by an electric railway shall be made.33 But it is held that under this statute he has no power to require the construction of a derailing switch by the steam railroad.34 Under a statute conferring the right upon street railway companies to cross any railroad at grade, but conferring no express power of eminent domain,35 a street railway merely has the right of crossing, but cannot go beyond this and appropriate any land which the railroad owns in fee.36 The Pennsylvania Act of 1871, enjoining upon courts of equity the duty of prescribing the mode of crossing of railroads by other railroads in such manner as will least cause injury to the rights of the railroads sought to be crossed, and authorizing such courts to prevent grade crossings, if reasonably practicable, is held to apply to electric railways. 38 Under another New Jersey statute as to the construction of a crossing, above or underneath the tracks of a steam railway by an electric street railway, provisions are made giving power to depress or elevate the grade of the streets as directed by the chancellor, and also providing for damages to abutting owners.39

§ 413. Electric railway crossing steam railroad-Mode agreed upon-Injunction.- Where an electric street railway and a steam railroad have agreed upon a mode of crossing, and in conformity with the plan agreed upon, the electric railway company has partly constructed such crossing, and has been to a large expense in the construction thereof, relying upon the agreement, the latter company will not be enjoined from completing the crossing, where it appears that the injury to the railroad is purely infinitesimal.*

§ 414. Electric railway crossing steam railroad Charter rights not affected by subsequent general law. Where a special

33 2 N. J. Gen. Stat., p. 2717.

34 New York & L. B. R. Co. v. Atlantic Highlands, R. B. & L. B. Elec. R. Co., 55 N. J. Eq. 522, 37 Atl. 736, revg. 35 Atl. 387.

35 P. L. (Penn.) 211, Act of May 14, 1889.

30 Trenton Cut-Off R. Co. v. Newtown Elec. St. Ry. Co., 8 Penn. Dist. Rep. 549.

37 Act of June 1st, § 2.

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

39 Laws of N. J., 1899, chap. 111,

§ 1.

40 Penn R. Co. v. Glenwood & D. Elec. R. Co., 184 Penn. St. 227, 39 Atl. 80, 41 Week. N. of Cas. 441.

or local statute has been passed, providing for a certain case or class of cases, the subsequent enactment of a general statute, which, but for the existence of a special law, would include the case or cases provided for by it, does not operate to repeal or amend the particular law, unless it is manifest that it was the intention of the legislature to repeal it."1 In conformity with the above rule, if an electric street railway, between the time of the enactment of a statute providing that no street railway shall cross the tracks of a steam railroad, except upon application to, and approval of, the railroad commissioners, and the going into effect of such statute, is by its charter, granted in such interval, given an absolute right to cross the tracks of a steam railroad, its rights will be controlled by the charter, and not by the general law, except so far as the charter provides for the application of the general statutes.*

42

§ 415. Grade crossing When court may order.- A court which by its receiver is in possession of a railroad, may confer upon an electric street railway the right of constructing and maintaining its line across the tracks of such railroad, where there appears to be no sufficient cause why such right should not be granted, nor any statute preventing the court from authorizing such crossing, and where it appears that to refuse such right would prevent the completion of a desirable public work. 43

§ 416. Grade crossing Contract between companies as to.An electric railway and a steam railroad may provide by contract for the maintenance of certain precautions at grade crossings, and each will be bound by the terms of the contract. So where the superintendent of an electric street railway entered into a contract, on behalf of the company, with a steam railroad company, to pay half the cost of gates at a crossing of the tracks of the two companies and also half the expense of a watchman, and in pursuance of such contracts the street railway company paid one-half the cost of such gates and part of

41 State v. Stoll, 17 Wall. (U. S.) 425, 436; Matter of Commissioners of Central Park, 50 N. Y. 493, 497.

42 New York, New Haven & Hart

ford R. Co. v. Bridgeport Traction Co., 65 Conn. 410, 32 Atl. 953, 5 Am. Elec. Cas. 246.

