source: Caselaw Access Project

author: Dickman, J.

license: Public Domain

text:
    Railway Company v. Telegraph Association.

      Electric street railways — Single trolley overhead system — Eights of telephone companies.

    1. The dominant purpose for which streets in a municipality are dedicated and opened, is to facilitate public travel and transportation, and in that view, new and improved modes of conveyance by street railways are by law authorized to be constructed, and a franchise granted to a telephone company of constructing and operating its lines along and upon such'streets, is subordinate to the rights of the public in the streets for the purpose of travel and transportation.
    2. The fact that a telephone company acquired and entered upon the exercise of a franchise to erect and maintain its telephone poles and wires upon the streets of a city, prior to the operation of an electric railway thereon, will not give the telephone company, in the use of the streets, a right paramount to the easement of the public to adopt and use the best and most approved mode of travel thereon; and if the operation of the street railway by electricity as the motive power tends to disturb the working of the telephone system, the remedy of the telephone company will be, to readjust its methods to meet the condition created by the introduction of electro-motive power upon the street railway.
    8. Where a telephone company, under authority derived from the statute, places its poles and wires in the streets of a municipality, and in order to make a complete electric circuit for the transmission of telephonic messages, uses the earth, or what is known as the “ground circuit,” for a return current of electricity; and, where an electric street railway ' afterwards constructed upon the same streets, is operated with the “Single Trolley Overhead System” — so called — of which, the ground circuit is a constituent part, if the use of the ground circuit in the operation of the street railway interferes with telephone communication, the telephone company, as against the street railway, will not have a vested interest and exclusive right in and to the use of the ground circuit as a part of the telephone system.
    (Decided June 2, 1891.)
    Error to the Superior Court of Cincinnati.
    The original action was commenced in the Superior Court of Cincinnati, by The City and Suburban Telegraph Association, defendant in error, against The Cincinnati Inclined Plane Railway Company, plaintiff in error. The petition filed was as follows:

