ferred upon a municipality not only the right to specify where the poles might be placed but also the right after the location of the lines, to direct any alteration in the location or erection of the poles, having first given the company an opportunity to be heard.21 And in a case in Pennsylvania it is decided that a telegraph or telephone company by erecting its line of poles in a certain place in the highway, with the express or implied assent of the road authorities, does not thereby acquire a vested right to perpetually maintain said line of poles in that particular location and that if, in after years changed conditions render it necessary for the public good that such line of poles be moved to a different part of the highway, the road authorities have the right to compel such removal.22

§ 364. Plans and specifications referred to in ordinance.— In Pennsylvania it is held that, where a borough ordinance granting the right to construct an electric light plant refers to plans and specifications, it is not necessary, under the General Bor

21 Readfield Teleph. & Teleg. Co. v. Cyr., 95 Me. 287, 49 Atl. 1047, 7 Am. Elec. Cas. 820, construing Me. St. 1885, c. 378. The court referred to the terms of this statute as noted in the text and said: "These are comprehensive terms. Telephone lines, though affected with a public use, are operated for private gain. Nothing is paid for the valuable privilege of occupying and using the soil of the public roads and highways. The authority to fix the location of the posts, in the first instance, has been wisely given to the municipal officers, and if wisely exercised, the location will be made with a view to existing and probable future conditions. Yet conditions are constantly changing, and, in the growth and improvement of our municipalities, the time may come when it may be desirable to alter the location of one or all of the posts of the line

from one side of the street to the other, or from one street to another. What at one time was a suitable location may become unsightly, inconvenient, out of harmony with the surroundings, and the public interests best served by a change of location. We believe that the legislative intention was to confer upon the municipal officers full authority to meet such requirements by directing any alteration in the location or erection of such posts' to the extent above indicated. The telephone company then has no interest in the soil which supports its posts and lines, except a right to occupy it by the permission of the municipal officers -a mere license, revocable at their will," per Powers, J.

22 American Teleg. & Teleph. Co. v. Millcreek Township, 195 Pa. St. 643, 46 Atl. 140.

ough Act of the State, 23 or a later act in reference there,24 to advertise such plans and specifications as a part of the ordinance, or to record them in the ordinance-book of the borough.25

§ 364a. Poles to be erected under control and supervision of city engineer Ordinance. Where it is required by an or dinance of the city that telegraph poles "be located and erected under the supervision and approval of the city engineer" a mere verbal approval by him of a general plan, showing the places where the defendant intended erecting its poles will not authorize the company to erect its poles in the streets of the city without further supervision and approval by the designated officer.20

§ 365. Designation of part of street to lay tracks on - Noncompliance. If an ordinance granting power to a street railway to construct its line in the streets designates the center of the street as the part in which the tracks shall be laid, the laying of the tracks on the side of the street in violation of such designation, no change of location having been made by the local authorities, will be a nuisance on the highway. But it has been held that, where the track is so laid under the direc tion of the street committee and city engineer, who are empowered to act as general agents of the city to supervise the construction of the road, and the track as laid is accepted by the city, this will operate to render such construction legal, the same as if a change of location had been made by ordinance. 28 And the fact that a street railway company in laying its track deviated slightly from the exact lines established by the local authorities and deflected from the true center of the street has been held to be immaterial, it being declared that it is to be presumed that this was done with the consent of the local authorities and in such a case a continued acquiescence therein by such authorities is held to be a ratification of what was

23 Penn. Gen. Borough Act, April 3, 1851.

24 Act of May 23, 1893.

25 Schenck v. Olyphant, 181 Pa. St. 191, 37 Atl. 258. But see Gallagher v. Olyphant (C. P.), 2 Lack. L. News, 367.

20 New Castle City v. Central District & P. Teleg. Co., 207 Pa. St. 371, 56 Atl. 931.

27 Collins v. Carbondale Tract. Co. (C. P.), 5 Penn. Dist. Rep. 18. 28 Collins V. Carbondale Tract. Co. (C. P.), 5 Penn. Dist. Rep. 18.

done in this regard. The line thus established is to be regarded as the true line and the street railway company has the right to so consider it in relaying its tracks. 29

30

§ 366. Electrical lines - Parks - Consent for.- In New York city the right to construct electrical lines along the highways and avenues in parks must, it has been held, be obtained by permit, both from the commissioner of public works and the commissioner of public buildings, lighting and supplies. The act of either commissioner in granting or refusing such permit is an exercise of discretionary power and will not be interfered with by the court, in the absence of fraud or collusion.31 And though one of the commissioners may have knowledge that an electrical line is being constructed without proper authority in a park, yet this knowledge will not charge him with such fraud or collusion as will enable a taxpayer to maintain a suit against him to restrain the construction of such line. 32 In Illinois it has been held that the West Chicago park commissioners of Chicago, under whose control a boulevard has been placed and for the crossing of which a street railway has received power from the city council, has no authority to forcibly prevent the laying of the tracks across such boulevard, but that it has power to regulate, by general ordinance, the mode of crossing.33

