act. 73 Thus where certain magnolia trees, on abutting property, overhung the street, and employees of an electrical company entered upon the premises, under claimed permission, not proven, from the keepers of the property, and not the owners, and cut a space in two of the trees from twenty-five to forty feet in circumference, the company was held liable for trespass, and the owner was awarded damages.74 And where it is the duty of an agent of a telegraph company to cut trees wherever he considers them dangerous to the operation of the line, though he may err in his judgment, and commit trespass in cutting certain trees, yet he is acting in the line of his duty, and the company is liable in damages therefor. From a decision in New York, it would seem that the right of an electrical company to cut or trim trees is not necessarily confined to those cases where the trees are within the limits of the street but that such right may also exist though the trees are on private property where the company shows an existing necessity therefor in the fulfillment of a contract which it has with the municipality and the enjoyment of its franchise. This case was an action for damages by an abutting owner against an electric light company for a trespass in entering upon the former's lands and mutilating certain shade trees thereon by cutting off several of their limbs. A judgment for damages in favor of the plaintiff was sustained, the court declaring that no existing necessity for such cutting was shown.76 The court said in this connection: "The defendant would have no right to cut or remove any of the branches of these or other trees upon the lands of another, except it showed an existing necessity therefor in the fulfillment of its contract and the enjoyment of its franchise. There 73 Southwestern Teleg. & Teleph. Co. v. Branham, (Tex. Civ. App.), 74 S. W. 949, 8 Am. Elec. Cas. 267; Tissot v. Great Southern Teleph. & Teleg. Co., 39 La. Ann. 996, 3 So. 261, 2 Am. Elec. Cas. 286; Memphis Bell Teleph. Co. v. Hunt, 16 Lea (Tenn.), 456, 2 Am. Elec. Cas. 282; Cumberland Teleph. & Teleg. Co. v. Shaw, 102 Tenn. 313, 52 S. W. 163. 74 Tissot v. Great Southern Teleph. & Teleg. Co., 39 La. Ann. 996, 3 So. 261, 2 Am. Elec. Cas. 286. Damages were awarded in the lower court for $750. Judgment was amended, damages being reduced to $400. 75 Western Un. Teleg. Co. v. Satterfield, 34 Ill. App. 386, 2 Am. Elec. Cas. 296. One hundred dollars damages were awarded. 76 Van Siclen v. Jamaica Electric Light Co., 45 App. Div. 1, 61 N. Y. Supp. 210, 7 Am. Elec. Cas. 307, affd. 168 N. Y. 650, 61 N. E. 1135. is some testimony in the case which would seem to warrant the conclusion that the poles might have been set so that there would be no necessity for the removal of any of the branches or foliage of the trees, the injury to which is the subject of this action; and if, by the exercise of a reasonable degree of care, they could have been placed and the wires strung so as not to come in contact with the branches of the trees, even though the exercise of such care was not so convenient as the method adopted, the latter consideration would not justify interference with the trees. It appeared in the testimony that the wires required to be so placed as not to come in contact with the trees, for the reason that its effect would be the grounding of the wires, loss of current, creating a short circuit, and the killing and destroying in course of time of the tree with which it came in contact. If the defendant could, by the proper insulation of its wires, prevent the escape of electricity therefrom, then these conditions would be obviated; and if such measures were practicable then the defendant would be required to resort to them, even though they were more expensive and less convenient. In other words, the right to touch the trees at all must be justified by an existing necessity, and if the purpose can be accomplished without extreme or extraordinary means, then no right would exist to interfere in any manner with the trees." 77 § 397. Cutting of trees- Telegraph line-Railroad right of way. When a railroad company appropriates land for its right of way, it obtains not merely the right to lay its track, but also the right to erect all necessary structures for the proper operation of the road. Thus it may erect a telegraph line for the purpose of facilitating and rendering safer its train service,78 and if in the construction of such line it is necessary to cut down trees on its right of way the company is not liable to an abutting owner.79 And the fact that it takes a partner in the construction of the telegraph line does not render either the company or its partner liable.80 77 Per Hatch, J. 78 See §§ 323-325, Compensation. 79 Western Un. Teleg. Co. V. Rich, 19 Kan. 517, 27 Am. Rep. 159, 1 Am. Elec. Cas. 271. 80 Western Un. Teleg. Co. V. Rich, 19 Kan. 517, 27 Am. Rep. 159, 1 Am. Elec. Cas. 271. § 397a. Electric railway- Rural highway - Fences or aoutting owner encroaching upon.- Where land is dedicated or condemned for the purpose of a public highway, any right which the abutting owner may have therein is subservient to the right of the public to travel over the same. If it be necessary for the proper exercise of this right, to remove obstructions thereon, the power of removal exists in the proper public authorities. It therefore follows that where an electric street railway is authorized to construct and operate its line over a highway upon which an obstruction is maintained by an abutting owner which is inconsistent or interferes with the proper exercise by the railway company of the franchise granted, the right exists in the company to remove such obstruction and the abutting owner is not entitled to compensation therefor. Thus it has been so decided where an electric street railway was duly authorized to construct and maintain its line over a highway between two towns and along a portion of the way there were fences maintained by an abutting owner which encroached upon the highway.81 § 398. Consent-"Such reasonable regulations" as municipality may prescribe.