      “ The plaintiff says that it is an association incorporated under the laws of Ohio, for the purpose of constructing, maintaining and operating telegraph and telephone lines in said state and elsewhere, and has its principal office and business in the city of Cincinnati, where it is now and has for more than ten years past been conducting a telephone business, by means of wires stretched upon poles lawfully placed and maintained in the streets pursuant to the statutes made for that purpose, and under the direction of the authorities of said city.
    “ Said wires are connected with and terminate at the several ‘Exchanges’ owned by the plaintiff in said city and vicinity.
    “ At the ‘ Exchange ’ the wires are so arranged, by means of a device for that purpose, that any one of them can be immediately connected with any other. Each wire also terminates in the office, store, room, place of business or residence of some person, firm or company, — a subscriber to this association paying an annual sum for the use of the telephone and the service in connection therewith. Each of such subscribers can, by the use of the telephone and other patented inventions of which the plaintiff is the sole licensee in the territory where it transacts business, immediately communicate with and speak to an operater in an ‘Exchange,’ and said operator can, and if requested does, forthwith connect such subscriber’s wire with that of any other subscriber named, so that the two may converse directly with each other.
    “ Such communication is affected by means of a slight but continuous electric current passing over the wire from the speaker to the hearer, and unless interrupted or interfered with is easily and quickly made.
    “ Plaintiff says that many thousand such communications are daily made between persons in all parts of said city and in the county of Hamilton; that all the principal offices, business houses, newspaper offices, hotels, and other places of resort, and many residences in said county are thus connected together and brought into communication.
    “ Plaintiff says that it has over three thousand such subsciibers in the city and vicinity, and that its lines also ex-teud to and connect all the villages for many miles around, said city, and hundreds of communications are daily made over the last named lines, for each of which a small sum is paid plaintiff by the person sending the same; that the whole constitutes a business of value to the plaintiff and important to the public.
    “ Plaintiff further says, that the defendant is a corporation under the laws of Ohio, engaged in the maintenance and operation of an inclined plane railway in the city of Cincinnati, and claims to own, and is now in possession of, the street railway tracks of what is generally known as the Mt. Auburn Street Railway, which, beginning at the corner of Fifth and Walnut streets in said city, extends thence, by single track, on Fifth to Main street, thence on Main, by single track, to Court street, thence on Main, by double track, to Mulberry street, where it connects with said inclined plane railway, also extending from the north end of said inclined plane railway, by double track on Locust and Mason" streets, Auburn avenue and Vine street, to the Carthage turnpike and the Zoological Garden; also on Court street, by single track, from Main to Walnut street, and on Walnut street, by single track, to Fifth street to place of beginning.
    “ Plaintiff further says, that said defendant claims to own and control said tracks by virtue of an assignment or transfer of the same from other parties or companies; but plaintiff is not informed as to said transfers, or the validity thereof, and does not admit that the same, or any of them, are lawful or valid.
    “ But plaintiff says, that the said tracks were originally constructed by the parties under whom defendant claims, under alleged grants from the city of Cincinnati, which provided that ‘No motive power except horses or mules shall be used on said tracks,’ and the same have never been altered or amended in that respect, and the defendant has never acquired from the state of Ohio, or the city of Cincinnati, any right to erect and maintain poles or wires in the streets aforesaid, or to use electricity as a motive power for its cars.
    “Plaintiff further says, that since the defendant came into possession of said street railway, it has, within six months last past, and without any lawful authority so to do, caused a line of iron poles to be erected on each side of all the streets where said tracks are situated as aforesaid, and placed upon the said poles large wires which it keeps constantly charged with powerful currents of electricity, generated by large steam engines and dynamos owned and operated by defendant for that purpose, by means whereof the cars upon all parts of the track aforesaid are run and operated from six o’clock in the morning until twelve o’clock at night of each and every day.
    “ Plaintiff further says, that the defendant claims to have secured authority from the commissioners of Hamilton county to extend tracks along and upon the Carthage turnpike to be operated by electricity, as aforesaid, from the existing tracks to ■ the village of Carthage, and will place thereon poles and wires, and unless restrained by the order of this court will proceed to run and operate street cars thereon in the same manner that it is now running and operating them upon existing tracks.
