it further Ordered the railroad company to keep on file the reports of inspec- tions made and all reports of trouble Cn its line. The rules and regulations of all the riational boards and associations, as Well as the electrical boards of the majority of municipalities dealing With the subject, stipulate that electric light and power circuits shall be kept a safe distance (6 to 8 ft.) away from telegraph and telephone Wires and also where electric light and power wires are erected on the same side of the highway, such wires shall be Strung above telegraph and telephone Wires. * TIOuisville, etc. Co. v. Cumberland etc. Co., 111 Fed. 663 (1901), rev'g 110 Fed. 593. A telephone company that has already constructed its lines Inay enjoin another telephone com- pany from Constructing its lines On Or a CrOSS the same Streets where the former's lines are interfered with thereby. Northwestern, etc. Co. v. Twin, etc. Co., 89 Minn. 495 (1903). An established telephone company may require a new telephone com- pany to erect its wires at a sufficient distance so that the former’s wires This matter is now generally regulated by will not be unreasonably interfered with. Northern, etc. Co. v. Iowa, etc. Co., 98 N. W. 113 (Iowa, 1904). A new telephone company may erect its poles On the Same Side Of the Street as the Old One, provided the poles are higher and out of the way of the lat- ter, and if the latter changes its poles so as to embarrass the former, the former may obtain an injunction. Cumberland, etc. Co. v. Louisville, etc. Co., 114 Ky. 892 (1903). * In the case Cumberland Tel. & Tel. Co. v. United Electric Ry., 93 Tenn. 492 (1894), a trolley street railway was compelled to pay about $4,500 for the loss to the telephone Company by reason of “conduction” and conflict of poles and wires, it appearing that it was necessary for the telephone company to change the location of its poles and wires and to install a large copper Wire to pre- vent the conduction. Where electric light wires, placed from six to twelve inches above telephone Wires, Sag, and the electric light current destroys telephone boxes, wires and apparatus, the telephone company may hold the electric light company liable for the cost of repairs, and the value of the use of the telephone property during the repairs. Weleetka Light & Water Co. v. Northrop, 140 Pac. 1140 (Okl. 1914). In the case Western, etc. Co. v. Franklin, etc. Co., 70 N. H. 37 (1900), where the telegraph company sued a street railway for Cutting down poles and wires which inter- fered with the running Of the Cars, the court held that the question as to whether the POSt Road act of COn- gress protected the telegraph com- pany against Such Cutting raised a federal Question which had not been <=#53-zºn. 154° TELEGRAPH.L.A Wrº. -Š-5d.” Commissioners, which insist on proper clearance being given." An elec- tric-light company already having poles on a street may enjoin a new company from constructing its lines so that its wires come within two feet of the wires of the old company, including additional space which may reasonably be needed in the future, and may enjoin the new com- pany from putting wires on the old company’s poles, and it is immate- rial what it costs the new company to comply with these requirements.” The amount involved in a suit by a pole and wire company against passed upon by the Supreme Court of the United States, and hence the court gave judgment for the defendant. As to the power of the municipal author- ities to order a telegraph or telephone COmpany to move its poles and wires to make Way for a street railway, see pp. 86, etc., Supra. An ordinance that Whenever high-tension wires run over low-tension wires permission must be Obtained and the expense paid by the Company last Stringing its wires, is valid, but even if the second company does not do so and an accident takes place this does not relieve the first company from liability. Birmingham Ry., etc. v. Cockrum, 60 S. 304 (Ala. 1912). * On October 27th, 1919, the Nebraska State Railway Commission ordered that a power transmission line which was being constructed for the Village of Big Springs, Neb., and carrying a 6600 volt current, must be con- structed 500 feet away from parallel telephone and telegraph lines. A state Commission in authorizing a high- tension transmission company to build its lines may impose a condition that that Company will pay the telephone Companies any expense incurred by the latter in rebuilding their lines in Such a Way as to avoid induction. Re Peterson Power and Milling Co., Iowa R. R. Com., September 5th, 1916. The decision of the Iowa Railroad Com- mission on December 30th, 1916, in the SO-called high-tension case, was reviewed in “Telephony” of June 22d, 1918, in reference to induction and danger of accidents and the separation Of high tension and low tension wires and the distribution of the expense. Where a railroad crosses a highway On Which there is an electric light line the railroad must pay the expense Of raising the electric light wires and the railroad company cannot demand a license fee from the electric light company. Neb. R. R. Com., July 18th, 1916. The Public Service Commis- sion of Missouri in the case Meissner Tel. Co. v. Union Electric L. & P. Co., decided April 9th, 1919, where an elec- tric power company’s transmission poles were in places only about 5 feet from the telephone poles, and the electric transmission wires were about 20 feet above the telephone wires, the transmission wires being three copper wires carrying an alternating electric current of between 13,000 and 26,000 volts, thereby causing induction and interfering with telephone service, the power line having been built after the telephone line was in Operation, reviewed decisions by other Commis- sions on the same subject and pointed Out that street railways are different in that they facilitate travel and have Superior rights in the highway, and hence are liable only for negligence, and the Commission held that the power company must pay the expense of the telephone company to prevent induction except such part as benefited the telephone company. The Com- mission further held that the two lines should be on Opposite sides Of the road, and that the telephone Company should construct a metallic return. The cost was estimated at $12,000, of which amount the Commission held that the power company should pay $8,000 to the telephone company. * Edison, etc. Co. v. Citizen’s, Co., 235 Pa. St. 492 (1912). etc. Š-5d.— - TELEGRAPH-IIAw--- another pole and wire company constructing its line in too close prox- imity endangering employees and the public, may be not the probable expense to the defendant of making a change but the value of com- plainant’s business in the use of its poles and wires." As between a telegraph company and a telephone company, each claiming the right to construct on a particular location, priority in occupation must give way to priority of right.” A city cannot order the removal of existing electric light poles and wires to make way for a proposed city electric lighting system.” A very important and difficult question arises where the high-volt- age electric current of a power company or electric-light company or trolley company interferes with the low-voltage electric current of a telegraph or telephone company, by way of “induction” or “con- duction.’’ ‘‘Induction’’ is where a high-voltage current sets up sympa- thetic violent electrical vibrations in a neighboring wire with which it is not in physical contact. “Conduction” is where the high-voltage Current escapes through the ground or other physical intermediary from its own wire to other wires. In either case, a telegraph or tele- * Glenwood Light Co. v. Mutual Light that when two companies, by Over- Co., 239 U. S. 121 (1915). sight or otherwise, have secured a * Priority in occupation must give charter for practically the same way to priority of right as between route, the proper procedure to test two railroads claiming the same 10- the validity of the charters is by Writ cation, and that company is prior of quo warranto at the suggestion of in right which first definitely adopts the attorney-general. . . Of course, the route by Corporate action and if One of the companies is files a map of the same. Utah, etc. undoubted occupation of certain *#55- in the R. R. v. Utah, etc. Ry., 110 Fed. 879 (1901). A Street-railway Company which is litigating with the state its right to Occupy a Street, Cannot, while that litigation is pending, maintain a bill to enjoin another Com- pany from occupying that street. Ta- coma. Ry. etc. Co. v. Pacific, etc. Co., 155 Fed. 259 (1907). Where two Street railway claim the right to lay their tracks On the same street, equity will not enjoin one at the in- stance of the other, unless the right is clear. The Court said: “The rule Of all the cases is that if the validity of the charter is attacked, or a for- feiture Of Charter rights is asserted, or an abandonment is claimed, the commonwealth alone can raise the question by a writ of quo warranto. It would seem to necessarily follow streets, with the unquestioned right to use the same, and another company undertakes to invade that right, equity Will enjoin the invading COm- pany. On the ground that the validity of the charter is not involved, and that Only an incidental right grow- ing Out of the power conferred is in dispute.” Myersdale, etc. Ry. v. Penn- sylvania, etc. Ry., 219 Pa. St. 558 (1908). -Carp- A city may appropriate Water from a stream without paying a power company which had not ac- quired the right to such water, even though it had begun SOme Condemna- tion proceedings. Sears v. City of Akron, 246 U. S. 242 (1918). * Los Angeles v. Los Angeles, etc. Co., 251 U. S. (1919). See also $$ 906, 913, GOOk-on- t JTELEGRAPHºrſ. AW CŞ.5d. J56* phone current is so affected as to impair or destroy its use for telegraph or telephone purposes. Not only this, but the high-voltage current which finds its way to a low-voltage wire may be dangerous to life and property. A ‘‘direct” current is where the flow of electricity is constant in direction; an “alternating” current is where it incessantly reverses its direction. A power company, or an electric-light company, or a trolley company, may use the direct current or the alternating current, or a combination of both. One method is to carry the alternating Current to stations along the track and there transform it into direct current for delivery to the motors. Another method is to carry the alternating current to a wire directly above the track and take it from that wire, through a trolley, to the motors. Eminent engineers differ in their opinions as to the comparative merits of these systems. About twenty years ago the courts decided that a telephone com- pany on the highway could not enjoin a trolley company on the high- way from using an electric current powerful enough to propel street- railway cars, even though that electric current interfered with the telephone current. In those cases, however, the trolley had a low voltage and it was shown that the telephone company could avoid the trouble by using an additional wire for the return of its electrical circuit, instead of using the earth for that purpose, and it was also shown that the trolley company had used the latest and best appliances for the control and regulation of its electric current. The court held also that the trolley company could not be compelled to use the double- trolley system, namely, a second wire to return the current, instead of having the current return through the rails or the earth. The basis of those decisions was that the companies had been given equal rights on the highways, and hence one could not complain of the electric current of the other.” 8 the parties may change with the progress of invention, and the duty of surmounting the difficulty be * Cumberland Tel. & Tel. Co. v. United Electric Ry., 42 Fed. 273 (1890), was a suit by a telephone Company to enjoin the Street railway from using the single-trolley System on the highway. The court denied the injunction, but said (p. 276) : “That these evils exist, to the se- rious detriment of the telephone Serv- ice, is not denied; but it also ap- pears from the evidence upon both sides that they are not absolutely un- Surmountable. It is quite pos- sible, too, that the legal obligations of thrown upon One party or the other, as a cheaper or more effectual remedy is discovered. For example, if it were shown that by the use of a certain device the defendants could control their return current in Such a way as not to interfere With the use of Com- plainant’s instruments, the law might treat their failure to adopt such measures as negligence in the use Of their franchise, and enjoin them, or TELEGRAPH-IIAw- The modern high-voltage currents, however, are often on private right of way, and hence those decisions may not be applicable. More- hold them liable for all damages SuS- tained by the complainant. If, upon the Other hand, the difficulty Can be better controlled by a device ap- plicable to telephones, it might be incumbent upon the complainant to adopt it, leaving the courts to settle the further question, whether the eX- pense of so doing is recoverable of the defendants. We are thus compelled to consider this Case with reference to the present state of the art, and with the possibility that "in another year circumstances may SO change aS to reverse completely the legal obli- gations of the parties. Indeed, since the litigation between the telephone companies and the electric-railway companies originally began, consider- able progress has been made towards a solution of the problem.” The court then pointed Out that the double-trol- ley System would not only be very ex- pensive and complicated, but would disfigure the streets with many Wires; that the metallic return circuit for the telephone would also be expensive and would encumber the streets with additional wires; that the erection of a large copper wire for a return Cir- cuit for many telephones seemed to be feasible, and would cost about $10 per telephone, and that the telephone company could not compel the trolley company to pay the expense, but the court said that the liability of the trolley company would depend on whether it “made use of the means which, in the progress of science and improvement, have been shown by ex- perience to be the best; but it is not bound to experiment with recent in- ventions 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 prevention. If, in the case under consideration, it were shown that the double trolley would obviate the injury to com- plainant without exposing defendants or the public to any great incon- Venience or a large expense, we think it Would be their duty to make use of it, and should have no doubt of our power to aid the complainant by an injunction; but, as the proofs show that a more effectual and less objec- tionable and expensive remedy is Open to the complainant, we think the obligation is upon the telephone Company to adopt it, and that defend- ants are not bound to indemnify it; in other Words, that the damage in- Cidentally done to the complainant is not such as is justly chargeable to the defendants.” Railway Co. v. Tele- graph Assoc., 48 Ohio St. 390 (1891), Was a case where both the trolley and the telephone companies used the highway with the ground as a return Circuit, the trolley return circut be- ing on gas pipes or water pipes or the earth itself. The court held that the telephone company could not com- pel the trolley company to use a double-trolley system, inasmuch as the telephone company might use a metallic Circuit, especially as the rail- . Way Company was using horses, with power to use electricity, at the time the telephone wires were erected. The Court held that the telephone com- pany could not complain of the in- duction or conduction. The court pointed out, however, that the tele- phone company did not demand that the trolley company modify its appa- ratus SO as not to interfere with the telephone service, but demanded that the trolley company abandon an es- Sential part of the system, namely, the use of the grounded circuit. Hud- Son River Tel. Co. v. Watervliet, etc. Ry., 135 N. Y. 393 (1892), was a suit by a telephone company to enjoin a trolley Company from using the Single-trolley system on the highway. The court denied the right to an in- junction on the ground that the single-e trolley System had been found to be (p. 403) “the most efficient and eco- nomical, and the best thus far de- Vised, and less liable to accidents, § TELEGRAPHTAW Over, it is to be borne in mind that at the time when those decisions were rendered, only five hundred volts were used in the operation of an through the displacement of ma- Chinery, than any other trolley sys- tem; that it subserves the public in- terests and satisfies the public wants With respect to transportation; that it is not prejudicial to the public health Or dangerous to human life; and that no other system of electric propulsion of Cars has thus far been demonstrated to be as practicable, ef- fective and advantageous, both to the public and to private interests, as the Overhead, single-trolley System.” The COurt also said (p. 408): “It seems to be indispensable to the successful prosecution of the plaintiff’s business that it should make use of an ex- Ceedingly. Weak and sensitive current of electricity. By a law of electric force, not clearly defined or under- Stood, the transmission of a powerful Current, Such as the defendant must use to Supply motion to its cars, along a line of wire parallel with and in close proximity to the plaſntiff’s wires, induces upon the latter an ad- ditional current, which renders the operation of the plaintiff’s telephones at all times difficult and sometimes impracticable. It is found that this disturbance cannot be avoided by the defendant without a complete change of the System adopted, and the use Of motors which are more expensive, more dangerous and less useful and efficient.” The court intimated, how- ever, very clearly that a case might arise where (p. 401) “if either col- lects for pleasure or profit the Subtle and imperceptible electric fluid, there would seem to be no great hardship in imposing upon it, or him, the same duty which is exacted of the owner of the accumulated water power: that of providing an artificial conduit for the artificial product, if necessary to pre- vent injury to others”; and further says (pp. 409–410): “We are not pre- pared to hold that a person, even in the prosecution of a lawful trade or busi- ness, upon his own land, can gather there by artificial means a natural element like electricity, and discharge it in such a volume that, owing to the Conductive properties of the earth, it Will be conveyed upon the grounds of his neighbor with such force and to Such an extent as to break up his business, or impair the value of his property, and not be held responsible for the resulting injury. The possi- bilities of the manifold industrial and COmmercial uses to which electricity may eventually be adapted, alld which are even now foreshadowed by the achievements of science, are so great a.S to lead us to hesitate before de- Claring an exemption from liability in such a case. It is difficult to see how responsibility is diminished or aVoided, because the actor is aided in the accomplishment of the result by a natural law. . It Cannot be questioned that One has the right to accumulate water upon his own real property and use it for a motive power; but he cannot discharge it there in such quantities that, by the action of physical forces, it will in- undate his neighbor's lands and de- stroy his property, and shield himself from liability by the plea that it Was not his act, but an inexorable law of nature that caused the damage.” The court pointed out that in the Case be- fore it both companies were on the Streets, which the legislature had allowed both parties to use. Central, etc. Co. v. Wilkesbarre, etc. Ry., 11 Penn. Co. Ct. Rep. 417 (1892); S. C., 1 Pa. Dist. Rep. 628, was a Suit in the lower Pennsylvania court for an injunction by a telephone company on acount of induction and conduction. The court declined it upon the trolley company filing a $10,000 bond to pay any damages which might be adjudged to the plaintiff. Cumberland Tel. & Tel. Co. v. United Electric Ry., 93 Tenn. 492 (1894), was a case where both a trolley company and a telephone com- pany used the highway with the earth for a return circuit. The court held xzkai:-- Nº. º JTELEGRAPH. I.A. Wºº electric street railway, whereas now thousands of volts are involved; also at that early day the direct current only was used, which could be more easily guarded against by the telegraph and telephone, whereas now the alternating current, or a combination of both, is generally used, against which it is impossible for the telegraph and telephone to com- pletely protect itself. In using the alternating electric current there is the “single-phase” system, the “two-phase’’ system, and other “multi-phase’’ systems, corresponding to one or two or more currents of electricity generated by the same machine, and used at the same time. The single-phase current is the current from an ordinary alternating-current machine applied to two wires, or to a single overhead wire with a rail and earth that the trolley company could not COmplain of induction, because both parties Occupied the street under equal rights. The Court held that the telephone company could com- plain of conduction, because that affected the telephone exchange on private property and also the places On private property where the tele- phOne Wires were grounded outside of the street. The court held that the telephone company might install a large Copper wire as a return conduc- tor to avoid the conduction, and might recover the cost thereof from the trol- ley COmpany. The Case National Tel. Co. v. Baker, L. R. [1893] 2 Ch. Div. 186, Was a suit brought by a telephone Company for an injunction against an electric-trolley company. The court pointed Out that in America, a land- OWner is responsible for using his land in a non-natural way only when he is negligent, but in England he is responsible even if he is not negli- gent, and hence the court intimated that a person having an electric cur- rent on his premises is responsible for damage done by it. The court held, however, that a tramway Com- pany, acting under a provisional or- der, and using the best-known system of traction, was protected from liabil- ity for a nuisance by causing elec- trical disturbance in the wires of a telephone Company, acting under li- cense from the postmaster-general. The court said that a man who cre- ates on his land an electric current for his Own purposes, and discharges it into the earth beyond his control, is, on the principle of Fletcher v. Rylands (L. R. 1 Ex. 265–1866; 3 H. L. Cases, 330–1868), as re- Sponsible for damage Caused by that current as he would have been if, instead, he had discharged a Stream of Water. But where the act is done in pursuance of a provision Order of the Board of Trade, it is protected to the same extent as other nuisances under statutory authority. In the Case Eastern & South African Tele- graph Co., Ltd. v. Cape Town Tram- ways Co., Ltd. [1902] A. C. 381, an action for damages by the appellant company for disturbances in the working of their submarine cable caused by an escape of electricity stored by the respondents for the due working of their tramway system, the privy council held that in regard to that Section of the tramway which had not been constructed under statutory authority. Fletcher v. Ry- lands (3 H. L. Cases, 330) did not apply, because the disturbances Only resulted when the cable Was COn- structed without certain precautions, which the evidence showed had Subse- quently secured its immunity; and in regard to those sections of the tramway which had been Constructed under statute, that the escape of elec- tricity, being a natural incident of the Operations legalized thereby, and ºf 59--~~ ~~~ return in place of the second wire. A two-phase current has two elec- tric currents and is applied to three wires, one of which is for common use. These two currents may be used for different purposes. In a two-phase arrangement there is the effect of two machines and two cir: cuits. A two-phase circuit is used in preference to a single-phase cir- cuit on account of the economy in transmitting the current, and on account of its more efficient application to motors, and not for protect- tive reasons; this is equally true of other multi-phase systems. There is less induction from the two-phase or other multi-phase systems than from the single-phase system with a rail and earth return, and this in- duction may be still further minimized by “transposition,” i.e., fre- quent crossing of the wires without mechanical contact. When only one wire is used, transposition is obviously impossible. Now the single-phase system, when applied, as it recently has been, to transmit an alternating current of high voltage, with a trolley over- head and only a ground or rail return, creates great induction on all low-voltage wires within a considerable distance and running parallel thereto. This single-phase system is supposed to be economical and simple, but unless controlled by two parallel wires, thereby decreas- ing the induction, it is disastrous to the telegraph and telephone. When it is borne in mind that the usual electric current for the telephone is 24 volts; for the telegraph 40 to 350 volts; for the ordinary trolley 500 volts, and for the ordinary electric-light circuit 1,000 to 2,000 volts, the extraordinary development of 60,000 volts, to which several companies, among which is the Niagara Falls Company, have attained, explains why these high voltages, if uncontrolled, are utterly destruc- tive to telegraph and telephone transmission in their localities. Such destruction can be obviated, as to conduction, by large copper wires for the return of the circuit, and as to induction, by frequent crossing of the wires, and by various other expedients, such as the relative posi- tion of the high-voltage wires. All these are feasible, although some- what expensive, and it is likely that the courts will apply to these great and growing high-voltage currents the dictum of the New York court of appeals, where it said that if a party “collects for pleasure or profit the subtle and imperceptible electric fluid, there would seem to be no great hardship in imposing upon it, or him, the same duty which is exacted of the owner of the accumulated water power: that of provid- not resulting from a leak within the on the respondents. On this point meaning of the statutory undertaking cf. Chicago, etc. R. R. v. Darke, 148 or condition, did not impose liability Ill. 226 (1893). TELEGRAPH"TA wº *16-1--". §-5d- ing an artificial conduit for the artificial product, if necessary to pre- vent injury to others.’’ “ . - And the same court in the same case said: “We are not prepared to hold that a person, even in the prosecution of a lawful trade or busi- ness, upon his own land, can gather there by artificial means a natural element like electricity, and discharge it in such a volume that, owing to the conductive properties of the earth, it will be conveyed upon the grounds of his neighbor with such force and to such an extent as to break up his business, or impair the value of his property, and not be held responsible for the resulting injury.’” The principle that priority of time and location of a telephone line on a highway gives priority of right is the basis of the South Dakota statute that power lines should not interfere with the service of telephone or telegraph lines already constructed, and hence a telephone company may enjoin a power company from continuing the operation of a power line which does interfere with the operation of a telephone line.” An intermediate appellate court in Indiana, however, has held that a telegraph company cannot enjoin a trolley company on account of induction from the trolley wires interfering with the telegraph circuit where the trolley company is not charged with negligence, unskilful- ness or malice in the construction and operation of its lines.” On the other hand, the same court has held that where after a telephone com- pany has erected and put into operation its line, a trolley railroad is built in the vicinity with a 33,000-volt current, thereby compelling the telephone company to reconstruct its line in such a way as to avoid induction from the high-tension current, the telephone company may collect the expense therefor from the trolley company.” - A high-voltage current has been known to cause disturbances by induction and conduction in telegraph and telephone wires ten miles distant. It is true that a telegraph or telephone company may it- Self string an additional copper wire or wires on its poles and trans- * Hudson River Tel. Co. v. Water- vliet, etc. Ry., 135 N. Y. 393, 410 (1892). * Hudson River Tel. Co. v. Water- vliet, etc. Ry., 135 N. Y. 393, 409, 410 (1892). * Tri-County, etc. Tel. Co. v. Bridge- water, etc. Co., 167 N. W. 501 (S. Dak 1918). “Postal, etc. Co. v. Chicago, etc. Ry. Co., 97 N. E. 20 (Ind. 1912). A railroad company whose telegraph wires are interfered with by induction from a trolley railway’s electric cur- rent Cannot enjoin the latter from us- ing the Single-phase system where the railroad might at Small expense reme- dy the trouble and the trolley road may be using the most approved con- Struction and apparatus known to Sci- ence. Lake Shore, etc. Ry. v. Chicago, etc. Ry., 95 N. E. 596 (Ind. 1911). * Indianapolis, etc. Co. v. Arlington Tel. Co., 47 Ind. App. 657 (1911). aer pose its own wires to decrease the disturbance, but even when a com- plete metallie return is provided by the telegraph or telephone com- pany, the induced currents are often of such a pressure and volume as to be still destructive to them and dangerous to life and property. Electrolysis is still another effect of conduction. It is the disin- tegration of pipes, cables and wires by the passage through them of vagrant direct currents. It can always be prevented by a proper me- tallic return circuit." A water-works company may enjoin a street rail- way company from using an electric current which destroys the water pipes of the former by electrolysis, it appearing that the street-railway company used the single-trolley system with the rails as return conduc- tors, the court holding that while it would not prescribe any particular system of return to be adopted by the street-railway company, yet that it would restrain the continuance of the injury, leaving the company frée, to adopt its own remedy.” § Taa’ation and license fees levied upon telegraph companies.— A telegraph line running from state to state is engaged in interstate commerce. As such it is protected by that provision of the constitu- tion of the United States which says that Congress shall have power “to regulate commerce with foreign nations and among the several States.’” This constitutional provision renders illegal an excessive fee demanded by a state as a condition to allowing a foreign telegraph company to do business in the state.” This constitutional provision - 6; § - ! - - - ... “..*.**i. ...s.º.º.º. :::::: º ºxº-º-º-º: *. .gºv ** e . Cause electrolysis of gas pipes, * See 32 Am. L. Rev. 280 (1898). Where an electric street railway is COnStructed in such a manner as to the gas company may enjoin the street railway from Operating its line until the Street railway has adopted a bond- ing System and other appliances in accordance with the best street-rail- Way mode of construction, and it is immaterial that the appliances al- ready in use by the street railway were the best appliances at the time they were installed. Spokane Falls Gas L. Co. v. St. Paul Ry. (MSS. Wash. 1899). - * Peoria Waterworks Co. v. Peoria Ry. Co., 181 Fed. 990 (1910). Where electrolysis is destroying the water pipes of a city, the city may enjoin an electric street railway company from allowing the escape of its elec- tric Current causing such electrolysis. Dayton v. City Ry., 9 Am. Elec. CaS. 267 (Ohio, 1904). * Art. 1, § 8. * The Kansas statute requiring for- eign corporations before doing busi- ness in the state to pay a Specified license fee is not valid as against for- eign corporations engaged in inter- state commerce where such fee is a tax on the interstate business and also a tax on the company’s property outside of the state, and hence a judg- ment of the state court ousting a for- eign telegraph corporation from doing business in the state because it did not pay this fee, which amounted to $20,100, is invalid. The mere fact that the statute recited that it was not in- tended to burden or regulate interstate commerce is immaterial. Western Union Tel. Co. v. Kansas, 216 U. S. 1 (1910), rev’g 75 Kan. 609. So also as to the Arkansas statute where the fee -TELEGRAf>H-flºw” also renders void any tax that may be levied by a state upon telegraph messages transmitted from one state into another or on the gross inter- amounted to $25,050. Ludwig v. W. U. Tel. Co., 216 U. S. 146 (1910), dis- approving Western Union, etc. CO. v. State, 82 Ark. 309 (1907). So also as to the Pullman Palace Car Com- pany. Pullman Co. v. Kansas, 216 U. S. 56 (1910). In the case General Railway, etc. Co. v. Virginia, 246 U. S. 500 (1918) the Virginia license fee of $1,000 on foreign corporations with a capital of between $1,000,000 and $10,000,000 doing business in the state, Was upheld, but the court said that the case was “On the border line.” A State tax of half a mill on each dol- lar of Sales, including sales to parties in Other states, is void as a regula- tion of foreign commerce and an im- post or duty on exports. Crew Levick Co. v. Pennsylvania, 245 U. S. 292 (1917). A state cannot exact from a foreign corporation as a privilege Of doing largely interState busineSS, a. license fee of $17,040. Looney v. Crane Co., 245 U. S. 178 (1917). The deci- sion in Baltic Min. Co. v. Mass., 231 U. S. 68, (1913), that a state may ex- clude a mining or manufacturing COm- pany unless it pays a license fee, does not apply to public Service COrpOra- tions engaged in interstate commerce, and not allowed to refuse to transact either interstate Or intra State COm- merce. Illinois Cent. R. R. v. Missis- sippi R. R. Comm., 229 Fed. 248 (1914). The fact that the profit on the intrastate business of a foreign cor- poration is not sufficient to pay a state license fee for the privilege of doing business, does not render the fee in- valid. Marconi, etc. Co. v. Common- wealth, 106 N. E. 310 (Mass. 1914). A foreign corporation engaged in both interstate and intrastate business may be compelled to pay a percentage of that part of its capital stock which is used in intrastate commerce for the privilege of doing intrastate business. State v. Sessions, 147 Pac. 789 (Kan. 1915); Kansas City, etc. Ry. v. Ses- sions, 147 Pac. 791 (Kan. 1915). In the case Mulford Co. v. Curry, 163 Cal. 276 (1912), the Court in declaring il- legal a graduated license fee on the Capital Stock of foreign corporations as a condition of allowing them to do business in the state said that the re- cent decisions of the supreme court of the United States had established the following: “The admitted power of the State to regulate and prescribe terms under which a foreign corporation may engage in intra-state Or domes- tic business is subject to this limita- tion, that where such foreign COr- portion is engaged in inter-State, as Well as intra-State business, no Such term, condition or requirement Will be constitutional if it imposes any burden upon the inter-State busi- ness of such corporation, Whatever be its name or form; a license or privilege tax, for the Conduct of such intra-state business, based upon the total capital or the total capital stock of such corporation without just relation to the proportion which the capital or the capital Stock used in the state bears to the Whole capital or capital stock, though in terms declared to be directed Solely to the intra-state business of Said corporation, is unconstitutional and void, (a) as being in violation of the commerce clause of the constitution by the imposition of an illegal burden upon interstate commerce, and (b) because violative of the XIVth amend- ment of the constitution and its equal protection and due-process-of-law clause, as an effort to tax the property of citizens of the United States, which property is situated beyond the juris- diction of the taxing state and is not amenable to its revenue laws.” A. state may prohibit a foreign telegraph company from doing a local telegraph business in the state unless it pays a certain fee, being a percentage of its capital stock, even though the tele- graph company has accepted the Post Road act of Congress. Western Union Tel. Co. v. State, 121 S. W. 194 (Tex. 1909). Taxes levied on an: ~163- T-doing—business. S. state and intrastate receipts of a telegraph company." 