- Where a statute grants to electrical companies the right to occupy streets of cities for the construction of their lines, subject to "consent of the municipal authorities thereof under such reasonable regulations as they may prescribe," the municipality may, it is held, grant to one company the right to use the poles of another company, but such right must not be so exercised as to deprive the company owning the poles of its use thereof, so that it may not properly operate its own lines. The right should be subject to reasonable regulations, both for the safe and proper use of the poles and with regard to the rights of the company owning them.S § 399. Municipal consent - Reservations in.- A consent by the municipality to the use of its streets by an electrical company, containing a reservation of power on the part of the city to regulate the manner of occupation, will confer upon it the 81 Georgetown & Lexington Traction Co. v. Mulholland, 25 Ky. Law R. 578, 76 S. W. 148. 82 Citizens' Elec. L. & P. Co. v. Sands, 95 Mich. 551, 55 N. W. 452, 4 Am. Elec. Cas. 58. right to require, from time to time, the adoption by the company of such reasonable improvements as will render the streets safer and more convenient for the use of the public.83 And a grant by a municipality to an electric light company of a right to erect its poles and string wires thereon in the streets of a city which contains a reservation of the right to revoke the grant and to demand that the poles be removed and to remove the same if necessary, is a mere license which may be revoked by the municipal authorities.84 The power in a municipality to impose such a restriction in a grant exists where the city is authorized by statute to grant, under such restrictions as it may deem proper, to a person or corporation the right to erect an electrical line in its streets, over which the city is also given by statute the exclusive control. In such a case it is said that the legislature has confided an unreserved discretion in the municipality. "The unqualified right to grant or refuse at discretion carries with it the right to impose any terms on the grant not forbidden by law. The discretion of the council is not confined by the law to the mere restriction of methods of use, and therefore extends to restriction of time." 85 83 Comm., Bell Teleph. Co. V. Warwick, 185 Penn. St. 623, 40 Atl. 93. 84 Coverdale v. Edwards, 155 Ind. 374, 58 N. E. 495, 7 Am. Elec. Cas. 15. It appeared in this case that the grant was made by the city to the appellee's assignor and that subsequent to the assignment the city contracted with the appellee to furnish light for the city streets for a period of three years. The court held that the license was a personal one not assignable without the consent of the city, but that the city had ratified the assignment to the appellee by making such contract, and that the license was irrevocable during the life of the contract. At the expiration of the contract the city ordered the poles to removed and an action was begun by the assignee of the grant, charging a conspiracy in cutting down the poles and wires and injuring its business. The grant contained the following provision: "The said council hereby reserve the right to revoke this grant, and demand that the poles be removed, and remove the same if necessary," and the court said: "The language is clear, and the meaning unmistakable. The grant was a bare license, revocable without cause at the will of the council. If the licensee, at the revocation of the grant, should not remove the poles on demand, the council might cause their removal," per Baker, J. 85 Coverdale v. Edwards, 155 Ind. 374, 58 N. E. 495, 7 Am. Elec. Cas. 15, per Baker, J. § 399a. Municipality authorized by charter to grant franchise by ordinance - Mode of action.- Where a municipality is authorized by its charter to grant a franchise to an electrical corporation by ordinance, its mode of action must be in the manner prescribed and it has no power to grant a franchise to such a corporation by resolution, nor can it amend by resolution a franchise already granted by ordinance. Thus it has been so decided where a city sought to amend by resolution a franchise granted by ordinance to a telephone company, it being declared by the court that: "The charter as amended having conferred the power of granting street franchises by ordinance,' no other method was admissible." 86 But where a statute authorizing the erection of poles and wires of an electrical company in the highways provided 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 streets in which the same should be placed and the manner of placing them and there was no provision as to the manner in which such authorization should be given and an ordinance was passed providing that wires should not be suspended across any street without first obtaining permission of the township committee it was decided that a resolution was sufficient to give such permission and that an ordinance was not necessary for that purpose.87 §399b. Ordinance granting franchise introduced before or ganization of company. The fact that an ordinance granting a franchise to an electrical corporation to occupy the streets of the city with its poles and wires was introduced into the council before the company was organized does not invalidate the ordinance where no action was taken thereon when it was first introduced, and the company was in fact completely organized in accordance with the laws of the state, before the passage of the ordinance.88 And though a corporation was not legally in 86 City of Morristown V. East Tennessee Teleph. Co., 115 Fed. 304, 53 C. C. A. 132, 8 Am. Elec. Cas. 3, per Lurton, J. 87 Inhabitants of East Orange v. Suburban Elec. L. & P. Co., 59 N. J. Eq. 563, 44 Atl. 628, 7 Am. Elec. Cas. 37. 88 Chicago Teleph. Co. v. Northwestern Teleph. Co., 199 Ill. 324. 65 N. E. 329, 8 Am. Elec. Cas. 81. wherein the court said: "In support of its contention upon this branch of the case appellant refers to cases decided by this court, which hold that a corporation |