line along "any railroad," in such a manner as not to incommode the public use thereof, such railroad right of way may be acquired by the telegraph company by condemnation.45 Foreign telegraph companies are not included in the Ohio statute authorizing the construction of telegraph lines upon public roads, 46 "Public roads, streets and highways," in a statute relating to the erection of telegraph lines, does not include railroads outside of streets or highways. 47 The words "subject to the right of the owner or owners thereof to full compensation for the same," in a statute giving the right to erect telegraph poles on land, constitute a condition precedent.48 The right to condemn a railroad right of way is not conferred by a statute authorizing the construction and maintenance of telegraph lines" along and parallel" to railroads, and which provides for contracts for said right of way and for the mode of compensation in case of disagreement.49 In Kansas the phrase, "to grant the right of way," in the charter act of cities of the first class as construed with the general telegraph enactment authorizes such cities to determine and designate the streets and alleys of the city which may be occupied and used by telegraph and telephone companies for their posts and wires. 50 An ordinance which imposes a charge upon telephone poles as a "consideration for the privilege" of using the streets, is not a tax either on property or as a license.51 A pro

amended, April 4, 1873 (Acts 18723, No. 27).

45 St. Louis & C. R. Co. v. Postal Teleg. Co., 173 Ill. 508, 51 N. E. 382 (Ill. Rev. Stat., chap. 134, § 2), distinguishing Postal Teleg. C. Co. v. Norfolk & W. R. Co., 88 Va. 921, 14 S. E. 803.

V.

46 Postal Teleg. Cable Co. Cleveland, C. C. & St. L. Co. (C. C. N. D. Ohio), 94 Fed. 234.

47 New York City & N. R. Co. v. Central Un. Teleg. Co., 21 Hun (N. Y.), 261, 1 Am. Elec. Cas. 315; New York Laws 1853, chap. 471, art. 2, chap. 471 repealed.

48 Dusenbury v. Mutual Teleg. Co., 11 Abb. N. C. (N. Y.) 440, 64 How.

(N. Y.) 206, 1 Am. Elec. Cas. 448; New York Acts 1848, as amended by New York Laws 1853, chap. 471, § 2, chap. 471 repealed.

49 Postal Teleg. Cable Co. v. Norfolk & Western R. Co., 88 Va. 920, 4 Am. Elec. Cas. 225, 14 N. E. 803. See S. C., 87 Va. 349; Virginia Code, §§ 1287-1290.

50 Wichita, City of, v. Missouri & K. Teleph. Co., 70 Kan. 441, 78 Pac. 886; Charter Act, § 11, sub. sec. 22, Laws 1881, chap. 37, p. 84; Laws 1903, chap. 122, § 53, p. 187; General Teleg. Act, § 74; Gen. Stat. 1868, art. 8, c. 23.

51 New Orleans v. Great Southern Teleph. & Teleg. Co., 40 La. Ann.

viso in an ordinance that "the acts and doings of the company under this ordinance shall be subject to any ordinance or ordinances that may hereafter be passed by the city," does not convert the grant of a right to construct and erect telephone lines on the streets into a mere revocable permit. On the contrary, it assumes that the ordinance is to continue in full force and effect, and recognizes the right of the grantee to do and to act under and in accordance with it, and only subjects such "acts and doings" to future municipal legislation, not inconsistent with the ordinance itself.52

§ 166a. Construction"Public highway," "public roads," etc.- In Iowa "public highways" includes city streets so that a telephone company may occupy the same under statutory authority.53 In Minnesota a statute authorizing the use of the "public roads and highways" by telegraph and telephone companies does not limit such use to rural highways, but gives the right also to erect poles and wires within the urban ways and streets of the State, subject to the necessary public use for travel, etc., and subject to the reasonable and necessary restrictions which a city may impose in the exercise of its police power.54 Under the Montana Constitution,55 and the statutes passed in pursuance thereof,56 telegraph and telephone companies stand upon an equal footing and may construct their lines from point to point, along and upon any of the public

41, 8 Am. St. Rep. 502, 2 Am. Elec. Cas. 122, 3 So. 533.

52 City New Orleans V. Great Southern Teleph. & Teleg. Co., 40 La. Ann. 41, 8 Am. St. Rep. 502, 2 Am. Elec. Cas. 122, 3 So. 533.

53 Chamberlain v. Iowa Teleph. Co., 119 Iowa, 619, 93 W. W. 596, 8 Am. Elec. Cas. 11 Iowa Code 1873, § 1324, and Laws 19th General Assembly, ch. 104.

nition of the words "road" and "highway" and declares that a city street in the popular sense is a highway. See also Duluth, City of, v. Duluth Teleph. Co., 84 Minn. 486, 87 N. W. 1128, 8 Am. Elec. Cas. 136; Abbott v. City of Duluth, 104 Fed. 838, affd. 117 Fed. 137, construing Laws Minn. 1860, c. 12, § 1, as to “public roads and highways."

55 § 14, art xv.