2.8–6. But a tax levied by a state upon such part of the property of an interstate tele- graph company as is within the state is constitutional, and in ascer- taining the value of the property in the state a proportional part of the value of the entire property in and out of the state may be taken as a basis of assessment.” In other words a state in fixing for assessment interstate telegraph company cannot be collected by excluding it from doing busineSS, nor by injunction against its Western Union Tel. Co. v. Massachusetts, 125 U. S. 530 (1888); Re PennsylvãHja Tel. Co., 48 N. J. Eq. 91 (1890); CitySOf Bradford ty. Postal Tel. Co., 11 Ry. & &orp. L. J. 54 (Penn. Com. Pl. 1891). A State may impose other conditions. See). §§ 696- 700, Gaak-on...Geºrpº. A New York COmpany, Organized to Conduct both a telegraph and telephone business, Cannot compel the Secretary of state of Michigan to issue to it a certificate of . authority to transact both a telegraph and telephone business in Michigan, it appearing that the Michigan statutes do not authorize a company to incor- porate for both of those purposes, and the statutes authorize foreign COr- porations to do Only Such busineSS as a domestic corporation may do. American Tel. & Tel. Co. v. Secretary of State, 159 Mich. 195 (1909). * A state tax on each message re- ceived or sent out by a telegraph company is unconstitutional. Tele- graph Co. v. Texas, 105 U. S. 460 (1881). A state regulation of inter- state telegraphic communication is unconstitutional. Western Union Tel. Co. v. Pendleton, 122 U. S. 347 (1887). A statute authorizing an injunction against a telegraph Company from Operating its wires until a tax is paid is void if the wires are used for interstate business. Western, etc. Co. v. Massachusetts, 125 U. S. 530 (1888). A State may tax a telegraph company on its receipts from tele- grams Originating in and delivered within the state, but not on interstate telegram S. Ratterman v. Western Union Tel. Co., 127 U. S. 411 (1888). Interstate telegrams are interstate Commerce. Western Union Tel. Co. v. Foster, 247 U. S. 105 (1918); rev’g 224 Mass. 365. A state cannot tax a. telegraph Company for all business done by it in the state, including mes- Sages carried pal Lly within and partly with Out the State. Western Union Tel. Co. v. Alabama, 132 U. S. 472 (1889), rev’g 80 Ala. 273. See also San Francisco v. Western Union Tel. Co., 96 Cal. 140 (1892). The gross receipts of a telegraph company are not a legal basis for valuing its fran- chise. Western, etc. Co. v. City of Omaha, 73 Neb. 527 (1905), the court holding, however, that the right to do telegraph business in the state by reason of the Post Road act of Con- gress did not exempt such intangible right from state taxation. A tax of one per cent. On the gross receipts of a railroad doing interstate business is illegal as an interference with inter- state commerce, even though the One per cent. applies Only to Such propor- tion of the gross receipts as the length of the road in the state bears to the Whole length. Galveston, etc. Co. v. Texas, 210 U. S. 217 (1908). * A tax levied by the State Of Mas- sachusetts On an interstate telegraph company, being a tax “upon its corpo- rate franchise at a valuation thereof equal to the aggregate value of the shares in its capital stock,” deducting Such portion as is proportionate to the amount Of line Out Of the State, and also deducting the value of real estate and personalty which is subject to local taxes, is a tax on property OWned and used in the State and is COnStitutional. Massachusetts v. West- ern Union Tel. Co., 141 U. S. 40 (1891). A state in taxing an inter- TELEGRAPH-i-Aw-- purposes the value of the property and franchises within the state of a quasi-public corporation which owns a system of telegraphs running through many states, may consider the unity of use of a whole system as adding value to that part of the system which is within the state first mentioned." The established rule is that an injunction will not State telegraph company may base the tax on a proportionate part of the market value of its stocks and bonds, even though the company engages in interState commerce and has accepted the Post Road act of Congress. West- ern Union, etc. Co. v. Gottlieb, 190 TJ. S. 412 (1903), aff’d 165 Mo. 502. The tax levied by the state of Missis- sippi on telegraph companies is con- Stitutional, the tax being graduated according to the amount and value of the company’s property measured by miles, and being in lieu of taxes di- rectly levied on the property. Postal Tel. Cable Co. v. Adams, 155 U. S. 688 (1895), aff’g 71 Miss. 555. The Post Road act of Congress of 1866 does not prevent a state taxing an interstate telegraph company on the value of its property and franchises in the State. Such Value may be ascertained by tak- ing Such part of the value of the en- tire System as the part of the system in the state bears to the entire system. State v. Western Union T. Co., Mo. 502 (1901), aff'd in 190 U. S. 412. In taxing telegraph property in the state the entire gross and net receipts and value of the company’s Stock and bonds may be considered. Union Tel. Co. v. Dodge County, 80 Neb. 18 (1907). In arriving at the value of a telegraph property for tax- ation, the cost less depreciation is not necessarily the entire taxable value. The fair selling value and the income value may be considered. State v. Western Union Tel. Co., 111 Minn. 21 (1910). A state in ascertaining and fixing the valuation of telephone prop- erty for assessment may make the tax three per cent. Of its gross earn- ings, and such gross earnings may in- clude a proportional part of interstate earnings. Moneys, however, paid by a telephone company to other telephone “initiative” plan. 165. Western. companies with which it has traffic contracts are not a part of its groSS earnings. State v. Northwestern, etc. Co., 107 Minn. 390 (1909). A tele- phone company may be taxed two per cent. of its gross revenue from intra- state business and such tax may be levied by a statute enacted under the Pacific States Tel. and Tel. Co. v. Oregon, 223 U. S. 118 (1912). Where other property is as- sessed at one-fifth its actual value, but street railway property at its full value, this is depriving the street- railway company of the equal protec- tion of the law. Raymond v. Chicago, etc. Co., 207 U. S. 20 (1907). A stat- ute by which a corporation, which fails to return its property for taxa- tion, is bound by the assessment thereafter made without opportunity to object to the same, except for fraud Or corruption, is unconstitutional as depriving the corporation of its prop- erty without due process of law. Cen- tral of Georgia. Ry. v. Wright, 207 U. S. 127 (1907). An assessment will not be set aside by the court unless it is shown to have been made fraudulent- Iy or by the clear adoption of a funda- mentally wrong principle. Chicago, B. & Q. Ry. v. Babcock, 204 U. S. 585 (1907). * Massachusetts v. Western Union Tel. Co., 141 U. S. 40 (1891); State v. Western Union Tel. Co., 165 MO. 502 (1901), aff'd in Western Union Tel. Co. v. Gottlieb, 190 U. S. 412 (1903); Western Union Tel. Co. v. Taggart, 141 Ind. 281 (1894), aff’d, 163 U. S. 1; Adams Express Co. v. Indiana, 165 U. S. 255 (1897); Adams Express Co. v. Ohio, 165 U. S. 194 (1897); Cleveland, etc. Ry. Co. v. Backus, 154 U. S. 439 (1894); Pitts- burgh, etc. Ry. Co. v. Backus, 154 U. S. 421 (1894); Pullman Co. v. Penn- +65-ºxº~ ~ *:::: ** _TELEGRAPH HAW. lie merely because there has been an over-valuation, but will lie where the assessment is upon unconstitutional principles; in other words, where the assessment is based on fundamentally wrong principles." A suit against state officers to enjoin the enforcement of a state statute is not a suit against the state.” Where a statute was passed without a party having an opportunity to be heard such party is entitled to a judicial review of the statute without undue restrictions.” Under the Fourteenth Amendment to the Constitution of the United States rela- tive to the “equal protection of the laws” a corporation is protected against a tax burden not equally imposed upon other corporations under like circumstances.* sylvania, 141 U. S. 18 (1891); Western Union Tel. Co. v. Missouri, 190 U. S. 412 (1903); Comp. Delaware, etc. R. Co. v. Pennsylvania, 198 U. S. 341 (1905); Fargo v. Hart, 193 U. S. 490 (1904); State v. Northwestern Tel. Exchange Co., 107 Minn. 390 (1909); Hart v. Smith, 159 Ind. 182 (1902), the Court in the last case holding that the “good-will” could not be assessed On this plan. A telegraph company having lines running through many States may be assessed for taxation in One State On a basis of a unity of use, thus giving a greater value to each part than it would have, considered by itself alone. Re Assessment of Western Union Tel. Co., 130 Pac. 565 (Okla. 1913). The same principle of law has been applied to taxation of a ferry Company which owns the entire Capital Stock of two subsidiary rail- road Companies, one in the state and One in the adjoining state. State v. Wiggins Ferry Co., 208 Mo. 622 (1907), the court saying (p. 649) : “It is perfectly legitimate in estimat- ing the value of the property of the respondent in this state, to take into consideration the value such prop- erty derived from its use in a System of doing business by reason of its con- nection with and relation to other property of the respondent, which may be located in another State.” It will be noticed that the court is referring to other property owned by the ferry COmpany. * Fargo v. Hart, 193 U. S. 490 (1904); Chicago, etc. Ry. Co. v. Babcock, 204 U. S. 585 (1907); Chicago Union Trac- tion Co. v. State Board, etc., 114 Fed. 557 (1902); Louisville & N. R. R. v. Bosworth, 209 Fed. 380 (1913) ; West- ern Union Tel. Co. v. Wright, 185 Fed. 250 (1910); Cp. Dalton Machine Co. v. Virginia, 236 U. S. 699 (1915). The franchise right of a New York cable company to use New York highways for its Cables extending to Europe may be taxed by the state, and the assess- ment may be greater than the mile- age Of the Cables in the StreetS aS. Compared with the mileage in the Ocean, the terminals of the former being much more valuable than the mileage of the latter. People ex rel. Commercial Cable Co. v. State Board, 99 N. Y. Misc. 532 (1917). * Harrison v. St. Louis, etc. R. R., 232. U. S. 318 (1914). State officers may be enjoined from apportioning and certifying alleged illegal assessments to counties and municipalities where it is alleged that the assessments are: without due process of law, and de- nies the equal protection of the law, and that other property is assessed at a less proportion of its actual value, as well as for other reasons. Louisville & N. R. R. v. Bosworth, 209 Fed. 380 (1913). * Wadley, etc. Ry. v. Georgia, 235. U. S. 651 (1915). * Railroad Tax Cases, (1882). A 13 Fed. 722. *§- 6.--> * The franchise which a telegraph company has from the Post Road act of Congress of July 24th, 1866, cannot be taxed by a state" or municipality,” but it has been held that a state may tax the franchise which is derived from the state itself.” 1 Western Union T. Co. v. Wright, 185 Fed. 250 (1910); rev’g 166 Fed. 954. The lower court then entered a decree excluding from taxation the franchise acquired under the POSt Road act of Congress and assessing the taxable franchises in the State at $350,000. The franchise of a tele- graph company which has accepted the Post Road act of Congress is from the federal government and cannot be taxed by a state, although the State Imay tax its tangible property On a valuation based on its use and earning power and the right to do business in the state. Western Union, etc. CO. v. Lakin, 53 Wash. 326 (1909). * A county assessment on the “fran- chise” of a telegraph company Which is operating under the Post Road act of Congress is illegal. State v. Western Union Tel. Co., 43 Mont. 445 (1911). A tax by a municipality on a franchise of a telegraph company, which has accepted the Post Road act of Con- gress, is illegal as a tax on a federal franchise. Western Union Telegraph Co. v. Lakin, 53 Wash. 326 (1909), the court saying: ‘The Company pos- sessed under its federal franchise the right to do business upon all the roads and highways in the county of Pierce, whether within or without incorpor- ated cities and towns. This right Could not be denied. The power of the city was limited to its right to regulate the use of the privilege granted by Con- gress. It might provide that poles and wires should be carried Over certain. streets: that the wires should be carried on poles or buried in the ground ; that travel should not be un- reasonably obstructed, and that poles should be of certain height, and Other like incidents. Beyond this it had no power to go. The ordinance relied upon did not grant a franchise.” An ordinance by a municipality to a tele- graph company that has accepted the Post Road act of Congress is not such a franchise as may be taxed by a city, it being merely a police regulation. Western Union, etc. Co. v. City of Visalia, 149 Cal. 744 (1906). * A New York telegraph company OC- cupying the highways in New York State under a state franchise, as well as the Post Road act franchise, may be assessed for taxation. On the former franchise, and an assessment is pre- Sumed to be on the former alone, even though it does not so State On its face, there being no positive proof that the federal franchise was included in the assessment. People ex rel. Postal Tel.- Cable Co. v. State Board, 224 N. Y. 167 (1918). A California decision holds that a telegraph company may be taxed by a municipality on account of its State franchise giving it exclusive Occupation of a portion of a street even though its franchise comes from the United States government. West- ern Union Tel. Co. v. Hopkins, 160 Cal. 106 (1911). Even though a tele- graph company has a franchise from Congress under the Post Road act, yet it also exercises a franchise from the state, and this last may be taxed by a city for the use of the streets. Postal Tel., etc. Co. v. City of LOS Angeles, 128 Pac. 19 (Cal. 1912). The ordinance of a city granting to a tele- graph company the right to use the streets for its lines is a special fran- chise different from a franchise Of a company under the Post Road act of Congress, and hence the former fran- chise may be assessed for taxation by the city. Western Union Tel. Co. v. Hurlburt, 163 Pac. 1170 (Ore. 1917). A city may tax the franchise of a telegraph company for using the streets, such tax being a property tax, even though the company has ac- cepted the Post Road act of Congress. Western Union Tel. Co. v. City of Houston, 192 S. W. 577 (Tex. 1917). 16% º TELEGRAPH ºf AW ...S.-6: A municipality has no inherent power to exact a license fee from a telegraph company on account of its doing business or on account of its poles and wires; * but it is constitutional for a state to authorize a city to exact a license fee from a telegraph company to defray the ex- pense to the city for inspection and regulation of the telegraph line.” * “A license is issued under the police power; but the exaction of a license fee with a view to revenue would be an exercise of the power of taaration ; and the charter must plain- ly show an intent to confer that power, or the municipal corporation cannot assume it.” Cooley's Const. Limitations, 7th ed., p. 283; see also Dillon’s Municipal Corp., 5th ed., § 1408, p. 2461; Tiedeman on Police Power, pp. 271, etc. “Power to a mu- nicipality to impose burdens on occu- pations Other than such as appertain to police powers, or ingraft such bur- dens upon franchises granted by mu- nicipalities acting as state agencies, must be found clearly expressed in the written law.” City of La Crosse v. La Crosse Gas, etc. Co., 145 Wis. 408 (1911). A city has no authority under its general police power to levy a license fee on street cars operated under a franchise. City of New York v. New York City Ry., 138 N. Y. App. Div. 131 (1910). A city has no power to impose a license fee on telephone companies unless the statute expressly authorizes such license fees, even though the statute authorizes the city to control and regulate the Streets and prevent the encumbering thereof, especially where the license fee was Inot for Supervision and in amount greatly exceeded any cost of Supervi- Sion. Such a license fee, not expressly authorized, is a revenue measure and is void. Wisconsin, etc. Co. v. City of Milwaukee, 126 Wis. 1 (1905). A li- cense fee cannot be imposed by a mu- nicipality except by authority of an express statute or by necessary impli- cation. Commissioners, etc. v. Cam- bridge, etc. Co., 99 Md. 501 (1904); Wisconsin Telephone Co. v. Oshkosh, 62 Wis. 32 (1884); Dillon on Munici- pal Corp. (5th ed.), § 667. See also Id., § 662. ; Desty on Taxation, 765. COntra, Allentown v. Western U. Tel. Co., 148 Pa. St. 117 (1892). * Federal Courts: The supreme court first held that a telegraph company doing on interstate business could not be compelled to pay a license fee in Order to do business within a state. Leloup v. Mobile, 127 U. S. 640 (1888). Later the court held that a license fee of $500 levied by a city, by authority of a state statute, upon telegraph busi- neSS done exclusively in the city, and not on business from or to points out Of the State, was constitutional. Pos- tal Tel. C. Co. v. Charleston, 153 U. S. 692 (1894), Interstate commerce includes also the instrumentalities of that commerce. Gloucester Ferry Co. ov. Pennsylvania, 114 U. S. 196 (1885). A State may levy a license tax on the business of reporting on the credit and Standing of attorneys throughout the United States. United States Fi- delity Co. v. Kentucky, 231 U. S. 394 (1913). A city cannot require an express company to take out a license and pay a license fee for its drivers, Where the express matter is being car- ried by such drivers from the city into another State. The express company may obtain an injunction. Barrett v. City of New York, 232 U. S. 14 (1914), rev'g 189 Fed. 268. The question of reaSOnable compensation to be paid by a telegraph company to a city for the use of the streets is a question of fact to be determined in the usual way. Postal Tel.-Cable Co. v. New- port, 247 U. S. 464 (1918). In this Case the Court said that the St. Louis decisions turned on the fact that that City under the Missouri constitution and laws represented the public in the Control Of the streets. A state may levy an occupation tax on wholesale dealers in some articles without levy- .../ -Š-6- f A *~ A TELEGRAPH-IIAw--- .." ...” * .-- Q- -- . &’ Such a license fee/however, must be reasonable in amount, based upon the ºof the municipality in connection with the telegraph poles and wires, ing it on wholesale dealaers in other articles. Southwestern Oil Co. v. Texas, 217 U. S. 114 (1910). A privi- lege tax may regulate the business under the police power and also pro- duce revenue if authorized by Statute, and different lines of business may be divided into classes to prevent inequai- ity of burden, each class paying the same tax. Bradley v. City of Rich- mond, 227 U. S. 477 (1913). A li- cense fee levied on merchants by cities in Pennsylvania, and varying according to the amount of business done by them, is not contrary to the COnStitution. Of the United States. Clark v. Titusville, 184 U. S. 329 (1902). A license fee based on the amount of sales of goods manufac- tured is a tax upon the busineSS and not upon the sales and is legal. Amer- ican Mfg. Co. v. City of St. Louis, 250 TJ. S. 459 (1919). “A license fee is understood to be a charge for the privilege of carrying on a business or occupation, and is not the equivalent or in lieu of a property tax.” Hence a license fee exacted for Cars On a Street railroad does not prevent Other forms of taxation. Brooklyn City R. R. v. New York, 199 U. S. 48 (1905). A City may impose a license fee On a street-railway company, even though by the Original grant the COmpany was to pay for the use of the streets a Certajn Sum. City Of St. Louis v. TJnited, etc. Co., 210 U. S. 266 (1908). The . Supreme court of the United States will not question a decision of the Supreme court of the state that a license tax was imposed on domestic business only, even though it was im- posed on a foreign corporation doing both interstate and domestic business. Armour, etc. Co. v. Lacy, 200 U. S. 226 (1906). Osborne v. Florida, 164 TJ. S. 650 (1897). A state may levy a privilege tax on the right to do business wholly within the state, and even though the company is engaged in interstate commerce, yet if it has a right uw cease to do business wholly Within the State, such privilege tax Will not be regarded as a tax on in- terState commerce. Allen v. Pull- man’s, etc. Co., 191 U. S. 171 (1903). Where a city by its charter has en- tire Control over all streets it may Collect Compensation from a tele- garph Company for the use of the Streets for poles and wires, even though the statutes authorize tele- graph Companies to use the streets and highways. City of Memphis v. Postal, etc. Co., 145 Fed. 602 (1906); S. C., 164 Fed. 600. A license tax Of a thousand dollars a year imposed. On a brewery is illegal as interfering With interState COmmerce. Pabst, etc. Co. v. City of Terre Haute, 98 Fed. 330 (1899). In the case Lincoln Gas Co. w. City of Lincoln, 250 U. S. 256, 263 (1919), the court held that a license fee imposed upon a gas company of 2% 9% of its gross receipts was illegal. A license fee imposed by a city on an eXpress COmpany doing interstate busi- neSS, as a Condition of transacting business in such city, is invalid, and the express company may obtain in the federal courts an injunction against the same, where the agent of the express company has been arrested Several times for non-payment and the Value of the company’s right to do business in the city is more than $2,000. Southern Ex. Co. v. Mayor, etc., 116 Fed. 756 (1902). An occu- pation tax imposed on business done by a telegraph company, which does not exclude business done for the |United States government, j illegal. Western Union, etc. Co. v. (Village Of Wakefield, 69 Neb. 272 (1903). West- ern Union Tel. Co. v. City of Talla- dega, 226 U. S. 404 (1912), For other cases in the federal Courts see the following states wherein they arose. ºfº --- P-w Refer * Alabama: The leading case on this ~469.-- and must not interfere with interstate commerce.-- {...,& f TELEGRAPH LAw” The supreme court of the United States has said: “It must be assumed, r in accordance with repeated decisions, that the State cannot lay a whole subject, Leloup v. Mobile, 127 U. S. 640 (1888), arose in Alabama, and the Supreme Court in that Case held that the license fee was invalid. The United States court at the in- Stance of the telegraph company Will enjoin the Collection of a license fee of $1,000 where it is alleged and prov- en that it amounts to a tax on inter- State COmmerce and Will damage the telegraph company much more than $2,000. Postal Tel., etc. Co. v. City of Mobile, 179 Fed. 955 (1909). The decision in Williams v. City of Talla- dega, 164 Ala. 633 (1909), Sustaining a license fee of $100, although it was shown that the intrastate business WaS Conducted at a loss, was reversed in 226 U. S. 404 on another ground. A telegraph company in defending against a license fee must allege that it COnducted its business with reason- able Care and diligence and Collected the usual telegraph charges, and must set forth the volume Of its business and must exercise diligence and fru- gality in transacting the business. Western Union Tel. Co. v. City of De- catur, 81 S. 199 (Ala. 1918). See also Postal Tel.-C. Co. v. City of Decatur, 81 S. 204 . (Ala. 1918). These two de- cisions were by an intermediate ap- pellate court. The Supreme Court of the state refused a certiorari but at the same time said that it did not Commit itself to all that was said by the court below (81 S. 205). A license fee of $100 levied on a telegraph Com- pany may be reasonable and legal, even though the company’s intrastate business at that point is conducted at a loss. City of Troy v. Western Union Tel. Co., 164 Ala. 482 (1909). Cense fee Ordinance that does not ex- pressly exclude government business Of a telegraph company which has accepted the Post Road act of Con- gress is invalid. Western Union Tel. Co. v. City of Troy, 61 S. 488 (Ala. 1913). Arkansas: In the case Mackay Tel., etc. Co. v. City of Little Rock, 199 S. A li- W. 90 (Ark. 1917) the court held that a city might compel a telegraph com- pany to pay a license fee of 50 cents a pole on poles on a railroad right of way entirely removed from a street; aff’d, 250 U. S. 94 (1919). A license fee of twenty-five cents per pole was sustained in City of Ft. Smith v. PHunt, 72 Ark. 556 (1904). Where an electric-light company has erected its poles and Wires under an agreement with the City, the Čity Ca.1111Ul aſlel- wards require it to pay to the city fifty cents a pole annually, even though that amount would be a reason- able rental for the use of the StreetS. Hot Springs, etc. Co. v. City of Hot Springs, 70 Ark. 300 (1902). California: A license fee of a dollar and a half a pole imposed by the Original grant from the City WaS SuS- tained as against telephone Companies in Sunset Tel. & Tel. Co. v. City of Pasadena, 161 Cal. 265 (1911). Colorado. A license fee varying from $1.25 per pole down to 37%. cents per pole according to location, and 25 cents per mile of open wire, and a varying amount for aerial cable, and One-fourth as much for underground wires, was sustained in Colorado Postal Tel. Co. v. Colorado Springs, 158 Pac. 816 (Col. 1916), the court holding that even though the amount Collected from all companies was about $5,000 and might be more than the expense of inspection in a single year, this would not render the Ordinance invalid. Florida: A license fee of $100 on telegraph companies was upheld in Ferguson v. McDonald, 63 S. 915 (Fla. 1913). A license fee Of two dollars a. pole is not unreasonable on its face. City of Pensacola v. Southern Bell Tel. Co., 49 Fla. 161 (1905). Georgia: A telegraph company com- pany having but $2,672 intrastate re- Ceipts in a city may enjoin the col- lection of a $100 occupation tax, it being shown that all of this is con- Sumed by intrastate expenses except TEtiä6HRAPH.L.A.W. tax on interstate commerce ‘in any form,” by imposing it either upon the business which constitutes such commerce or the privilege of en- gaging in it, or upon the receipts as such derived from it. . And, further, in determining whether a tax has such a direct relation to interstate commerce as to be an exercise of power prohibited by the commerce clause, our decision must regard the substance of the exac- tion—its operation and effect as enforced—and cannot depend upon the manner in which the taxing scheme has been characterized.’” The $180, without deducting $8 tax or any income on the investment or this $100. The expenses may be arrived at by taking Such part Of the total intra- State expense in the State, including a proper part Of maintenance Of lines and Overhead management, as the intrastate receipts in the city bears towards the total intrastate receipts. Western Union Tel. Co. v. City of Fitz- gerald, 100 S. 104 (Ga. 1919). Where a City is put to no expense in the way Of inspection of telegraph wires, a license fee of $100, which is purely for revenue purposes, is excessive, unreasonable, confiscatory and void, where the intrastate business is con- ducted at a loss. Postal Tel., etc. Co. 'w. City of Cordele, 82 S. E. 26 (Ga. 1914), giving the detailed figures of receipts and disbursements of the Office and the mode of apportioning the same between interstate and in- traState business. The mode of dis- tributing the expenses of a telegraph company between intrastate business and interstate business approved in the Cordele case, was not approved in Postal Tel., etc. Co. v. Richmond, 249 U. S. 252 (1919), as not furnishing Sufficient data to test its validity. The collection of an occupation tax amounting to 16% of the gross income Of an express company, after paying railroad charges, may be enjoined, the tax being solely for revenue and un- reasonable with reference to the busi- ness. Southern Express Co. v. Town of Ty Ty, 81 S. E. 114 (Ga. 1914). In a Suit by a telegraph copmany to en- join the collection of a license fee of $600 by a city, the company is en- titled to an Opportunity to prove that the amount is unreasonable, confisca- tory and discriminatory. As a tax such a fee is illegal if it obliges the Company to abandon the business. The Court pointed out that the reason- ableness of the license fee in the Charleston case (153 U. S. 692) was not passed On, the point in that case being whether the fee interfered with interState COImmerce. The Court held that an occupation tax. On the business is different from a tax on property. It is a tax on the activity, energy, Capacity and Opportunity; in other WOrds, the Carrying On Of business. Atlantic, etc. Co. v. Mayor, etc., 133 Ga. 66 (1909). This case then went back for a new trial and the lower Court dismissed the bill of injunction and the upper Court Sustained that decision and held that the amount of the license fee could not be considered unreasonable, even though it resulted in the telegraph company doing busi- nSS at a loss, no proof being offered that the result would be that it would drive that particular company out of the city and give a monopoly of the business to its competitor. Atlantic, etc. Co. v. Mayor, 136 Ga. 657 (1911). A license fee equal to the amount that tWO and One half per cent. Of the gross receipts exceed the ad valorem taxes is not uniform, as required by the consti- tution, and is invalid, in that is levies In O license fee On Companies whose (td valorem, taxes equal two and One half per cent. Of the gross receipts Wright v. Southern Bell Tel. & Tel. Co., 127 Ga. 227 (1906). Kansas City Ry, v. Kansas, 240 U. S. 227, 231 (1916). <171– * IEEEEEGRAPHººſiº wºrk supreme court has also said: ‘‘We are aware of no decision by this court holding that a state may, by Idaho: A city which has granted to a Water Company the right to use the Streets cannot thereafter require the COmpany to pay $300 a month as rent- a1 for the use of the streets. Boise Water Co. v. Boise City, 230 U. S. 84 (1913). Illinois: An annual license fee of $1 per pole is presumed to be reasonable, and unreasonableness must be pleaded. The fact that the city does not in- Spect the poles is immaterial, because it may not have done so because the license fee was not paid. The defense that the City does not impose license fees On telephone poles must be pleaded to be available. City of Peo- ria v. Postal Tel.-Cable Co., 113 N. E. 968 (Ill. 1916). A city which has granted to a telephone company the right to erect its poles and wires on the streets subject to future police regulation, Cannot thereafter exact a license fee in the way of rental for the use of the streets because that is not a police regulation and impairs the obligation of the contract. City of Springfield v. Interstate, etc. Tel. Co., 201 III. App. 227 (1916), the Court stating that in the case City of Springfield v. Postal Tel-Cable Co., 253 Ill. 346, there may have been a provision in the Original Ordinance that future general Ordinances should be binding, and in City of Springfield v. Central Union Tel. Co., 184 Ill. App. 400, the Ordinance was subject to fu- ture general Ordinances. The Court held that the imposition of rental for the use of the Streets is not a police regulation. A general Ordinance for the use of the Streets that pole com- panies shall pay $1 per pole per year does not apply to a subsequent tele- phone ordinance which calls for cer- tain free service, City of Springfield w. Interstate, etc. Tel. Co., 116 N. E. 631 (Ill. 1917). Where a telephone company accepts an Ordinance which by its terms is subject to existing general Ordinances, one of which im- poses a license fee, the company must any device or in any way, whether pay it. City of Springfield v. Central Union Tel. Co., 184 Ill. App. 400 (1913). A grant from a city for per- mission to erect telephone lines in the Streets is not taxable as property in Illinois. Central, etc. Co. v. Swartz, 119 N. E. 990 (Ill. 1918). In Illinois a municipality is presumed to Own the fee of the Streets and hence un- less there is proof to the contrary the City is entitled to impose a license fee of a dollar per pole per year, the amount being reasonable and a fair remuneration to the city in the way Of rental for the use of the street. City of Springfield v. Postal Tel., etc. Co., 153 III. 346 (1912). Iowa. Even though a city owns the fee of its streets it cannot exact a license fee of $18 per pole and $1 per mile of wire per annum from a tele- phone or telegraph company that has acquired from the state the right to use the Streets. The court pointed Out that in the St. Louis Cases the tele- graph company had no grant at all from the state but only from the city. City of Des Moines v. Iowa Tel, Co., 162 N. W. 323 (Ia. 1917). - I ansas: A license fee of $50 on an express company by the city of Lea V- enworth was upheld in City of T_eav- enworth v. Ewing, 80 Kan. 58 (1909); aff’d Ewing v. Leavenworth, 226 U. S. 464 (1913). Kentucky : A telegraph company which takes Over the property of an- other telegraph company is not bound by a city ordinance granted to the latter containing a provision that a $100 license fee per annum must be paid. Postal Tel-Cable Co. v. New- port, 247 U. S. 464 (1918), rev’g 160 Ky. 244, s. c., 169 S. W. 700 and 76 S. W. 159. Courts have more control over occupation taxes than over ad valorem, taxes and may declare the former void if prohibitive. Salisbury w. Equitable, etc. Co., 197 S. W. 813 (Ky. 1917). Under the Kentucky constitution requiring taxes to be uniform upon all property, a statute --- arººrºº::til —$–6.