43 Stewart v. Wisconsin Cent. Co. (C. C. W. D. Wis.), 89 Fed. 617.

the expenses of the watchman, it was held that by thus confirming the contract, it was bound thereby.**

§ 417. Grade crossing-Injunction - Vacating of.- Where an interlocutory injunction has been granted by which a street railway company has been restrained from constructing its tracks across those of a steam railroad, it is held that the court will not continue such injunction in force, merely because of the contingency that compensation may be required for such crossing, but the injunction may be vacated upon the giving of a bond for the payment of whatever compensation may be required. 45 ·

§ 418. Telephone across railroad. The fact that by the construction of a telephone line across a railroad right of way, such line would be less exposed to danger from storms, and might be constructed in a straight line and at a less expense, is not a necessity which will authorize the appropriation of a portion of the railroad's right of way."

46

§ 419. Telegraph wires across railroad. If, in the construc tion of a telegraph line, it becomes necessary to cross railroad tracks, whether the crossing be above or under such tracks, the telegraph line must be so constructed as not to interfere with the operation of the railroad. If the authority be to cross the railroad by wires above the tracks, then the wires should be strung at such a height as not to interfere with the passage of trains or to endanger lives of employees on such trains, and the poles should be so set as not to impair the roadbed of the railroad. If, however, the authority be to cross underneath the tracks, the telegraph company should so construct its line as not to interfere with the repair and renovation by the railroad company of the soil and ballast of its tracks. 47 So where

44 Richmond Union Pass. Ry. Co. v. Richmond, F. & P. R. Co., 96 Va. 670, 32 S. E. 787, 1 Va. Sup. Ct. Rep. 204, 5 Va. Law Reg. 34.

45 Delaware, L. & W. R. Co. v. Syracuse, L. & B. R. Co. (Sup. Ct.), 28 Misc. (N. Y.) 456, 59 N. Y. Supp. 1035.

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

47 Southeastern Ry. Co. v. European Elec. Printing Teleg. Co., 9 Exch. 363, Allen's Teleg. Cas. 8. The authority to the telegraph company to cross the tracks of the

a brakeman, while standing on the top of a boxcar, was thrown to the ground by a collision with a telegraph wire, which was suspended too low to permit the passage of a car, with a man standing on the top of it, it was held that the receiver of the railroad company and the telephone company were jointly liable for the injury. It appearing in this case that the railroad was constructed subsequent to the construction of the telephone line, it was also held that in the absence of some contract or of proceedings to condemn the right of way, under the wire, conferring upon the railroad company the right to require the elevation of such wire, the railroad company could not recover over against the telephone company. But where a wire of an electric railway company was suspended at sufficient height to permit of the passage of cars of ordinary height, with a person standing thereon, but not of cars of unusual height with a person standing on the top thereof, it was held that the street railway company was not chargeable with negligence, where a person was injured while riding for his own convenience on top of an unusually high car.

49

railroad company was derived from the 14 and 15 Vict., chap. 135, § 37, which provided that the company might place their wires "under any public roads, streets, highways and other public thoroughfares, and either along or across such places," with authority "to carry their wires, pipes, and tubes directly (but not otherwise) across any railway," but not in such a way as to damage such railway or its works or interrupt or interfere with the use thereof. It is held that the laying of the wires through the soil and ballast of the railroad, even if lawful

48

under the provision, must be such as not to render the repair and renovation of the soil and ballast less easy. The court also expressed the opinion that under this section the telegraph company was not authorized to construct its lines under the railway.

48 Dillingham v. Crank, 87 Tex. 104, 27 S. W. 93, 5 Am. Elec. Cas. 342; Southwestern Teleg. & Teleph. Co. v. Crank (Tex. Ct. App., 1894), 27 S. W. 38.

49 Gross v. South Chicago City R. Co., 73 Ill. App. 217, 30 Chic. Law News, 186.

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