    “Plaintiff further says, that ever since defendant commenced the operation of its cars by electricity, it has caused, and is still causing, great damage and injury to plaintiff, by creating electric currents and noise upon plaintiff’s telephone wires, many of which are and have been - for a period long prior to the use of electricity by defendant located upon each and all the streets aforesaid, and upon the Carthage turnpike. By reason of the proximity of the defendant’s poles and wires to those of plaintiff, and of the powerful currents used by defendant, together with its mode of use and manner of construction, currents of electricity are transmitted to, or induced upon, the wires of plaintiff such as to render them useless for telephonic purposes.
    “ The noises produced by defendant’s operations are loud and continuous, so as to prevent communication by telephone, and the connection of many of plaintiff’s subscribers with the Exchanges and with each other, has been thereby interrupted and broken up, and some of said subscribers have ordered their telephones removed and canceled subscriptions, while others have only been restrained from so doing by the representations of plaintiff’s officers that steps would be taken to induce or compel defendant to remedy the evil.
    “Plaintiff has received, and is receiving, a multitude of complaints from subscribers whose lines are affected by defendant’s operation, and numerous notices that unless the difficulty is remedied the telephones of the complaining subscribers must be removed.
    “ Plaintiff further says, that as soon as the defendant began the operation of cars by electricity, and the consequent injury to its, plaintiff’s, plant and business, defendant was notified thereof and requested to remedy the same, and has since been repeatedly urged to do so, but up to the present time has failed and refused to apply or attempt to apply any remedy, or take any step to prevent the injury to plaintiff aforesaid, which plaintiff is informed and believes can be done by defendant without any great expenditure of money, and without giving up the use of electricity as a motive power for its cars.
    “Plaintiff asserts that great injury has been caused, and great and irreparable injury will be caused to it, by the continued operation of cars by defendant, as it is now, and has been heretofore, operating the same.
    “ The plaintiff’s lines and telephones in the vicinity of said street railway will be rendered useless, the revenue received from the subscribers thereof cut off, and the business of the company greatly reduced.
    “ Wherefore the plaintiff prays that defendant be temporarily' enjoined from constructing and operating an electric railway on the Carthage turnpike, of the sort that it is now using, or of any sort that will interfere with, or injure, plaintiff’s lines or business. That, on final hearing, said injunction be made perpetual, and the defendant further restrained from operating any of its cars by means of electricity, in the manner it is now operating the same, or in any manner that may interfere with, or injure, plaintiff’s business.
    “ That the damages already suffered by the plaintiff be assessed and ordered paid by defendant, and for such other and further relief as the nature of the case, and equity, may require.”
    To this petition the defendant filed an answer, in which, among its averments and denials, the defendant denies that the plaintiff is an association incorporated under the laws of the state of Ohio, for the purpose of constructing, maintaining and operating telephone lines in said state; and denies that the plaintiff’s telephone poles and telephone wires are lawfully maintained in the streets and highways, pursuant to the statutes made for that purpose, or under the direction of the authorities of the city of Cincinnati; and alleges that the plaintiff exercises the powers of a telephone company, and maintains its poles and wires without any lawful authority whatever.
    The answer avers that under, and by reason of the ordinances, grants, laws, leases and resolutions therein mentioned, it rightfully and lawfully maintains, controls and operates by the electric system, known as the “ Sprague Single Trolley Overhead System,” all its lines of road described in the plaintiff’s petition.
    The defendant answering, says, that it is not liable to the plaintiff in any form of action, whether in law or equity, for the alleged interferences and disturbances, as set forth in the petition; and denies that there is ai^thing in any of the laws of this state, or in any pretended grant to the plaintiff, which gives to the plaintiff the right to use the earth at all, much less the exclusive right to use the earth for its return circuit; on the contrary, the defendant denies that the authorities which made any pretended grant to the plaintiff knew that the plaintiff intended to use the earth at all for its return circuit, or would so construct its line; and further denies the claim set up by the petition to the exclusive use of the earth by the plaintiff, because of the vagueness of said claim.