--> *TETEGRAPH-E-A-W->. by a ſicense tax, in the form of a ‘fee,” or otherwise, burden the inter- State business of a corporation of another state, although the state may authorizing municipalities to levy a license fee upon a company doing business is illegal, it appearing that a franchise tax covering the same privilege has already been levied and paid. Cumberland, etc. Co. v. Hop- kins, 121 Ky. 850 (1906). Under the Kentucky Statutes a corporation can- not be required to pay a license tax for doing business in the state where it pays an ad valorem, tax on its prop- erty. Adams Exp. Co. v. Boldrick, 141 Ky. 111 (1910). In Kentucky a tele- phone Company which pays a prop- erty tax to a city cannot be subjected to a license or privilege tax, but the rule is otherwise if the company has no Valid franchise from the munici- pality. Cumberland Teſ. & Tel. Co. v. City of Calhoun, 151 S. W. 659 (Ky. 1912). A license fee amounting to eighty per cent. of the average net earnings is unreasonable, prohibitive and void. City of Louisville v. Pooley, 136 Ky. 286 (1910). Louisiana : A license fee of $5 per pole per annum in New Orleans was declared illegal in City of New Or- leans v. Great South. Tel. & Tel. Co., 3 S. 533 (La. 1888). An exemption of the capital Stock from taxation is not an exemption from a license fee, in- a.Smuch as a tax means a tax on prop- erty, while a license fee is a form of tax on occupations. State v. Citizens’ Bank, 52 La. Ann. 1086 (1899). Maryland: A city may compel an interstate telegraph company to pay $2 per pole per year, this being but a reasonable rental for the space occu- pied by the poles. Postal Tel. Cable Co. v. Baltimore, 79 Md. 502 (1894). Michigan : A license fee of fifty cents a pole On electric-light poles Within a city is unreasonable and illegal where the cost of inspection is but five cents a pole. Saginaw v. Swift E. L. Co., 113 Mich. 660 (1897). Mississippi: A statute providing that telegraph companies, on com- pliance with the act, may, without Compensation, use so much of the Streets of cities as may be reasonably needed for the construction of their lines, precludes a city from passing an ordinance charging telegraph com- panies rent for the use of its streets. Hodges v. Western Union Tel. Co., 72 Miss. 910 (1895). MissOuri: A city may charge an interstate telegraph company a rea- sonable rental for the use of the Streets, but cannot prevent such a COmpany using the streets, nor impose an unreasonable license tax. A rental of $5 a pole is unreasonably high and Void, Where the rental value of adja- Cent property is much lower. St. Louis v. Western, etc. Tel. Co., 6.3 Fed. 68 (1894); aff’d, 166 U. S. 388. A city license fee of $5 a pole for every telegraph pole within the city is not, as a matter of law, a tax upon the franchise to do business, and hence, if reasonable as a rental charge, is constitutional. St. Louis v. Western Union Tel. Co., 148 U. S. 92 (1893); S. C., 149 U. S. 465 (1893); rev'g 39 Fed. 59; S. c., 166 U. S. 388 (1897), aff’g 63 Fed. 68, holding this same li- cense fee to be illegal. Montana: A foreign corporation Seeking to do only a private intra- State business may be Compelled to pay a graduated license fee as a COn- dition of being allowed to do it. State v. Alderson, 140 Pac. 82 (Mont. 1914). Nebraska.: A telegraph license fee of $40 was upheld in City of Grand Island v. Postal Telegraph-Cable Co., 92 Neb. 253 (1912), the court holding that the method of apportioning the entire expense of the company be- tween interstate and intrastate busi- ness had not been shown to be cor- rect or just or equitable, and the fact that the business was conducted at a loss was no reason for the license fee being void, it being incident to Supervision and the issuing of a li- cense and the probable expense of in- spection and , police regulation and the location and erection of poles. An Occupation tax may be imposed on a *rīg--> -Š-6-r tax the corporation's property regularly or permanently located within its limits, where the ascertainment of the amount assessed is made telephone company for revenue and may be for more than the rental value of the streets and supervision but must not be prohibitory. Mere proof of doing business at a loss for two years without showing what the en- tire telegraph business of both tele- graph companies is does not show that a $60 license fee is unreasonable, and any loss on intrastate business in the city may be Offset by gain in the whole State. City of Fremont v. Postal Tel. Cable Co., 172 N. W. 525 (Neb. 1919). In Nebraska unider sta- tutory authority, a city may levy a business Or Occupation tax On meS- Sages handled in the city and sent and delivered entirely within the State. Western Union Tel. Co. v. Fremont, 39 Neb. 692 (1894), and 43 Neb. 499. A city in granting rights to a telephone Company may insert a provision that it shall pay $500 a year to the city, this being practically a rental for the use of the streets. Nebraska Tel. Co. v. City of Lincoln, 82 Neb. 59 (1908). On the motion for a rehearing (121 N. W. 442— Neb. 1909), in this case the court held that the occupation tax was not illegal as double taxation. The Ne- braska Statute imposing an occupa- tion state tax of from $5 to $200 per annum, according to the class, on both domestic and foreign corpora- tions, was upheld in Mercantile, etc. Co. v. Junkin, 85 Neb. 561 (1909). An occupation tax based on the gross earnings Of a gas COmpany furnishing heat, light and power, is illegal if the tax on another company which fur- nishes heat, light and power is on a different basis, under the Nebraska. constitution requiring uniform taxes. Lincoln, etc. Co. v. City of Lincoln, 182 Fed. 926 (1909). North Carolina: By $ 80, Ch. 201, L. 1913, p. 370, telegraph companies are required to pay to the state a license fee of $2 per mile of poles. Counties shall not levy any such tax but towns from 1,000 to 5,000 popu- lation may levy a tax of $10; from 5,000 to 10,000, $15; from 10,000 to 20,000, $20; over 20,000, $50. This Statute is re-enacted every tWO years. Ohio: A city may require a tele- phone company as a condition of uS- ing the Streets to pay a percentage of its gross receipts to the city, and if the company assents, even under protest, it cannot afterwards claim that this is an assessment for general revenue. Columbus, etc. Co. v. City of Columbus, 104 N. E. 534 (Ohio 1913). Oregon: A telegraph company may be compelled to take out a city li- cense in connection with its messen- ger Service. Portland Q). Western Jnion Tel. Co., 75 Oreg. 37 (1915). A license fee levied on a gas COm- pany of 3% of its gross receipts Was Sustained as a tax on the franchise of being a corporation, and also as an Occupation tax in City of Portland v. Portland Gas & Coke Co., 150 Pac. 273 (Ore, 1915). A license fee of $100, imposed upon a telephone company, which is clearly in excess of the dis- bursements of the city by reason of the property of that company, is a tax, and is void unless levied in a C- COrdance with the tax Statutes. Sun- set, etc. Co. v. City of , Medford, 115 Fed, 202 (1902). Penn Sylvania: A statute now gov- erns this subject in that state. See notes below. South Carolina : It was in this state that the case Postal Tel. C. Co. v. Charleston, 153 U. S. 692 (1894) arose. A license fee exacted by a city for revenue is a tax, and because it gives the right to do business it is also a license and hence is a license tax. Western Union Tel. Co. v. Town of Winnsboro, 71 S. C. 231 (1904). In South Carolina there is a statute as follows (Code of 1912, § 2947): “That said license shall be graduated accord- ing to the gross income of the persons, firms or corporations required to pay such license, or upon the amount of ~$.6. ‘dependent in fact on the value of its property situated within the state.’” capital invested in said business.” Tennesee: A Street rental of three dollars per pole per annum Was SuS- tained in City of Memphis v. POStal Tel., etc. Co., 164 Fed. 600 (1908). A county resolution that telephone poles shall be removed from the highway unless among other things a license fee of $1 per pole per year be paid is Void. Tel. & Tel. Co., 203 S. W. 342 (Tenn. 1918). Teacas: A license fee of $2 per pole excluding poles used for long distance wires, was upheld in South Western Tel. & Tel. Co. v. City of Dallas, 174 S. W. 636 (Tex. 1915). - Utah. In the case City Of Ogden v. Crossman, 17 . Utah, 66 (1898), the court declared that a license fee of $5 levied on each telephone instrument Was legal. Virginia: Even though a city levies an ad valorem tax it may collect a license tax for the privilege of doing business and this may depend upon the number of poles. does not prove that the burden inter- feres With interstate COmmerce by apportioning to the city such part of the Company’s expense as the local intrastate receipts bear towards the local interstate receipts, unless that method of computation is shown to be fair and correct. Postal Tel- Cable Co. v. Norfolk, 87 S. E. 555 (Va. 1916). A license fee was sustained in Postal Telegraph-Cable Co. v. Nor- folk, 101 Va. 125 (1903). A rental of tWO dollars per pole and an additional license tax of two hundred dollars per ar, num, the latter being in lieu of a property tax, is illegal as to such license tax if it is more than the reg- ular property tax would be. Telegraph-Cable Co. v. Richmond, 99 Va. 102 (1901). In the case Western Union Tel. Co. v. City of Richmond, 178 Fed. 310 (1909), aff’d, 224 U. S. 160, a license tax or fee of $2 per pole per year was upheld, the court saying (p. 324) : “It is not a tax, in *TELEGRAPH.L.A.W., Shelby County v. Cumberland The company POStal ºiſ; the sense in which that word is ordi- narily used, but is in the nature of a special toll, imposed for a specific use of designated property by a particular party. The poles deprive the city and the public of the use of certain por- tions of the Streets, and frequently . necessitate the excavation, repair, and inspection of the same, causing ex- pense to the City and inconvenience to the public.” See also Postal Tel., etc. Co. v. Richmond, 249 U. S. 252 (1919). A foreign corporation may be subject to a license fee without regard to proportionate profits on its intrastate business. Dalton, etc. Co. v. Common- wealth, 88 S. E. 167 (Va. 1916). Washington: A city exaction of 50 CentS per pole per year On telephone and telegraph poles is not a police regulation but is rent, and not being upon the Occupation or business and not graduated by the amount of busi- ness, it is not an occupation tax and Cannot be imposed on a company that already has a grant from the city, and hence its collection may be enjoined. Pacific Tel. & Tel. Co. v. City of Ev- erett, 166 Pac. 650 (Wash. 1917). e * Western Union Tel. Co. v. Kansas, * 216 U. S. 1 (1910). See also p. - note_2,--Sup?a. The Statement that “neither licenses nor indirect taxa- tion of any kind, nor any System of State regulation, can be imposed upon interState any more than upon foreign commerce; and that all acts of legis- lation producing any such result are, to that extent unconstitutional and void.” Cruchter v. Kentucky, 141 U. S. 47, 62 (1891); was reaffirmed in Postal Tel., etc. Co. v. Richmond, 249 U. S. 252 (1919). A tax of $2 per pole Owned or used in addition to a $300 annual license tax, was sustained in Postal Tel., etc. Co. v. Richmond, 249 U. S. 252 (1919), the court hold- ing that this $2 a pole was in the na- ture of rentals, and the amount might be legal, even if part of it had to be paid from interstate business, it be- ing proper that interstate business sºlº “:. . . . ... *~ { - ~2. \\ 3. * - # * \_{ §. 3. ? & - ) - M. v. - - ſ?, g f 176* -- -TELEGRAPH-IIAW $–6.--> *...*.* The question of whether a state may charge for the use of high- ways and bridges is considered elsewhere." A license fee ordinance which does not expressly exclude governmental telegrams is illegal.” A license fee affecting interstate and governmental business as well as lccal business is illegal.” The mere fact that an ordinance imposing a license fee declares that it does not involve interstate telegraph busi- ness is not conclusive on the court, and it may be shown that such license fee is so exorbitant as to constitute a burden on interstate commerce by reason of the local deficit being made good by drawing from the interstate receipts.” In the litigation over the Philadelphia license fee the supreme court of the United States held that a munici- pay its part of the expense incident tion laws. Foote v. Maryland, 232 U. to the right of way. The court held S. 494 (1914). A Federal instrumen- also that a state or city may impose tality acting under Congressional au- On a telegraph company a lump li- thority cannot be subjected to an oc- Cense tax. On the right to do intrastate Cupation. Or privilege tax by a state, business if the tax does not burden and the court may consider the real _or discriminate against º and effect Of a tax whatever business, provided the intrastate busi- name it, bears. Choctaw, etc. R. R. v. ness is so substantial that the tax is Harrison, 235 U. S. 292 (1914). not clearly a disguised attempt to tax * See § 2. - interState Commerce. Such a tax is * Williams v. City of Talladega, not an inspection fee, but is legal 226 U. S. 404 (1912). under the police power of the state * Postal, etc. Co. v. Mayor, etc., of for revenue purposes. A privilege tax Cordele, 76 S. E. 744 (Ga. 1912). by a state may apply to business pass- Where a quasi-public corporation may ing Out of the state and back again legally discontinue intrastate traffic a into the state. Cornell Steamboat state tax on such traffic is not illegal Co. v. Sohmer, 235 U. S. 549 (1915); as an interference with interstate Ewing v. Leavenworth, 226 U. S. 464 commerce in that the intrastate re- (1913). An oyster inspection fee is ceipts are not equal to the intrastate illegal if it burdens interstate com- expenses. Pullman Car Co. v. Adams, merce by being in excess of the ex- 189 U. S. 420 (1903). A city license pense of inspection, even though the fee imposed on a domestic telegraph excess is used for police purposes, and company is valid even though it more while the excess may be valid as a than consumes all the profit from in- property tax, yet unless it is apparent trastate business, inasmuch as the that the legislature would have im- court assumed that the company posed such a property tax the whole might discontinue intrastate business license fee falls. It interferes with if it wishes. Postal Telegraph, etc. interstate commerce. Foote v. Mary- Co. v. City of Portland, 228 Fed. 254 land, 232 U. S. 494 (1914), rev’g 117 (1915). Md. 335. A license fee may be so ex. “Western Union Tel. Co. v. Kansas, cessive as to be a violation of Article 216 U. S. 1 (1909). A decision of the I, § 10, of the Constitution of the Supreme court of a state, however, e º “Tº ſº ſº e that a license fee is imposed on do- TJnited States prohibiting any state mestic business Only, may be binding without the consent of Congress lay- On the Supreme court of the United ing any impost or duty on imports or States. Armour, etc. Co. v. Lacy, 200 exports except what may be absolute. U. S. 226 (1906), cp. p. At hote—4, ly necessary for executing its inspec- Satpºd- e” \ *- &* \ *š-6, TEEEGRAPH.L.A.W. pality may compel a telegraph company to pay the cost of supervision, the amount to be so paid to depend Ön all the circumstances of a par- ticular case, and if there is conflicting evidence the question may be submitted to a jury. The expense of supervision is the limit of the charge, but the charge, being fixed in advance, may be large enough to cover any reasonable anticipated expense." *Atlantic, etc. Co. v. Philadelphia, 190 U. S. 160 (1903). In arriving at a reasonable license fee, a city may include expense of additional services rendered by policemen and the police bureau, and extra, Calls for fire-en- gines, and expense of passing ordi- nances regulating the wires. City of Philadelphia v. Atlantic, etc. Co., 102 Fed. 254 (1900). This last decision Sent the case back for a new trial, and On the new trial a verdict was ren- dered against the defendant, and thereupon an appeal was taken di- rectly to the Supreme Court of the United States (190 U. S. 160, suppa), Which court reversed the judgment and Ordered still another new trial. Pennsylvania now has a statute gov- erning this subject; but prior to such Statute the following common-law decisions were rendered. Where the City of Philadelphia levied an exaction Of $16,000 on a telegraph company, and the expenditures Of the city by reason. Of the poles and wires did not exceed $3,500, the exaction is a tax, and is illegal as an interference with interstate commerce. Philadelphia v. Western Union Tel. Co., 40 Fed. 615 (1889). A city in proving that a li- cense fee levied on a telegraph com- pany is reasonable in amount may show the cost of inspection required by the city Ordinances, also any in- crease of the force and apparatus of the fire department caused by poles and Wires, also the cost of extra meet- ings Of the City Council in Connection With regulating the poles and wires. City of Philadelphia v. Western Union Tel. Co., 89 Fed. 454 (1898). In gen- eral See also Western Union Tel. Co. 77. Philadelphia, 22 W. N. Cas. 39 (1888); Harrisburg v. Pennsylvania, etc. Co., 5 Am. Elec. Cas. 63 (Pa. 1894); Chester v. Philadelphia, etc. (1892). In another case arising in Tel. Co., 148 Pa. St. 120 (1892). A City has implied power to require telegraph poles to be inspected by its police, and to impose a license fee of $1 a pole therefor. Allentown v. Western Union Tel. Co., 148 Pa. St. 117 (1892). A city may impose a license fee upon poles of a telegraph COmpany. Where it Offers to waive Such fee if the wires are put under- ground, it becomes clear that the Charge is a license and not a tax, and it is legal. Philadelphia v. Pos- tal, etc. “Co., 21 N. Y. Supp. 556 See also the cases in the next note below. In the case Punxsutawney Borough v. Western Union Tel. Co., 18 Pa. Dist. Rep. 308 (1908), involving the Validity of a pole license fee, the Court Said that the defendant having accepted the Post Road act of Congress of July 24, 1866, “had and still has the right and authority to occupy the public Streets and highways of said Imunicipality with its poles, wires, etc. Without first having obtained a license Or permit from the municipality so to do.” See also Williamsport Pass. Ry. ty. Williamsport, 120 Pa. St. 1 (1888); Milville v. Evergreen Ry., 131 Pa. St. 1 (1890). An express acceptance by a gas COmpany of an Ordinance, ex- cepting such of its terms as might be held illegal, binds the company to pay an annual Sum to the city, as required by the Ordinance, even though the Courts hold Subsequently that Other companies need not pay an equivalent sum. Allegheny v. Gas, etc. Co., 172 Pa. St. 632 (1885). Where an individ- ual Owning a telephone line accepts in writing an ordinance imposing a fee of fifty cents per pole per annum, and then sells the line to a telephone com- pany which assumes the duties and obligations, the telephone company must pay the amount, not as a license Pennsylvania the supreme court held, however, that a municipality in a mining district cannot impose a license fee which would be twenty times any expense or liability which it might incur for inspection.* Where a city has power to levy a license tax on poles it may levy such license tax not only on poles on the streets but also on poles on a rail- 1? road right of way running through the city.” A state cannot collect a license fee or occupation tax of sixty-five cents per mile of wi - ºblehe-wire-is used exclusively for the transmission of interstate eing interstate commerce.” Even though a state may exact compensation for the use of the highways for telegraph and telephone lines, yet a statute authorizing a commission to require permits for the construction of such lines does not authorize the commission to exact compensation." Where a telephone company has been paying rental to a turnpike company for its poles on the turnpike and the state acquires the turnpike, it may collect similar future rentals, the contract of the telephone company not being limited as to time." A similar decision was made as to rental which a telephone company was paying for its wires on a bridge owned by a bridge company and conveyed to the state fee, but as a contract obligation. Cochranton Borough v. Cochranton Tel. Co., 41 Pa. Sup. Ct. 146 (1909). The inspection by a municipality of underground conduits and wires can be but little more than perfunctory OWing to the nature of their location, and hence a municipal license fee for such inspection must be small. Del- aware, etc. Tel. & Tel. Co. Petition, 224 Pa. St. 55 (1909). * Postal Tel. etc Co. v. Taylor, 192 TJ. S. 64 (1904). The Court said that the municipality could not collect in advance for possible damages due to accidents, and that the evident pur- pose being to raise revenue and not to pay for police inspection the li- cense fee was void. This decision reversed the Supreme Court of Penn- Sylvania, which had held that an an- nual license fee of $1 per pole and $2.50 per mile of wire, imposed by a borough. On a telegraph Company. was not unreasonable. Borough of Taylor v. Postal, etc. Co., 202 Pa. St. 583 (1902); Borough of New Hope ov. Postal, etc. Co., 202 Pa. St. 532 (1902). Cf. the earlier decision of the Supreme court in Western Union Tel. Co. v. Borough of New Hope, 187 U. S. 419 (1903). In a Suit at law by a municipality for pole-license fees, the jury must either find for the full amount or else for no fees at all. The jury may decide that a certain fee is reasonable or unreasonable, but Cannot reduce the amount to what the jury Considers reasonable. Pos- tal Tel., etc. Co. v. New Hope, 192 T. S. 55 (1904). * Mackay Tel. & Cable Co. v. Little Rock, 250 U. S. 94 (1919), upholding a license fee of fifty cents per pole On railroad right of way and on pri- vate property as well as in the streets, the court holding that the license fee might be not only for the special and exclusive use of the streets for poles and equipment, but as compensation for Supervising and regulating them and issuing permits. * Amos v. Postal Telegraph-Cable Co., 80 S. 293 (Fla. 1918). * Chesapeake, etc. Tel. Co. v. State Roads Comm., 103 Atl. 447 (Md. 1918). - - * Chesapeake & Potomac Tel. Co. v. State Roads Commission, 106 Atl. 257. (Md. 1919). ~$–6,” *- TÉtiºGRAExFºxwº- 179* with the right to collect future rentals, the & Contract not, having expired." Pennsylvania has disposed of this vexatious cause of litigation, by a statute which authorizes the courts to fix on a specified basis the amounts levied by municipalities in the way of license fees.” Under American Tel. & Tel. Co. v. State Roads Commission, 106 Atl. 260 (Md. 1919). - * See act of assembly approved April 17, 1905. In the case Kittan- ning Borough v. American, etc. Gas Co., 93 Atl. 15 (Penn. 1915), general rules relative to license fees in Penn- sylvania were laid down, especially that a municipality could not impose a revenue tax under the guise of a police regulation, although the court upheld the license fee in that parti- cular case. A license fee which is really a revenue tax under the guise of police regulation is invalid, and if the cost of inspection by the munici- pality is greatly less than the license fees Collected, the latter are illegal. Borough of Kittanning v. American, etc. Co., 86 Atl. 717 (Penn. 1913), setting forth very clearly the princi- ples of law governing this subject. The statute was applied in Re Petition of United Tel. & Tel. Co. v. Borough of Carlisle, 31 Pa. Co. Rep. 481 (1905). A license fee of thirty cents a pole per annum Was Sustained under the Penn- sylvania statute in West Chester Borough v. Postal Tel., etc. Co., 227 Pa. St. 384 (1910). In Re Postal Telegraph-Cable Co. v. Borough of Strasburg, 25 Lanc. Co. Rep. 212 (1908), the court reduced the tax or license fee from twenty-five cents to ten cents, and said: “In several cases under this same act of assembly where the facts are similar to those in this case, the tax has been reduced. In Curwensville Boro. v. Huntington & Clearfield Telephone Co., 5 Justices' Iaw Reporter, 210 (1907), Judge Gil- lan reduced the tax from fifty cents to ten cents on each pole. In United Telephone and Telegraph Company’s Petition, 15 Pa. Dis. Rep. 193 (1905), Judge Sadler reduced the tax from seventy-five cents to ten cents. In Pennsylvania Telephone Co. v. South * per pole.” Bethlehem Borough, 16 Pa. Dis. Rep. 878 (1907), Judge Stewart reduced the tax from one dollar to ten cents. In Consolidated Telephone Companies of Penn. v. City of Easton, 16 Pa. Dis. Rep. 887 (1907), the same judge re- duced the tax from fifty cents to ten cents. In Washington Boro. v. West- ern Union Telegraph Co., 16 Pa. Dis. Rep. 847 (1907), Judge Taylor re- fused to reduce a tax of fifty cents In the case Bell Tel. Co. v. Hazleton, 67 Pa. Sup. Ct. 264 (1917), the court affirmed the judg- ment of the Court below reducing a license fee from 44 cents a pole to 12 Cents a pole. In the case DOrmont Borough v. West Liberty St. Ry., 64 Pa. Sup. Ct. 562 (1916), the court re- duced 50 cents a pole on a street rail- way to 25 cents, claiming that the poles were of iron and carried power- ful electricity and were inspected each day by a street commissioner who was paid a substantial salary. In the case MOnessen Borough v. Central, etc. Tel. Co., 51 Pa. Sup. Ct. 452 (1912), 50 cents a pole was sustained because many of the poles were on Streets subject to Overflow from a river and others on slopes of hills where there were land slides, and others in streets crowded with other wires, and careful and frequent in- spection by the city was necessary. In the case N. Y., etc. Tel. Co. v. Coudersport Borough, 49 Pa. Sup. 46 (1912), 30 cents a pole and $1 per mile of wire was sustained where that amount was necessary for direct in- spection, and reports, with an allow- ance for unforeseen contingencies. In the case Nanticoke Borough v. Bell Tel. Co., 47 Pa. Sup. Ct. 184 (1911), 25 cents a pole and $1 per mile of wire were reduced to 12 cents a pole and nothing for the wire. In the case Pittsburg, etc. Tel. Co. v. Braddock Borough, 43 Pa. Sup. Ct. 456 (1910), 180 -TELEGRAPH LAW t § 6; the Pennsylvania statute where a municipality neither inspects nor supervises poles and wires on the street it cannot impose a license fee, and hence where the fee is three times the sum paid by the municipality for inspection, and the inspection was merely perfunctory, and the poles were new, and no natural decay for several years was likely, the fee should be reduced to one-third, the court stating that the proper rule to guide in such cases is the cost of necessary inspection." Excessive penalties for non-payment of a license fee cannot be im- posed.* damus.” The collection of a license fee is by suit and not by man- Where a municipality arrests an employee of a company for non-payment of an illegal fee, the United States circuit court may discharge the prisoner on a habeas corpus.* A federal court has juris- $1 per pole and $2.50 per mile of wire were reduced to 50 cents per pole and 50 cents per mile of wire. In the case Meyersdale Borough v. Somerset Tel. Co., 68 Pa. Sup. Ct. 385 (1917), 50 cents per pole and 50 cents per mile of wire and $20 per mile of under- ground Conduit was held to be illegal and the court held that 20 cents per pole Was Sufficient and also held that the poles and wires need not be in- Spected more than two or three times a year and Specially after storms. The COurt held that an inspection two or three times a week was unnecessary. By Statute cities of the third class in Pennsylvania may collect $100 an- nual license fee from a gas company, irrespective of the volume of its busi- ness, the fee being for general rev- enue purposes. City of Altoona v. O’Leary, 98 Atl. 798 (Pa. 1916). * Delaware, etc. Tel. Co.'s Petition, 224 Pa. St. 55 (1909). - * Western Union Tel. Co. v. City of Richmond, 224 U. S. 160, 172 (1912). Penalties SO heavy as to prevent a per- son testing a law are a denial of due process of law. Wadley, etc. Ry. V. Georgia, 235 U. S. 651 (1915). Where the penalties are so great as to pre- vent the company from resorting to the courts to test the validity of a statute, owing to the danger of the corporate property being confiscated by penalties, and the officers being in prison long periods of time, the stat- ute is void for that reason alone. Eac parte Young, 209 U. S. 123 (1908). An excessive penalty will not be sus- tained. State v. Galveston, etc. Ry., 100 Tex. 153 (1906). A stockholder Suing an officer of a foreign corpora- tion for penalties for refusing to allow inspection. Of the stock-book cannot accumulate the penalties. He can recover on only one violation. Cox w. Paul, 175 N. Y. 328 (1903). A statute may prescribe that a public service corporation shall pay a rea- Sonable penalty for not adjusting a claim within a certain reasonable time. Morris, etc. Co. v. Southern Express Co., 146 N. C. 167 (1907). Fines amounting to $1,600,000 are not so grossly excessive as to deprive a corporation of its property without due procass of law where it has assets of over $40,000,000 and has paid dividends of several hundred per cent. Waters-Pierce Oil Co. v. Texas, 212 U. S. 86 (1909). * A provision in a grant from a city to a telephone company, that it shall pay semi-annually three per cent. of its gross receipts to the city, Cannot Łe enforced by mandamus, but is the subject of a suit at law. City of Chi- cago v. Chicago Tel. Co., 230 Ill. 157 (1907). - - * Ilaundry License Case, 22 Fed. 701 (1885). Where an employee of a telegraph Company which has accepted the Post Road act of Congress is ar- rested On a warrant issued by a justice of the peace for obstructing the high- § >~$–6:- “FELEGRAPH.L.A.W. diction to grant an injunction against the collection of a license fee, where the value of the right to be protected or the extent of the injury to be prevented is over three thousand dollars, even though the license itself is not that amount." But a manufacturing corporation doing an interstate business only cannot maintain an injunction against a commission in Virginia requiring it to pay a license before doing busi- ness in Virginia, the remedy by payment under protest and a suit to recover back being available.” Non-payment of a license fee is no Way by erecting the telegraph line On the highway, he will be discharged by the circuit Court Of the United States on habeas corpus. Ea parte Conway, 48 Fed. 77 (1891). A local agent Of an express Company who has been arrested for its not paying a license fee to a city may test the validity Of the Ordinance by habeas corpus proceedings. Hardee v. Brown, 56 Fla. 377 (1908). - * Postal Tel., etc. Co. v. City of Mobile, 179 Fed. 955 (1909); Humes w. City of Fort Smith, 93 Fed. 857 (1899). The federal court has juris- diction to enjoin the collection of a license fee levied on an interstate telegraph Company, even though the anāount is not $2,000, where it is al- leged that the company has accepted the Post Road act of Congress and is an agent of the federal government and that the collection of the tax would imperil its existence. Western Union Tel. Co. v. City Council, 56 Fed. 419 (1893); aff’d, 153 U. S. 692. The COUrt, however, held that the license fee in this case was legal. A tele- graph company may enjoin prosecut- ing attorneys in different parts of the State from instituting suits to recover illegal penalties based on an uncon- stitutional statute requiring an exces- sive license fee from the foreign tele- graph Corporation before it does business in the state. W. U. Tel. Co. ^). Andrews, 216 U. S. 165 (1910). An eXpress COmpany doing interstate busi- ness may maintain a suit in the United States court in Alabama to enjoin the Collection of an illegal license fee, even though it has not complied with the statutes of that State relative to filing papers before doing business in that State. Southern Ex. CO. v. Mayor, etc., 116 Fed. 756 (1902). Collection of taxes may be enjoined where there are many of them in different coun- ties and they are all illegal. Singer Mfg. Co. v. Adams, 165 Fed. 877 (1909). The federal courts have no jurisdiction of an injunction Suit brought by an interstate telegraph company against the collecting of taxes levied by several Counties where the taxes in no single county amount to $2,000. Nor is the juris- diction sustained on the ground that, a federal law is involved. Fish- back v. Western, etc. Co., 161 U. S. 96 (1896). This last case involved separate ad valorem, taxes based on distinct assessments in several COun- ties, no One of which amounted to $2,000, and the question involved was excessive taxation, and not an abso- lutely illegal tax Or license fee £77, toto imperiling interstate commerce and the franchise granted by the United States government. See also Turner v. Jackson Lumber Co., 159 Fed. 923 (1918). The enforcement of an ille- gal license fee by prosecutions en- joined in Van Deman & Lewis Co. v. Rast, 214 Fed. 827 (1913), involving a state license fee of $500 and a coun- ty license fee of $250 on merchants offering, with merchandise, profit- sharing certificates was reversed in 240 U. S. 342. A license fee of $300 a month. On a Water-WOrks Company cannot be enjoined in the United * Dalton Machine Co. v. Virginia, 236 U. S. 699 (1915). A ~18. – 192T basis for an injunction by a city against a telegraph company doing intrastate business in the city." The removal of a license-fee case to the federal court depends upon the usual rules applicable to removal of cases.” A corporation upon which an illegal license fee has been levied need not wait until the state seizes its property or commences suit, but may pay and sue to recover the amount back.” Mere demand of a tax is not duress but a penalty for non-payment may constitute duress." In South Carolina a license fee levied by a town on a tele- graph company cannot be enjoined but the remedy is payment under protest and suit to recover back." An adjudication as to an assessment or tax for one year is not res judicata as to subsequent years if the TELEGRAPHLLAW" ~$16:- value has changed or the assessors have changed." States Court where the municipality does not threaten to interfere with the Water-Works, but is merely suing for the license fee, and the tax is not a lien. On the property. Boise, etc. Co. ^y. Boise City, 213 U. S. 276 (1909). See § 572a, GeoRTOm-Corp. * Postal Tel., etc. Co. v. City of Mont- gomery, 69 S. 428 (Ala. 1915). * In a suit in a state court by a City - against a telegraph company for $1,772 for the use of streets or for a forfeiture of the defendant’s rights in the Streets, defendant by petition Stating that the amount involved is Over $2,000, may remove the case to the United States court. City of Mem- phis v. Postal, etc. Co., 145 Fed. 602 (1906). If the complaint shows that interstate commerce is involved the Case may be removed. State v. Port Royal, etc. Ry., 56 Fed. 333 (1893). A Suit by a city in the state court enjoining a telegraph company from doing business unless it paid a speci- fied license fee is not a suit of a civil nature, collection being by the crim- inal process of a fine, and hence such Suit is not removable to the federal Court. City of Montgomery v. Postal Tel., etc. Co., 218 Fed. 471 (1914). * Atchison, etc. Ry. v. O'Connor, 223 U. S. 280 (1912). * Gaar, Scott & Co. v. Shannon, 223 U. S. 468 (1912). Payment under pro- test Will not Sustain a suit to recover back. Southern Ry. v. Florence, 141 Ala. 493 (1904). By statute in Geor- In Kentucky the gia, payment under protest is ineffec- tive When made through ignorance of the law or where the facts are all known Or there is no misplaced con- fidence or fraud, except where there is urgent and immediate necessity for payment or to prevent an immediate seizure of person or property or to release the same. Civil Code 4317 (3723). Payment of a license fee under protest may sustain a right to recover back where a penalty of fine Or imprisonment was possible. Home Tel. & Tel. Co. v. City of Los Angeles, 181 Pac. 100 (Cal. 1919). A Surety company which has paid license fees to a city under threat of the city that it would forfeit the franchise of the street railway unless they were paid, has no right to payment in preference to mortgage bonds. Central Trust Co. v. Third Avenue R. R., 180 Fed. 710 (1910). * Western Union Tel. Co. v. Town of Winnsboro, 71 S. C. 231 (1904). * People v. Lundel, 157 N. Y. 513 (1899), distinguishing People v. Car- ter, 119 N. Y. 557 (1890). See also Liquidating Commissioners v. Mar- rero, 106 La. 130 (1902); City of Lowell v. Middlesex County, 152 Mass. 372 (1890); Am. & Eng. Ency. of Law (2d ed.), pp. 694, 701. A judgment against State Officials as to the valid- ity of corporate taxes is not res judi- . Cata binding On a county in the state. Bank of Kentucky v. Kentucky, 207 U. S. 258 (1907). See also Covington n). First Nat. Bk., 198 U. S. 100 (1905). TEEEGRAPH-FFAW" five year statute of limitations applies to a license fee imposed on a telegraſh company by an ordinance." - ++4 telegraph company must serve all who apply—Discriminations —Telegraph rates.