ordinance required wires to be suspended at a height of not less than twenty feet, and in moving a building certain wires of a telephone company were cut, that the company might recover damages for the wires which were cut and which were suspended at a lawful height, but not for those suspended below the height required.69 But in another case, where the act of incorporation required wires to be suspended twentytwo feet from the ground, and a wire only nineteen and a half feet from the ground was torn from its fastenings, while moving a building twenty-five feet high, and loosened some bricks, which fell upon a person in the street, it was held that the person moving the building was liable for the injury, and that no liability attached to either the city or the company maintaining the wire.70 Since use of the streets for the purpose of moving buildings is not in the line of their use for purposes of travel, but is in reality an obstruction to such use, it would seem naturally to follow that this right must be obtained either by statute or by municipal license, and that in either case the permit requires the exercise of reasonable care to prevent unnecessary injury to appurtenances of electrical companies upon the street, to interfere to the least possible extent with the operation of such lines, and to prevent injuries to persons lawfully upon the streets.

In this connection it is decided in a case in North Dakota that the right to use the streets for such a purpose where power is given a municipality to grant a license therefor is not an absolute right that any one can demand, but that it is a power which the municipality may exercise or not as a matter of discretion.71

§ 482. Salt on tracks - Use of.- A municipality may, in the exercise of its general police power to control and regulate the use of streets, prohibit street railway companies from using

edy against the defendant, would be a void, unreasonable, and inoperative provision. Its effect would be to impair and nullify the previous grant to the plaintiff, under which vested rights ripened." Per Morgan, J.

69 New York & N. J. Teleph. Co. v. Deixheimer, 14 N. J. L. 225, 11 N. J. Law Jour. 246.

70 Howard v. Corporation of St. Thomas, 19 Ont. Rep. 719.

71 Northwestern Teleph. Exch. Co. v. Anderson, 12 N. D. 585, 98 N. W. 706, 15 Am. Neg. R. 644.

salt upon their tracks. their tracks. So an ordinance prohibiting the use of salt on the tracks of a street railway, except on curves at street corners, is valid. Such an ordinance neither impairs the franchise of a company nor restricts the operation of its road. And though the effect of such an ordinance may be to cause expense or inconvenience to the company, yet this will not affect the validity of the ordinance.72 Again though it may appear that certain portions of the tracks are low, so that water collects and freezes thereon during the night, and that salt is necessary to keep the tracks in such condition at these points that the cars may be run over them, yet such fact will not make the ordinance unreasonable, where it also appears that the water could be diverted from the tracks at reasonable expense." 73

§ 483. Use same poles - Safety to lives and property – Rule. In many cases the use of the same poles by different electrical companies is provided for either in the franchise of the company earlier in the occupation of the streets, or by contract between the two companies. Where different companies can with safety use the same poles then such regulations as to the mode of use by each company must be made for the protection of lives and property that they shall not be endangered. If such regulations cannot be made, then such joint use would be unreasonable, and if unreasonable, though it may be authorized by ordinance, yet the courts may set aside the ordinance. 74

§ 484. Contracts between street railway companies - Operation of lines. A street railway should be operated and maintained in such a manner as will best promote and aid public travel, and where rival companies have been granted franchises in the same municipality, they have no right to enter into a contract, the carrying out of which will restrain the free use of their respective franchises for the benfit of the public.75 So

72 State, Consol. Tract. Co. V. Elizabeth, 58 N. J. L. 619, 34 Atl. 146, 32 L. R. A. 170, 3 Am. & Eng. R. Cas. (N. S.) 614.

73 State, Consol. Tract. Co. V. Elizabeth, 58 N. J. L. 619, 32 L. R. A. 170, 34 Atl. 146, 3 Am. & Eng. R. Cas. (N. S.) 614.

74 Citizens' E. L. & P. Co. v. Sands, 95 Mich. 551, 4 Am. Elec. Cas. 58, 67, 55 N. W. 452.

75 South Chicago City R. Co. v. Calumet Elec. St. R. Co., 171 Ill. 391, 49 N. E. 576, affg. 70 Ill. App. 254.

where two street railway companies entered into an agreement not to cross each other's tracks at grade, except at certain specified crossings, and it appeared that it was the policy of the municipality not to permit other than grade crossings, the agreement was held to be against public policy and void, since it practically amounted to an agreement on the part of each not to invade the territory of the other. 76

§ 485. Contract for joint use of tracks - Tenants in common.—Where two tenants in common of a street railway track enter into an agreement not to let, sublet, sell, assign or convey any interest in any part of the road without the consent of the other, a grant by one of the tenants to a third street railway company of the right to use any part of the track is within such agreement, and though the other tenant may acquiesce in such use by the third company, such acquiescence or silence will confer no permanent right, but merely amounts to a license for the time being." A contract between two street railway companies by which one gives to the other the right to use its tracks will not, it is held, confer upon the latter company the right to run the cars of a third company over such tracks.78

§ 486.