      The defendant, further answering, says, that the plaintiff, if undisturbed by the electrical current from the dynamos of the defendant, will be compelled to resort to other than a grounded circuit in order to give efficient service to its patrons ; that the uniform and slight current which the plaintiff claims to be necessary to the successful operation of the telephone, cannot be obtained by the use of the grounded circuit, but may be obtained by constructing the telephone either with a complete metallic circuit, or by resort to what is known as the McCluer device; that whereas, instead of being injured by abandoning the ground circuit and resorting to the metallic circuit, or the McCluer device, the plaintiff will be actually benefited in its service to its patrons, while the defendant cannot abandon its use of the ground circuit without injury to its railroad and to its patrons ; that the defendant could not alter its plan of electrical propulsion so as to have a metallic circuit, — that such a change is impracticable, would involve a very large outlay, necessitate an overhead structure of double or treble the cost of that now used, and very unsightly, and after it is constructed it would not be successful, — that such a system has been tried and found to be a financial and commercial failure, and in its effect as annoying and disturbing as the Sprague System, under which the defendant is now operating.
    The defendant further answering denies, that the noises produced by its operations are loud and continuous so as to prevent communication by telephone, and that the connection of many of the plaintiff’s subscribers with the exchange and with each other has been thereby interrupted and broken up. It denies that the plaintiff has received and is receiving a multitude of complaints from subscribers whose lines are affected by defendant’s operations, and also numerous notices that unless the difficulty is remedied, the telephones of the complaining subscribers must be removed. It denies that great injury has been caused, and great and irreparable injury will be caused to the plaintiff by the continued operation of cars by defendant, as it is now and has been heretofore operating the same. It denies that the plaintiff’s lines and telephones in the vicinity of said street railway will be rendered useless, the revenue received from the subscribers therefor cut off, and the business of the plaintiff greatly reduced.
    The plaintiff for reply denied each and every allegation contained in the answer, except such as admitted allegations of the petition.
    The action came on to be heard at a special term of the court held in February, 1890, and neither party demanding a jury, the cause was heard and tried by the court upon the pleadings and evidence; and thereupon, the court made a finding of facts, and stated its conclusions of law upon the facts so found, and rendered a judgment and decree thereon in favor of the Telegraph Association against the Railway Company, as follows:
    “ This cause coming on to be heard upon the pleadings and the evidence, 'and having been fully argued by counsel and submitted to the court without intervention of a jury, the court upon consideration thereof, finds that plaintiff lawfully maintains telephone lines upon the streets named in the'petition and upon the Carthage turnpike, and has so maintained-the same ever since a time long prior to the introduction of electro-motive power upon the street railway of defendant, and that said telephone lines are maintained and operated in the manner set forth in the petition; that defendant began the operation of cars by means of electro-motive power upon the street railway on the-day of June, 1889, and by reason thereof, and especially of the manner in which the electric current is permitted to pass from the wheels of defendant’s cars into the rails and thence into the earth, great injury has been and continues to be inflicted upon the plaintiff in the manner described in the petition, and that great and irreparable injury will be inflicted upon the plaintiff by the continued operation of defendant’s cars, in the manner in which they are now operated and will continue to be operated, unless restrained by the order of this court, and that plaintiff has no adequate remedy at law for said injury.
    “ The court further finds that there is a mode of operating street cars by electro-motive power, by means of the double trolley, available to the defendant, the use of which will avoid and prevent the injury to the plaintiff above mentioned.
    “ As matter of law, the court concludes that defendant is bound to adopt some mode of propelling its cars other than the one which inflicts the said injury upon the plaintiff, to which finding and decision of the court the defendant excepted at the time the same was made, and moved the court to set the same aside and grant it a new trial.
    “1. Because the finding and decision of the court is not sustained by sufficient evidence, but is against the weight of the same.
    “ 2. Because the finding and decision of the court is contrary to law.
    “ Which said motion the court overruled, to which ruling the defendant, at the time the same Avas made, excepted and presented to the court its bill of exceptions herein, (embodying all the testimony, evidence and exhibits offered by either party upon the trial of the action,) which, being found by the court to be true, is allowed and signed, and on motion is hereby made part of the record of the case; and thereupon the court orders, adjudges and decrees, that the said defendant company be and it is hereby perpetually restrained and enjoined from operating any car or cars upon the street railway tracks mentioned in the petition, or any of them, or upon any tracks laid or to be laid upon the Carthage turnpike, by means of electric currents passing from a Avheel or wheels of such car or cars into the rails of such track or any of them, or by means of electric currents, the whole or any part of which may be knowingly permitted to pass into the earth, or for which the earth constitutes any part of the conducting medium, in such manner as to cause injury to the plaintiff, to all of which defendant excepts. It is further ordered that the operation of this decree be and it is hereby stayed for the period of six months from date hereof, with liberty upon the part of the defendant to apply for an extension of said time.”
    The court appointed a special master, with directions that he ascertain and report the amount of damages, in money, theretofore sustained by the Telegraph Association, and hear evidence for that purpose, and report to the court.
    Upon petition in error, the superior court, at general term, affirmed the judgment and decree of the court at special term. By the present proceeding in error, this court is asked by the Railway Company to reverse the judgment of the superior court at general term, and to render such judgment as the court below should have rendered.
    Further facts disclosed by the record, and undisputed, are stated in the opinion.