56 Civ. Code, § 1000; Polit. Code § 2600; Laws 1903, p. 66, c. 44. amd'g Polit. Cođe, pt. 3, tit. 6, art. 1, c. 2.

57

roads, and may erect the necessary fixtures, including posts, piers and abutments, and the term "public roads" in the statute includes streets in cities and is not limited to rural ways.5 In Pennsylvania a turnpike is a highway within the intent of a statute authorizing the construction of electric lines along any highway.58 In Nebraska, however, the term "public roads," as used in the statute of that State, is restricted in its meaning to rural highways, and does not include the streets. and alleys of a municipal corporation, and the authorized use by telegraph and telephone companies of such streets and alleys constitutes a public nuisance. The court, per Albert, C., said: "Whatever may be the usage in other jurisdictions, we think it safe to say that in this State the term 'public road' is commonly understood and recognized to apply exclusively to rural highways. It is thus understood and used by the people of the State generally, and it is doubtful whether, in the ordinary affairs of life and common conversation, it is ever used or understood to convey the idea of a street or alley of a city or village. This is a matter of common knowledge, and of which this court must take judicial notice. There is nothing in the act itself or in the legislative history of the State, that suggests that the legislature used the term in any other sense than that in which it is commonly used by the people of the State. The statutes of this State were before the legislature when the act was passed. In those relating to cities and vil lages the term 'public road' never occurs, while in those relating to rural highways it is invariably used, save in some cases where the term 'highway' is used as its equivalent." The court then considers several statutes of the State and adds: "It seems to us that but one reasonable inference is to be drawn from the foregoing, and that is that the legislature had in mind the popular distinction between public roads' and 'streets and alleys,' and used the former term in the act under consideration in the sense in which it is generally used and understood by the people of this State, and not in its generic

57 State, Rocky Mountain Bell Teleph. Co. v. Mayor, etc. of City of Red Lodge, 30 Mont. 338, 76 Pac. 758.

58 Peoples Teleph. & Teleg. Co. v. President, etc., of Berks & D. Turnpike Road, 199 Pa. 411, 49 Atl. 284.

sense, as including the streets and alleys of municipal corporations, because it dealt with the latter in such a manner as to clearly indicate that it regarded them as something separate and distinct from the public roads of the State." 59 In a New York case, the court holds that telephone wires in conduits constitute no additional burden which entitles an abutting owner to compensation and considers, in this connection, the difference between urban streets and rural highways declaring that in urban streets, the public convenience and health and the general welfare require that the soil should be subjected to greater burdens.60

§ 167. Construction - Special words in telegraph contract with railroad-Exclusive rights.- Where a railroad company contracted to give a telegraph company the right to place and maintain a wire upon the poles of the former for "general telegraphic correspondence," these words were construed as granting no exclusive right to the telegraph company as against the placing of wires on said poles by the railroad company or its licensees. Said contract also provided that said telegraph company was at liberty to establish and maintain "telegraph stations" at certain specified places, and at such "points along said line as they may think proper," and the court said: "By telegraph stations,' which the telegraph company has the liberty to establish and maintain at points' along the line of the road, we understand is meant ordinary offices for the business of telegraphy, at cities or villages along the line of the road; but the grant of this liberty did not exclude the right of the railroad company, either directly or indirectly, to establish and maintain like offices in the same cities and villages," and referring to other clauses, the construction of which, under the same contract, was involved, the court continues: "It will be observed that the telegraph company was not bound to establish stations at all points; nor are we advised as to their action under the privilege thus granted. Now, it must be ob

59 Nebraska Teleph. Co. v. Western Independent Long Distance Teleph. Co., 68 Neb. 772, 8 Am. Elec. Cas. 32, 95 N. W. 18; Comp. Stat. 1901, chap. 89a, § 14.

60 Castle v. Bell Teleph. Co. of Buffalo, 49 N. Y. App. Div. 437, 7 Am. Elec. Cas. 261.

served that as to the business of sending messages other than local business, the telegraph company is limited to such messages as may be received at any of their stations.' So that the railroad company, or any other person authorized by it, may compete for messages at any city or village, to be transmitted on this line of poles, and on any wire other than those put up by the telegraph company, without interfering with the privilege granted to it. And again, messages received at the office of the railroad company, though the telegraph company may have an office at the place, to be forwarded over other lines of telegraph from points where the telegraph company has no office, are wholly unprovided for by the agreement, and in such business the telegraph company certainly cannot claim any interest as to the local business,' the whole of which was reserved by the railroad company and its interest in the class of business to be re-telegraphed as between the parties, and for which the compensation was to be divided ratably between the parties, as well as the business left open to competition, and that which was not provided for in the contract, we can find no objection in the contract against the right of the railroad company to transfer the same to a third person, or to its right to place an additional wire upon its line of poles, or to authorize another to do so, for the purpose of transmitting such messages. It is reasonable to assume that such a right was within the contemplation of the parties; and it is quite sure that no stipulation was made to prevent its exercise. Inasmuch, therefore, as the right of the plaintiff below to the injunction prayed for rests on the ground that it had acquired the right to the sole use of its wires upon this line of poles for transmission of public or general telegraph correspondence, except local business, and as that claim cannot be maintained by a just construction of the contract it follows that the judgment below must be reversed.o1

61 Railroad Co. v. Telegraph Co., 38 Ohio St. 34, 1 Am. Elec. Cas. 395. In addition to what has been noted in the text, the contract provided that "all local business on said line, and the charges therefor, shall belong exclusively to the par

ties of the first part (railroad company), it being hereby understood and agreed that the party of the second part (telegraph company) shall be entitled only to the business of sending such messages as may be received at any of their sta