—A telegraph company is not a common carrier. Nor is it liable as such in regard to care in sending messages. The principle of public policy that imposes upon common carriers the ex- ceptional liability of insurers is not applicable to a telegraph com- pany. Such a company may by the conditions under which it sends telegrams limit its liability in regard thereto.” In a suit by a telegraph or railroad company for tolls, the shipper cannot offset with a claim for damages due to negligence in transportation of the freight.” A suit in one state for damages for a ‘tort committed in another state is governed by the law of the latter state as to the ground and measure of recovery. FA telegraph company is a quasi-public corporation and is Gbliged to extend its services to all who apply therefor and who offer to pay the charges. Mandamus will lie to compel the company to render An adjudication as to taxes for one year is not res judicata as to a Sub- sequent year, even though the same questions are involved. Wright v. Central R. R.; 216 U. S. 420 (1910), and pºrt889, note 2, G99k-eia-Gorpo- pations, and 23 Cyclo., 1290. * Postal Tel.-Cable Co. v. Newport, 160 Ky. 244 (1914). ~. * Primrose v. Western Union Tel. Co., 154 U. S. 1 (1894): A The fact that a shipper does not rea printed form of contract for trans- portation is immaterial. American Exp. Co. v. U. S. Horse Shoe Co., 244 U. S. 58 (1917). An express com- pany may limit its liability where a larger liability is offered if paid for. Pierce v. Wells Fargo & Co., 236 U. S. 278 (1915). An express company which has limited its liability by con- tract on an interstate shipment is not liable, even though its own employees stole the goods. D'Utassy v. Barrett, 219 N. Y. 420 (1916). A provision on a steamboat ticket limiting the lia- bility of the steamboat to a small sum, without any provision for in- creased liability on the payment of an increased rate, is void. The Ken- sington, 183 U. S. 263 (1902). See 3 f - -sa-v" { { *) si * R ; zº-, ºr ºf 27: ..., § {A^*.*... (..*.*** the Carrier’s . also $ 907, *öfrº-GOpp. A steamship company may, in selling a ticket for passage, limit its liability for bag- gage, unless regular freight charges are paid On baggage in excess of a Cer- tain amount. Tewes v. North, etc. Co., 186 N. Y. 151 (1906). A person sending an express package and taking a receipt, limiting the liability of the express company, is bound by such receipt, especially where the party had been receiving the same kind of re- p ceipt for several years. Greenwald v. Barrett, 199 N. Y. 170 (1910). The question of whether a rule of a tele- graph company that the COmpany shall not be liable on unrepeated mes- sages is reasonable and legal, cannot be first raised in the United States dis- trict court, but must be brought before the interstate commerce commission. Williams v. Western Union Tel. Co., 203 Fed., 140 (1913). * Chicago, etc. Ry. v. Stein Co., 233 Fed. 716 (1915). Illinois, etc. R. R. v. Hoopes & Sons, 233 Fed. 135 (1916); Johnson-Brown Co. v. Delaware, etg. R. R., 239 Fed. 590 (1917).f--~~ * Western Union Tel. Co. v. Brown. 234 U. S. 542 (1914). y , sº J-84” £, tº." Tºp HE&R. ºff-rºw “S-7. its services and injunction will lie to prevent the discontinuance of such serviceſ. It is legal for a telegraph company to charge more to one person than another where the service is dissimilar, but the difference in the charges must not be so great as to show an unjust discrimina- tion, and any recovery must be limited to the amount of the unreason- able discrimination. The difference in the charges may be based upon the mode and kind of service, and such difference in charges must bear some reasonable relation to the difference in service.” * Thurn v. Alta Tel. Co., 15 Cal. 472, 474 (1860). Equity has power to enjoin a telephone company from vio- lating its contract to furnish service. Great Northern Hy. v. Sheyenne Tel. Co., 145 N. W. 1062 (N. Dak., 1914). A subscriber to telephone service can- not maintain a bill in equity to obtain a former lower telephone rate, his remedy being first with the Public Service Commission. Murray v. New York Tel. Co., 170 N. Y. App. Div. 17 (1915), affºd, 226 N. Y. Under the Montana Statutes a local telephone COmpany may compel a long-distance telephone Company to accept the form- er's messages. Billings, etc. Co. v. Rocky Mountain, etc. Co., 155 Fed. 207 (1907). A telephone company may refuse to install a telephone unless the tenant gives a Written a SSurance that he will not use it for illegal purposes. Matter of Cullen v. New York Tel. Co., 106 N. Y. App. Div. 250 (1905). A teleph One Company Whose under- ground conduits are full cannot be required by an applicant for a tele- phone to put down a new conduit to furnish him a telephone where such a requirement Would be unreasonable and the applicant can Soon be a CCOm- modated in another way. Cumber- land T. & T. Co. v. Kelly, 160 Fed. 316 (1908). In Smith v. Western TJnion Tel. Co., 84 Ky. 664 (1887), it was held that a telegraph Company cannot be required to communicate messages which furnish a “bucket * Western Union T. Co. v. Call, etc. Co., 181 U. S. 92 (1901). The court said as to telegraph companies: “They are endowed by the state with some of its SOvereign powers, such as the right Of eminent domain, and so endowed by reason of the public service they render. As a Consequence of this, all individuals have an equal right both in respect to service and charge.” In this case, Western Union. etc. Co. v. Call Pub. Co., 58 Neb. 192 (1899), a newspaper Which was not given the Same telegraph rates that were given to newspapers connected with the Associated Press recovered damages in an action at law for the difference in the rates charged to it and charged to Such other newspapers. Telephone users may file a bill of injunction against a telephone company to com- pel it to give telephone service and restraining persons from interfering therewith, and the suit may be in the United States Court, even though it is friendly, the remedy by manda'mºus being inadequate. Stephens v. Ohio State Tel. Co., 240 Fed. 759 (1917). A contract has been held valid be-, tween a telegraph company and a news agency, according to which the latter was to send all its news by the former, and was to receive a rebate of fifty per cent. On the regular rates. Reuter v. Electric Tel. Co., 6 E1. & B1. 341 (1856). A telephone company which cuts off Service from a patron who furnished connecting wires and who had a time contract, is liable either in tort or for breach of con- tract. In re Cumberland, etc. Co., 116 La. 125 (1906). A telephone com- pany cannot charge “business men” One rate for telephones and other peo- ple another rate. Mooreland Tel. Co. v. Mouch, 96 N. E. 193 (Ind. 1911). assºkº, TELEGRAPHºjºw eak * A telephone or telegraph company is public in the nature of its busi- ness and service and is not allowed to refuse to furnish service, nor to discriminate as to charges or conditions where the service is substan- tially the same." The same question arose many years ago, by reason *- shop” with the market quotations. No injunction Will be granted against the removal of telegraph wires from a “bucket shop.” Sterrett v. Philadel- phia, etc. Tel. Co., 18 W. N. Cas. 77 (1886). Mandamus lies to compel a telephone Company to furnish a citizen With service, no good reason for Inot doing SO being shown. State v. Nebraska Tel. Co., 17 Neb. 126 (1885). Mandamºus does not lie at the instance Of One telehone company to compel another telephone company to trans- Imit the former’s messages. People v. Central N. Y. Tel., etc. Co., 41 N. Y. App. Div. 17 (1899). The court will Order the receiver to pay a sum to a telegraph Company where the tele- graph Company otherwise will with- draw the service. Newgass v. Atlan- tic, etc. Ry., 72 Fed. 712 (1894). The rule of a telephone company that Service will be stopped unless bills are paid is legal. Rushville, etc. Co. v. Irvin, 27 Ind. App. 62 (1901). Even though a general rule of a tele- phone COmpany requiring three months’ rental to be paid in advance is enforced against some and not against others, this is not a discrim- ination. Vaught v. East Tennessee Tel. Co., 123 Tenn. 318 (1910). Where a telephone switch operator annoys a Subscriber to the telephone, the latter may maintain an injunction. Plum- mer v. Hattelsted, 117 N. W. 680 (Iowa, 1908). Even though a person, Who has rented a telephone, uses pro- fane language and does not pay his bills, yet if he pays up and promises to discontinue such language, the tele- phone company must restore the tele- phone. Huffman v. Marcy, etc. Tel. Co., 143 Iowa, 590 (1909). A telegraph COmpany may make it a condition of its lease of a private wire to an indi- vidual that the operator of the wire shall be satisfactory to the telegraph Company. O’Brien v. Western Union, etc. Co., 62 Wash. 598 (1911). * The first decision was Louisville Transfer Co. v. American District Tel. Co., 1 Ky. L. J. 144; s. c., 24 Alb. L. J. 283 (1881), where the telephone COmpany Was enjoined from removing telephones, even though it was com- peting With the complainant as to mes- Senger business. See State v. Nebraska -Tel. Co., 17 Neb. 126 (1885), where Tndºnda?nºtS Was granted to compel a telephone COmpany to render Service, although the company had taken out a telephone On account of a controversy as to charges. Hockett v. State, 105 Ind. 250 (1885), where a statute fixing telephone rates was upheld. Central Union Tel. Co. v. Bradbury, 106 Ind. 1 (1885), to the same effect. Central Union Tel. Co. v. State, 118 Ind. 194 (1888), and Central Union Tel. Co. v. State, 123 Ind. 113 (1889), holding that a telephone Company might be compelled by manda'm/us to furnish telephones, even though it had with- drawn from business except to furnish public pay stations. State v. Citizens’ Tel. Co., 61 S. C. 83 (1901), where the telephone company had withdrawn the telephone because the customer pat- ronized another telephone company also. State v. Kinloch Tel. Co., 93 Mo. App. 349 (1902), where there was a Controversy Over back bills. Mahan v. Michigan Tel. Co., 132 Mich. 242 (1903), where manda/mºus was granted to compel the telephone company to furnish a telephone at an Ordinance price which the company had ac- cepted. Gwynn v. Citizens’ Tel. Co., 69 S. C. 434 (1904), which was a suit for damages against the telephone Company for refusal to furnish service, and the suit was sustained. Yancey ^). Batesville Tel. CO., 81 Ark. 486 (1907), where the plaintiff was re- quired to go to the main office when he sent long-distance telephone mes- Sages, While Others were not so re- J.86- ... TELEGRAPH.L.A.W S-7. of the subsidiary Bell telephone companies having taken licenses on telephone patents from the American Bell Telephone Company of Massachustts, and by the terms of those licenses the subsidiary com- panies were prohibited from furnishing telephone service to any tele- graph company, except to the Western Union Telegraph Company. The courts, however, held almost uniformly that that restriction was void, and that any other telegraph company might compel the telephone company to furnish service to it the same as telephone service was furnished to the Western Union Telegraph Company." Where by statute rates are to be approved by a commission an approved rate * applies to existing contracts, even though it changes the rates pre- scribed by the contracts * quired. Friedman v. Gold and Stock Tel. Co., 32 Hun, 4 (1884), and Smith ty. Gold and Stock Co., 42 Hun, 454 (1886), where a telegraph company was enjoined from removing tickers. Manda'mºus lies to compel a “ticker” Company to replace a “ticker” and furnish Service. Davis v. Electric Def. Co., 19 W. N. Cas. 567 (1887). A ticker Company, which furnishes Stock quotations to a customer, under a COntract by which the ticker COm- pany may discontinue the service at any time, when it considers the use Of the quotations detrimental, cannot be enjoined from discontinuing the service. Shepard v. Gold & Stock Tel. Co., 38 Hun, 338 (1885). The most ~£eeehrt-and important case on this sub- ject, however, is that of Western Un- ion Tel. Co. v. Call Pub. Co., 181 U. S. 92 (1901), where damages were col- lected from the telegraph Company for discriminating in favor of the AS- sociated Press as against the Call Pub- lishing Company. * State v. Bell Tel. Co., 36 Ohio St. 296 (1880); American Union Tel. Co. 49. Bell Tel. Co., 10 Central L. J. 438; S. c., 11 id. 357, and 22 Alb. L. J. 363 (1880); State v. Bell. Tel. Co., 23 Fed. 539, 541 (1885); Bell Tel. Co. v. Commonwealth, 3 Central Rep. 907, 17 W. N. C. 505 (Pa. 1886); Com- mercial Union Tel. Co. v. New Eng- land Tel. & Tel. Co., 61 Vt. 241 (1888); Chesapeake, etc. Tel. Co. v. Baltimore & Ohio Tel. Co., 66 Md. 399, 414 Similarly where an act of Congress pre- (1887); State v. Delaware, etc. Tel. Co., 47 Fed. 633, 636, 638, 640 (1891); Delaware, etc. Tel. Co. v. State, 50 Fed. 677 (1892); contra, American Rapid Tel. Co. v. Connecticut Tel. Co., 49 Conn. 352 (1881). In many of the States there are statutes on this Sub- ject as, for instance, in TenneSSee, where the statute was construed in Cumberland Tel. & Tel. Co. v. Kelly, 160 Fed. 316, 319 (1908). The New York Stock Exchange, being a private, unincorporated association, may give to one telegraph company the exclu- sive right to have its telegraph instru- ments and telegraph apparatus on the floor of the exchange to collect and distribute quotations, and cannot be compelled to extend the same facilities to a competing telegraph Company. Commercial Tel. Co. v. Smith, 47 Hun, 494 (1888); Wilson v. Commercial Tel. Co., 18 N. Y. St. Rep. 78 (1888). * A five year contract by which an electric light company agrees to fur- nish light to a consumer at a Specified price is displaced by an increase of the public rates of the company two years thereafter with the approval of the Public Service Commission. Union Dry Goods Co. v. Georgia, etc. Corp., 248 U. S. 372 (1919). Where a steam company, which is subject to a Pub- lic Service Commission law, raises its rates, this nullifies an existing time contract for a lower rate. New York Steam Co. v. Straus, 186 N. Y. App. Div. 787 (1919), aff'd, 226 N. Y. 704 -$–7:- TELEGRAPH LAW" scribes that only money shall be received for tolls, an existing contract for payment in services ceases, but the consideration of the contract may be recovered back." Where a railroad has filed increased rates with the Public Service Commis- Sion it is no longer bound to charge the lower rate to carry out an exist- ing contract in payment for right of way. Leiper v. Baltimore & Phila. R. R., 105 Atl. 551 (Pa. 1918). A contract made in 1901 whereby a rail- road was to furnish free transporta- tion to a property Owner and his fam- ily in consideration of a right of way, could not be further performed after the Act of Congress of June 29th, 1906, and later by similar state stat- ute, but the property Owner is en- titled to the value of the right of Way less what he has already received. Bell v. Ranawha Traction, etc. Co., 98 S. E. 885 (W. Va., 1919). Even though a telegraph company has leased a wire for five years at a speci- fied price yet if during these five years it reduces the rate of rental for new leases to other parties, the five year lease becomes void under the Inter- state Commerce Act. Postal Tel., etc. Co. v., Assoc. Press, 175 N. Y. App. Div. 538 (1916); S. c., 184 N. Y. App. Div. 590 (1918). Even though a Con- tract to give telegraph service to a Specified amount in payment for a right of way, may be illegal as to in- terstate telegrams, yet it is legal as to intrastate telegrams under the Stat- utes of California. Irvine v. Postal Tel.-Cable Co., 26 Cal. App. Dec. 840 (1918). * Even though a contract made by a railroad. Company to give trans- portation in consideration of services, has been abrogated by the Interstate Commerce Act, yet the party entitled to the transportation may recover damages for the amount. New York Central, etc. R. R. v. Gray, 239 U. S. 583 (1916). Since the act of Congress requiring railroads to collect the sdºme Compensation from One party as from another, a contract, by which a free pass is given by a railroad in pay." ment for injuries received, ceases, even though it was made before the act of CongreSS Was enacted. Louisville, etc. R. R. v. Mottley, 219 U. S. 467 (1911). And under such act of Congress a rail- road cannot give free transportation in payment for advertising. Chicago, etc. Ry, v. United States, 219 U. S. 486 (1911). The Interstate Commerce Act renders unenforceable the agree- nent Of a railroad to give a free pass aS part Consideration for grant Of right of way, but this does not cancel the grant. Dorr v. Chesapeake, etc. Tºy., 88 S. E. 666 (W. Va. 1916). Where a telegraph company cannot give free service in payment for right of Way in accordance with a contract by reason of a new statute it is lia- ble in money for the amount of free Service thus cut off. Irvine v. Postal Tel.-Cable Co., 173. Pac. 487 (Cal., 1918). A contract of a railroad made prior to the interstate commerce act by Which a railroad agrees to issue a pass in Consideration of a grant of land for the railroad right of way is not invalidated by the interstate com- merce act. Curry v. Ransas, etc. Ry., 58 Kan. 6 (1897). A railroad cannot give railroad Service in Settlement Of a claim for damages for loss of prop- erty in transit, but may deduct the freight on such part of the property as is lost in transit, and it may be for the jury to decide whether this Was a mere. Subterfuge. Atchison, etc. Ry. v. United States, 170 Fed. 250 (1909), rev’g 163 Fed. 111. The con- tract of a person that he shall receive a salary and an annual pass from a railroad for preventing depredations On the railroad property is not ren- dered illegal by a Subsequent COnstitu- tional prohibition against free passes, such a pass not being a free pass. Dempsey v. New York Central, etc. R. R., 146 N. Y. 290 (1895). Under the Colorado statute against discrim- inations a railroad cannot give a coal * --187. Aº 188”, *The usual contracts between telegraph and railroad companies for ex- change of services are legal.” At common law, even though an elec- tric light company discriminates in its prices to customers, yet one of them cannot maintain a suit for the difference between what he was charged and a lower price charged another concern, his remedy being for damages which he must plead and prove, and must also prove that the rate charged him is unreasonably high.*~ts. 4-A telephone company cannot legally discriminate between two com- peting telegraph companies by giving one the telephone call word ‘‘Telegram,” and depriving the other telegraph company of as much business as possible.”. A telephone company cannot legally charge a higher rental for a telephone to a telegraph company than to any other patron of the telephone company, and certainly cannot demand a per- centage of the telegraph company’s receipts from messages delivered or received over the telephone, even though the telephone company is a competitor of the telegraph company. The telegraph company may enjoin the removal of the telephone instruments on account of its re- $27° L Company a rate of sixty cents a ton for five years While Charging Other mine Owners $1 a ton, even though the re- duction is in settlement Of an unliqui- dated claim for negligently setting the mine On fire. Union Pacific Ry. V. Goodridge, 149 U. S. 680 (1893). A railroad cannot legally pay a sum of money to a shipper in Compromise of a claim for alleged negligence in consideration of the shipper agreeing to give the carrier his subsequent shipments. This amounts to a rebate. St. Louis, etc. Ry. v. Landa, 187 S. W. 358 (Tex. 1916). A contract by which a railroad agrees to Carry a person and his family for life for a right of way, violates the Public Serv- ice Law of New Jersey. Perkins v. Public Service Ry., 99 Atl. 387 (N. J. 1916). - * Postal Tel.-Cable Co. v. Tonopah R. R., 248 U. S. 471 (1919). * Homestead Co. v. Des Moines Elec- tric Co., 248 Fed. 439 (1918); rev'g 226 Fed. 49. Pennsylvania R. R. v. International, etc. Co., 230 U. S. 184 (1913); Meeker v. Lehigh , Val. R. R., 236 U. S. 412 (1915). An agreement between competing steamship compa- nies relative to rates between the United States and Brazil to meet Com- petition between Europe and Brazil is not illegal, and a rebate to exclusive ShipperS is legal, if the rates are rea- Sonable, but a refusal to accept Ship- ments at the regular rates may be enjoined. The same conclusion was reached as to a combination of Steamships between the United States and Asia. United States v. American Asiatic S. S. Co., 220 Fed. 230 (1915). Cf. S. c., 242 U. S. 537 and § 901, Geek- on-Corps. * Matter of complaint of Postal Tel, C. Co. v. New York Telephone Company, 23 N. Y. Senate Doc., being report of Public Serv. Com. for 1912. Where a public Service Commission Orders a telegraph Com- pany to cease charging for transmit- ting the date of messages transferred to it en route by another telegraph company, and this order is complied with, and the telegraph Company then Commences to charge for words added to the point of transfer, this is a mere invasion and is illegal. People v. Pub- lic Service Com., 160 N. Y. App. Div. 144 (1914), aff’d, 211 N. Y., 542, and aff'g Pub. Service Reports, Second Dist. Vol. 3, p. 160. § 7~ Yºs -TELEGRAPH-Exwº- fusal to pay such charges." One telegraph company cannot discrim- inate against another in refusing credit, which is given to other re- sponsible parties.” The jurisdiction of a court of equity to enjoin excessive charges and discriminations by common carriers on the ground that the wrong is a constantly recurring one for which there is no adequate remedy at law, is generally recognized.” A leased wire or circuit is subject to the Interstate Commerce Act, and where more than one person sends telegrams over a leased wire they all should be named in the contract as lessees.* The authorities differ as to whether a telephone company may make an exclusive contract with a connect- ing telephone company.” * Postal, etc. Co. v. Cumberland, etc. Co., 177 Fed. 726 (1910), disapprov- ing People v. Hudson, etc. Tel. Co., 19 Abb. N. Cas. 466 (1887). * The New York Public Service Com- mission on November 20th, 1919, or- dered the Western Union Telegraph Company to cease discrimination against the Postal Telegraph-Cable Company in refusing credit to the lat- ter the same as to other responsible concerns for daily tolls On telegrams directed to exclusive Western Union points and handed by the Postal Com- pany to the Western Union for trans- mission and delivery, such credit and charge account having been discontin- ued August 1st, 1919, when the Postal Telegraph-Cable Company back its telegraph lines from the gov- ernment and discontinued the 20% increase in the telegraph rate institu- ted by the Postmaster-General April 1, 1919. ° Northern Pac. Ry, v. Pacific Coast, etc. Ass'n, 165 Fed. 1 (1908). * Re Private Wire Contracts, 50 I. C. C., Rep. 731 (1918). * A contract between a local tele- phone company and a long-distance company that the former will not give any of its business to any other long-distance company for ninety-nine years, is invalid as tending to create a monopoly. United States Tel. Co. v. Central Union Tel. Co., 202 Fed. 66 (1913). “All the authorities agree that at common law each telephone company is independent of all other received . telephone companies, save for the duty to receive and forward to any point. On its line messages received from Such other company or companies; and hence that it is not bound to accord to any such outside organization or its patrons.” Hence a long-distance board. On an equality With its OWI). patrOnS. Hence a, long-distance telephone company and a local tele- phone company may make a contract by which they exchange business eX- clusively between themselves. Pacific Tel. & Tel. Co. v. Anderson, 196 Fed. 699, 703 (1912). See also Home Tel. Co. v. People’s Tel. Co., 125 Tenn. 270 (1911); also $ 930, Geok-orrêorps. referring to various other instances and Cases relative to COntracts between local telephone Companies and long- distance telephone Companies. A long- distance telephone company cannot enjoin a competing long-distance telephone Company from making COnnecting COntracts With local telephone companies, which already have made exclusive connecting con- tracts with the first-named long-dis- tance telephone Company unless in such injunction Suit such local compa- nies are made parties, inasmuch as the validity of the contracts is involved. Moreover such an exclusive contract is invalid, and while a local company is not bound to allow any long-distance company to connect With its system, yet if it allows such connection to One it must allow it to other long-distance COmpanies. United States Tel. Co. v. tº 89-º- § J90. TELEGRAPH. L.A.W. -$.7 A strike may be a sufficient excuse for failure to transmit messages promptly. A telegraph company differs from a railroad in this particu- lar." The Kansas statute requiring telegraph companies to open offices in county seats to which their lines run was displaced by the Public Utilities Act.” A statute requiring telegraph companies to deliver messages at all points within one mile of the telegraph station is unconstitutional as an interference with interstate commerce, so far as it applies to mes- sages delivered outside of the state.” It is constitutional, however, as to messages delivered in the state even though it requires free delivery. Central Union Tel. Co., 171 Fed. 130 (1909). A hotel may maintain a proceeding before a state commission under the Oregon statute to compel a long distance telephone Company which has wires running into the ho- tel to make physical connection. With Other telephone wires in the hotel be- longing to a competing telephone Com- pany. Pacific Tel. & Tel. Co. v. Wright-Dickinson, etc. Co., 214 Fed. 666 (1914). A telegraph company cannot be Compelled by ºn,077 (ld???/MS to allow a telephone company to put its telephone in the telegraph office for the transmission of telegrams even though the telegraph company has al- lowed a COmpeting telephone COmpany to do so. People v. Western Union Tel. Co., 166 III. 15 (1897). Where two telephone companies contracted to exchange business for twenty-five years, and a third one bought one and caused it to break the contract, the court allowed the profits for three years only, especially as the third company might have invaded the ter- ritory of the One it purchased. South- western Tel. & Tel. Co. v. Memphis Tel. Co., 163 S. W. 1153-(Ark-1914). Where-artelegraph company has con- -tracted with a telephone company that in all the exchanges of the latter the telephone Company shall have a Cer- tain part of the tolls on telegrams de- Hivered or received over the telephone by the telegraph company, a local agent of the telegraph Company Can- not demand a telephone at the same rate as others pay, inasmuch as the contract is a legal and binding One. East Tennessee Tel. Co. v. City of Harrodsburg, 135 Ky. 216 (1909). A telephone Company may enjoin an- Other telephone company from violat- ing a contract by which they agree to eXchange business With each other ex- clusively, it appearing that they occu- py different but contiguous territory, and that such contract promoted com- petition with the Bell telephone sys- tem. Home Tel. Co. v. Sarcoxie, etc. Co., 23.6 MO. 114 (1911). As to connect- ing line contracts between railroads, See § 898, Cook on Corp. As to exclu- Sive rights in a hotel, see § 2, Supra. The long-Continued litigation between the Western Union Telegraph Com- pany and the American Bell Tele- phone Company relative to a contract by which the former was to receive twenty per cent. of receipts of the latter from telephone licenses, cul- fninated in Western Union Tel. Co. v. American Bell Tel. Co., 203 Fed. 785 (1913). * During a strike a telegraph Com- pany may refuse to accept messages for transmission except subject to de- lay. Petze v. Western Union Tel. Co., 128 N. Y. App. Div. 192 (1908). * State v. Postal Tel., etc. Co., 96 TKan., 298 (1915). Cf. State v. Western Union Tel. Co., 75 Kan. 609 (1907); rev’d. On another point in 216 U. S. 1. See also p! 4015, note 1. * Western Union Tel. Co. v. Pendle- ton, 122 U. S. 347 (1887), rev’g 95 Ind. 12. A Commission may order a telegraph Company to deliver messageS free within the radius of two miles from the telegraph office. Western |Union Tel. Co. v. State, 31 Okla. 415 (1912). ** § º - TELEGRAPH.L.A.W. An interstate telegram remains interstate until it reaches the point the parties originally intended it should reach." A railroad shipment from one point in a state to another point in the state but passing in transit through another state is not interstate commerce in tax matters,” but is interstate commerce as to the Inter- state Commerce Act.” telegrams, all state statutes and telegraph companies in telegrams are void.* graph companies to deliver connection with unrepeated The Indiana state statute requiring tele- rmessages Congress having assumed control over interstate decisions imposing a liability on interstate at all points within a city does not prevent, the telegraph company charging for delivery at points more than one mile from the telegraph office, such charge being in accordance with one of the established rules of the telegraph company.” A-state-may-imposé à p *******º-º-º: ênalty on a telegraph-company for failure-to-deliver-promptly in the state messages coming from other states:* A state may impose a penalty on a telegraph company for failure to perform its clear common-law duty to transmit messages without unreasonable delay, and this statute applies to messages to points outside of the state if it relates to delay within the state." * Western Union Tel. Co. v. Foster, 247 U. S. 105 (1918) ; rev’g 224 Mass. 365. A telegram Over a railroad tele- graph line in Arkansas is interstate if it came from a telegraph company Outside of the state under a connect- ing line agreement. La Cost v. Chi- cago, etc. Ry., 203 S. W. 586 (Ark. 1918). * Lehigh Valley R. R. v. Pennsyl- vania, 145 U. S. 192 (1892). * United States v. D., L. & W., 152 Fed. 269 (1907); Milk Producers Co. ^). D., L. & W., 7 I. C. C. 92 (1897); TNew Orleans Cotton Exchange v. Cin- cinnati, etc. Ry., 2 I. C. C. 375 (1888); Hanley v. Kansas City Southern Ry., 187 U. S. 617 (1903), disapproving Campbell v. Chicago, etc. R. R., 86 Iowa. 587 (1892); Seawell v. Kansas City, etc. R. R., 119 Mo. 222 (1893). A State may regulate intrastate tele- graph rates and this applies to tele- grams Starting from one point in the State and passing through another State and then being delivered in the first-named State. State v. Western Union T. Co., 113 N. C. 213 (1893). A statute imposing a penalty on tele- A. graph Companies for delay of mes- Sages applies to a telegram from One point of the state to another point of the State, even though the telegram passed through another state. West- tern Union v. Hughes, 104 Va. 240 (1905). A statute fixing $500 as li- quidated damages for excessive rail- road charges is illegal. Missouri Pac. Ry. v. Tucker, 230 U. S. 340 (1913). 2. * Postal Telegraph-Cable Co. v. War-ºff ren-Godwin Lumber Co., 251 U. s: (1919). * State v. Western Union Tel. Co., 172 Ind. 20 (1909). *Western Union Tel. Co. v. James, 162 U. S. 650 (1896). Western Union Tel. Co. v. Tyler, 90 Va. 297 (1893); Western Union Tel. Co. v. James, 90 La. 254 (1892). A Virginia, statutory penalty applies to a telegram from one point in Virginia to another point in Virginia, although the telegram was 1Ost in transmission through the Dis- trict of Columbia. Western Union Tel. Co. v. White, 74 S. E. 174 (Va. 1912). * Western Union Tel. Co. v. Crovo, 220 U. S. 364 (1911). *194- 192° tº wº TELEGRAPH LAW “” §-7. state statute prohibiting telegraph companies from limiting their lia- bility is constitutional as to intrastate telegrams." A state statute may prohibit a telegraph company from transmitting race track news.” A telegraph company cannot refuse to transmit a message because it re- lates to an illegal transaction in futures, there being no statute render- ing the telegraph company liable criminally.” A telegraph company is not liable for libel because it transmits a telegram stating that a person had been ‘‘bought up.” “ A telegraph company is bound to transmit a message unless it is in indecent language." ~/. 4-A state has no power to require interstate railroads to employ its telegraph operators not more than eight consecutive hours in a day." In the absence of an act of Congress, a state may “regulate the con. dict of local messengers when the transit by wire was over.” 7 A state cannot impose a penalty for non-delivery of a telegram at a navy yard which is within the exclusive jurisdiction of the United States.” The giving of free telegraph passes by telegraph companies is now regulated by act of Congress.”?'the Interstate Commerce Commission * Western Union, etc., Co. v. Com- mercial Milling Co., 218 U. S. 406 (1910). - * City of T.Ouisville v. Wehmhoff, 116 Ky. 812 (1903). Mere proof that a telegraph Company transmitted a tele- gram resulting in betting On a certain horse in a horse race does not render the telegraph company liable to a fine under the MOntana, Statute. State v. Postal Tel.