further power to interfere with the execution of the work. 63 In Pennsylvania, under the general powers given to cities by statute, to regulate the use of streets, it is held that cities of the third class are empowered to construct conduits for electrical wires.65 Where an electrical company has a clear legal right to lay its wires under the surface of city streets, subject to consent from the local authorities, mandamus is the proper legal remedy to compel such authorities to take action in reference to the issuance of a permit.66 In such a proceeding allegations in reference to another ordinance, by which rights have been granted to other companies, are held to be immaterial and redundant.67 § 436a. Permission to place wires in conduits - When may be revoked. Where it is provided by ordinance that telegraph, telephone and electric light companies may lay wires under the streets of a city and that such a company shall remove its conduits whenever directed so to do by the city council, the company does not acquire a right of property in the street which cannot be discontinued and appropriated to another public use without compensation, but only a right to use the streets in the manner specified which is subject to revocation, and a statute providing for the removal of electrical appliances from the streets and that the companies shall have the right either to remove the same or to put them in underground conduits which are to be constructed under regulations does not confer a franchise which includes an individual right of property in the public easement and in such a case it is decided that the right so reserved may be exercised either by the municipality or by the legislature. Thus it has been so held in Massachusetts in a case where permission of this character was given by ordinance to an electric light company to lay its wires in conduits, and subsequently a statute was passed conferring 63 Montreal v. Standard L. & P. Co., Law Rep. App. Cas. (1897) 527, 77 Law T. Rep. 115, 66 L. Jour. Q. B. (N. S.) 113. 64 Penn. Act of May 23, 1889. 65 O'Brien V. Erie (C. P.), 7 Penn. Dist. Rep. 491, 20 Penn. Co. Ct. 337. 66 State, National Subway Co. v. St. Louis, 145 Mo. 551, 46 S. W. 981, 42 L. R. A. 113; Com., Bell Teleph. Co. v. Warwick (C. P.), 6 Penn. Dist. Rep. 473. 67 State, National Subway Co. v. St. Louis, 145 Mo. 551, 46 S. W. 981, 42 L. R. A. 113. the right upon a terminal company to acquire a portion of certain streets, in which conduits were laid, for a terminal station.68 As to the power of the legislature to exercise this right of revocation it was said in this case: "The contention. that the right of revocation reserved by the ordinances and the permit to the city council cannot be exercised by the Legislature is without foundation. The Legislature is the supreme authority in regard to public rights in the streets and highways. This reservation of a right of revocation was a limitation of the plaintiff's right to continue its peculiar use of the street as one of the public by the maintenance of a conduit, and it was a part of the regulation of the rights of all the public. The reservation to the city council was to that body as a representative of the public, and not to it in a narrow or individual sense. The Legislature could at any time supersede the city council in the exercise of its powers, and could do anything that ought to be done in regard to this public easement. The important fact is that the plaintiff has been given no right which was not subject to the control of this easement by the proper authorities." 69 And in an earlier case in this State it is decided that though the right of an electrical company to use the streets for its purpose is recognized as within the public easement which was paid for in assessing damages to the owner when the street was opened, such company acquires no property rights in the streets by virtue of the fact that it was authorized to construct its conduits therein by statute or ordinances, which clearly do not purport to convey private rights of property. In this case it was decided that the legislature had the power to close the street at any time and that though some of the property of a company maintaining conduits in the street might be rendered worthless in removing it yet the company had no property rights in the street which could be the subject of an assessment of damages. 70 68 Boston Electric Light Co. v. Boston Terminal Co., 184 Mass. 566, 69 N. E. 346, 8 Am. Elec. Cas. 50, construing in St. 1896, c. 516; St. 1894, c. 454. 69 Per Knowlton, J. 70 New England Teleph. & Teleg. Co. v. Boston Terminal Co., 182 Mass. 397, 65 N. E. 835, 8 Am. Elec. Cas. 132, wherein the court said: "In this Commonwealth, on the laying out or construction of a highway or public street, the fee of the land remains in the § 436b. Ordinance granting right to place wires underground-Extent of right acquired as to space.