§ 367. New York and Brooklyn bridge - Construction of tracks on Powers of trustees of. Under the New York Laws of 1897,34 power was conferred upon the trustees of the New York and Brooklyn bridge to prepare plans and specifications regulating the operation of cars on such bridge, such plans and specifications to be in substantial conformity to those recommended by expert engineers, except as "otherwise provided by the trustees." By the New York city charter, it was provided

29 Borough of Bridgewater V. Beeaver Valley Traction Co., 214 Pa. St. 343, 63 Atl. 796.

30 Sheehy v. Clausen (Sup. Ct., 1899), 26 Misc. (N. Y.) 269, 55 N. Y. Supp. 1000.

31 Sheehy v. Clausen (Sup. Ct., 1899), 26 Misc. (N. Y.) 269, 55 N. Y. Supp. 1000.

32 Sheehy v. Clausen (Sup. Ct., 1899), 26 Misc. (N. Y.) 269, 55 N. Y. Supp. 1000.

33 West Chicago St. R. Co. v. West Chicago Park Board of Commissioners (Cook Co. C. C., 1899), 4 Chic. L. Jour. Week, 324.

34 N. Y. Laws of 1897, c. 663; § 4.

that the entrance at the western terminus of the bridge shall remain at all times free and open to pedestrians going and coming. The trustees authorized the use of the western entrance or passage-way as a terminal for trolley cars coming over the bridge, and action was brought to restrain such construction and maintenance of tracks on the ground that the action of the trustees was beyond the powers conferred upon them and violated the provisions of the city charter. The Court of Appeals held, however, that the trustees had the power to prepare plans and specifications regulating the operation of cars upon the surface of the bridge and upon or across the entrance to the bridge set apart for foot passengers, and that they had power to authorize the construction of tracks across the western entrance or passage-way to the bridge which had been set apart for the use of pedestrians.35

§ 368. Consent of local authorities.- Township and suburban roads. The fact that a street railway has been authorized by statute to construct its lines on a turnpike or suburban road does not exempt it from obtaining the consent of the governing body having control of such turnpike or road, where a statute prohibits the construction of a street railway upon the streets of a municipality without the consent of the governing body of such municipality. Such consent is a condition precedent to the construction of the line.36 Under a statute requiring the consent of the governing body of a municipality to the construction of a street railway, the consent of the township committee is necessary to legalize the construction of a street railway within a township.37 And such consent should be given at a corporate meeting of such committee when a majority of the members are present, or such number as may be necessary under the laws of the State to render its acts binding and enforceable. 38 But in a more recent case in New Jersey it is

35 Hearst v. Shea, 156 N. Y. 169, 50 N. E. 788, affg. 24 App. Div. 73, 49 N. Y. Supp. 49.

86 Stockston V. Atlantic Highlands, R. B. & L. B. Elec. R. Co., 53 N. J. Eq. 418, 32 Atl. 680; N. J. Act May 16, 1894, Pub. Laws, p. 374.

37 West Jersey Tract. Co. v. Camden Horse R. Co., 53 N. J. Eq. 163, 35 Atl. 49; N. J. Pub. Laws 1893, p. 302.

38 West. Jersey Tract. Co. v. Camden Horse R. Co., 53 N. J. Eq. 163, 35 Atl. 49.

decided under the act of 1896,38a conferring upon an electric light corporation the right to use the highways of the State for the purpose of erecting poles to sustain wires, upon first obtaining the consent of the owners of the soil, provided, however, that no poles should be erected in any street of an incorporated city or town without obtaining from such city or town a designation of the street in which the same may be placed and the manner of placing them that it is not necessary to obtain such designation from the authorities of a borough. And it is also decided in the same case that the borough act of 1897 39 conferring authority upon the council of a borough to regulate the use of streets and roads in the borough and to prevent and remove all obstructions and encroachments in and upon any street and to prescribe the manner in which corporations or individuals shall exercise the privilege granted to them in the use of any street does not require that the exercise of street privileges by an electric light corporation shall await the action of the borough authorities. And in a case in Pennsylvania, where a company had obtained a written agreement from two of the supervisors granting the right to construct a railway upon a public road, and had in pursuance of such agreement and in reliance thereon been to a heavy expense in commencing work and preparing to equip the road, a judgment of the lower court, that the agreement was not an official act of the supervisors, but merely an individual and personal act, was reversed. 41 Where the consent of the township supervisors is required, a consent is sufficient where given at a regular meeting of such supervisors, after several prior meetings had been held to discuss the subject, though no minutes had been kept of the proceedings. 42 And in such case

38a Stat. of April 21, 1896, P. L. 1896, p. 322.

39 P. L. 1897, § 28, p. 296.

40 Point Pleasant Elec. L. & P. Co. v. Borough of Bay Head, 62 N. J. Eq. 296, 49 Atl. 1108, 8 Am. Elec. Cas. 230.

41 Union St. Ry. v. Hazleton & North Side Elec. Ry. Co., 154 Penn. St. 422, 26 Atl. 557. In this case it appeared that the supervisors

had, subsequent to the above agreement, granted by formal resolution the same right to the complainant, and that the same two supervisors who had signed the agreement had signed the resolution upon the minutes of the board.

42 Scranton & P. Co. v. Delaware & H. Canal Co., 1 Super. Ct. (Penn.) 409.