-Cable Co., 161 Pac. 953 (Mont. 1916). At common law a tele- graph company is not guilty of nui- Sance even though it delivers race track news to a race track gambling COncern that is a nuisance. Common- wealth v. Western Union Tel. Co., 112 Ry. 355 (1901). * Gray v. Western Union Tel. Co., 87 Ga. 350 (1891). * Nye v. Western Union Tel. Co., 104 Fed. 628 (1900). * Western Union Tel. Co. v. Fergu- son, 57 Ind. 495 (1877). A telegraph Company is liable for refusal to trans- mit a telegram COmplaining of rail- road Service at a depot. Western Un- ion Tel. Co. v. Lillard, 86 Ark. 208 (1808). tº * A state law prohibiting a railroad from employing a telegraph operator more than eight hours a day except un- der extraordinary circumstances is void, that subject being regulated by act of Congress. Erie R. R. v. New York, 233 U. S. 671 (1914). The federal act restricting the hours of labor of railroad telegraphers was enforced in United States v. Grand Rapids, etc. Ry., 224 Fed. 667 (1915). State v. Chicago, etc. Ry., 136 Wis. 407 (1908). The federal hours-of-service act ap- plicable to railroad telegraph opera- tors was applied in United States v. St. Louis, etc. Ry., 189 Fed. 954 (1911). An arbitration between a railroad company and its telegraphers in ac- Cordance with the act of Congress of June 1, 1898 (30 U. S. Stat. at L. 424), was involved in Re Southern Pac. Co., 155 Fed. 1001 (1907). Where a railroad operates its own telegraph line, its linemen are entitled to the benefit of the federal Employers’ Lia- bility Act. Deal v. Coal, etc. Ry., 215 Fed. 285 (1914). * Western Union T. Co. v. Wilson, 213 U. S. 52 (1909). * Western Union, etc. Co. v. Chiles, 214 U. S. 274 (1909). * See act of June 18, 1910, 36 Stat. at Large, 546. A contract by a tele- §-7– ...?" has jurisdiction over trans-Atlantic cable rates." graph company to give a free tele- graph pass over its lines and certain other telegraph lines, became void when telegraph COmpanies Were placed under the interState COmmerce act. Clark v. New Jersey, etc. Tel. Co., 87 Atl. 640 (N. J. 1913). An express company is forbidden by the Inter- State Commerce Act from giving free transportation of merchandise to its employees or the Officers and em- ployees of other express companies or railroad companies. The privilege of allowing certain free transportation Of passengers does not apply to mer- chandise. American Exp. Co. v. U. S., 212 U. S. 522 (1909). By the amend- ment of June 29, 1906, a common car- rier Subject to the InterState Com- merce Act may exchange passes with carriers not subject to the Act, the passes being to officers, agents and employees. United States v. Erie R. R., 236 U. S. 259 (1915). A free pass allowed by the Interstate Commerce Act is a pass which does not require any consideration. Charleston, etc. TELEGRAPH LAW ,193 State commissioners Ry. V. Thompson, 234 U. S. 576 (1913), rev’g 13 Ga. App. 528. A sheriff who accepts free railroad service in Viola- tion of the law may be ejected from Office at the instance Of the attorney- general. Coco v. Oden, 79 S. 287 (La. 1918). A telephone Company may give a reduced rate to a city in Con- sideration of its grant and may also give a reduced rate to charitable in- Stitutions and clergymen. N. Y. Tel. Co. v. Siegel-Cooper Co., 202 N. Y. 502 (1911), reviewing the decisions on the subject of discrimination generally. A combination of shipowners whereby freight rates from the United States to South Africa are regulated, violates the anti-trust act of July 2, 1890, even though the combination Was made before that date, and was made in a foreign Country. Any shipper may Sue for three times the differ- ence between the rate as fixed and a reasonable rate. Thomsen v. Union, etc. Co., 166 Fed. 251 (1908), rev'g 149 Fed. 933. * A contract of an elec- tric light company to give free light * White & Co. v. Western Union Tel Co., 33 I. C. C. 500 (1915). “It is Well Settled by numerous decisions that the extent of Our authority in Connection with transportation to an adjacent foreign country is Over that portion of the transportation within the confines of the United States.” In- ‘ternational Paper Co. v. Delaware, etc. Co., 33 I. C. C. 270 (1915). The Supreme Court of the United States in the case Texas, etc. Ry. v. Inter- State Com. Com., 162 U. S. 197 (1896) hold that the Interstate Commerce Act applies not only to commerce be- tWeen the states and territories, but also commerce going to and coming from foreign countries. The court Said (p. 212): “It would be difficult to use language more unmistakably Signifying that Congress had in view the whole field of commerce (except- ing commerce wholly within a state) as well as that between the States and territories as that going to or coming from foreign Countries. In a later part of the section it is declared that ‘the term “transportation” shall in- clude all instrumentalities of Ship- ment or carriage.’ Having thus in- cluded in its scope the entire Com- merce of the United States, foreign and interstate, and Subjected to its regulations all carriers engaged in the transportation of passengers or prop- erty, by whatever instrumentalities Of shipment or carriage, the section proceeds to declare that “all charges made for any service rendered Or to be rendered in the transportation of passengers Or property as aforesaid, or in connection there with, or for the receiving, delivering, storage or han- dling of Such property, shall be rea- Sonable and just; and every unjust and unreasonable charge for such Ser- Vice is prohibited and declared to be UInlawful.” ” sº 194" TELEGRAPH raw- es-7- cannot compel an interstate telegraph company to open an office at a specified place." It is reasonable for a telegraph company to close its office on holidays, excepting two hours in the morning and two hours in the afternoon, and hence it is not liable for delay in transmission of a message on account thereof.” A telegraph company may close an office which is run at a loss even though the statutes authorize state com- in public buildings for the privilege the railroad and the railroad a speci- of having its poles and wires in the fied amount of railroad service to the Streets, is not an illegal discrimina- telegraph company is valid under the tion. Public Service Elec. Co. v. Interstate Commerce Act, even though Doard, etc. Com’rs., 96 Atl. 113 (N. the public telegraph and railroad J. 1916). In Florida a telephone com- rates are disregarded. Postal Tel.- pany may furnish free telephone serv- Cable Co. v. Tonopah R. R., 248 U. S. ice to a city. State v. Peninsular Tel. 471 (1919). A statute that railroads Co., 75 S. 201. (Fla. 1917). A state should not give free passes or tickets may require a trolley company to does not invalidate provisions in a carry detectives free. Sutton v. New pre-existing railroad lease that the Jersey, 244 U. S. 258 (1917). A com- lessee would transport the stockholders mission paid by a railroad to a for- of the lessor to and from their annual warder of freight, the forwarder be- meeting without charge. Emerson v. ing a concern that collects-shipments. Bo: from various companies and combines The Nebraska “Anti-Pass Law” ap- them into carload lots, is illegal. plies to a pass given by a railroad United States v. Lehigh Valley R. R., to a physician for his professional 222 Fed. 685 (1915). The usual tele- services in addition to a fixed sum per graph-railroad contract under which month. State v.) Martyn, 82 Neb. 225 the telegraph company gives a speci- (1908). See º p. 3607, note 5, Geek" fied amount of telegraph service to on.6}6+p. A. * State v. Western Union Tel. Co., not apply practically. Mayo v. West- 113 N. C. 213 (1893). A state can- erm Union Tel. Co., 112 N. C. 343 not compel interstate trains to stop (1893). Under the constitution of at Stations in the state if such sta- Louisiana the state railroad commis- tions already have sufficient facili sion cannot be given power to impose ties. Atlantic Coast Line v. Whar a fine On a telegraph company for ton, 207 U. S. 328 (1907). A state not sending messages promptly. W. Commission has no authority to reduce U. Tel. Co. v. R. R. Commission, 120 intrastate telegraph rates to a point La. 758 (1908). “In the comparative- Where the intrastate business does ly few cases in which such questions not earn a fair return on a proportion- have arisen it has been distinctly rec- ate part of the telegraph property ognized that administrative orders, within the state. Western Union Tel. quasi-judicial in character, are void if Co. v. State, 31 Okla. 415 (1912). a hearing was denied; if that granted Although the North-Garolina railroad was inadequate or manifestly unfair; commission act contains a provision if the finding was contrary to the ‘in- that it shall apply to telegraph com->disputable character of the evidence.’” panies, and another provision requires Interstate Com. Com. v. Louisville & the commission to fix telegraph rates, N. R.N. R., 227 U. S. 88 (1913). See yet the remainder of the statute will also p.k.190, note 2. not be held applicable to telegraph * Western Union Tel. Co. v. Ford, Companies, especially where they do 77 Ark. 531 (1906). - " ' - - “... sºº ! 7~. sº- missioners to regulate this subject." *TELEGRAPH.L.A.W. An intrastate state telegraph company may be also interstate if it handles interstate messages.” A municipality cannot regulate the tolls or charges unless expressly au- thorized so to do.” * Western, etc. Tel. Co. v. Missis- sippi R. R., 74 Miss. 80 (1896). A State COmmission has no authority to prohibit a telegraph company from closing a telegraph office except with the consent of the commission, but may require twenty days’ notice thereof to be given to the commission. Western Union Tel. Co. v. State, 31 Okla. 415 (1912). Neither a tele- graph Company nor a railroad can be Ordered by a state railroad commission to maintain a telegraph station in a railroad depot where there is not enough business to support the Office and the railroad business does not re- Quire it. Chicago, etc. Ry. v. State, 24 Okla. 370 (1909). A commission Cannot Order a railroad company to give telegraph service at a small sta- tion. Where it would increase the ex- pense One hundred per cent. and would be used solely for bulletining passen- ger trains. Kansas City, etc. Ry. v. State, 27 Okla. 806 (1911). A tele- graph COmpany may be entitled to close a telegraph office, which is con- ducted at a loss, especially where there is another telegraph and also a telephone office in the town, but must first place the matter before the Pub- lic Service Commission, with the right to appeal to the court if the Commission refuses consent. State w. Kansas Postal Tel., etc. Co., 150 Pac. 544 (Kan. 1915). Where a tele- graph office is really self-sustaining a State COmmission will not author- ize its being closed. Re Application Western Union Tel. Co. as to Arabi, La. 11 Off. Pub. S. 710 (1916). The California Commission allowed the Western Union to discontinue a tele- graph office at San Andreas, July 26, 1915, but stated that it was not to be considered a precedent as to the pub- lic necessity of requiring such an Of- fice to be kept open, even though con- ducted at a loss. A Commission can- A reduction of telegraph rates by a state statute not unreasonably require a railroad to restore trains which have been dis- Continued. Mississippi R. R. Comm. ^). Mobile & Ohio R. R., 244 U. S. 388 (1917). Where a state public service Commission Orders a railroad to re- Store two trains which had been dis- COntinued, the railroad may enjoin the enforcement Of the commission’s Order upon showing that the convenience of the public did not require those trains, a trolley line furnishing suffi- Cient Service and the trains being op- erated at a loss. Delaware, etc. R. R. v. Van Santwood, 216 Fed. 252 (1914). A natural-gas company may cease op- erations in a certain district and cus- tomers Cannot compel it to continue. Germania, etc. Co. v. Alum, etc. Co., 226 Pa. St. 433 (1910). A gas com- pany Organized under the general law to furnish gas in the cities, towns, and places in specified counties may after furnishing gas in a certain town for a Series of years discontinue and take a Way its plant if it has not made any COntract with the town or its citizens to the contrary. East, etc. Co. v. City of Akron, 90 N. E. 40 (Ohio, 1909). An electric-light COmpany may dis- Continue service that the public in- terest no longer requires. Weld v. Gas, etc. Com’rs, 197 Mass. 556 (1908). See also $ 634, Goekºerrº-Gołºp. * A local Stockyard railroad as well as a junction railroad may be subject to the interstate Commerce act as a part of terminal facilities and as a part of interstate commerce. United States v. Union Stock Yard, 226 U. S. 286 (1912). * St. Louis v. Bell Tel. Co., 96 Mo. … 4 3 ſ— Cf. notes in § 3-supear 43 623 (1888). where the rates were fixed by the original ordinance or grant from the city. A telephone company having power by Congress to erect its lines On highways in a territory is not bound by a municipal regulation of the rates --~~% . ºs. #. º ->: 2'º, 196* TELEGRAPH LAW 2-&-7- io a point below the actual cost of the service is unconstitutional." “There is no presumption of wrong arising from a change of rate by a carrier. with it no presumption that it was not rightfully done. to be charged. South, etc. Tel. Co. v. State, 25 Okla. 524 (1910). A city has no power to reduce telephone rates to a point where they would not pay operating expenses, maintain the plant, and pay a fair return. On the investment. City of Owensboro v. Cumberland Tel. & Tel. Co., 174 Fed. 739 (1909). A city has no inherent powor to regulato tolophone ratoſ). Iowa Tel. Co. v. City of Keokuk, 226 Fed. 82 (1915). In a suit to enjoin a reduction of telephone rates by a municipality, the municipality itself is the proper party defendant, and a telephone subscriber will not be al- lowed to intervene. Re Engelhard, etc. Co., 231 U. S. 646 (1914). 1 Western, etc. Tel. Co. v. Myatt, 98 Fed. 335 (1899). See also $ 902, Geek-op-Gerb. A State Statute regu- lating intrastate rates frnay be an sºº inſºrs interference with interState COm- merce. Eac parte Young, 209 U. S. 123 (1908). The railroad commis- sion of Louisiana cannot arbitrarily reduce telephone rates without an in- vestigation of the facts as to the rea- sonableness of the rate, and it is in- Sufficient for the commission to COn- sider merely the tax returns, and the net earnings as shown by annual re- ports and the value of the company’s property within the state, especially where it is shown that the company could not earn seven per cent. On its Louisiana investment at the old rates. A temporary injunction, however, will not be granted ea; parte. Cumber- land Tel. & Tel. Co. v. Railroad Com- mission, 156 Fed. 834 (1907); rev'd on another point in Louisiana R. R. Com. v. Cumberland, etc. Co. 212 U. S. 414. A telephone company may in- stitute suit in the federal Court to enjoin a municipality from putting into force a confiscatory reduction of telephone rates and need not first test the validity of the ordinance by a Suit The mere fact that a rate has been raised carries 2 x 2 Under the in the State court. Home Tel. & Tel. CO. v. Los Angeles, 227 U. S. 278 (1912). * Interstate Com. Com. v. Chicago G. W. Ry., 209 U. S. 108, 119, 120 (1908). Telegraph rates are made in the first instance by the telegraph . COmpanies Subject to regulation by the InterState Commerce Commission. The Commig3ion will ilul I educe suuli rates except on clear proof. White & Co. v. Western Union Tel. Co., 33 I. C. C. 500 (1915). A valuation in con- demnation proceedings would include Some factors that ordinarily would not be included in a valuation in a rate Case, including net earnings, go- ing Value and franchise value. Whit- ten “Valuation of Public Service Cor- porations.” Dunn. On Government Ownership of Railways, pp. 61, 62. In Valuing a gas plant to fix gas rates the franchise whose value is reflected in the market value of the stock must be considered, in this instance being fixed at 30%, but nothing for good Will, and 8% was allowed as a fair income on the entire value of the property. Public Service Gas Co. v. Board of Public, etc. Com’rs, 92 Atl. 606 (N. J., 1914), aff’g 84 N. J. L. 476. Professor Ripley of Harvard in a Valuable article in XXIX Political Science Quarterly 569 (Dec., 1914), On physical valuation of railroads and also On Valuation of going value, etc., said (pp. 597, 598): “The subject of intangible values may not be dismissed Without further examination, for just now it is the most rapidly growing tip-end of the subject. Courts and Commissions seem to be if not all at Sea at least well out at Sea, or, to Change the figure, almost at logger- heads. Few of them have clearly dissected the value of ‘the remaining property,’ or ‘full value,” from the point of view of the conflict of pri Vate and public rights. Three intaſ Acts of Congress authorizing the gible possessions, quite distinct in their nature, although blending at the margins, are discernible. These are franchise Value, good Will, and the Worth Of a going concern. The franchise has value either because of the possession by the company of a privilege of place, of time, or of use. The Second intangible element is good will, not inaptly defined as the ‘present value of expected super-prof- itS.’ Reputation in trade is a char- acteristic asset of competitive busi- neSS and as such has only a remote Connection. With railroads under pres- ent Conditions. With but a single Carrier in the field, the shipper has no Choice and no good will either to give Or to Withhold. Consequently, it is argued that no allowance therefor Should be permitted in valuation. And yet, We Submit, a large part of the business of a carrier is after all really Competitive. Reputation for certain- ty and despatch of freight and Safety in passenger business may cut a not inconsiderable figure in receipts. As for the third intangible, going value, this arises from an established busi- ness as against one in its initial Stages. Unquestionably a system in full Operation, with established con- nections, an efficient organization and a created income, with its property tried out and unified, is worth more than a railroad practically on paper, except for the fact that its physical plant is geographically in place.” The New York Court of Appeals in 1914 held that a commission in fixing a gas company’s rates, must take into consideration the “going value” of the plant. The court said: “It is now generally recognized that ‘going value' as distinct from ‘good will,’ is to be considered in valuing the property of a public service corporation either for the purpose of condemnation or rate making, but there is a wide diver- gence Of View as to how it is to be considered. . . . . It would have been entitled to a return on the valuation adopted by the commission if it had £EEEGRAPEE-LºſAW poses.’ government to take possession of no customers, but was just ready to begin business, whereas it had a plant in operation with an established busi- ness, which every one knows takes time, labor and money to build up. There is no “logical difference between allowing “going value” in the Valuation of a plant when it is to be taken entirely by the public and al- lowing the same element when Valuing the Same plant for rate making pur- It takes time to put a new enterprise of any magnitude on its feet after the construction work has been finished. Mistakes of con- Struction have to be corrected. Sub- stitutions have to be made. Econo- mies have to be studied. Experiments have to be made, which sometimes turn Out to be useless. An organiza- tion has to be perfected. Business has to be Solicited and advertised for. . . . The proper and reasonable cost of doing that, whether included in Operating expenses or not, is as much a part Of the investment of the com- pany as the Cost of the physical prop- erty. The investors in a new enter- prise have to be satisfied as a rule With meagre Or no returns while the business is being built up. It may be, as is urged, that a well con- ducted enterprise will charge the cost of developing the business to operat- ing expenses, and that it would open the door to an overissue of securities to permit the capitalization of early losses. In answer, it is sufficient to Say that we are dealing not with proper methods of bookkeeping, not With the proper capitalization upon which to issue securities, but solely With the fair return which the Com- pany is entitled to receive from the public. Treating a reasonably neces- Sary and proper outlay in building up a business as an investment for the purpose of determining the fair fate of return to be charged is far from holding that it should be treated as Capital against Which securities might be issued. . . . The term ‘going val- ue,' though not exactly defined, has **istºff sº, _198° the railroads, telegraphs and telephones during the late war, intrastate rates could be raised by the Director-General of Railroads and the Postmaster-General, notwithstanding the protests of the various states." A telegraph company, that collects news and sells it by means of special wires and tickers, may enjoin a competitor from copying the news from one of the tickers and then distributing it among the latter’s been used quite generally to comprise the elements not included in the Struc- tural value Of the property in its pres- ent condition. The fair return is to be computed on the actual in- vestment, not on an Overissue of Se- curities, and the failure to pay divi- dends to the investors must be due to the Causes under COnsideration, not to an accumulation of a surplus or to expenditures for permanent additions or betterments, which are included in the appraisal Of the physical proper- ty; in other words, the actual net earnings are to be taken. I define ‘going value’ for rate purposes as in- volved in this case to be the amount equal to the deficiency of net earnings below a fair return on the actual in- vestment due solely to the time and €Xpenditures reasonably necessary and proper to the development of the busi- neSS and property in its present stage, and not comprised in the valuation of the physical property. . . . Obviously the most satisfactory method is to Show the actual experience of the company, the original investment, its earnings from the start, the time ac- tually required and expenses incurred in building up the business, all expen- ditures not reflected by the present condition of the physical property, the extent to which bad management or Other Causes prevented or depleted earnings. and any other facts bear- ing On the question, keeping in mind that the ultimate fact to be deter- mined is not the amount of the ex- penditures, but the deficiency in the fair return to the investors due to the Causes under consideration. The busi- neSS in this case was twenty years old, the books of the old company were not available, and it is of course prob- lematical whether if produced, they Would have shown the necessary facts. The question, therefore, had to be de- termined, as all questions of fact have to be, by the best evidence available. There Would appear to be as good ground for admitting the opin- ion of a qualified expert on such a Subject as 011 the cust, Lu repruduce the physical property.” People v. Willcox, 210 N. Y. 479 (1914). * Northern Pacific Ry. V. North Da- kota, 250 U. S. 135 (1919); Burleson ^). Dempcy, 250 U. S. 191 (1919); Dakota Central Tel. Co. v. South Da- kota, 250 U. S. 163 (1919); Kansas v. Burleson, 250 U. S. 188 (1919); Mac- leod v. New England Tel. Co., 250 U. S. 195 (1919). A state commission Cannot maintain a bill in the United States Court in Florida against the POStrmaster General to enjoin an in- Crea.Se Of intrastate telephone rates Where the defendant does not volun- tarily appear and is not personally Served, and jurisdiction is not based On diverse citizenship alone, even though a local telephone company is joined as defendant and is served but it is acting merely as an agency for the government, having made a con- tract turning over its property to the government and fixing its compensa- tion. The proper forum is in the dis- trict in which the Postmaster Gen- eral is an inhabitant under § 51 of the Judicial Code. Railroad Commission- ers v. Burleson, 255 Fed. 604 (1919). Where the Postmaster General in be- half of the President has agreed with a telephone Company as to the com- pensation to be paid to the latter for the use of its lines during the war, the Courts cannot inquire as to wheth- er the contract was a wise one and to the best advantage. Southwestern Tel. & Tel. Co. v. City of Houston, 256 Fed. 690 (1919). §-7– own customers, inasmuch as this is unfair competition." + National, etc. Co. v. Western Union Tel. Co., 119 Fed. 294 (1902). News gathered with pains and eX- pense will be protected as against a competitor, it being unfair competi- tion. International News Service v. Associated Press, 248 U. S. 215 (1918). In contempt proceedings for breach of an injunction restraining a broker from using a board of trade's Stock quotations, the broker’s confidential relations with customers will not be inquired into. Board of Trade v. Tucker, 202 Fed. 288 (1913). A broker may enjoin a telegraph company from refusing to continue “ticker” service of New York Stock Exchange quota- tions, and it is no defense that the Stock Exchange has so ordered and that the telegraph company by COn- tract has agreed to obey such Orders of the Stock Exchange. The court in- timated that the telegraph COmpany was acting ultra vires in paying money for news to be transmitted broadcast, this being purchasing rights in infor- mation to be made valuable by publi- cation. Tucker v. Western Union Tel. Co., 95 N. Y. Misc. 287 (1915). The plaintiff having died, the court held that his right of action lapsed. Id. 94 N. Y. Misc. 364 (1916). A broker who violates an injunction against his distributing board of trade quotations may be punished for contempt. Board of Trade v. Tucker, 221 Fed. 300 (1914), modified in 221 Fed. 305. A board of trade has a property interest in its quotations, and may enjoin per- sons obtaining and using them with- out its permission, even though trans- actions of the board of trade are gam-ºl S5-188; supra. bling. Board of Trade v. Christie, etc. Co., 198 U. S. 236 (1905). A board of trade is entitled to protection of its property right in its quotations, even though some of the quotations are based on gambling sales. Board of Trade, etc. v. L. A. Rinsey Co., 130 Fed. 507 (1904). A cotton exchange may keep its quotations to itself Or distribute them under Such conditions ...HELEGRAPHº"LAW" A telegraph as it sees fit, and may enjoin a person from receiving and using them. With- Out its consent. The amount involved is the right of the exchange and not the amount paid by the defendant for the quotations. Hunt v. New York, etc. Exchange, 205 U. S. 322 (1907). A board of trade does not make its quotations public, even though it al- lows a person to post them. On a black- board in his place Of business. MC- Dermott Commission Co. v. Board Of Trade, 146 Fed. 961 (1906). An ex- change has a property right in its market quotations and may enjoin a bucket shop from using them to the injury of the former. Board of Trade ^). Cella Commission Co., 145 Fed. 28 (1906). A telegraph company may require its patrons receiving the board Of trade quotations to Sign an agree- ment not to use the same in connec- tion with a bucket shop. Sullivan v. Postal, etc. Co., 123 Fed. 410 (1903). Where a telegraph Company has for a long time collected and sold board Of trade quotations a COncern that has built up its business On them may COmpel a telegraph COmpany to COn- tinue giving them, but the telegraph company may require that they shall not be used for bucket-shop purposes. Western Union, etc. Co. v. State, 165 Ind. 492 (1905). - Union Tel. Co., 18 Cin. Week. Bull. 267 (1887); s. c., 2 Am. Elec. Cas. 381, the court refused to compel a continuance of “ticker” service, where the Chicago Board of Trade, which furnished the "quotations, had ordered the “tickef" removed. See also pp. 3. The fact that an exchange records its quotations on a blackboard in its building for the in- formation of its members and the members do the same in their private Offices for their Customer does not make public Such quotations, so that others may use them for business pur- poses. Chamber of Commerce v. Wells, 100 Minn. 205 (1907). So also as to stock quotations which a tele- graph company receives from a stock *199°º g?” - In Cain v. western _200” (TELEGRAPHºW. , , S:7. company may refuse ticker service giving New York Stock Exchange Quotations to a party objected to by the Exchange, the Exchange by its contract with the telegraph company having reserved the right to select parties receiving the quotations." A carrier ‘‘has the right to make and enforce reasonable regulations which may lawfully fix the times, the places, the methods, and the forms in which it will receive the various commodities it undertakes to carry, and the rules which it thus adopts are presumptively right and reasonable. The burden is on him who assails them to prove that they are unfair and unjust, and it is only when it clearly appears by competent evidence that they are unreasonable that commissions or courts may lawfully interfere to annul or to change them.” A telegraph company cannot enjoin a per- son from manufacturing and using for advertising purposes the com- pany’s telegraph blanks and envelopes, where no actual damage is shown,” but the Post Office Department has ruled that such frauds are not mailable. exchange. The telegraph company may enjoin another company from Ob- taining and distributing the same in competition. Illinois, etc. Co. v. Cleve- land Tel. Co., 119 Fed. 301 (1902). The Chicago Board of Trade cannot obtain an injunction against the use of its quotations by a bocket-shop Concern, where the evidence shows that the transactions of the Chicago Board of Trade were chiefly in futures, which were settled by the payment of dif- ferences, in violation of law. Board of Trade v. O'Dell, etc. Co., 115 Fed. 574 (1902). The furnishing of quota- tions by a board of trade to Custom- ers for their exclusive use is not a publication thereof, and the board may enjoin a third party from Sur- reptitiously obtaining and using them. Board of Trade v. Hadden-Pºrull CO., 109 Fed. 705 (1901); aff’d, 124 Fed. 1017. Although a board of trade has a property right in its quotations, yet, after publication, they become public property, and a preliminary injunc- tion against a private concern using them will not be granted, if there is doubt as to such prior publication having been made. Board of Trade, etc. v. Thomson, etc. Co., 103 Fed. 902 (1900). A board of trade has the right to sell its quotations, and the The unauthorized writing out and sending of a tele. purchaser may enjoin other perSOnS appropriating and using such quota- tions before the publication thereof. Cleveland, etc. Co. v. Stone, 105 Fed. 794 (1900). A telegraph company is not bound to furnish stock-exchange quotations to a person where the stock exchange has ordered the telegraph Company not to furnish quotations to that person, and the contract between the Stock exchange and the telegraph COmpany required the latter to fur- nish quotations to only such persons as the Stock exchange approved, the Stock exchange being a voluntary as- Sociation and not a corporation. Mat- ter of Renville, 46 N. Y. App. Div. 37 (1899). * Western Union Tel. Co. v. FOSter, 247 U. S. 105 (1918); rev’g 224 Mass. 365. * Platt v. Lecocq, 158 Fed. 723 (1907). * Postal, etc. CO. v. Livermore & Knight Co., 188 Fed. 696 (1911). Where one telegraph company owns telegraph blanks and licenses another. COmpany to use them, the latter Can- not maintain a suit for infringement Without joining the former. Postal Telegraph-Cable Co. v. Netter, 102 Fed. 691 (1900). --$27- - TELEGRAPH-IIAw-- -2013, gram in another person’s name may be forgery." Even though a tele- graph employee divulges a newspaper message so that a competing paper uses it, the telegraph company is not liable for punitive dam- ages.” A check given by a telegraph company in payment of a money transfer is “commercial paper,” within the “Negotiable Instruments Act” of New Jersey.” A New York trust company selling to a New York merchant a cable transfer of money payable in Italy, is not liable to the merchant for delay in the payment of the money in Italy on account of war censorship, even though the trust company made considerable money by the rate of exchange turning in its favor in the interim.” The mere fact that a land telegraph system has a traffic contract with a connecting cable line does not justify the former in giving a lower land line rate on cablegrams coming over such cable than on cablegrams from the same sources coming over other cables." Where a New York telegraph company organizes a subsidiary tele- graph company in Kentucky and another one in Tennessee with direc- tors in common, the Kentucky and Tennessee corporations may be treated as one company and held liable for default by the Tennessee company in a telegram to Kentucky." - is rwhere a telegraph message must pass over two connecting lines in its transmission to its destination, it is legal for the company re- ceiving the message to require the sender to designate what route the message is to take and to pay an extra charge for the words indicating such route." At common law a common carrier is not bound to act as * Queen v. Stewart, 25 Upper Can. Pleas Rep. 440 (1875). * Marlatt v. Western Union Tel. CO. 167 N. W. 263 (Wis. 1918). A claim against a telegraph company for dam- ages for divulging the contents of a telegram is not a claim which must be presented within thirty days in accordance With the Conditions under which the telegram is sent. But the fact that the telegram was left at the addressee’s hotel and Was Opened by detectives does not show wilful di- vulgence. Western Union Tel. Co. v. Worley, 68 S. 558 (Ala. 1915). A private detective taking copies of 1etters disclosing cablegrams to his employer does not thereby publish the same Within the prohibition of the New York statute. People v. Burns, 178 N. Y. App. Div. 845 (1917), aff’d 222 N. Y. 621. See also +s-intrº f * Postal Tel., etc. Co. v. Citizens’ Nat. Bank, 228 Fed. 601 (1916). * Strohmeyer, etc. Co. v. Guaranty Trust Co., 172 N. Y. App. Div. 16 (1916). Money which is paid to a wireless Company to be transferred to Berlin but which is not transferred by reason of War conditions may be re- covered back. Atlantic, etc. Co. v. Zimmermann, 182 N. Y. App. Div. 862 (1918). - * Commercial Cable Co. v. Western Union Tel. Co., 45 I. C. C. Rep. 33 (1917). * Postal Tel.-Cable Co. v. Thornton, 154 S. W. 1100 (Ky. 1913). See also Postal Telegraph-Cable Co. v. Harriss, 121 S. W. 358 (Tex. 1909). * United States v. Northern Pacific R. R., 120 Fed. 546 (1903), the court saying: “Where such messages were destined for points beyond its own sºrt." ºr " agent in paying a connecting line over which the sender desires freight to be sent. The carrier is obliged to deliver to such connecting line if so ordered, but is not obliged to make any special arrangements with such connecting line in regard thereto. A carrier, however, is liable for damages resulting from a disregard of a shipper's specific routing instructions, even though it sends the shipment via a route giving a lower rate to the original billed destination." lines, the sender was required to de- signate the COnnecting telegraph COm- pany Over Whose lines the message should be sent, and a Small additional charge Was made for the WOrdS ne- Cessary to designate such connecting line. Such a charge, however, thc CVi- dence shows, is in accordance With the uniform practice in like Cases among telegraph COmpanies. The situation Would seem to render it necessary. It was not an arbitrary impost levied upon those who sought to use the telegraph lines of the rail- road company, but was simply an addi. tional charge for an additional Serv- ice.” This case was reversed on the point that the Court had no jurisdic- tion Over the defendant in that dis- trict, 134 Fed. 715 (1905). A cable company cannot require one land line Company to mark its transferred mes- Sages With the name of the transfer point and pay tolls thereon where it does not require the same from an- Other land line company. Western Union Tel. Co. v. Commercial Pac. Cable Co., 171 Pac. 317 (Cal. 1918). A Cable company on receiving mes- Sages at New York from Other Com- panies to be transmitted to Europe may insist that the latter shall pay for the transmission of the date when the telegram was turned over at New York and for the transmission of the name Of the company turning it over. Atlantic, etc. Tel. Co. v. Western Un- ion, etc. Tel. Co., 4 Daly 527 (1873). A telegraph company cannot charge One Cable Company more than it does a Competing Cable company for trans- mitting to destination over its tele- graph line Cable messages, but as to Cablegrams from points which the telegraph line also reaches by its own The right of a govern- Cable lines the telegraph company is not bound by mere entries on its books as to the division of the through toll between its cable lines and its . land lines in deciding whether it is discriminating against a competing Cable company. Commercial Cable Co. v. Western Union Tel. Co., 45 I. C. C. Rep. 33 (1917). A shipper can- not maintain a bill in equity to com- pel a railroad to forward his freight by a certain route, even though he Claims that the reason it is not for- Warded by that route is because of an agreement between the railroads fix- ing the rate and fixing the percentage Of traffic which each was to carry. Post v. Southern Ry., 103 Tenn. 184 (1899). A different rule is prescribed by the interstate commerce act. See Consolidated Forwarding Co. v. South- ern Pac. Co., 9 Interstate Com. Rep. 182 (1902). See also $ 907, Goole-on- Gorp;" * Switzer Lumber Co. v. Texas, etc. R. R., 21 Int. Com. Com. Rep. 290 (1911). In the case Consolidated For- warding Co. v. Southern Pac. Co., 9 Inter. Com. Rep. 182, 204 (1902), the Court said: “One important ques- tion presented in this case is whether the initial Carriers can lawfully re- Serve to themselves the routing of Shipments and deny the shipper his choice Of established routes. Carriers are required to follow the instructions and directions given by shippers, whenever practicable.” At page 206C : “In at least two instances the evidence shows that the initial carrier receiv- ing the freight for transportation has against Specific directions of the Shipper turned the same over to its Competing initial carrier. We know Of no decision under the common law Or any Statute in which sanction is ... TELEGRAPH. L.A.W., º 3. 