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the right to enter upon private property without the consent of the owner, or grant them the right of eminent domain.50 It makes no provision for condemnation proceedings in behalf of such telegraph companies as avail themselves of the benefits

50 Western Union Teleg. Co. v. Pennsylvania R. Co., 195 U. S. 540, 49 L. Ed. 312, 25 Sup. Ct. 133, followed in same case 195 U. S., 25 Sup. Ct. 150, 594, 49 L. Ed. 332, the court, per McKenna, J., said: "No question arises as to the authority of Congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized. State sovereignty under the Constitution is not interfered with. Only national privileges are granted," " (quoting from Pensacola Teleg. Co.

V.

Western Union Teleg. Co., 96 U. S. 1, 24 L. Ed. 708). "This language and the distinctions imported by it were approved in Western Union Teleg. Co. v. Ann Arbor R. Co., 178 U. S. 239, 44 L. Ed. 1052, 20 Sup. Ct. 867. It was a bill in equity filed in the Circuit Courts by a telegraph company to restrain the latter from interfering with the rights of the telegraph in a certain telegraph line along the right of way of the railroad. It was removed to the Circuit Court of the United States. The Circuit Court dismissed the bill and its action was affirmed by the Circuit Court of Appeals, 33 C. C. A. 113. The Western Union Telegraph Company brought the

case here. The decrees of both courts were reversed and the case remanded to the Circuit Court with directions to remand the case to the State Court. This was decreed on the ground that, by the statement of the complainant's (telegraph company) own case, it was not brought within the category of cases arising under the laws or Constitution of the United States.' We said that the bill was for the specific performance of a contract. It is not argued' we said (p. 243) by the Chief Justice by counsel for the telegraph company that the telegraph company had any right under the statute, and independently of the contract, to maintain and operate this telegraph line over the railroad company's property; and it has been long settled that the statute did not confer on telegraph companies the right to enter on private property without the consent of the owner, and erect the necessary structures for their business; "but it does provide that, whenever the consent of the owner is obtained, no State legislation shall prevent the occupation of post roads for telegraph purposes for such corporations as are willing to avail themselves of its privileges."'

In the Act of July, 1866, there is not a word which provides for condemnation or compensation. The rule that when a right is given all the means of exercising it are given does not, as we have seen, appy to the extent contended for by the telegraph company. The exer

gon Short Line Rd. Co., 104 Fed. 623; Postal Teleg. Cable Co. v. Cleveland, C. & St. L. Ry. Co., 94 Fed. 234; Postal Teleg. Cable Co. v. Southern Ry. Co., 89 Fed. 190.

of said statute. In so far as that enactment is concerned, if private property is required it must be obtained by arrangement with or consent of the owner, for " no compulsory proceedings are authorized. State sovereignty under the Constitution is not interfered with, only national privileges are granted.51 So a telegraph company is not authorized by any cise of the power of eminent domain is against common right. It subverts the usual attributes of the cwnership of property. It must therefore be given in express terms or by necessary implication, and this was the reasoning in the Pensacola case and applied directly to the Act of 1866. We may repeat the language of the court: 'If private property is required it must, so far as the present legislation is concerned be obtained by private arrangement with its owner. No compulsory proceedings are authorized.'" The court also considers the following cases upon the principles and points urged and decided in the case: New Mexico v. United States Trust Co., 172 U. S. 171, 43 L. Ed. 407, 19 Sup. Ct. 128; United States v. Union Pac. Ry. Co. & Western Un. Teleg. Co., 160 U. S. 1, 40 L. Ed. 319, 16 Sup. Ct. 190; Sweet v. Rechel, 159 U. S. 380, 399, 40 L. Ed. 188, 16 Sup. Ct. 43; St. Louis v. Western Un. Teleg. Co., 148 U. S. 92, 37 L Ed. 380, 13 Sup. Ct. 485; Cherokee Nation v. Southern Kansas Ry. Co., 135 U. S. 641, 34 L. Ed. 295, 10 Sup. Ct. 965; Western Un. Teleg. Co. v. Massachusetts, 125 U. S. 530, 31 L. Ed. 790, 8 Sup. Ct. 961; Kohl v. United States, 91 U. S. 367, 23 L. Ed. 449; St. Paul M. & M. R. Co. v. Western Un. Teleg. Co., 118 Fed. 497; Postal Teleg. Cable Co. v. Oregon Short Line R. R. Co., 114 Fed. 787; Postal Teleg. Co. of Idaho v. Ore