Contracts between electric light companies - Use same wires:- Charters conferring powers upon electrical companies will receive a strict construction by the courts. As a general rule such companies receive and can exercise only such powers and rights as are expressly conferred upon them by their charters, or which are conferred by necessary implication. in order to carry out the purposes of the grant. Therefore, where an electric light company or other electrical company is confined by its charter to exercising its powers within certain limits, it cannot extend its operation beyond the limits defined. So where the territories within which two electric light and power companies were by their charter empowered to furnish light, heat and power, were adjacent along the center of a given street, one company being authorized to put up wires to

76 South Chicago City R. Co. v. Calumet Elec. St. R. Co., 171 Ill. 391, 49 N. E. 576, affg. 70 Ill. App. 254.

77 Chapman v. Syracuse R. T. Co.

(N. Y. Sup. Ct., 1899), 25 Misc. (N. Y.) 626, 56 N. Y. Supp. 250.

78 Toledo & M. V. R. Co. v. To ledo Tract. Co., 17 Ohio C. C. 22.

the center line of the street from the east and the other being similarly authorized from the west, it was held that they could not enter into a contract by which one was to supply a current to the other along the common boundary line, thus enabling one company to dispense with a power-house or generating plant. It was also held in this case that the city had the right to cut all connecting wires used for the purpose of obtaining a current from the main wires.79

§ 486a. Right to assign electric lighting contract.-A contract cannot be assigned when its terms forbid an assignment, or when there is an implied intention that personal service is required by the contract; and although a contract does not stipulate against an assignment thereof, and even though it is by its terms, between the parties and their respective executors, administrators, successors, and assigns, nevertheless it is not assignable where it stipulates for the installation and construction of electric lamps and also expressly provides that the construction work of the circuits shall be done under the supervision and at the expense of the contractor, and that the work of installing all lamps and conductors, and the making of all connections in and upon said circuits, in which the current of the person rendering the service shall be used, shall be done by said party. Such a contract provides for personal service, is within the rule, and cannot be assigned.80

§ 487. Rapid transit trains-Duty of company.- Where, for the purpose of securing rapid transit between distant parts of a city or between one section of a city and the suburbs, cars or trains of cars are run with a limited number of stops, and at an increased rate of speed, such reasonable care should be exercised in their management and such noticeable signal given of their approach as will tend to best secure both the safety of travelers and of passengers who may be alighting from cars on other tracks.81

79 City of Chicago v. Mutual E. L. & P. Co., 55 Ill. App. 429, 5 Am. Elec. Cas. 29.

80 Swarts v. Narragansett Electric Lighting Co., 26 R. I. 388, 59 Atl.

77, motion for reargument denied, 26 R. I. 436, 59 Atl. 111.

81 Capital City Tract. Co. v. Lusby, 26 Wash. L. Repr. 163, 12 App. D. C. 295.

§ 488. Office hours of telegraph company.- A telegraph company may establish reasonable office hours for the transmission and delivery of telegrams.82 And it is under no obli gation to keep the employees in each of its offices informed of the time when every other office closes for the night,83 or to deliver a message received after the closing of the office. And, although an operator may be in the habit of being in the office and of receiving and transmitting messages after office hours, and is there after the expiration of such hours on most occasions, yet this will not bind the company to keep its office open for a longer period than the hours established by it.85

§ 489. Telegraph Private land - No consent obtainedEjectment. If a telegraph company has constructed its line over private land without right so to do, and the land is subsequently transferred, the grantee succeeds to all the rights of the grantor, including the right to bring ejectment.86

§ 489a. Power of electrical company to transfer or sell franchise.- Power conferred by a municipality upon a telegraph company, formed for the purpose of doing a general telegraph business, to erect its poles and string its wires thereon in the streets of the city is held to confer upon such company no authority to give a right to another company, formed for purely local business, to use the streets without the consent of the city. And where an attempt is made to give such a right it is also decided that the city may revoke the franchise granted by it.ST And where an electrical company is authorized by statute to "hold and convey such real and personal estate as may be

82 Western Un. Teleg. Co. V. Harding, 103 Ind. 505, 3 N. E. 172, 1 Am. Elec. Cas. 814; Davis v. Western Union Teleg. Co., 23 Ky. Law R. 1758, 66 S. W. 17; Western Union Teleg. Co. v. Crider, 21 Ky. Law R. 1336, 54 S. W. 963; Western Un. Teleg. Co. v. Wingate, 6 Tex. Civ. App. 394, 25 S. W. 439.

83 Given v. Western Un. Teleg. Co., 24 Fed. 119, 1 Am. Elec. Cas. 766; Western Un. Teleg. Co. v.

Harding, 103 Ind. 505, 3 N. E. 172, 1 Am. Elec. Cas. 815.

84 Western Union Teleg. Co. v. Steinburger, 107 Ky. 469, 21 Ky. Law R. 1289, 54 S. W. 829.

85 Western Un. Teleg. Co. v. Georgia Cotton Co., 94 Ga. 444, 21 S. E. 835.

86 Postal Teleg. Cable Co. v. Eaton, 170 Ill. 513, 39 L. R. A. 722, 49 N. E. 365.

87 Western Union Teleg. Co. v. City of Toledo, 103 Fed. 746.