3' *** **, *.*.*, *. * {3. * * * * (~ - + - *º- ment to censor telegrams or cablegrams has not yet been defined. Cer- graph company.” found for Such an arbitrary disregard of the Obligations resting upon a common carrier.” For further deci- sions on this of routing, See §§ 898, 907, aréºſſº. * See Cooley on Constitutional Limi- tations, Seventh Ed., pp. 432, 433, note. A cablegram from a neutral country to a belligerent country should be as free from governmental Control of the former as are exports Of munitions of War, etc. See Oppen- heim. On International Law (1906), Vol. II, § 350, p. 377. The Second Hague Convention defined the rights and duties of neutral powers in this respect as follows (Art. VIII) : “A neutral Power is not called upon to forbid Or restrict the use on behalf Of the belligerents of telegraph or telephone Cables Or of wireless tele- graphy apparatus belonging to it or to COmpanies Or to private individuals.” Article IX is as follows: “Every mea- Sure of restriction or prohibition taken by a neutral Power in regard to the matters in articles VII and VIII (eXportation of arms and use of tele- graphs, telephones and wireless) must be impartially applied to both bellig- erents. A neutral Power must see to the same obligation being observed by Company Or private individuals Own- ing telegraph Or telephone cables or wireless telegraphy apparatus.” In the general European war of 1914, the United States government censored wireless telegrams and contemplated censoring submarine cable cablegrams but finally decided not to censor the latter. The protest of The Commer- cial Cable Company at that time pointed out that a submarine cable is different from wireless telegraphy, in fainly a neutral government has no such power of censorship." § 8. Compelling production of telegraph messages. – A telegraph company is not privileged as to messages transmitted by it; but on the other hand, such messages are not to be made public by the tele- A privileged communication may not cease to be privileged by reason of its being sent by a telegram instead qf a letter.” The telegraph company may be compelled to produce them in court.” that a wireless telegram could be sent direct to a warship, and that a cable- gram is similar to letters which gov- - erm ments are not allowed to CenSOr, and further, that the secrecy of tele- grams is preserved in many states by Criminal statutes, and that the COm- pany would contest any censorship as a form of unreasonable search in vio- lation of the Constitution of the United States. * Judge Cooley in note at page 506 of his treatise on Constitutional Limi- tations, and afterwards in an article in American Law Review for Febru- ary, 1879, after saying “the importance of public confidence in the inviolabili- ty Of Correspondence through the post Office cannot be well Overrated,” pro- ceeds: “The same may be said of private correspondence by telegraph. The public are not entitled to it for any purpose, and a man’s servant might with the same propriety be subpoenaed to bring into court his private letters and journals as a tele- graph Operator to bring in private correspondence which passes through his hands. In either Case, it would be equivalent to an unlawful and unjus- tifiable seizure of private papers. Such an unwarrantable seizure is directly Condemned by the constitution.” Government officials in raiding an alleged bucket shop have no right to Cut the telegraph wires and seize the telegraph instruments and records unless they have a special Order so to do. United States v. McHie, 194 Fed. 894 (1912). * Ashcroft v. Hammond, 197 N. Y. 488 (1910). - * Re Storrer, 6.3 Fed. 564 (1894); National Bank v. National Bank, 7 - *Y. ra A. -- ‘. . . - * * * :*: - r" w - * ... " * .* r *. * = ... - . - - {{*.*. - --- . . . . . . . . . .." ' ſº ſº. r st e * * : € **-* ... •. *203-2-º- * _204° -TELEGRAPH-FIAW, S-8 A subpoena duces tecum to appear before a grand jury is sufficient if it refers to books and papers relating to business transacted between certain dates (in this instance nearly two years), between certain par- ties, and the corporation cannot refuse on the ground that it is not paid for the time, trouble, and expense of collecting the documents, where it appears that there is a statute providing for compensation to witnesses." In an admiralty proceeding a motion to discover cable. grams will not be granted where the originals or copies are available and the sending of the cablegrams can be proved by depositions taken on commission.” A telegram itself, or admissions of the sender, are the best evidence of its contents, and secondary evidence consists of a copy proved to be correct, or by a statement of its contents by one who has seen It and knows its contents. W. Va. 544 (1874); Ea; parte Brown, 72 Mo. 83 (1880); Woods, etc. v. Brad- ley, etc., 55 Iowa, 168 (1880); United States v. Hunter, 15 Fed. 712 (1882); Eac parte Jaynes, 70 Cal. 638 (1886). See also, On this Subject, Croswell On Electricity, ch. XXI. Communications Or messages transmitted through tele- graph offices are not privileged, and the clerks transmitting the same must disclose their Contents in a court of justice. Wadde11, In, re 8 Jur. N. S. 181, part II (1861); Ince, In, re 20 L. T. 421 (1869). On a subpoena from the Court of bankruptcy to produce all telegrams sent by the bankrupt from a Certain date, the Secretary of the post office was ordered to produce the documents sought for, the court intimating that such subpoenas should be prepared so as to meet the con- Venience Of the Officials. Smith (Thomas), In, re 7 L. R. Tr. 286 (1881). Although a telegraph Operator dis- Closes to a third person the contents Of a message, yet a statute against discrimination does not apply to his breach of trust. Western Union Tel. Co. v. Bierhaus, 8 Ind. App. 563 (1894). * Consolidated, etc. Co. v. Vermont, 207 U. S. 541 (1908), aff’g 66 Atl. 790. A subpoena duces tectiºn, to an officer of a telegraph Company, to pro- duce messages, need only describe them with Such practicable certainty Proof of loss or destruction that he may know what is required of him; and he must use reasonable dili- gence to find and produce them if they are within his custody. United States v. Babcock, 3 Dill. 566 (1876); S. c., 24 Fed. Cas. 908. A corporation may be compelled to produce its books and papers for examination by a grand jury, even though it is charged with a criminal violation of a statute, but where there is no act of Congress authorizing such exami- nation, a subpoena duces tectiºn, re- quiring it to produce ail its books and papers before a grand jury is un- reasonable and as indefensible as a search warrant would be if couched in similar terms. Hale v. Henkel, 201 U. S. 43 (1906). Officers of a corporation cannot excuse their fail- ure to produce books and paperS Galled for by a Subpoena duces téCºlºr, in a proceeding before the grand jury On the ground that such books and papers are not in their possession or under their control, and they cannot object on the ground that the books and papers are immaterial. Nelson v. United States, 201 U. S. 92 (1906). The grand jury may compel a COr- poration to produce its minute books for three years and its letter copy books for three or four months. |United States v. American, etc. Co., 146 Fed. 557 (1906). - * The Eros, 224 Fed. 194 (1915). 2-TELEGRAPH.-L.A.W. * * 205----e. of the original must be given before introducing secondary evidence." Under the statutes of New York it is a criminal offense for a tele- graph employee to divulge the contents of a telegram except to the addressee, exeep$ when the telegram is in aid of an unlawful business, in which case the employee shall give information to the public officer whose duty it is to prosecute. It is also a criminal offense to open or read a sealed telegram or to publish it, when not directed to him.” It is also a criminal offense to tap a telegraph wire in order to read messages being transmitted.” Other states have similar statutes.” In Bennsylvania by statute a telegraph company is required to preserve telegrams for three years.” A telegram is not a commodity or article in common use in regard to which a combination is prohibited by the * Montgomery v. United States, 219 Fed. 162 (1915). As to proof of ca- blegrams, the court in Agency of Can- adian, etc. Co., Ltd. v. American Can Co., 253 Fed. 152, 157 (1918) said: “It may be further added, in passing, that some cables from Russia were received in evidence, where the proof, because of War conditions, was not in accordance with what defendant re- garded as Orthodox methods of prov- ing Communications of this kind. As I understand, the modern method per- mits the trier of the facts to deter- mine whether as matter of fact the paper is genuine and was sent as in- dicated. War exigencies require that the courts shall deal with Such situa- tions in a Sensible way, not too much fettered by inelastic rules, while at the Same time safeguarding against the reception in evidence of fabricated COmmunications.” * Penal Law, §§ 552, 553. A private detective taking copies of letters dis- Closing cablegrams to his employer does not thereby publish the same Within the prohibition of the New York statute. People v. Burns, 178 N. Y. App. Div. 845 (1917), aff'd 222 N. Y. 621. A criminal prosecution for divulging a wireless telegraphic message was involved in People v. Earl, 124 Pac. 887 (Cal. 1912). Louis- iana, by statute of 1918 (p. 228), made it a penal Offense for a telegraph employee to divulge the contents of a ImeSSage except to the addressee or a government official or under process of a COurt. * Penal Law, § 1423 (7). * The use of a dictograph in a room to take a telephone message is not — wire tapping, punishable by the Ari- zona statute. State v. Behringer, 172 Pac. 660 (Ariz. 1918). It is a misde- meanor in Mississippi to divulge the contents of a telegram. Code 1906, § 1375. In the Original Act Of Par- liament by which the British Govern- ment acquired telegraph lines in Great Britain, the following appears. “20. Any person having official duties connected with the Post Office, or act. ing On behalf of the Postmaster Gen- eral, who shall, contrary to his duty, disclose or in any way make known Or intercept the contents or any part Of the contents of any telegraphic messages or any message intrusted to the Postmaster General for the pur- pose of transmission, shall, in Eng- ldºnd and in Ireland, be guilty of a mis- demeanor, and in Scotland of a crime and offence, and shall upon conviction be subject to imprisonment for a term not exceeding twelve Calendar months; and the Postmaster General shall make regulations to carry out the in- tentions Of this section, and to pre- vent the improper use by any person in his employment or acting on his behalf of any knowledge he may ac- quire of the contents of any telegra- phic message.” * Laws 1855, p. 531, § 2; see also TELEGRAPH-Tºw” $–9: New York statutes." By statute in New York, competing telegraph companies may “pool” their receipts.” § 9. Consolidation, lease, or sale of a telegraph line – Is a telegraph lime personal property? A telegraph company, being a quasi-public corporation, cannot mortgage, lease, or sell its line, unless expressly authorized so to do.” Pepper & Lewis’ Digest, 1700 to 1894, Vol. 11, p. 4672, § 22. * Matter of Jackson, 57 N. Y. Misc. 1 (1907). * III Denedict v. Western Union Tcl. Co., 9 Abb. N. C. 214 (N. Y. 1878), it—was held that under the New York statutes (now $ 104 Trans. Corp. Law) a pooling contract by telegraph companies is legal. See also Hatch v. American Union Tel. Co. 9 Abb. Nº * A telegraph company has no power to Sell and assign its lines, un- less such power is expressly given to it. The franchise is personal. United States v. Western Union Tel. Co., 50 Fed. 28 (1892), holding also that the government may file a bill in equity to set aside an illegal telegraph Con- Solidation, and need not resort to 7manda/m/us. This case was aff’d, Sub 77.07m. United States v. Union Pac. Ry. 160 U. S. 1 (1895), rev’g on other grounds, 59 Fed. 813. In this case in 59 Fed. 813, the court said: “It was held, both by Mr. Justice Brewer, . . . and by Mr. Justice Miller and Judge McCrary in other cases, where the same question was involved, that the Obligation thus imposed on the sev- eral railroad companies to construct and maintain telegraph lines could not be lawfully avoided by leasing their lines of telegraph, after their Construction, to Some other corpora- tion, to be by it maintained and op- erated.” A mortgage on a telegraph line may cover subsequently acquired property. Boston, etc. CO. v. Bank- ers’, etc. Tel. Co., 36 Fed. 288 (1886); aff’d, sub mom. United L. T. Co. v. Boston, etc. Co., 147 U. S. 431. A railroad Company owning, a telegraph line has no implied power to sell it. Atlantic, etc. Tel. Co. v. Union P. Ry., Where a telegraph and telephone company is 1 Fed. 745 (1880). Where a telegraph company has power to consolidate with another, the franchise and rights pass by the consolidation to the Con- solidated company, including parti- cular statutory rights given by act of Congress to one of the corporations. Union P. Ry. v. United States, 59 Fed. 813 (1894); rev’d on other grounds, 160 U. S. 1. Neither a telegraph nor telephone company has a right to Sell * its property or franchise unless the statute expressly authorized it. Peo- ple v. Commercial Tel. & Tel. Co., 115 N. E. 379 (Ill. 1917). A quasi public corporation furnishing service by pneumatic tubes may lease its prop- erty for a limited term. New York Mail, etc. Co. v. Anderson, 234 Fed. 590 (1916). A telephone company may sell all its property and fran- chises to another telephone Company without any express authority to make such sale. Michigan, etc. Co. v. City of St. Joseph, 121 Mich. 502 (1899). A telephone company has no inherent power to sell its plant to another Com- pany. Cumberland T. & T. Co. v. City of Evansville, 127 Fed. 187 (1903); aff’d, 143 Fed. 238. A conveyance by a telephone company of all its prop- erty carries the franchise to use the Streets to Operate the property, even though such franchise is not men- tioned. City of Wichita v. Old Colony Trust Co., 132 Fed. 641 (1904). A grantor of a right of way for a tele- phone line cannot claim that the grantee—a water Company—had no power to take Such a grant. North- eastern, etc. Co. v. Hepburn, 72 N. J. Eq. 7 (1907). A water company which has a grant Over private land to con- struct a telephone line, may assign it to a telephone company. Northeast- ern, etc. Co. v. Hepburn, 72 N. J. Eq. -$–9- THE}} EGRAPH. J.A.W.--~~% 207 - really a telephone company, its telegraph business being insignificent, it will be treated as a telephone company." 7 (1907). A company having power to construct a telephone line may pur- chase an existing line and Operate it under its Own Charter free from re- Strictions in the charter of the selling company. City of Vermillion v. North- western Tel. Co., 189 Fed. 289 (1911). Where the constitution prohibits street railways without the Consent Of a municipality, a street railway having Such consent cannot permit Other COm- panies to use its tracks without simi- lar consent and against the protest of the municipality. City of Erie v. Erie Traction Co., 222 Pa. St. 43 (1908). A s-Even though an electric-light com- pany has sold its franchises and prop- erty to an individual. no one but the state or city can question the Sale, and certainly a Subway Company Can- not on that account refuse to furnish space in its Subways. Matter of Long Acre, etc. Co., 188 N. Y. 361 (1907), holding also that “the power to mort- gage its franchise would seem neces- sarily to include the power to sell and dispose Of it,” and a sale of its franchises and plant by an electric- light company is not void, even if it is voidable. Moreover, the statutory power to “convey real and personal property” indicates that there is no objection to Such a sale. Even though an electric-light company has no power to assign its franchise to Construct and Operate its plant, yet if Tt does assign it to an individual and he then assigns it to a corporation, and the latter is allowed by the mu- nicipality to complete and operate the plant, the assignment is legal, and, moreover, no One Can raise a question as to its legality, except the munici- pality itself. Matter of Long Acre, etc. Co., 117 N. Y. App. Div. 80 (1907). Where one telegraph com- pany leases all its property for ninety- nine years to another telegraph com- pany, the rental to be paid to the stockholders of the former, this is practically a consolidation, and a pro- vision in the contract that the line A foreign telephone com- shall be restored at the end of the contract does not prevent the lessee changing the lines and treating them as its own. St. Paul, etc. Ry. V. West- ern, etc. Co., 118 Fed. 497 (1902). Where two street railways, having the right to use the same Street, COn- Struct and maintain at their joint eX- pense a double-track Street railway and agree that each may use it as much as it deems necessary and proper, either Company may run. Over such tracks cars from a line which has been leased to it, it being shown that the other company’s use of the tracks is not interfered with. Coney Island, etc. Ry. V. Coney Island, etc. R. R., 38 N. Y. App. Div. 494 (1899), A contract by a cable company for a lease of its land lines to a person, upon the latter doing certain things within a Specified time, will not be Subsequently enforced, at the instance of the latter, where he has not done What he agreed to do. Slaughter v. La Compagnie, etc., 113 Fed. 21 (1902); aff’d, 119 Fed. 588. Where a telephone Company agrees to pay to another company a certain percentage of all rentals received on telephones which are leased, and the former Com- pany grantS eXclusive licenses in ex- change for stock of still other com- panies, such stock is in the nature of a rental and is to be included in the COntract. Western, etc. Co. v. American, etc. Co., 125 Fed. 342 (1903). * Sunset Tel. & Tel. Co. v. City of Pasadena, 161 Cal.265 (1911). See also $ 3-sttpra: A New York com- pany Organized to conduct both a tele- graph and telephone business, cannot compel the Secretary of State of Michigan to issue to it a certificate of authority to transact both a telegraph and telephone business in Michigan, it appearing that the Michigan statutes do not authorize a company to in- Corporate for both of those purposes, and the Statutes authorize foreign Corporations to do only such business _208° *{\{}{f}GRAPH-E-A-W-, $–9: pany may legally make an agreement not to extend its lines to certain points in New York State A telegraph company may take a lease of the property and business of a company engaged in transmitting quotations and may guarantee a rental which the vendor had guaran- teed.” Even though a telegraph company takes a lease of the plant of another telegraph company, yet the state alone can claim that the former used the plant for other purposes or leased more than was necessary for its purpose.” A deed, mortgage, or lease of a telegraph line should be drawn as a deed, mortgage, or lease of real estate. The poles and wires of a telegraph company are real estate.” But by express contract, the wires, and even the poles, may be made personal property, and hence not subject to incumbrances upon the land, or upon the land and poles.” A mortgage of an electric company covering after acquired property covers poles and wires erected on railroad property, as against a claim as a domestic Corporation may do. American Tel. & Tel. CO. v. Secretary of State, 159 Mich. 195 (1909). Under the Pennsylvania. Constitution neither a telegraph nor telephone company may combine, consolidate or merge with a competing company, a tele- phone company being a telegraph COm- pany in that respect. Cochranton Tel. Co. v. Petroleum Tel. Co., 107 Atl. 23 (Pa. 1919). * Whitaker v. Kilby, 55 N. Y. Misc. 337 (1907). * Midland Tel. Co. v. National, etc. Co., 236 III. 476 (1908). * Chicago, etc. Tel. Co. v. Tupe Tel. Co., 137 Ill. App. 137 (1907). * Vane v. Newcombe, 132 U. S. 220 (1889); Electric Tel. Co. v. Overseers, etc., 24 L. J. N. S. (Ex.): 146 (1855). “The telegraph poles, with the wires and attachments thereto, which it is alleged were cut down by defendant, were affixed to the Soil of a high Way, and constituted a part of the free- hold.” American Union Tel. CO. v. Middleton, 80 N. Y. 408 (1880). Even though a telegraph line is by statute made real estate and taxable as Stich, yet in arriving at the value thereof, the court considered the value of the poles and wires and also the cost of the right of way, where such line Was constructed On the Street. People v. Dolan, 126 N. Y. 166 (1891). In Massachusetts an underground tele- phone line is personal property, the company having no permanent rightS in the Streets. New England Tel. & Tel. Co. v. Boston Terminal Co., 182 . Mass. 397, 400 (1903). By statute in New York for purposes of taxation telegraph lines, wires, poles and ap- purtenances are real estate. Tax Law, § 3. * Western Union Tel. Co. v. Burling- ton, etc. R. R., 11 Fed. 1 (1882), where a mortgage On the railroad was foreclosed and Was held not to cover the telegraph line. Strung wires may, by agreement, be personalty, Separate from the realty; otherwise they become realty. Boston, etc. Co. w. Bankers’ Tel. Co., 36 Fed. 288 (1866), where a mortgage on the tele- graph line was held not to cover Cer- tain Special wires; aff’d, Sub nom. |United L. T. Co. v. Boston, etc., 147 U. S. 431. In Union P. Ry. v. United States, 59 Fed. 813 (1894), the court said: “We may well take judicial notice Of the fact that there is no inherent difficulty in stringing several independent lines of telegraph on the same poles. That method of con- struction in nowise interferes with the efficiency of lines that are so built, while it is often a convenient, # * * 3% & t ‘ā rº 5..." 2^2. ; i-t f º ** 2°/ - ..? f TELEGRAPH-IIAw t r: *... . . - * , ; , s: , "... * * * * * ºš. .#3: . . ? ! § g": A #. # * * , f *** ," t? - - - - , T-> cº-ºccº tº __209-" of the railroad company based on an agreement of the mortgagor.’ hº * A railroad mortgage covers a telegraph line owned by the railroad, and may cover a wire placed thereon by a telegraph company subject to a right in the railroad to purchase the same.” Preference over a mortgage may be given to labor and supply claims against a telegraph company.” A New York news corporation furnishing news to a Mis- souri newspaper by leased wire need not qualify in Missouri where the telegrams Over the leased wire are all interstate.” Where a telegraph company leases a wireſ to a railroad and the latter agrees not to use it for commercial telegráph business, but does use it for that purpose, the telegraph Company may compel it to account therefor.” A junk dealer may be indicted under the New York statute for receiving stolen cop- per wire of a telephone company without trying to ascertain whether the seller had a Jégal right to sell." § tº Stbreafs. – A statute requiring telegraph and other compa- nies to place their wires underground is constitutional." and always an economical, arrange- ment.” Where, by contract agree- ment, Wires of one company are Strung On the poles of another com- pany, Such Wires may be considered perSOnal property. FarnSWOrth v. Western Union Tel. Co., 6 N. Y. Supp. 735 (1889). Wires running from a Street into a house are personal prop- erty and not real estate. People v. Feitner, 99 N. Y. App. Div. 274 (1904); aff'd, 181 N. Y. 549. A telephone line in Maine is personal property and may be sold under levy of execution, inas- much as the municipal authorities may Compel a change in the location at any time. Readfield, etc. Co. v. Cyr, 95 Me. 287 (1901). In Connecticut, by Statute, telegraph lines are declared to he personal property. Gen. Stat. of Conn., § 3944. Where two persons construct a telephone line and dis- agree, it will be treated as though it WaS personal property. Bartelt v. Smith, 145 Wis. 31 (1911). A tele- graph line constructed on a railroad ºr right of way does not belong to the railroad on the termination” of the contract. See § 2-8wpºrtr. * Monmouth, etc. Co. v. Central R. R., etc., 54 Atl. 140 (N. J. 1903). * New York, etc. Ry. V. Western Union Tel. Co., 36 Hun, 205 (1885). An electric-light company’s mortgage covering all machinery and appurte- nances covers wires. Fechet v. Drake, 12 Pac. 694 (1887). -- * Reelyn v. Carolina, Fed. 29 (1898). * Star, etc. Co. v. United Press Assoc., 204 Fed. 217 (1913), enforcing a press association’s contract to fur- nish news to a newspaper by a leased wire. * Reid-Newfoundland Co. v. Anglo- American Tel. Co., [1912] A. C. 555. * People v. Rosenthal, 197 N. Y. 394 (1910). The New York Statute regu- lating the purchase of copper wire by junk dealers is found in the General Business Law, § 62. The criminal law prohibiting junk dealers from etc. Co., 90 buying copper wire, etc., belonging to "." a telegraph or telephone company Without first inquiring diligently as to where it came from is constitution- al. Rosenthal v. New York, 226 U. S. 260 (1912). (Sae.p.-yºshtprit.)” " People v. Squire, 145 U. S. 175 (1892); Western Union Tel. New York, 38 Fed. 552 (1889); Peo- ple v. Squire, 107 N. Y. 593 (1888); American R. Tel. Co. v. Hess, 125 N. Y. 641 (1891); City of Monroe v. Pos- tal Tel.-Cable Co., 162 N. W. 76 (Mich. 1917); Armstrong v. Grant, 56 Hun, CO. v. A. .** 2 *** _º _219. ...” -2. ..” * - 3° 2’ -$.*10:*** *ſº'A city cannot compel a telephone company to construct under- ground conduits and put its wires therein where such a demand on the part of the city is unreasonable and arbitrary and not a fair appli- cation of the police power, and is not required or demanded by public safety or convenience. It amounts to a destruction of property rights and a breach of the grant or permit under which the line was originally constructed. Hence, where a telephone company had, in compliance with an order from the city, constructed conduits in a territory embrac- ing a mile square in the center of the city, and was then called upon to construct conduits in the adjoining territory to the extent of nine miles square, a part of which was ungraded and open country, the court held that the second ordinance was illegal.” An incorporated village 226 (1890), passing upon a proposed contract between New York City and a Subway Company; United States Illum. Co. v. Hess, 3 N. Y. Supp. 777 (1889); United States Illum. Co. v. Grant, 55 Hun, 222 (1889); East River, etc. Co. v. Grant, 57 N. Y. Super. Ct. 553 (1890); Brush, etc. Co. ^). Consol. etc. Co., 60 Hun, 446 (1891), aff’g 15 N. Y. Supp. 81, and passing upon the question of rentals to the subway company; Manhattan, etc. Co. ºv. Grant, 31 N. Y. St. Rep. 254 (1890), holding that a Company paying rent could not prevent the Subway Com- pany Selling its property. A general ordinance that may require a tele- graph company to put its wires under- ground, is not illegal, because if fu- ture action is unreasonable the tele- graph Companies may object. A re- quirement of undergrounds in a populous and congested center of the City, where the poles and wires are a danger to life and property, is reason- able, and the city may require reason- able changes or removals of such underground COnduits from time to time. Western Union Tel. Co. v. City of Richmond, 178 Fed. 310 (1909); aff'd, 224 U. S. 160 (1912). An elec- tric light company may be compelled to put its wires underground where a City is exercising its power in a rea- sonable manner. Duquesne Light Co. w. City of Pittsburgh, 97 Atl. 85 (Penn. 1916). An underground ordinance cannot be enjoined, where no force or Violence is being threatened. A pro- Vision in a municipal grant to a cer- tain company that it shall not be re- quired to go underground unless Other Corporations do the same, does not refer to city Overhead lines. Puget Sound, etc. Co. v. City of Tacoma, 217 Fed. 265 (1914). The Montana con- Stitutional provision that a CorpOra- tion shall have the right to maintain telegraph or telephone lines does not prevent a municipality ordering wires underground, except trolley wires, if such requirement is reasonable. City of Butte v. Montana, etc. Tel. Co., 148 Pac. 384 (Mont. 1915). Under the Pennsylvania statutes a city may com- pel a telegraph company to put its Overhead Wires into underground COn- duits Owned by a foreign telephone company and if the rental demanded is excessive the telegraph company may apply to the Public Service Com- mission for a reduction. Oil City v. Postal Tel-Cable Co. 68 Pa. Sup. Ct. 77 (1917). Subway commissioners have no power to grant the right to erect Overhead poles unless expressly authorized SO to do. Trustees, etc. v. State Board of COm’rs, 55 N. J. L. 436 (1893). * Northwestern Tel. Co. v. Minneap- olis, 81 Minn. 140 (1901). A city can- not compel a telephone company to remove its overhead wires and place them underground or else place them in a parallel alley, where neither the public health, nor safety, nor COn- has no power to compel a telephone company to place its wires under- ground where there is no statute expressly conferring that power upon the village. The village is entitled merely to regulate the erection, in other words, the location of the poles and the streets to be occupied." Where a statute has granted to telephone companies the right to use the streets the consent of the municipality is not necessary. The muni- cipality, notwithstanding this, may impose reasonable regulations, but it cannot compel one telephone company to place its wires underground while it allows another one to go overhead.” Where a city has no power directly to order wires underground, it cannot accomplish that result by excessive taxation of overhead wires.” . . . " ~Ar A. An £ gested condition of the street requires it. City of Plattsmouth v. Nebraska Tel. Co., 80 Neb. 460 (1908). Where a City refuses to designate the loca- tion of poles for pany, as prescribed by statute, and requires the wires to be laid in under- ground conduits, manda'mºus lies to COmpel it to designate the location of the poles, and a general statute applicable to telephone companies to that effect applies to foreign as Well as domestic telephone companies. State v. Mayor, etc., 30 Mont. 338 (1904). A court will grant a pre- liminary injunction against a city Compelling a telephone company to put its wires in a subway constructed by a private company, where the tele- phone company alleges that such change would be unreasonable and unnecessary. Hudson River Tel. CO. v. City of Johnstown, 37 N. Y. Misc. 41 (1902). Under the Connecticut Statutes a City, When a Street railway applies to COnStruct its line, may Com- pel it to place its Wires underground. Appeal of New York, N. H. & H. R. R., 80 Conn. 623 (1908). * Village of Carthage v. Central, etc. Co., 185 N. Y. 448 (1906). * Village of Carthage v. Central; etc. Co., 48 N. Y. Misc. 423 (1905). The above decision was reversed by the appellate division in 110 App. Div. 625 (two judges dissenting) on the ground that there was no discrimi- a telephone com- electric-light company having the right to use the streets may nation, inasmuch as the Ordinance ap- plied only to wires erected after a certain date, and that it did not ap- pear that the other company had erected any wires after that date. The case then went to the New York court of appeals (185 N. Y. 448) and that court reversed the appellate di- vision and affirmed the decision of the lower Court. The Court of appeals based its decision on the point that the Village had no inherent power to pass an ordinance requiring under- grounds. * “We do not say that a city has not, by virtue of its police powers, authority directly to compel the re- moval of wires from poles to conduits, but it may be questionable whether a City Can Seek the same results by an excessive and unreasonable charge upon overhead wires.” Atlantic, etc. Co. v. Philadelphia, 190 U. S. 160, 169 (1903). A suit to enjoin a city from enforcing an underground ordinance on the ground that it was discrimina- tory in excepting long distance tele- phone wires, should be against a city official and not against the city itself. Postal Telegraph, etc. Co. v. City of Worcester, 202 Mass. 320 (1909). A city cannot Single Out One COmpany and arbitrarily for the purpose Of Op- pression require a relocation of its entire line. Hannibal v. MissOurl, etc. Tel. Co., 31 MO. App. 23 (1888). *2+2” Tiſſer APH-LAw- • -$.10. iay its conduits under the sidewalk.” But an ordinance authorizing a telephone company to construct its line over and through the streets does not authorize it to construct an underground conduit.* Even though a corporation by its charter has the right to open streets and lay underground conduits, yet if it does not exercise that right before the legislature passes a new law requiring all subways in that particu- lar city to be constructed by a certain corporation and requiring all electric wire companies to use such subways, the independent right of such company to construct its own conduits is taken away, the change being legal under the police power of the state.” A company organized to lay wires in the streets and rent them is not entitled to compel an existing subway company to lease space to the former.” Mandamus lies to compel municipal authorities in New York City to allow a tele- graph company to repair its lines " A grant from a city government, In accordance with a statute, to a company organized to construct and lease telegraph, telephone, electric-light and other electrical wires, through the streets of the city, may be revoked by the city at any time before such permit or license has been accepted and a substantial part of the work done, sufficient to constitute a consideration for the con- * Allegheny County, etc. Co. v. of proximity to high currents, and the Booth, 216 Pa. St. 564 (1907). city must keep the conduits in repair. * Commonwealth v. Warwick, 185 Geneva v. Geneva Tel. Co., 30 N. Y. Pa. St. 623 (1898). Misc. 236 (1900). Under the Penn- * People v. Ellison, 188 N. Y. 523 sylvania statutes a municipality may (1907). An electric-light company Compel a telegraph Company to put cannot compel the subway company its wires into underground conduits in New York City to allow the former owned by a West Virginia telephone to put its cables in the subway un- company. Oil City v. Postal Tel.