51 Pensacola Teleg. Co. v. Western Un. Teleg. Co., 96 U. S. 1, 24 L. Ed. 708, 1 Am. Elec. Cas. 250, 257, per Mr. Chief Justice Waite. Cited with approval in Postal Teleg. Co. v. Mayor, etc., of Baltimore, 79 Md. 502, 5 Am. Elec. Cas. 37, 39, 29 Atl. 819, per Bryan, J.; also in Dailey v. State, 51 Ohio St. 348, 46 Am. St. Rep. 578, 5 Am. Elec. Cas. 186, 197, 37 N. E. 710, per Spear, J.; also in Postal Teleg. Cable Co. of La. v. Morgan's La. & Tex. R. & SS. Co., 49 La. Ann. 58, 21 So. 13, 6 Am. Elec. Cas. 183, 185, per McEnery, J. Explained in Western Un. Teleg. Co. v. Baltimore & Ohio Teleg. Co., 19 Fed. 660, 1 Am. Elec. Cas. 623, 626, per Wallace, J. See also Western Un. Teleg. Co. v. American Un. Teleg. Co., 9 Biss. (U. S. C. C.) 72; Postal Teleg. Cable Co. v. Cleveland, C. C. & St. L. R. Co. (C. C., N. D. Ohio), 94 Fed. 234; American Teleph. & Teleg. Co. v. Pearce, 71 Md. 535, 3 Am. Elec. Cas. 169, 18 Atl. 910; Atlantic & Pacific Teleg. Co. v. Chicago, R. I. & P. R. Co., 6 Biss. (U. S. C. C.) 158, per Drummond, J.; Postal Teleg. Cable Co. v. Southern R. Co., 89 Fed. 190; St. Louis & C. R. Co. v. Postal Teleg. Co.. 173 Ill. 508, 51 N. E. 382, distinguishing Postal Teleg.

law of the United States to appropriate by condemnation a right of way along a railroad company's right of way,52 or to ocrupy said right of way, except with consent or under contract with a prior owner. 53

§ 54. Post Roads Act Condemnation under State lawTelegraph companies. Although as stated in the last section, the Post Roads Act does not authorize compulsory proceeding, yet the State law may be resorted to for condemnation and compensation as an auxiliary to said Federal statute.5+ But

Cable Co. v. Norfolk & W. R. Co., 88 Va. 921. See also Postal Teleg. Cable Co. of La. v. Morgan's La. & Tex. R. & SS. Co., 49 La. Ann. 58, 21 So. 183, 6 Am. Elec. Cas. 183; Atlantic & Pacific Teleg. Co. v. Chicago, R. I. & Pacific R. Co., 6 Biss. (U. S.) 158, 1 Am. Elec. Cas. 111; Mercantile Trust Co. v. Atlantic & Pacific R. Co. (U. S. C. C. 1894), 63 Fed. 513, 910, 5 Am. Elec. Cas. 207, 219. See §§ 64, 293, herein.

66

The Act of July 24, 1860, gives no foreign corporation the right to enter upon private property without the consent of the owner and erect the necessary structures for its business; but it does provide that, whenever the consent of the owner is obtained, no State legislation shall prevent the occupation of post roads for telegraph purposes by such corporations as are willing to avail themselves of the priv ileges," and "no question arises as to the authority of Congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No

compulsory proceedings are authorized, State sovereignty under the Constitution is not interfered with. Only national privileges are granted." Words of the court in Pensacola Teleg. Co. v. Western Union Teleg Co., 96 U. S. 1, 11, 12, quoted and followed in Phillips v. Postal Teleg. Cable Co., 130 N. C. 513, 523, 41 S. E. 1022.

52 Postal Teleg. Cable Co. V. Cleveland, C. C. & St. L. R. Co. (C. C., N. D. Ohio), 94 Fed. 234; Northwestern Teleph. Exch. Co. v. Chicago, M. & St. P. R. Co., 76 Minn. 334, 79 N. W. 315.

53 Northwestern Teleph. Exch. Co. v. Chicago, M. & St. P. R. Co., 76 Minn. 334, 79 N. W. 315.

54 Postal Teleg. Cable Co. of La. v. Morgan's La. & Tex. R. & SS. Co., 49 La. Ann. 58, 21 So. 183, 6 Am. Elec. Cas. 183, 185; Postal Teleg. Cable Co. v. Southern R. Co., 89 Fed. 190.