      John S. Wise, for plaintiff in error.
    I. Both the plaintiff and defendant occupy the public streets of Cincinnati under public grants.
    In order to understand their respective rights, it is only necessary to examine the source of their respective titles and the character of their respective occupancy..
    II. What is the status of the Railway Company in the streets of Cincinnati ?
    In 1871 it was incorporated and admitted into the streets of Cincinnati as a street railway, with power to transport and carry property and persons upon said railroad track or tracks for a compensation.
    In 1877, by the act of March 30, the Board of Public Works was empowered to authorize a change of its motive power at any time. This was notice to the world, before the discovery of the telephone, that the Railway Company might, whenever it chose, stop the use of horses and use any propulsive agency, then or thereafter in lawful use as a motive power, for street railways in Cincinnati. Pittsburgh Appeal Cases, 122 Penn. Rep. 530.
    In Ohio, street railways have been held to enjoy the easement of the public highways for purposes of public travel, in the strict line of the original objects for which the public highway was dedicated. 14 Ohio St. 546, Street Railway v. Cumminsville.

    The same has been held in many other states. See 27 N. Y. 188, People v. Kerr; 91 N. Y. 148, Mahady v. Bushwick;
      114 N. Y. 437, Hussner et al. v. Brooklyn City R. R.; 27 Wis. 194, Hobart v. Milwaukee, etc.; 17 N. J. Eq. 76, Hinchman v. Patterson Horse R. Rd.; 79 Me. 363, Lewiston and Auburn Horse R. R. Co. v. Androscoggin.