-Cable less it has consent and authority Co., 68 Pa. Sup. Ct. 77 (1917). from the municipal authorities of * Matter of New York Electric, etc. New York City, which is the board of Co., 201 N. Y. 321 (1911). A street aldermen. The consent of the board franchise which becomes Operative of electrical control is insufficient. upon the city consenting thereto is a West Side, etc. Co. v. Consolidated property right but by implication in- Tel. Co., 110 N. Y. App. Div. 171 volves an obligation of the street rail- (1905); aff’d, 187 N. Y. 58. A city way company to perform and hence if may compel a telephone company to there is non-user or mis-user, the put its wires in the conduits of a grant may be forfeited, and whether conduit company instead of allowing the forfeiture be by repeal or quo the telephone company to construct warranto is a question of state law. its own conduit. City of Rochester v. Hence the right of a Subway company Bell, etc. Co., 52 N. Y. App. Div. 6 to construct Subways granted in 1878 (1900). The legislature may author- may be repealed in 1906 if not al- ize a city to Order overhead wires ready availed Of. New York etc. into underground conduits constructed Lines v. Empire City Subway, 235 U. by the city, but such conduits must S. 179 (1914). be so constructed as not to destroy "Matter of Seaboard, etc. Co., 68 N. the current of such wires by reason Y. App. Div. 283 (1902). Š-10,- tºpºp...E.G.R.A.P.H.-E.A.W.s.…. tract as a property right." But where a telegraph line has been on the highway for twenty-five years, an ordinance revoking the right unless the telegraph company applied for the right to go underground within sixty days is illegal and void, the Original permit being a con- tract.” Where a city seizes for its own wires without warrant of law an underground conduit in the street belonging to a telegraph com- pany the latter may enjoin such seizure.” Where the grant of the right to build underground conduits for electric-light wires is subject to the right to order their removal, an order of removal is legal.” Upon the discontinuance of a street a telephone company owning an under- ground conduit in such street is not entitled to compensation under the law of Massachusetts, by which nothing is paid to the property owner for the right to construct such conduits.” A telegraph company owning a subway cannot enjoin another subway company from main- taining its subway close to the former on account of inconvenience and expense in making repairs. The remedy is at law.” An abutting property owner cannot enjoin a telephone company from constructing an underground conduit in the street." An ordinary private corpora- tion may be given the power to construct subways, even though there is no provision, in the grant from the city, regulating the use or requir- ing service to all.” Where several companies owning and using wires in Union etc. v. Syracuse, etc. Co., 178 N. Y. 325 (1904). * Coburn v. New Tel. Co., 156 Ind. 90 (1901). An intermediate appellate Court in New York has also decided * Matter of New York Electric, etc. Co., 201 N. Y. 321 (1911). A tele- graph Or telephone company incorpo- rated in New York State after 1881 is bound by the statute of 1881 requiring Such Companies to obtain the consent Of the local authorities to the use of the Streets in addition to taking out a charter from the state. Matter of New York, etc. Co., 133 N. Y. App. Div. 635 (1909). … " * Postal Tel., etc. Co. v. Ingraham, 228 Fed. 392 (1915). …” * Postal Telegraph-Cable Company v. City Council of Augusta, 242 Fed. 538 (1917); affºd 246 Fed. 440 (1917). See § &^ * Boston, etc. Co. v. Boston, etc. Co., 184 Mass. 566 (1904). - * New England Tel. & Tel. Co. v. Boston Terminal Co., 182 Mass. 397 (1903). Cf. § 3. * The court said, however, that “the city could not grant to another the right to use the same space occupied by the plaintiff’s line.” Western that a city street differs from a coun- try highway in that a telephone line, constructed in a conduit in a city street, is-nót an additional burden, upon the street itself, and hence, even though the abutting property owner OWns the feet to the center of the Street, he is not entitled to any addi- tional compensation by reason of the Construction of the telephone line. Castle v. Bell, etc. Co., 49 N. Y. App. Div. 437 (1900). - * State v. St. Louis, 145 Mo. 551 (1898), overruling contrary decisions. A telephone company may obtain an injunction against a city repealing an ordinance whereby the telephone com- pany is given the right to lay under- ground Conduits for its Own use and the use of the city, with an annual Charge per lineal foot to be paid to 2 2^ TELEGRAPH LAW - § 11. J.' 2’ .* the streets, organize a joint conduit committee to construct conduits for such wires, each company is liable for its proportionate part of the debts of such committee. Where the statutes compel private cor- porations to place their wires in subways, the city itself cannot erect poles and string wires for police and fire purposes.” A building mover who drives an iron bar into the street in connection with his building operations and injures an underground conduit or cable is liable to the telephone company owning the underground conduits and cable, and this liability is based not on negligence but on an unlawful trespass against the property of others in his use of the street.” In Massachu- setts an underground telephone line is personal property, the company having no permanent rights in the streets.” The inspection by a muni- cipality of underground conduits and wires can be but little more than perfunctôry owing to the nature of their location, and hence a munici- * pal licerise fee for such inspection must be small." § Hº Cables. – In the United States, even though a cable company has authority from a state to land its cable on the shores of that state, nevertheless it does so subject to any future action of congress under its power to regulate interstate and international commerce." A do- the city, the telephone company also contractor who excavates in the alley agreeing to take down its poles where in connection with excavating the the Subways were constructed. Ches- abutting land is liable for injury to apeake, etc. Co. v. Mayor, etc., 89 Md. the conduits where the contractor 689 (1899). A telephone company knew of the location of the conduits, having by statute and by contract and it is immaterial that there Was With the city the right to lay con- no express grant from the city to al- duits in the Street may enjoin the low the company to have its conduits city from interfering with the work in that particular alley. Edison, etc. the company offering to construct the Co. v. Misch, 166 N. W. 944 (Mich. conduits under the Supervision of the 1918). A city is not liable for one of city. Chesapeake, etc Co v. Mavor, its workmen running a pick into an etc. of Baltimore, 90-Mú. 638 (1900), underground cable of a telephone com- The lessee from the city of New York pany while the workman was engaged of the underground electric railways in widening a sewer, it appearing that Of New York may use the same to the telephone Company had no license transmit and Sell to other electric rail to place the cable where it was and ways surplus electric current manu- the workman was not acting wilfully factured by such lessee. City of New or recklessly. Reynolds, etc. Tel. Co. York v. Interborough, etc. Co., 125 v. City of Piedmont, 152 Mo. App. N. Y. App. Div. 437 (1908); aff’d, 194 361 (1911). “, N. Y. 528. * New England Tel. & Tel. Co. v. * Wagner v. Edison, etc. Co., 141 Boston Terminal', Co., 182 Mass. 397, MO. App. 51 (1909). 400 (1903). Cf. § 3. * Prentiss v. Cleveland Tel. Co., 32 * Delaware, etc. Tel. & Tel. Co. Pe. W. L. Bull. 13 (Ohio, 1894). tition, 224 Pa. St. 55 (1909). * Frontier Tel. Co. v. Hepp, 66 N. Y. * De Castro v. Compagnie, etc., 85 Misc. 265 (1910). Where underground Hun, 231 (1895); aff’d, 155 N. Y. 688. conduits are properly in an alley a The decision of the District Court of º --> --> $–14 º *: government.” TELEGRAPH.L.A.W mestic cable company may land a cable on the shores of the United States, without express permission from congress or the United States The right to cut a submarine cable which lands on the shores of a belligerent has been the subject of much discussion and must be considered as still unsettled.” the United States in the case Commer- cial Cable Co. v. Burleson, 255 Fed. 99 (1919), to the effect that the act Of the POStrmaster-General in seizing a cable System by Order of the Presi- dent under power delegated by a Joint Resolution. Of Congress during the War Cannot be questioned by the cable company and that no specific provision for payment of compensa- tion need be provided in advance by Congress, was reversed by the Su- preme Court of the United States in 250 U. S. 360 (1919), and in the mean- time the Postmaster-General having returned the cable lines to the cable company...the Supreme Court ordereds the belligerents. that the litigation had become moot and should not proceed. * U. S. v. La Compagnie, etc. Tele- graphiques, 77 Fed. 495 (1896). One attorney-general rendered an Opinion that the post road act Of Congress of 1866 “was intended to apply simply to interior lines of telegraph designed for Communication between points Within the United States and not to exterior Oceanic lines designed for telegraphic intercourse with foreign lands.” American Atlantic-Cable Tel. Co. Matter, 14 Opinions of Attorneys- general, 62 (1872), but it is believed that this is not sound law. * The Institute of International Law at the meeting at Brussels in 1902, adopted the following five rules: “ (1) A submarine cable connecting two neutral territories is inviolable. (2) A cable Connecting the territories of two belligerents or two points of the territory of one of the belligerents may be cut anywhere, except in terri- torial Sea and in neutral waters de- pendent on a neutral territory. (3) A Cable Connecting a neutral terri- tory with a territory of one of the belligerents cannot, under any circum- Stances, be Cut in the territorial Sea. º An American cable company Or in the neutral Waters dependent On a neutral territory. On high Seas, Such cable cannot be cut unless there be an effective blockade and within the limits of the line of blockade, ex- cept the cable be restored with the least possible delay. The cable may, how- ever, be cut on territory and in the territorial Sea dependent On an enemy's territory up to a distance Of three nautical miles from low Water mark. (4) It is understood that the freedom Of a neutral Government to transmit its messages does not carry the right to use it or permit it to be used manifestly to lend aid to one of (5) Concerning the application of the preceding rules no difference is to be drawn between Gov- ernment Cables and cables privately Owned Or between Cables belonging to an enemy and those of neutral OWner- ship.” The United States Naval War Code, Article 5, is as follows: “ (1) Subma- rine telegraph cables between points in the territory of an enemy, or be- tween the territory of the United States and that of an enemy, are Sub- ject to such treatment as the necessi- ties Of War may require. (2) Subma- rine telegraphic cables between the territory Of an enemy and neutral ter- ritory may be interrupted within the torritorial jurisdiction of the enemy. (3) Submarine telegraphic cables be- tween two neutral territories shall be held inviolable and free from inter- ruption.” The International Convention of April 16, 1884, (see 24 U. S. Stat. at Large 989, and 25 U. S. Stat. at Large 41), contained the following provi- Sions: “$ 287. The protection afforded to Submarine telegraph Cables finds its expression in the following stipu- lations of this international treaty: (1) Intentional or culpably negligent -215-r jº º 5 ; : . ‘. . ; ...? ; : # *QEEEGRAPHºfra W. Š.11: is not doing business in Newfoundland, even though its cables land in Newfoundland, where the company uses the station merely to repeat messages." Submarine cables are instrumentalities of interstate com- merce and are subject to federal regulation, and hence a territory or insular possession of the United States has no authority to reduce interstate or interferritorial rates.” Cable rates are made in the first instance by the cable companies subject to regulation by the Inter- state Commerce Commission. rates except on clear The Commission will not reduce such roof.” The right of a government to censor tele- grams or º nºt yet been defined:*Gertainly a neutral goverhaert-has”ffo streh-power-of-censorship” Questions relative to breaking or damaging of a gable in the Open Sea is to be punished by all the Signatory Powers except in the case Of Such damage having been caused in the effort of self-preservation (ar- ticle 2). (2) Ships within sight of buoys indicating cables which are be- ing laid or which are damaged must keep at least a quarter of a nautical mile distant (article 6). (3) For dealing with infractions of the inter- dictions and injunctions of the treaty the Courts of the flag State of the in- fringing vessel are exclusively compe- tent (article 8). (4) Men-of-war of all signatory Powers have a right to stop and to verify the nationality of merchantmen of all nations which are SuSpected of having infringed the reg- ulations of the treaty (article 10). (5) All Stipulations are made for the time of peace only and in no wise re- strict the action of belligerents dur- ing time of war.” "… The British Government in order to make clear its position in regard to thaf, a “rille” of the Holise of Aşşem- bly of Newfoundland requiring Con- tracts extending over a period of years and creating a public charge to be approved by a “resolution of the HOuse, . . is part of the constitu- tion of Newfoundland,” and hence without such approval the contract is void, even though the company has carried out its part of the contract and had no knowledge of Such rule, and even though the contract WaS signed by the representative of the King, and the Premier and the Attor- ney-General, and the Great Seal of Newfoundland attached, and even though a prior contract between the same parties was made in a similar way but was subsequently approved by the “House” without the knowledge of the company. Commercial Cable Co. v. Government of Newfoundland L. R. 2 App. Cas. 610 (1916) Per Hal- dane. * Benedicto v. West India, etc. Tel. Co., 256 Fed. 417 (1919). the above presented at that Conven- ºg White & Co. v. Western Union Tel. tion a declaration that Great Britain understood from the above “that in time of War a belligerent a signatory Of the Convention, shall be free to act in regard to submarine cables, as if the convention did not exist.” * Commercial Cable Co. v. Attorney- General, [1912] A. C. 820. A cable COmpany making a contract with the Government of Newfoundland in re- gard to landing cables and inter- changing cable service with govern- ment lines, is bound to take notice CO., I. C. C. 500 (1915). Cf. § {*p, +&ee-Cooley-on-Constitutional Timiº tations, Seventh Ed., pp. 432, 433, note. ram from a neutral country rent COuntry should be as free from gó §. control of the former as are ext; ; munitions of war, etc. See Oppenheim on Inter- national Law….(1906), Vol. ITS-S-350, p. 2*'Second Hague Conventi hts and duties of neu- Tº this-respect as follows.--A i } j § --. º: * , *~~ * -$–44. life or vessels.” ..º. & 25.2%-- . PELEGRAPFr”fixwº f the jurisdiction of the Interstate Commerce Commission over inter- national commerce aré, considered elsewhere.” The United States Gov- ernment may be liable for a subsidy granted by the Spanish Govern- ment to a submarine cable company in the Philippines where the United States after taking over the Philippines continued to accept the benefits of the contract.” The bottom of the sea may be used for lawful purposes, including the laying of a cable. that the cable is there, nor to inquire before casting anchor. A navigator, however, is not bound to know But if . he does know it—and that may be a question for the jury—he must use due care.” A cable stretched across a stream for use in propelling a ferry-boat is not illegal as an obstruction to commerce, provided it does not actually interfere with the use of the stream for navigation purposes.” Under the treaty of 1884, entered into by nearly thirty of the nations of the earth for the protection of submarine cables, it was made a crim- inal offense to break or injure such cables, except when done to save The provisions of this treaty have been carried into effect in the United States by an act of Congress, fixing the punishment for a violation of the treaty or of the provisions of the act itself.” called upon to forbid or restrict the usev on behalf of the belligerents of telegraph or telephone cables or of SS telegraphy apparatus belong- ing to is: to companies or to private individuals,” Article IX is as follows: “Every measure of restriction or pro- hibition taken, by a neutral Power in regard to the matters in articles VII and VIII (expóstation of arms and use of telegraphs :elephones and wire- --~~~~ /* 3. y less) must be impārtially applied to both belligerents. AN, neutral Power must see to the same º being observed by company of private indi. viduals owning telegraph or telephone cables or wireless telegraphy appara- tus.” In the general European war of 1914 the United States Government censored wireless telegrams and con- templated censoring submariné cable cablegrams but finally decided hot to censor/the latter. The protest of The Commercial Cable Company at that timé pointed out that a submarine gable-is-different—from-wireless-tête- • A-- st-wrify: *A*-h:eutral Power is not. :- º COll e sent direct to a warship, but that a cablegram is similar to letters which governments are not allowed to Censor, and further, that the Secrecy of telegrams is preserved in many states by criminal statutes, and that the company would contests any CeIl- sorship as a form of unreasonable search in violation of the Constitution s: Trited-States:--~~~~" * See § 900, Cook-943-Géºp- * Eastern Extenson Tel. Co. v. United States, 231 U. S. 326 (1913). * Sub-Marine Tel. Co. v. Dickson, 15 C. B. N. S. 759 (1864). * Albina Ferry Co. v. The Imperial, 38 Fed. 614 (1889) ; Ladd v. Foster, 31 Fed. 827 (1887), the court saying: “A Cable lying On the bottom of the river is not an obstruction to navi- gation, while, if stretched across, at or near the surface of the Water, it would be.” | - * See 24 U. S. Stat. at L. 989. "See ch. 17, Acts of Congress of 1888, vol. 25, U. S. Stat. at L., 41. s2}ºseº Where the anchor of a vessel becomes entangled in a submarine cable and, instead of cutting away the anchor, the officers of the vessel cut the cable, a libel in rem lies against the vessel for damages for a mari- time tort for the cutting of such cable." A cable company may claim damages from the United States on account of a navy officer having negligently dropped a heavy anchor upon the cable and disrupting it in the harbor at Guam, and such claim may be brought before the court of claims, where the United States senate by a resolution has referred the claim to such court.” Where a cable company is authorized to lay its cable on the bottom of a river, it is bound so to lay it that it will not catch the bottoms of vessels navigating the water in the ordinary way, and the vessel is bound to be so navigated as to avoid disturbing the cable. If the cable is not on the bottom, and catches the screw of the boat, the cable company is liable for damages done.” Where an anchor became entangled in a telegraph cable, and the cable was cut to extricate it by those on board ship, the court held that the ship was liable for the damage, in the absence of present and imminent danger, and when with reasonable patience and skill the anchor might have been extricated without cutting the cable.” But where the master and crew of a vessel, while endeavoring to disentangle the anchor from a submarine cable, cause the cable to break, vessel is not liable for the damages, no negligence or intentional breaking being shown.” A steam tug-boat may recover damages for * The William H. Bailey, 100 Fed. 115 (1900); S. C., 103 Fed. 799 (1900); aff'd in 111 Fed. 1006. The Clara, Kil- 1am, L. R. 3 Adm. & Ecc. 161 (1870), A Court of admiralty has no jurisdic- tion of a claim by the Owner of a drawbridge Over a navigable stream at Cleveland, Ohio, against a vessel that breaks loose during a flood and strikes and damages such bridge. Cleveland Terminal, etc. R. R. v. Cleveland Steamship Co., 208 U. S. 316 (1908). The court distinguished the case The Blackheath, 195 U. S. 361 (1904), where jurisdiction of a court of admiralty was upheld as against a vessel running into a beacon in a channel, although the beacon Was attached to the bottom of the Ocean, On the ground that it involved a gov- ernment aid to navigation. In the case The Poughkeepsie, 162 Fed. 494 (1908), [aff’d, 212 U. S. 558], it was held that a Court Of admiralty had no an injury due to a cable running jurisdiction of a suit by a party mak- ing borings in the Hudson River off Storm King for the purpose of locat- ing an aqueduct under the river, such suit being against a steamer that ran into such borings. * Commercial Pacific Cable Co. v. United States, 48 Ct. of Claims, Rep. 461 (1913). The court of claims in this instance allowed $35,894.47. In 1914 Congress authorized the payment of $11,782.27 to the Commercial Pacific Cable Company for damage done to the cable of that company in Manila Bay by a government warship on OC- tober 2, 1908. * Stephens, etc. Co. v. Western Un- ion Tel. Co., 8 Ben. 502 (1876); S. c., 22 Fed. CaS. 1301. * The Clara Killan, L. R. 3 Adm. & Ecc. 161 (1870). * The Anita Berwind, 107 Fed. 721 (1901). Tºſu.BGRAPH.L.A.W. *~219. "S-14--. under the Hudson River at Albany, it being shown that the boat drew less water than other boats that had passed, and also that nine other cables were there and were not touched. It is no defense that the cap- tain knew the boats sometimes touched the cables." Where the bottom of a river, as between New York City and Jersey City, is what is called “navigable mud.” which steamers easily and necessarily plow through, cables in such mud are there at the risk of the owner, and, if a steamer's screw catches in such cables, the owner of the cable can collect nothing, but, on the contrary, is liable for injuries to the steamer.” Even though a dredge is engaged in carrying out a con- tract with the United States government for deepening the channel of navigable waters, it is liable for damages if it disrupts a submarine cable, the location of which was indicated by signs on the shore. A court of admiralty has jurisdiction of such a case.” A notice given by a cable company that it will compensate vessel owners for loss of anchor, etc., which shall have hooked their cable, refers to the value of the anchor and chain, and not to damages resulting from the loss of them, but may possibly include consequential damages for which the vessel owner may be liable.* -/-. —Where a corporation cannot be formed under the general laws for telegraph purposes, but nevertheless, a charter is taken out, the charter is Void. The corporation so formed cannot recover damages from a vessel that catches on its anchor a cable laid at the bottom of a navi- gable stream by such corporation, even though a sign “Cable—Don’t * Blanchard v. Western Union Tel. Co., 60 N. Y. 510 (1875). * Western Union Tel. Co. v. Inman, etc. Co., 43 Fed. 85 (1890); aff’d, 59 Fed. 365 (1894). A dredge Owner may not be liable for an injury to a gas main on the bottom of a river where there Was no reasonable notice that the gas main was there. Steam Dredge No. 6, 222 Fed. 576 (1915). A dredge in the Hudson River is not liable for injury to gas pipes at the bottom of the river even though they Were put there with authority, unless the dredge was negligent. The No. 6, 241 Fed. 69 (1917). * Postal Tel.-Cable Co. v. P. Sanford Ross, Inc., 221 Fed. 105 (1915). Ad- miralty has jurisdiction of a proceed- ing by a telegraph company to hold a dredge liable for disrupting its marine Cable resting on the bottom under navigable waters. The Toledo, 242 Fed. 168 (1917). A court of admir- alty has jurisdiction of a proceeding by the United States Government against the owner of a ship which dis- rupts a government cable negligently. United States v. North German Lloyd, 239 Fed. 587 (1917). A ship in charge Of a pilot is liable for its anchor dis- rupting government cables, anchorage in that place being forbidden, as clearly shown by ordinary charts used. by navigators. The Ellenora, 252 Féd. 209 (1918). A dredge is not liable for injury to cables which were orig- inally laid 300 or 400 Afeet above where the dredge was working. POStal Tel.- Cable Co. v. Horáe etc. Co., 241 Fed. 201 (1915). See- 241 Fed. 252. * Agincourt, etc. Co. v. Eastern, etc. Tel. Co., [1907] 2 K. B. 305. 220T TELEGRAPTTAw -$º-fi. Anchor’’ is posted on the banks, and even though a sailor cuts in two the cable without any effort to disentangle it from the anchor." A dredging company and a railroad company, for which it is doing work, are liable for driving piles on a cable at the bottom of a bay, both having had notice of the location of the cable.* N w -----Y-ºr-arºr" --> * **-> r-----ºr--ºr K-By statute in California any person whose vessel drags its anchor and through want of proper care injures a cable is liable for damages provided the company has placed on the bank of the waters a notice stating where the cable lies, and also published a notice in a newspaper for one month.” There are but few decisions on the liability of a cable company for errors in the transmission of mossages." A - A-A cable company cannot require one land line company to mark its transferred messages with the name of the transfer point and pay tolls thereon where it does not require the same from another land line cºmpany." A state cannot tax submarine cables beyond the state’s territorial jurisdiction." * Doboy, etc. Tel Co. v. De Ma- gathias, 25 Fed. 697 (1885), the court saying, however: “It is competent for the municipal power of a state, in good faith, and for a constitutional purpose, to authorize the Obstruction of one of its own tidal and navigable streams. Congress, however, may in- terpose by either general or special laws. It may regulate all Obstruc- tions in or over nevigable waters, and cause their removal, and punish those who shall thereafter erect them. Any state law in opposition to such action by congress is inoperative and Void. Within the Sphere of their authority, both the legislative and judicial pOWer of the nation is paramount.” * Pacific Tel. & Tel. Co. v. Standard, etc. Co., 176 Pac. 49 (Cal. 1918). * $$ 537, 539 Cal. Civil Code. * In Hart v. Direct United States Cable Co., 86 N. Y. 633 (1881), the substance of the decision was that the telegram delivered to the addressee being an unintelligible jargon, the addressee, who was the agent of the plaintiff who sent the message in taking it as an order to sell, took the risk of the interpretation. A cable The traditional three-mile limit in international law Company is not liable for damages due to error in the transmission of a message which is in cipher. Fergus- son v. Anglo-Amer. Tel. Co., 178 Pa. St. 377 (1898). Bertuch v. United States, etc. Cable Co., 79 N. Y. Misc. 30 (1913). A cable company appar- ently is not bound to prove delivery of a message by a connecting line, but in a Suit for tolls Cannot excuse non- delivery on the ground that war is pending unless that fact is shown to be relevant to the suit. Commercial Cable Co. v. Bauer Co., 102 N. Y. Misc. 699 (1918); rev’g 100 N. Y. Misc. 663 (1917). Money which is paid to a Wireless company to be transferred to Berlin but which is not transferred by reaSOn Of War conditions may be re- COvered back. Atlantic etc. Co. v. Zimmermann, 182 N. Y. App. Div. 862 (1918). * Western Union Tel. Co. v. Commer- cial Pac. Cable Co., 171 Pac. 317 (Cal. 1918). - * The Privy Council in the case The Commercial Cable Company v. The Attorney-General of Newfound- land, [1912] A. C. 820, in passing upon the Newfoundland statute imposing -$–42–~~ TÉ'ſ E6;fºgº.J.A.A. arose at a time when three miles was supposed to be “the greatest distance cannon shot could ever be made to reach.” “ . - :: ***** a tax on the cable company, Said “While of course it was competent for the Newfoundland government to impose taxation on cables within its territorial jurisdiction it was not COm- petent for the government to lay a tax on cables outside its territorial juris- diction.” * Queen v. Keyn, T. R. 2 Ex. DiV., 63, 73 (1876), and the jurisdiction of the government even for these three miles is very limited, being only for the purpose of protection and the regulations of fisheries, etc., and does not mean absolute ownership. United States v. Kessler, 1 Baldwin, 17 (1829); S. c., 26 Fed. Cas. 766, 775; Kent’s Com., Vol. I, pp. 29, 30; Man- chester v. Massachusetts, 139 U. S. 240, 262 (1890). See 28 Halsbury (Läws of Eng.), 36. Atty. Gen. v. Atty. Gen. [1914], 153, 174. Hall on Intern. Law (6th ed.), 150. Phillimore on In- tern. Taw (1890), 274. See 41 and 42 Vic. Ch. 73 (Aug. 16, 1878). The state is entitled to islands Suddenly appear- ing close to shore in tidal waters at the mouth of a navigable stream. Sec- retary of State for India v. Sri Rja, etc., 32 Times Law Rep. 652 (1916). Control over tidal waters in Canada is in the Canadian Government, and not the Provincial Legislatures. Attorney- General, etc. v. Attorney-General, 110 L. T. Rep. 484 (1913). ~~(2).---Jntrisdiction: “irrespective:-of citizenship. Though there is no di- verse citizenship yet where over $3,000 is involved, the Federal Court has jurisdiction to enjoin the interruption of a telegraph line, intérstate com- merce and the Post Road Act of Con- gress being involved.” Town of Essex v. New England-Tel. Co., 239 U. S. 313 (1915). The receding case was against a municipality, but the rule is the same as to anyºjnterference With interstate commerce by individ- uals, Re Debs, 158 U. S. 564's(1895); ~221– ** .* *...* * * -(E394)"; “United States v.--Agler, 62 Féd. 824 (1894); Clyde S. S. Co. v. ity Council, 76 Fed. 46 (1896); Glou- cester Ferry Co. v. Pennsylvania, 114 U. S.X196 (1885); McCall v. California, 136 U.S. 104 (1890). The decision in Postal Tel-Cable Co. v. Nolan, 240 Fed. 754 (1917) is wrong, while the deci- Sion in Stephens ºv. Ohio State Tel. Co., 240 Fed. 759, 768 (1917) is right. Especially’ is this the case where a telegraph company is transmitting government messages and hence is acting as a government agent and in- strumentality; Western Union Tel. Co. v. Texas; 105 U. S. 460 (1881); Western Union Tel. Co. v. City Coun- cil, 56 Fed. 419, 420 (1893), aff'd. 153 U. S. 692; Postal Tel.-Cable Co. v. City of Mobile, 179 Fed. 955 (1909). The controversy must, of course, really and substantially involve a dispute or controversy respecting the validity, construction or effect of some law of the United States, upon the determin- ation of which the case depends. Hull v. Burr, 234 U. S. 712 (1914). An Ohio corporation may enjoin an Ohio city from confiscating a water right. Cuyahoga Power Co. v. Akron, 240 U. S. 462 (1916). So also an electric light Company may enjoin a citv from ousting the former from the streets, this not being due process of law. Ashland, etc. Co. v. City of Ashland, 217 Fed. 158 (1914). As to the jurisdictional amount, over $3,000 is involved where that is the value of the right to be protected or the injury to be prevented, West. ern Union Tel. Co. v. City of Charles- ton, 56 Fed. 419 (1893), aff'd 153 U. S. 692; Humes v. City of Fort Smith, 93 Fed. 857 (1899), where a license fee was involved. Southern Ex. Co. v. Mayor, etc., 116 Fed. 756 (1902), where a license fee was involved. Poštal Tel-Cable Co. v. City of Mö- ** bile, 179 Fed. 955 (1909), where also SUnited. States-v-Elliott;-64–Féd-27—a license-fee was...involved:--A-tele- 1. 2” - * A ...” / 222 TELEGRAPEH IIAW , often happens in telegraph cases that the telegraph company reliés 3, upon the Constitution or laws of the United States for the rº $. of its poles and wires or for the continuous operation of its linés in giving telegraph service. In such cases the natural forum is a federal court. Difficulty sometimes arises, however, in instituting º that graph company may enjoin prosecut- law is involved. Fishback v. West- ing attorneys in different parts of the state from instituting suits to recover illegal penalties based on an unconsti- tutional statute requiring an exces- Sive license fee from the foreign tele- graph corporation before it does busi- ness in the state. W. U. Tel. Co. v. Andrews, 216 U. S. 165 (1910). Col- lection of taxes may be enjoined where there are many of them in different counties and they are all illegal. Sin- ger Mfg. Co. v. Adams, 165 Fed. 877 (1909). The enforcement of an ille- gal license fee by prosecutions may be enjoined. Van Deman & Lewis Co. v. Rast, 214 Fed. 827 (1913), involv- ing a state license fee of $500, and a chants, offering, with merchandiseſ profit-sharing certificates, rev'd on aft- other point in 240 U. S. 342. A "li- cense fee of $300 a month on a water- works company cannot be enjoinéd in the United States court where the municipality does not threateri to in- terfere with the water-works, but is merely suing for the licensé fee, and the tax is not a lien on the property. Boise, etc. Co. v. Boise City, 213 U. S. 276 (1909). A manufagturing corpo- ration doing an interstate business Only Cannot maintain an injunction against a Commission in Virginia re- Quiring it to pay a/ license before dO- ing business in Virginia, the remedy by payment undgr protest and a suit to recover back; being available. Dal- ton Machine Có. v. Virginia, 236 U. S. 699 (1915). Aſhe federal courts have no jurisdiction of an injunction suit brought by an interstate telegraph company fagainst the collecting of taxes levied by several counties where the taxes in no single county amount to $2,000. Nor is the jurisdiction sus- tained on the ground that a federal # * & * ern, etc. Co., 161 U. S. 96 (1896). This last Case involved separate ad valorem, taxes based on distinct assessments in Several COunties, no One of which amounted to $2,000, and the question involved was excessive taxation, and not an absolutely illegal tax or license fee in toto imperiling interstate com- merce and Athe franchise granted by the United States government. See also Tupher v. Jackson Lumber Co., 159 Feſ: 923 (1918). See § 572a, Cook On COfp. A railroad may maintain a bill of injunction in the federal court against property OWners who are in- teffering with its right of way, where 3. gº *. ..? uch right of Way is worth the juris- county license fee of $250 on , mer-, dictional amount, even though the land itself constituting the right of Way is not Worth that amount. Louis- ville & N. R. R. v. Smith, 128 Fed. 1 (1904). A resident of a state cannot bring suit in the federal court in that State against a non-resident corpora- tion where the case arises under the Constitution and laws of the United States. The suit must be where the defendant resides. Judicia. Code, § 51. Male ^). Atchison, etc. Ry., 240 U. S. 97 (1916); Macon Grocery Co. v. Atlantic Coast Line R. R., 215 U. S. 501 (1910), The United States Dis- trict Court has jurisdiction of a suit to enjoin the exercise of rights under three judgments of condemnation in ^, state courts by a telegraph company for a right of way on a railroad, even though neither party's resides in that district, the judgments\being an in- Cumbrance, lien or clöud on real estate. Louisville & N. R. R. v. West- ern Union Tel. Co., 234 U. S. 369 (1914). The amount invol ed in a Suit by a pole and wire company against another pole and wire *gom- pany COnStructing its line in too * - § 12 TELEGRAPH LAW 223 2^ court on account of both parties being residents of the same state, or on account of the amount involved not exceeding $3,000, exclusive/of proximity endangering employees and the public, may be not the probable expense to the defendant of making a change but the value of complain- ant’s business in the use of its poles and wires. Glenwood Light Co. v. Mutual Light Co., 239 U. S. 121 (1915). (2) Jurisdiction irrespective of Q/m,07/nt involved. By the Judicial Code of 1911, § 24, subd. 8 (36 U. S. Stat. 1092), the United States courts have jurisdiction irrespective of citi- Zenship “of all suits and proceedings arising under any law regulating com- merce.” A city cannot require an ex- preSS COmpany to take Out a license and pay a license fee for its drivers, Where the express matter is being carried by such drivers from the city into another state. The express com- pany may obtain an injunction. Bar- rett v. City of New York, 232 U. S. 14 (1914), rev’g 189 Fed. 268. Under the Fourteenth Amendment to the R./Co. v. Western Union Tel. Co., 234 Constitution of the United States re- lative to the “equal protection of the laws” a corporation is protected against a tax burden not equally i posed upon other corporations undér like circumstances. Railroad /ſax Cases 13 Fed. 722 (1882). State offi- CerS may be enjoined from apportion- ing and certifying alleged illegal as- sessments to counties and municipali- ties where it is alleged that the as- sessments are without due process of law, and denies the equal protection Of the law, and that other property is assessed at a less proportion Of its actual value, as wellzas for other rea- sons. Louisville & N. R. R. v. Bos- worth 209 Fed. 380 (1913). A bill in equity lies to Ánjoin State Officers from enforcing/a state statute inter- fering º COIOIſlēI’Ce. Grand Unio, Tea Co. v. Evans, 216 Fed. 791 (1914). Unless excessive and Cumulatiyé penalties are involved the federal, COUrt Will not enjoin a state commission Where the constitutional º: *A A rights involved Will be revieyed by the state court with the right of ap- peal to the Supreme Court of the United States. Kern, etc. Coſ v. Asso- ciated, etc. Co., 217 Fed. 273 (1914). Interstate commerce includes also the instrumentalities of that commerce. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 (1885). ,” (3) Jurisdiction, where diverse citi- 2enship and jurisdictional amount both eaist. Of course, there is jurisdiction in such a case and suit should be brought where one of the parties re- sides unless the telegraph line is in a district where neither party resides and the Suit is in the nature Of re- moving a cloud from the title. Thus the United States Court may have jurisdiction. Of a Suit by a railroad Company to enjoin Condemnation pro- ceedings by a telegraph company, even though neither party is a resi- dent/Of the district wherein the suit is brought. Louisville & Nashville R. U. S. 369 (1914). See also Judicial /Code (1911) s 57 (36 U. S. Stat. 1102). A Suit by a City in the State Court enjoining a telegraph company from doing business unless it paid a spec- fied lićense fee is not a suit of a civil nature, collection being by the crim- inal process Of a fine and hence such suit is not removable to the federal court. Citys of Montgomery v. Postal Tel., etc. Co., 218. Fed. 471 (1914). (4) Jurisdiction under the Post Road Act of Congress. This is not sufficient for the removal of a case from the state to the federal court where the complaint is not based on the Post Road Act. ^Western Union Tel. Co. v. Ann Arbor R. R. 178 U. S. 239 (1900), the court saying that even though the Post Road Act was re- ferred to in the complaintº, yet that the bill was really “a bill for the Specific performance of the contract.” A judgment in the federal courts of condemnation by a telegraph company, *.*- -----. 2’ 224 TELEGRAPH LAW A § 12 - 'º' gr *~ interest and costs. It then becomes important to determine whether the federal court can take jurisdiction. Many decisions are given in the notes below. - 2. sº sº." *~ _* of a right Of Way On a railroad is not on diverse citizenship. Louisville & appealable to the Supreme-Court of N. R. R. v. Western Union Tel. Co., the United States on the .*. 237°U. S. 300 (1915). Of course, the ment that the telegraph Company hi sº Road Act may be the basis of accepted the Post Road Act of Corſº jº, gress of July 24, 1866, inasm à.S. jurisdiction of a suit in the federal COUIrt ere the construction or ap- eing based plication or .. that Act of Con- the jurisdic- gress is involve of the case arises elow being based under that Act. *> `s 2^ k `s, On a State Statute tion. Of the COur INDEX ABANDONMENT of street, p. 213, of condemnation proceedings, pp. 25, 49. ABANDONED WIRE CONDUCTING LIGHTNING, p. 119. ABUTTING PEROPERTY OWNER, rights as to conduits in Street, p. 213. right to damages, § 1. on railroad with telegraph lines, p. 30. ACCEPTANCE OF ILLEGAL OF DINANCE, pp. 80, etc. ACCESS TO MAKE REPAIRS, p. 23. ACCIDENTS, due to guy wires, pp. 117, etc. due to Wires, §5b. due to electric current running through another company’s Wires, pp. 121, etc. On joint telegraph line, p. 60. changes made after, p. 121. from poles and wires, and electric current, §§ 5-5c. ADDITIONAL SERVITUDE, telegraph line on highway, § 1. ADDITIONAL POLES AND WIRES on right of way, p. 23. ADMIRALTY COURT HAS JURISTICTION Over disruption of Submarine cables, p. 219. ADVERSE POSSESSION giving right of way to telegraph line, p. 16. ADVERTISING, use of telegraph blanks for, p. 200. AGREEMENT releasing one joint tort-feasor, pp. 138, etc. “ALTERNATING” ELECTRIC CURRENT, p. 156. ANCHORS catching submarine cables, p. 218. ARREST OF LINEMAN, pp. 70, etc., 180. ASSIGNABILITY OF RIGHT OF WAY on railroad for telegraph line, p. 32. ATTACHMENT OF FOREIGN WIRES to poles, pp. 90, etc. BEAUTIFYING A TOWN by ordering change in poles and wires, p. 88. BLANKS OF TELEGRAPH COMPANES used for advertising, p. 200. BOARD OF DIRECTORS need not authorize condemnation, p. 47. BOTTOM OF SEA used for submarine cables, § 11. BOYS, messenger, collision with, p. 111. BRITDGE, obligation of telegraph company to pay for crossing, pp. 65, 66. railroad, condemnation of right over, by telegraph company, pp. 65, 66. right Of Way over, may be included in condemnation proceedings, p. 37. taken over by the state, p. 178. telegraph line On $ 2. BUILDINGS burned by lightning passing through wire, pp. 119, etc. BURNING OF BUILDING by lightning conducted through wire, pp. 119, etc. CABLES caught by anchor, $ 11. Cutting of, p. 215. anchors catching, p. 218. protection of by treaties, p. 217. taxation of, p. 220. interfering with tug boats, $ 11. disruption of, jurisdiction of Admiralty Court, p. 219. landing Of, p. 215. Submarine, § 11. CABLEGRAMS, censorship of, p. 216 transmission of, p. 220. CABLE RATES, p. 216. - jurisdiction of Interstate Commerce Commission over cable rates, p. 193. CARRIER, common, telegraph company is not, p. 183. CASES, telegraph, jurisdiction of United States Court, § 12. CENSORSHIP of cablegrams, p. 216. - of telegrams, p. 203. CHANGES made after accident, when admissible in evidence, p. 121. CIRCUIT, composite, p. 80. CITY revoking rights, granted to telegraph companies, p. 212. levying license fee on underground conduits, p. 214. Ordering Various wires on One set of poles, pp. 90, etc. Seizing underground conduit of telegraph company, p. 212. Cannot order change in electric light polcs to make way for city electric light poles, p. 155. may by express authority levy license ſees UII telegraph companicg, p. 168. Confiscating undergrounds, p. 91. vacating street, as affecting telegraph line, p. 89. demanding money or free service or control of rates as condition of grant- ing Ordinance, p. 79. - regulations as to telephone companies, pp. 78, etc. Ordinance illegal, acceptance of, pp. 80, etc. Ordering Wires underground, § 10. regulating telegraph companies, pp. 69, etc. liability for damage due to poles, wires or electric current $$ 5-5c. grant to telegraph Companies not subject to public vote, p. 67. beautifying, by Ordering change in poles and wires, p. 88. furnishing electric light acts in private capacity, p. 88. authorities, removing poles and wires from street, p. 84. regulating tolls, p. 195. CLOSING of telegraph offices during night, p. 194. of telegraph offices, p, 190. COMMERCE, interstate, telegraph business is, p. 67. interstate, as affected by state taxation, pp. 169, etc. COMMISSIONS, approving of change of rate as affecting contracts, p. 186. ordering change in location of poles and wires, pp. 86, etc. COMMON, tenant in, granting right of way to telegraph line, p. 21. COMMON CARRIER, telegraph company is not, p. 183. COMPENSATION to owner of fee for telegraph line, § 1. COMPOSITE CIRCUIT, p. 80. CONDEMINATION PROCEEDINGS, nominal damages in, p. 25. * the right to cut trees, p. 99. - abandonment Of, pp. 25, 49. by telegraph companies, pp. 33, etc. nominal damages for telegraph line On railroad, p. 48. board of directors, need not authorize, p. 47. rentals no basis for damages, p. 49. by telegraph company for right of way on railroad, pp. 32, etc. injunction during, p. 37, etc. by Subsidiary companies, p. 24. Of right Of Way On highways, p. 23. See Right of way. 226 CONDITIONS ILLEGAL in ordinance, pp. 80, etc. CONDUCTION and induction, § 5(l. CONDUITS, underground, license fee on, p. 214. underground, seized by city, p. 212. confiscated by a city, p. 91. underground, ordinances, § 10. CONFISCATION Of Conduits by a City, p. 91. CONNECTING LINE CONTRACTS, pp. 201, etc. CONSENT, oral or written, of property owner to telegraph line, p. 21. CONSOLIDATION, lease or sale of telegraph lines, § 9. CONSTRUCTION material frightening horse, p. 107. CONTRACT between railroad and telegraph company relative to telegraph line, p. 56. for exclusive rights for telegraph line on railroad, pp. 55, 60, etc. exclusive, telegraph line on railroads, $ 2. connecting line, pp. 201, etc. COPPER AND WIRE junk, p. 96. COPY of telegram as evidence, p. 204. CORPORATE OFFICER, liability for falling of pole, p. 109. COUNTY, liability for damage due to poles, wires or electric current, §§ 5-5c. COURT, United States, jurisdiction of, § 12. United States, jurisdiction of, in condemnation by telegraph company. p. 47. United States, removal of cases to, when penalized, p. 68. COVENANT not to sue, pp. 138, etc. CRIMINAL offense to destroy telegraph lines, p. 25. Offense to divulge contents of telegram, p. 205. CROSSING streets between blocks, p. 111. by telegraph line on highway over railroad, p. 64. CROSS-ARMS, additional on right of way, p. 23. breaking and causing damage, § 5a. CURRENT, electric, running through various wires and causing damage, pp. 121, etc. electric light, injuring employees, pp. 128, etc. CUTTING trees, measure of damages, p. 100. Of Submarine cables, p. 215. back trees on highway, pp. 96, etc. down poles and wires on street, pp. 25, 84. down telegraph lines generally, p. 25. DAMAGE due to electric current running through another company’s wires, pp. 121, etc. due to guy wires, pp. 117, etc. due to Wires, § 5b. due to poles, liability for, §§ 5-56. Suits by employees, pp. 128, etc. in Condemnation, rentals no basis, p. 49. law of state where injury occurs governs, p. 129. nominal, for telegraph line on railroad, p. 48. nominal, in Condemnation proceedings, p. 25. punitive, p. 150. to OWner of fee of highway for telegraph line, § 1. to property owners, $ 1. to property owners owning fee of railroad having telegraph line, p. 30. 227 DEALERS in junk, p. 96. in junk wire, p. 209. DEED of telegraph line, p. 208. DELIVERY of messages free, p. 190. DEPOTS, exclusive rights in, 62. DESTRUCTION of telegrams, p. 205. of telegraph lines is criminal Offense, p. 25. “DIRECT" ELECTRIC CURRENT, p. 156. DIRECTORS, board of, need not authorize condemnation, p. 47. DISCONTINUANCE OF A STREET, pp. 23, 89, 213. DISCRIMINATIONS, § 7. - DISTRIBUTION OF TELEGRAPH MATERIAL by railroad, p. 62. DIVUILGING telegrams, p. 201. - DOMAIN, EMINENT, for telegraph right of way, p. 23. See Condemnation Proceedings, and Eminent DOmain. EJECTMENT as remedy for telegraph line on highway, p. 13. ELECTRIC CURRENT, causing accidents, $ 5-5c. Causing induction, p. 156. “direct” and “alternating,” p. 156. of one company endangering the employees of another company, $ 56. running through different wires and causing damage, pp. 121, etc. ELECTRIC LIGHT, city furnishing, acts in private capacity, p. 88. current injuring employees, pp. 128, etc. poles On railroad right of Way, p. 32. - poles or wires interfering with telegraph poles and Wires, § 5d. EMINENT DOMAIN, exercise of, by telegraph company for right of Way On railroad, pp. 32, etc. •' . for telegraph right of way, p. 23. nominal damages in condemnation for telegraph line on railroad, p. 48. right of, granted to telegraph companies, pp. 33, etc. See Condemnation Proceedings. - EMPLOYEES injured by electric light current, pp. 128, etc. settlement of damage claim by one joint feasor, pp. 138, etc. “EQUAL PROTECTION OF THE LAWS,” applicable to taxation, p. 166. EQUITABLE ESTOPPEL giving right of way to telegraph line, p. 16. ESTOPPEL, equitable, giving right of way to telegraph line, p. 16. EVIDENCE, parol, varying grant of right of way, p. 22. telegram as, p. 204. - EXCLUSIVE CONTRACTS between telegraph companies, p. 189. for telegraph line On railroad, § 2 and pp. 55, 60, etc. in hotel, pp. 62, 66. FEES, LICENSE, levied on telegraph companies, § 6. FEE OF STREET, owner’s right to compensation, § 1. FIRE due to lightning conducted by wire, pp. 119, etc. FORECLOSURE of railroad mortgage as affecting telegraph line, pp. 50, etc. FORGERY by a telegram, p. 201. - FRANCHISE BY PUBLIC VOTE not applicable to telegraph companies, p. 67. FRANCHISE from Post Road Act not taxable by State, p. 167. to telegraph Company by state may be taxed, p. 167. FRANKS by telegraph companies, p. 192. FRAUD in obtaining right of way for telegraph line, p. 22. FREE passes by telegraph companies, p. 192. Service as Condition of granting ordinance, p. 79. FUTURES, telegrams relative to, p. 192. - 228 GAMELING TELEGRAMS, p. 192. GOVERNMENT TELEGRAMS in connection with license fees, p. 176. GRAND JURY, subpoena duces tecum to produce telegrams, $8. GRANT illegal from municipality, acceptance of, pp. 80, etc. of right of way covers additional wires, p. 100. GENERAL MANAGER, liability for falling of pole, p. 109. GROSS RECEIPTS of telegraph company not subject to state taxation, p. 163. GUY WIRE, causing damage, liability for, pp. 105, 117. liability of city for, §§ 5-5c. - causing damage, pp. 117, etc. not sufficient to sustain pole, p. 109. HABEAS CORPUS to release lineman, p. 180. HIGHWAY, arrest for obstructing, pp. 70, etc. bridges, right of telegraph company to use, pp. 65, 66. changing of location of poles and wires by order of municipality, p. 86. construction of telegraph lines on cannot be prevented, § 3. crossing railroad, telegraph line On, p. 64. discontinuance of, pp. 23, 89, 213. injunction against telegraph line On, pp. 7, 15. moving of buildings On, p. 85. negligent locating of poles On, pp. 105, etc. telegraph line On, § 1. trees On, § 4. liability to municipality for defective poles or wires, §§ 5-5c. right of owner of fee to compensation for telegraph line on highways, $ 1. HORSE, frightened by construction material, p. 107. runaway, Striking pole, p. 107. HOTEL, exclusive rights in, pp. 62, 66. HUSBAND, granting right of way for telegraph line, p. 22. ILLEGAL CONDITIONS in ordinance, pp. 80, etc. INDUCTION AND CONDUCTION, § 5d. INJUNCTION against railroad cutting down electric light poles, p. 32. - against railroad cutting down telegraph line pending condemnation, pp. 37, etc. against license fee, p. 181. against telegraph line on highway, pp. 7, 15. by a railroad company against condemnation proceedings, pp. 37, etc. by One company against poles and wires of another company interfering, § 50. by telegraph Company to prevent destruction of its line, p. 26. INJURIES due to poles, liability for, § 5a. due to electric current running through another company’s wires, pp. 121, etc. INSPECTION of underground conduits by city, p. 214. INSULATOR, dropping from pole belonging to another company, p. 109. INTERSTATE COMMERCE Act applies to leased wires, p. 189. aS affected by State taxation, pp. 169, etc. telegraph business is, p. 67. INTERSTATE COMMERCE COMMISSION, jurisdiction over cable rates, p. 193. INTERSTATE MESSAGES, what are, p. 191. are interstate commerce, p. 162. JOINT and several liability of several companies, pp. 138, etc. telegraph line by railroad and telegraph company, p. 56. telegraph line, liability for accidents, p. 60. 229 JUNK dealers, p. 96. dealers in wire, p. 209. JURISDICTION of Admiralty Court over vessels disrupting cables, p. 219. Of United States Court, § 12. º of the United States Court in condemnation proceedings by telegraph COm- pany, p. 47. Of United States Court in regard to telegraph line, p. 26. LAND grant railroads, telegraph lines On, p. 63. Owner of fee right to compensation for telegraph line, § 1. LANDING OF CABLES, p. 215. LEASED WIRES subject to Interstate Commerce Act, p. 189. LEASE, consolidation or sale of telegraph lines, § 9. of pole space for telegraph line on railroad, pp. 23, 59, 92. of Wire with restricled use, p. 209. LIAJBILITY for collision with messenger boys, p. 111. for insulator dropping from pole belong lug LU aluutlier CUIn pany, p. 109. of corporate officer for falling of pole, p. 109. of municipality for damage due to poles and wires on highways, $$ 5-5c. of railroad for transmission of telegrams, p. 30. LIBEL in a telegram, p. 192. LICENSE fees based on Supervision, p. 177. fee, injunction against, p. 181. fee on underground conduits and wires by city, p. 214. fees levied by State for use of highways, p. 178. fees levied on telegraph companies, § 6. fees not excluding government telegrams, p. 176. fees, penalty for not paying, p. 180. for right of way on railroad, assignability of, p. 32. to junk dealers, p. 96. LIGHT, electric, city furnishing, acts in private capacity, p. 88. electric, wires, current running through and causing damage, pp. 121, etc. LIGHTNING conducted by abandoned wire, p. 119. LIMES OF TREES, trimming back on highway, pp. 96, etc. LIMITATIONS, statute of, as affecting license fees, p. 183. LINEMEN of telegraph company, arrest of, pp. 70, etc. LOCATING POLES in Streets, pp. 105, etc. LOCATION of poles and wires, changing on order of municipality, pp. 86, etc. of wires, priority of grant and Occupation, p. 155. LOW WIRES, catching vehicles or persons, pp. 115, etc. MANDAMUS to give telegraph service, p. 183. MATERIAL, construction, frightening horse, p. 107. telegraph, distribution by railroad of, p. 62. MEASURE OF DAMAGES for cutting trees, p. 100. MESSAGES, interstate, what are, p. 191. MESSENGER BOYS, collision with, p. 111. MISREPRESENTATIONS in obtaining right of way for telegraph line, p. 22. MONEY or free service or control of rates demanded by City for Ordinance, p. 79. MONOPOLY in telegraph business, state cannot grant, p. 67. MORTGAGE, foreclosure of, as affecting telegraph line, pp. 50, etc. on telegraph line, § 9. MOVING BUILDINGS on Streets or highways, p. 85. MUNICIPAL OFFICERS Ordering change of location of poles and wires on streets or highways, pp. 86, etc. 230 MUNICIPALITIES, liable for damages due to poles, wires, or electric current, §§ 5-5c. - may by express authority levy license fees on telegraph companies, p. 168. cannot order change in electric light poles to make way for city electric light poles, p. 155. furnishing electric light acts in private capacity, p. 88. illegal grant from, acceptance of, pp. 80, etc. may regulate telegraph companies but cannot prevent construction, $ 3. ordering wires underground, § 10. power to authorize telegraph or telephone lines, p. 95. regulating tolls, pp. 95, 195. revoking rights granted to telegraph companies, pp. 92, 212. seizing underground conduit of telegraph Company, p. 212. NAVIGATION AND SUBMARINE CABLES, $ 11. NEGLIGENCE, law of the state where injury occurs, governs, p. 129. locating of poles in Streets, pp. 105, etc. of municipality as to poles and wires on highways causing damage, §§ 5-5C. i NEWSPAPER ASSOCIATIONS, pp. 198, -etc. NEWS transmitted by telegraph, pp. 198, etc. NIGHT, closing of telegraph offices during, p. 194. NOMINAL damages for telegraph line On highway, p. 9. damages for telegraph right of way on railroad, p. 48. damages in Condemnation proceedings, p. 25. NOTICE TO PURCHASER of property of existence of telegraph line, p. 16. OCCUPATION TAX levied on telegraph companies, § 6. OFFICES, telegraph, closing of, p. 190. telegraph, compelling opening of, p. 194. ORAL OR WRITTEN CONSENT of property owner to telegraph line, p. 21. ORDINANCE authorizing poles withdrawn, p. 92. demand of money or free service or control of rates as condition of grant- ing, p. 79. granting rights, revocation of, p. 212. !, illegal, acceptance Of, pp. 80, etc. public vote on not necessary in grant to telegraph companies, p. 67. legally applicable to telegraph Companies, pp. 69, etc. OVER-VALUATION of telegraph lines in taxation, p. 166. OWNERS, property, right to damages, § 1. PAROL EVIDENCE varying grant of right of way, p. 22. PASSES, free, by telegraph companies, p. 192. PAYMENT UNDER PROTEST, p. 182. PENALTIES for non-payment of license fees, p. 180. imposed by state statute in connection with messages, p. 191. PERSONAL PROPERTY, telegraph line is generally not, $ 9. telegraph line may be, p. 57. PLANK ROAD, telegraph line on, p. 64. POLES, falling, liability of corporate officer, p. 109. not properly sustained by guy wires, p. 109. Space, lease of telegraph line on railroad for, pp. 23, 59. 92. Struck by runaway horse, p. 107. - adding, under grant of right of way, p. 100. additional, on right of way, p. 23. and undergrounds, $ 10. 231 and wires, removal from street by municipality, p. 84. as affected by vacating of Street, p. 89. changing of location on Order of municipality, pp. 86, etc. changing, to beautify a town, p. 88. foreign attachments On, pp. 90, etc. interfered with by moving of buildings, p. 85. liability of company for damages due to, § 5a. 1Ocated in Streets, pp. 105, etc. of One company interfering with those of another, § 5d. on highway, dug by telephone company, liability of municipality, §§ 5-5c. POSSESSION, adverse, giving right of way to telegraph line, p. 16. POST ROAD ACT does not give power of condemnation, pp. 24, 46. franchise not taxable by a State, p. 167. not applicable to telephone companies, p. 78. PRESCRIPTION giving right of way to telegraph line, p. 16. may not bo applicablo to tolograph lino on railroad, p. 55. PRESERVATION OF TELEGRAMS, p. 205. PRESIDENT, liability for falling of pole, p. 109. PRIORITY of grant and occupation in location of poles and wires, p. 155. PRIVILEGES AS TO TELEGRAMS, § 8. PROHIBITION OF CONSTRUCTION of telegraph lines illegal, § 3. PROOF of changes made after accident, p. 121. of telegram, p. 204. PROPERTY, purchaser of, claiming compensation for right of way of existing telegraph line, p. 19. PROPERTY OWNER, abutting, as to conduits in street, p. 213. right to damages for telegraph line, $ 1. Owning fee of railroad having a telegraph line, p. 30. PROTECTION OF SUBMARINE CABLES, p. 217. PROTEST, payment under, p. 182. PUBLIC SERVICE COMMISSION, approving of change of rate as affecting Contracts, p. 186. may order high-tension wires to be separated from low-tension Wires, p. 152. Ordering change in location of poles, pp. 80, etc. PUBLIC VOTE On granting franchises does not apply to telegraph company, p. 67. PUNITIVE DAMAGES, p. 150. PURCHASER of property claiming compensation for right of way of existing telegraph line, p. 19. of property having telegraph line, p. 16. QUASI PUBLIC CORPORATION, telegraph company is, p. 183. RACE TRACK TELEGRAMS, p. 192. RAILROAD and telegraph company owning a telegraph line jointly, p. 56. assignment by telegraph company of right Of Way On, p. 32. - cannot engage in telegraph business, p. 29. cannot object to telegraph line on highway crossing railroad, p. 64. commissioners ordering change in location of poles and wires, pp. 86, etc. Condemnation of right of way on by telegraph Company, pp. 32, etc. depots, exclusive rights in, p. 62. granting exclusive right for telegraph line On, pp. 55, 60, etc. liability of, for transmission of telegrams, p. 30. may construct its own telegraph lines, pp. 29, 30. 232 owning telegraph line jointly with telegraph company, p. 56 property owners’ rights as to telegraph line On, p. 30. telegraph line On, § 2. RATES, cable, p. 216. changed by Commission as affecting existing contracts, p. 186. control of, as condition of granting Ordinance, p. 79. reasonable, pp. 195, etc. reduction of by statute, p. 195. regulation of in recent war, p. 197. telegraph, § 7. REAL ESTATE, telegraph line is, $ 9. REALTY, telegraph line may be, p. 57. REASONABLE RATES, pp. 195, etc. RECEIPTS, gross, of telegraph company not subject to taxation, p. 163. RECEIVER, paying amount due telegraph company, p. 60. RECORDING grant of right of way for telegraph line, p. 18. REDUCTION OF RATES by state statute, p. 195. REGULATION OF RATES during recent war, p. 197. REGULATIONS and rules of telegraph companies, p. 200. applicable to telephone companies, pp. 78, etc. of telegraph companies must be reasonable, pp. 69, etc. RELEASE, settlement of damage claim by One joint tort-feasor, pp. 138, etc. REMOVAL of poles and wires from Street by city authorities, p. 84. of Suit from State to federal Court penalized, p. 68. RENTALS, no basis for damages in condemnation proceedings, p. 49. REPAIRS, access to make, p. 23. RES JUDICATA by payment of license fee, p. 182. REVOCATION of consent of property owner to telegraph line, p. 21. Of rights granted by city to telegraph companies, p. 212. RIGHT OF WAY for telegraph line on railroad, § 2. grant Of, includes additional wires, p. 100. nominal damages in condemnation by telegraph line on railroad, p. 48. See Condemnation Proceedings. - ROADS, right of owner of fee to compensation for telegraph line on highways, § 1. ROUTING TELEGRAMS, p. 202. - RULES AND REGULATIONS of telegraph companies, p. 200. RUNAWAY HORSE striking a pole, p. 107. SALE, lease or consolidation of telegraph lines, § 9. SEA, Submarine cables in, § 11. SECONDARY EVIDENCE OF TELEGRAM, p. 204. SECRECY OF TELEGRAMS, p. 201. SEPARATION OF HIGH-TENSION WIRES from low-tension wires, p. 152. SERVICE, free, as condition of granting ordinance, p. 79. of telegraph, classes and rates, p. 184. SERVICES IN PAYMENT OF TELEGRAPH TOLLS, p. 187. SERVITUDE, telegraph line on highway, § 1. SETTLEMENT of a damage claim by one joint tort-feasor, pp. 138, etc. SEVERAL LIABILITY of several companies for damages, pp. 138, etc. SIDEWALKS, conduits under, p. 212. SINGLE PHASE ELECTRIC CURRENT, pp. 159, etc. SHIFTING OF POLES AND WIRES by order of municipality, p. 86. SHIPS, disrupting submarine cables, § 11. SPECULATING TELEGRAMS, p. 192. 233 STATE, imposing penalties in regard to messages, p. 191. levying license fee for use Of highways, p. 178. may regulate telegraph companies but cannot prevent construction, § 3. taking Over bridge on which there is a telegraph line, p. 178. regulating telegraph COmpanies, pp. 69, etc. STATUTE of limitations as to license fees, p. 183. reducing rates, p. 195. authorizing telegraph companies to condemn right of way on railroads and highways, pp. 33, etc. STORM, unusual, breaking poles and wires, pp. 108, 113. STREET, arrest for obstructing, pp. 70, etc. * changing of location of poles and wires by Order of municipality, p. 86. discontinuance Of, pp. 23, 89, 213. CrOSSing, between blocks, p. 111. liability of municipality for defective poles or wires in, §§ 5-5c. locating of poles in, pp. 105, etc. moving of buildings on, p. 85. right Of Owner of fee to compensation for telegraph line on highway, § 1. telegraph line, COnstruction of Gannot be prevented, § 3. “STRIKE,” as affecting telegraph service, p. 190. SUBMARINE CABLES, $ 11. and navigation, § 11. SUBPOENA to produce telegrams, $ 8. SUBWAYS, § 10. SUE, Covenant not to, pp. 138, etc. SUITS BY EMPLOYEES on account of injuries, pp. 128, etc. SUPERVISION BY CITY as basis of license fees, p. 177. TAPPING TELEGRAPH WIRES, p. 205. TAXATION as affecting interstate Commerce, pp. 169, etc. of franchise granted by state to telegraph company, p. 167. Of Submarine cables, p. 220. of telegraph companies, § 6. Over-valuation, of telegraph lines, p. 166. TELEGRAMS as evidence, p. 204. Criminal Offense to divulge contents of, p. 205. censorship of, p. 203. containing news, pp. 198, etc. interstate, are interstate commerce, p. 162. preservation or destruction of, p. 205. routing Of, p. 202. Secrecy of, p. 201. subCena to produce, § 8. TELEGRAPH blanks used for advertising, p. 200. Cases, jurisdiction of United States Court, § 12. TELEGRAPH COMPANY, arrest of its linemen, pp. 70, etc. claiming exclusive rights for line On railroad, pp. 55, 60, etc. condemning in United States Court, p. 47. ' Condemning right Of Way On highways, p. 23. condemning right of way on railroad, pp. 32, etc. condemning right of Way On railroad, nominal damages, p. 48. doing telephone business may be considered a telephone company, p. 207. is quasi public Corporation, p. 183. liability for Collision with its messenger boys, p. 111. 234. liable for damage due to its Wires, § 5b. liable for injury due to poles, § 5a. not common carrier, p. 183. on abandonment of street or highway, p. 213. owning telegraph line jointly with railroad company, p. 56. regulation of by cities or states must be reasonable, pp. 69 etc. trimming trees on highway, pp. 96, etc. right to cross on bridges, pp. 65, 66. underground conduit seized by city, p. 213. doing a telephone business, pp. 68, 80, 95. do not always include telephone companies, pp. 24, 68. exercising right of eminent domain, pp. 33, etc. - giving free passes, p. 192. liable for guy wires, pp. 117, etc. may make connecting line contracts, pp. 202, etc. may make reasonable rules, p. 200. municipal grant to, not subject to public Vote, p. 67. must serve all who apply, $ 7. taxation of, § 6. TELEGRAPH LINE as affected by vacating of street, p. 89. deed of, p. 208. erected without authority is a public nuisance, p. 94. is real estate, $ 9. jurisdiction of United States Court in regard to, p. 26. may be realty, p. 57. mortgage on, § 9. - on bridge, taken over by State, p. 178. On bridges, § 2. on discontinuance of a street or highway, pp. 23, 89. On highway, § 1. - On highway may cross railroads, p. 64. On plank road, p. 64. On railroad, assignability of right, p. 32. line on railroads, $ 2. line On turnpike, p. 64. line on turnpike company taken over by state, p. 178. line On turnpikes, § 2. line, owned jointly by telegraph company and railroad, p. 56. lines, Consolidation, lease Or sale of, § 9. lines, injunction to prevent destruction, p. 26. lines On land grant railroads, p. 63. lines, prohibition of construction illegal, § 3. TELEGRAPH MATERIAL, distribution of by railroad, p. 62. TELEGRAPH POLE in highway, liability of municipality for, §§ 5-5c. Causing accidents, $$ 5-5c. or wires of one company interfering with those of another, § 5d. TELEGRAPH OFFICES, closing of, p. 190. TELEGRAPH RATES, $ 7. by contract as affected by change in rates by Commission, p. 186. regulation of during recent war, p. 197. TELEGRAPH RIGHT OF WAY, prescription and adverse possession, p. 16. TELEGRAPH SUBWAYS, § 10. TELEGRAPH TOLLS payable in service, p. 187. 235 TELEGRAPH WIRE conducting high-tension electric current, pp. 121, etc. TELEPHONE BUSINESS done by telegraph company, pp. 68, 80, 95. telegraph Company doing a, may be considered a telephone Company, p. 207. TELEPHONE COMPANIES may be included in telegraph companies, p. 68. not always included in telegraph companies, p. 24. not entitled to accept Post Road Act, p. 78. regulations applicable to, pp. 78, etc. TENANT in common granting right of way to telegraph line, p. 21. THREE-MILE LIMIT, p. 220. TICKER SERVICE on exchanges, p. 200. TOLLS, municipality regulating, p. 195. regulation of by municipality, p. 95. TORT, law of state where injury occurs, governs, p. 129. Suit in One state when committed in another, p. 183. TOWN, beautifying, by Ordering change in poles and wires, p. 88. Vacating Street as affecting telegraph line, p. 89. liability for damage due to poles, wires or electric current, §§ 5-5C. TOWNSHIPS, liability for damage due to poles, wires or electric current, §§ 5-5c. TRANSMISSION OF CABLEGRAMS, p. 220. TREATIES PROTECTING CABLES. p. 217. TREE CLAIMS, § 4. TREES, condemning right to cut, p. 99. measure of damages for cutting, p. 100. preventing right to trim, p. 24. right of telegraph company to trim, pp. 96, etc. TRIMMING TREES, pp. 96, etc. TROLLEY current running through trolley wire and doing damage, pp. 121, etc. poles or wires interfering with telegraph poles and wires, § 5d. TUG BOATS interfering with cables, § 11. TURNPIKE company taken over by the state, p. 178. telegraph line On, p. 64. telegraph line On, § 2. TWO-PHASE ELECTRIC CURRENT, pp. 159, etc. UNDERGROUND Conduit in the Street, rights of abutting property OWner, p. 213. ordinances, § 10. Seized by city, p. 212. confiscated by a city, p. 91. UNFAIR COMPETITION in telegrams transmitting news, pp. 198, etc. UNITED STATES COURT, jurisdiction of, § 12. jurisdiction of in condemnation proceedings by telegraph company, p. 47. jurisdiction of, in regard to telegraph lines, p. 26. removal of case to, when penalized, p. 68. UNUSUAL STORM breaking poles and wires, pp. 108, 113. WACATING a highway, as affecting telegraph line, p. 89. of Street, p. 23. w VEHICLES OR PERSONS CAUGHT BY LOW WIRES, pp. 115, etc. VESSELS CATCHING CABLES BY ANCHOR, § 11. VIA A CERTAIN ROUTE, p. 202. VILLAGES ordering wires underground, § 10. 236 VOLTAGE, high, interfering with low voltage current, p. 156. VOTE, public, on granting franchise does not apply to telegraph Company, p. 67. WARREN-GODWIN CASE, p. 191. WIFE, granting right of way by husband, p. 22. WIRE, guy, liability for damage by, pp. 105, 117. junk dealers, p. 96. lease of, with restricted use, p. 209. WIRES, adding to under grant of right of way, pp. 23, 100. as affected by vacating of street, p. 89. and poles, removal from streets by municipality, p. 84. causing accidonts, $$ 5-5C. causing damage, § 5b. causing damage in course of construction, p. 112. changing location on order of municipality, pp. 86, etc. changing to beautify a town, p. 88. foreign attachments to poles, pp. 90, etc. guy, Causing damages, pp. 117, etc. hanging low, catching vehicles or persons, pp. 115, etc. interfered with by moving of buildings, p. 85. leased, Interstate Commerce Act. p. 189. lease of pole space for telegraph line on railroad, pp. 23, 59, 92. of One company interfering with another, § 5d. on highway, liability of municipality for, §§ 5-5C. Ordered underground, § 10. tapping, p. 205. underground, license fee on, p. 214. unusual storm breaking, pp. 108, 1 13. WITH DRAWAL OF ORDINANCE authorizing poles, p. 92. 237 THE UNIVERSITY OF MICHIGAN GRADUATE LIBRARY DATE DUE Form 9584 ‘g |iiiil 3 9015 07375 6333 * * - *