"By accepting the provisions of this act, respondent is given the right to erect its telegraph lines upon all post roads; and by § 3964 of the Revised Statutes of the United States all railroads are made post roads. But, before respondent can exercise the right thus granted by Congress, it must have fixed and paid to the appellant just compen

a State law will not authorize the condemnation of land already devoted to another public use, when the franchise exercised by such prior use would thereby be extinguished. The condemnation must not materially injure a prior occupant to be justified, nor will a special plan of construction of a telephone line, which would be more favorable to said line, justify an appropriation of a right of way of a railroad company, the necessity therefor not being sufficient.55 A State condemnation law will, however, authorize a telephone company equally with a telegraph company to exercise the right of eminent domain where there is no statutory provision to the contrary." And a State condemnation law authorizing telegraph companies to exercise the right of eminent domain will include telephone companies where there is no contrary legislative enactment.57

$55. Commerce Federal Constitution-Municipal powers. -The fact that a telegraph corporation is engaged in interstate commerce does not preclude a municipal corporation from compelling a change of location of the telephone poles. 58 So

unty commissioners who have been given the custody and control of a pike or public road by the State and who also have the right to regulate the use of the highway by quasi-public corporations may require the removal of poles and wires of a

In other

sation for the easement. This is ascertained by resorting to the State law relative to eminent domain. The State law becomes auxiliary to the Act of Congress, and provides the method of condemnation and compensation. words, a right is given by this Act of Congress, and the remedy is furnished by the laws of the State." Postal Telegraph Cable Co. of Utah V. Oregon Short Line Ry. Co., 23 Utah, 474, 65 Pac. 735, 7 Am. Elec. Cas. 417 422, per Hall, Dist. J. "Northwestern Teleph. Chicago, M. & St. P. R. Co., 76 Minn. 334, 79 N. W. 315. Northwestern

Co. v.

56

Co. v.

Teleph.

Exch.

Exch.

76 Minn. 334, 79 N. W. 315. Chicago, M. & St. P. R. Co.,

57 Northwestern Teleph. Exch. Co. v. Chicago, M. & St. P. R. Co., 76 Minn. 334, 79 N. W. 316; Southwestern Teleg. & Teleph. Co. v. Gulf C. & S. F. Co. (Tex.), 52 S. W. 106, under Sayles' Tex. Civ. Stat., art. 699. As to foreign telegraph companies not being so authorized, see Postal Teleg. Cable Co. v. Cleveland, C. C. & St. L. R. Co. (C. C., N. D. Ohio), 94 Fed. 234, under Ohio Rev. Stat., § 3454.

58 Michigan Teleph. Co. v. Charlotte (U. S. C. C., W. D. Mich.), 93 Fed. 11, 7 Am. Elec. Cas. 52. Examine New Orleans Gas L. Co. v. Hart, 40 La. Ann. 474, 4 So. 215, and extract from opinion, 2 Am. Elec. Cas. 882.

telegraph company, which has accepted the provisions of the Post Roads Act, to the other side of the street, where the location of such telegraph line near the middle of the street seriously incommodes the public in its use of the highway, and apart from the federal post road statute the company would have no right to maintain its poles and wires indefinitely at the place originally located upon the highway even though the authority to erect the telegraph line was granted by the commissioners as they had no power to grant such a franchise or right, their power being limited to granting permission to locate or maintain poles and wires in the road provided they shall not incommode the public in the use of the roads and highways. Whether the public is at any time incommoded is to be determined by then existing conditions, a location not inconvenient when made may by reason of changed conditions thereafter become inconvenient and this question must be ascertained by the commissioners in office when the inquiry is made, as no board can determine to what uses a highway shall be given over for all time. And whether or not it is impracticable to remove the line of poles to the location designated is a matter for the judgment of the commissioners; nor in such case is it an argument against such removal that the obstruction of the road is due to the location of an electric railway and that the telegraph line was there before the railway, as this claim constitutes only another phase of the arguments of a perpetual vested right in the telegraph company to maintain its location, and the power of the commissioners is also ample to designate the new location upon the highway."

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59

$ 56. Commerce - Federal Constitution Stipulations in telegraph blanks against negligence.- A State Constitution which provides that no common carrier shall be permitted to contract for relief from its common-law liability so far applies to telegraph companies that a stipulation is void which relieves such companies from negligence in the transmission of unrepeated and cipher despatches, and all messages, unless a written claim is presented within a specified time. Nor does said

59 Ganz v. Ohio Postal Teleg. Cable Co., 140 Fed. 692. Under Bates'

Am. Stat. Ohio, § 3454, 3461-1. See
§ 65,
herein.

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