    To the same effect are the decisions of Judge Green in the case of Cent. Union Tele. Co. v. The Akron Street Railway etc.; the decision of Judge Zane in the case of the Rocky Mountain Bell Tele. Co. v. Salt Lake City St. R. Co.; the opinion of Judge Bundy in the circuit court of Eau Claire County, Wis., in the case of Wis. Tele. Co. v. Eau Claire St. Ry. etc.; opinion of Judge Gibson in East Tenn. Tele. Co. v. Knoxville St. R. R. Co., and opinion of Judge Brown in Cumberland Tele. Co. v. United Electric Railway Co. et al. See also Taggart v. Newport Street Railway, Sup. Ct. Rhode Island, and Pelton v. E. Cleveland R. R. Co. Copies of the opinions in the above cited cases are filed, as they are not reported.
    Electric railways are nothing but an improvement upon street railways propelled bjr horses, or other antecedent motive power; and occupy the highways with exactly the same rights as were enjoyed by street railways so propelled, before electric propulsion was resorted to. 3 C. C. R. 425, Mt. Adams and Eden Park Incline Ry. Co. v. Howard Winslow et al.; People v. Kerr, supra; Williams v. N. Y. Cen. R. R. Co., 6 N. Y. 108. See also the Ohio case at Akron and the Utah and Wisconsin and Tennessee cases cited above. Also, Louisville Bagging Manfg. Co. v. Cen. Pass. R. W. Co.; Lonergan v. Lafayett St. Railway Co.; Halsey v. Rapid Transit S. R. W. Co.; Detroit City R’way v. Mills. Opinions in all the above cases filed herewith.
    III. What, now, is the status of the plaintiff Telephone Company upon the highways of Cincinnati? The public highways were not originally dedicated for the purposes of telegraph and telephone poles.
    • It is unnecessary to cite authority to show that telegraph and telephone companies are synonymous in contemplation of law; it has been repeatedly so decided.
    The law of Ohio, upon which the defendant in error relies for its existence, recognizes, in express terms, the undoubted principle, that if the telegraph companies were to be permitted to enter the public highways at all, they would go upon such highways, not as peers, but as vassals: The law under which the telegraph companies are organized grants them no' co-ordinate rights with travelers upon the public highways, but assigns them to a secondary and subordinate position, expressly placing them under the condition, that in constructing their lines along and upon the public roads or highways, they may do so, provided the same shall not be so constructed as to incommode the public use óf said roads or highways.
    That the telegraph companies do occupy such secondary and subordinate position upon the highway; that they are not upon the highway by virtue of rights acquired under its original dedication; that their presence upon, and use of, the highway, is an additional burden upon the highway, has been held repeatedly in many states. 2 Ohio C. C. R. 259, Smith v. Tel. Co.; 3 Ohio C. Ct. Rep. 425, Mt. Adams & Eden Park Inc. Pl. Ry. v. Winslow et al.; 60 N. Y. 510, Blanchard, etc., v. W. U. Tel. Co.; 55 Barbour 404, Knox v. Mayor, etc.; 90 N. Y. 122, Story v. Elev. R. R. Co.; 51 Hun 591, Sheldon v. W. U. Tel. Co.; 50 N. Y. Superior Ct. Rep. 488, Met. Tel. Co. v. Colwell Lead Co.; Ibid. 464; Tuttle v. Brush Elec. Co., 107 Ill. 507; Bd. Tr. Tel. Co. v. Barnett, 34 North West Reporter, 337; Willis v. Erie T. & T. Co., Minnesota, 13 Washington Law Rep. 461; Hewitt v. W. U. Tel. Co., Virginia W. U. Tel. Co. v. Williams, decisions filed; Dillon on Mun. Corps. 4th ed., secs. 698 and 698a.
    IV. This being the undoubted legal status of the two corporations upon the highway, what is the conflict between them? The whole conflict arises from the fact that both use the grounded circuit of electricity.
    V. The authorities of the Telephone Company admit that the telephone is a very delicate and sensitive instrument. They admit that the mechanism of the telephone, as constructed by them in Cincinnati on grounded circuits, is such that it will be disturbed by any flow of current from neighboring electrical enterprises, whether they be currents of arc lights, incandescent lights, power plants, electric railways or any other electrical enterprise.
    VI. The Telephone Company also admits that by resorting to another form of construction they could obviate all such disturbances; secure the immunity from outside interferences so essential to their successful operation; and occupy the highway without interfering with or being interfered with, by the travel ou the highway by said railway. They refuse to make these changes themselves, and insist upon their right to continue upon the public highway, using grounded telephones; claiming that in such continued use of the ground circuit they should be protected against all other electrical enterprises by injunction restraining them from the use of the grounded circuit.
    However successful this claim may be against other enterprises, it cannot be considered for a moment as valid against the Street Railway Company. The street railway companies are engaged in the lawful carrying of passengers upon the public highway. Their method of propulsion is safe, economical and desirable in every way. The electric method employed by them is not per se objectionable. It is practically the only successful method yet devised, and is used in nine tenths of the two hundred electric roads now running in America. That being true, to permit the telephone to stop them from traveling in an otherwise lawful manner upon the highways, because the method employed disturbs the telephone, would be to ignore the very proviso attached to the law under which the Telephone Company was permitted to enter the highway at all, for the ordinance permitting them to occupy the streets of Cincinnati forbade the Telephone Company from so constructing its line as to incommode the public use of said roads or. highways.
    VII. But, if the use of the highway by the Telephone Company was of equal dignity with the easement of the electric railway upon the highway, what title does the Telephone Company show to the exclusive use as. claimed in this suit,'of the earth for the purposes of a grounded circuit? It certainty claims this. Its claim can mean nothing else. If the claim is good against electric railways, it is good against every other species of electrical enterprises.
    VIII. To maintain its contention to this exclusive easement, it must show some express or implied grant from some source.
    As to this exclusive easement, it stands before the court like any other claimant of a substantial title to or interest in real property. It must show the boundaries of its title; it must show the source of its title, and it must show that its title is exclusive.
    1. As to the boundaries of its title.
    In the nature of the case, it is absolutely impossible to show the limits of the territory from which other enterprises would be excluded. The telephone attaches its wires to the gas and water systems of Cincinnati; the ramifications of said system being infinite. The subterranean electrical conductors of the earth leading to or from its metallic conductors are unknown to science. How far away, or how near, other electric currents may enter the earth without invading its charmed area and thus disturbing its grounded telephone wires, no mortal man can say. Much less can the plaintiff itself. See opinion of Judge Andrews in case of Hudson R. Tel. Co. v. Watervliet Turn and R. R. Co. Also East Tenn. Tel. Co. v. Knoxville Street R. R. Co. Opinions filed.