- An ordinance, not purporting to grant an exclusive right, authorizing an electrical company to place its wires beneath the surface of a street, should be construed as only conferring the right upon such company to occupy such space as is necessary for the wires and for such devices as may be required to protect them from injury or to prevent injury to the property or person of others who may have the right to use the ground beneath the surface. So where an electric company was authorized by ordinance to place its wire beneath a wooden sidewalk which was several feet above the ground and the surface of the abutting lot and the sidewalk caught fire and a person was injured in endeavoring to discover the origin of the fire, the court said, in affirming a judgment for damages for such injury: “The only right the electric company had under the ordinance was a * * * or landowner, and the public acquire an easement in the street for travel. This easement is held to include every kind of travel and communication for the movement or transportation of persons property which is reasonable and proper in the use of a public street. Accordingly it has been held that the public easement which is paid for in assessing damages to the owner includes the use of the street for horse cars and electric cars, for wires of telegraph, telephone and electric lighting companies, and for water pipes, gas pipes, sewers and such other similar arrangements for communication or transportation as further invention may make desirable. The rights in the streets which are so exercised or enjoyed are not private rights of property, but are a part of the public rights which are shared in common, although used and enjoyed in different ways by the different members of the public who pass through a street or whose property is carried through it. These public rights are primarily subject to the regulation and control of the Legislature which represents the public. This regulation and control is usually delegated to the local authorities by general laws, and some times by special laws. But the Legisla ture remains all the time the su * + preme authority in regard to all right to place its wire under the sidewalk. It was entitled to permanently occupy no more space for that purpose than was necessary for the wire and any devices used to protect the wire and to keep persons from coming in contact therewith. It had no right or permission to occupy the whole of the space under the sidewalk where the accident occurred." 71 § 437. Subways -Public grounds Massachusetts. The question as to the right of a company to enter upon the public squares, commons or grounds of a city for the purpose of constructing a subway arose in a Massachusetts case. In this case it appeared that there was an act in this State 72 restricting highways, street railways and corporations of a like nature. from entering upon public commons or parks. By an Act of 1894 73 the construction of a subway in the city of Boston was authorized. The company claimed under this act that it had the right to enter upon the public garden of the city, and it was held that under the provisions of the statute it had such right, and that the act restricting companies from such entry was modified to this extent. It was also held that the objection that by the act public grounds were authorized to be used for the construction of a subway for the transportation of passengers without compensation, was sufficiently answered by the fact that the legislature had passed such statute, and that it had been accepted by a majority of the voters of the city.74 § 437a. Subways - Rights of prior occupant.- Where an electrical company is granted a franchise, which expressly provides that it is not exclusive and reserves all rights and privileges not specifically given, to construct and maintain a subway in the streets for the purpose of placing its wires therein, no right is thereby conferred upon it to dictate what other structures may be placed beneath the surface of the street or where 71 Commonwealth Electric Co. v. Melville, 210 II. 70, 70 N. E. 10, affg. 110 Ill. App. 242, per Scott, J. 72 Mass. Pub. Stat., chap. 54, § 13. 73 Mass. Stat. 1894, chap. 548. 74 Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610. Examine Browne v. Turner, 174 Mass. 150, 54 N. E. 510, as to authority of Rapid Transit Commission to construct tunnels for railway tracks for connection with subways under Mass. Laws of 1894, chap. 548. they shall be placed. It may demand that its structure shall not be unreasonably interfered with but it can not prevent the use of the street for a similar purpose by another company though such use may involve some expense and inconvenience. to it, provided access to its line is left open, and the operation thereof is not interfered with. So in a case where a company operating under such a franchise sought to restrain another company from using and maintaining another subway in the same street the court said: "The plaintiff took nothing by its grant but what was expressly given, or necessarily involved in what was expressly given. There is nothing in its franchise to prevent the city from laying a subway on any side of the plaintiff's subway and immediately adjoining it, or from authorizing some other corporation to do it. If the city, which has control of the streets both above and below the surface, sees fit to economize space with reference to the wants of the future, it has a right to do so and for this purpose to place, or authorize another corporation to place, conduit lines so near that of the plaintiff as to make access somewhat inconvenient and expensive. The city cannot destroy the plaintiff's line nor prevent reasonable access to it, but it is not obliged to consult the mere convenience of the plaintiff, nor study to save it from expense to the detriment of the public. In other words the plaintiff may make a reasonable, but not an unreasonable use, of the right granted. While the city could not grant to another the right to use the same space occupied by the plaintiff's line, it could authorize the use of any other space, provided access to the line was left open, even if it were less convenient and more expensive." 75 75 Western Union Teleg. Co. v. Syracuse Elec. L. & P. Co., 178 N. 718 Y. 325, 331, 70 N. E., 866, per |