      2. As to the source of title.
    It does not pretend that the right to build a grounded telephone was either expressed or contemplated by the statute under which it is organized, or by the ordinance under which it entered the streets of Cincinnati. On the contrary, the ordinance forbade its interference with lawful methods of travel on the streets. If the grounded telephone does interfere with travel otherwise lawful, the ordinance not only promised it no protection as against lawful travel, but forbade its erection.
    The telephone does not pretend to a grant of exclusive easement from private parties, or from the gas or water systems. The telephone was not discovered for years after the passage of the public statute under which it is organized.
    Even if the legislature had intended, in the interest of the telephone, to abridge the rights of public travel, on the highway and confine it to certain methods; even if it intended that public travel should yield to and be curtailed as to certain modes, by the new burden placed upon the highway when the telegraph was admitted thereon; such intent' does not appear by any language used, and cannot be presumed unless, we forget the proviso. Hickok et al. v. Hine, 23 Ohio St. 523.
    3. As to its exclusive title.
    • It does not claim to be the discoverer of the grounded circuit. Shaffner’s Telegraph Manual, edition of 1859, page 157; Electricity and Electric Telegraph, by Prescott, edition 1887, p. 282; Noad’s Manual of Electricity, 1859, p. 772; Physique, by Daquire, tome 3, p. 832, edition 1867.
    . For forty years before the telephone was discovered the. earth was used by any electrical enterprises which desired to use it. It was by virtue of its being the common property of anybody who chose to use it that the Telephone. Company itself was enabled to. employ it.
    .. How, then, has this common right become .transformed under its use by the Telephone Company into, its peculiar, private and exclusive easement? How has that for which its discoverer was refused a patent, become, after fifty years of use by every one, the exclusive right of the Telephone Company ?
    IX. Even if, in the enjoyment of a common right of user of the highway, a user in which both plaintiff and defendant in error are of equal dignity, the plaintiff in error has been guilty of a violation of the defendant in error’s rights, the way to redress those rights is not by an injunction. An injunction in this case is a virtual forfeiture of the rights of the plaintiff in error in the highway. Herman v. Beef Slough, etc., Co., 8 Bissell, 334.
    The hardship and injury, caused to plaintiff in error and to the public by granting the injunction, is greater than the mischief to defendant in' error, which' the injunction is intended to remedy. Wood v. Sutcliffe, 2 Simons’ Rep., New Series, p. 163; Ib., 16 Jurist 75; Ib., 8 Eng. L. & E. Rep. 217.
    An injunction, if granted, while it would destroy the plaintiff’s property, would not give the defendant immunity from the disturbances complained' of. 9 Howard, p. 10, Irwin v. Dixon; 6 Paige, 554, Mohawk Bridge Co. v. Utica and Schenectady R. Rd. Co.
    X. It is further contended that the case made by the defendant in error shows that it has no equity. If the defendant in error has exclusive right to the use of the earth for a return circuit, the pleadings and affidavits show that it has a complete and adequate remedy at law for any injuries it has sustained. See Waterman’s Eden on Injunction, pages 10, 11; High on Injunctions, sec. 35; Hilliard on Injúne. 3d. ed., sec. 32; 1 Barton’s Chancery Practice, p. 435; Branch, etc., v. Yauba, 13 Cal. 190; Cent. Union Tel. Co. v. Sprague Elec. R. W. & M. Co., etc., record filed; Wood v. Sutcliffe, 2 Simons’ Repts. New Series, p. 163; Ibid., 16 Jurist 75; Ibid., 8 English Law & E. Repts., 217.
    XI. It is further claimed for ■ the plaintiff in error that, admitting all the injuries set forth in the complaint, the damage sustained is “ damnum absque injuria.” In support of this position the following cases are cited: 49 Hun, 566, Dillon v. Acme Oil Co.; Frazier v. Brown, 12 Ohio St. 294; Penn. Coal Co. v. Sanderson, 113 Pa. St. 141; Penn. R. R. Co. v. Marchant, 119 Pa. St. 541; Rocky Mt. Bell Tel. Co. v. Salt Lake City R. R. Co., record filed; Wis. Tel. Co. v. Eau Claire Street Ry. Co., etc., record filed; Cassady v. Cavenor, 37 Iowa, 300; particularly p. 305; East Tenn. Tel. Co. v. Knoxville St. R. R., supra; Cumberland Tel. Co. v. United Elec. Rway. Co. et. al., supra; Watervliet Turnpike and R. R. Co. v. Hudson R. Tel. Co., Court of Appeals of New York, Judge Andrews’ Opinion and Referee’s Report —filed herewith.
    XII. This is the only injunction granted in the United States upon a bill of this kind.

      XIII. Tbe whole decisions of Judge Taut in the first instance, and Judges Sayler and Moore, in general term, go on the false assumption of some undefined, vested, exclusive right to the use of the earth existing in the Telephone Company.

      JR. A. Harrison, for plaintiff in error.
    I. A special, peculiar and exclusive right to use the earth and the air within the limits of the'city of Cincinnati, for the purpose of completing its electric circuit, was not and could not be acquired by the Telegraph Association.
    For a period of two score years and upwards before the telephone was introduced in the year 1878, the earth had been used in completing electric circuits, by any and every person who chose to so use it. In the year 1888, Professor Steinheil made the discovery of the practicability of using the earth as one half, or the returning section, of the electric current. (Shaffner’s Telegraph Manual, Ed. of 1859, p. 157.) And ever since then, every person who desired to do so has used the earth for that pui'pose, without let or hindrance. And application was made for a patent upon the discovery, and refused. The use of it has been a miscellaneous -use.
    ■ II. The interest of the public in the use of electricity by enterprises which require either moderate or powerful currents, demand from, and impose as a duty upon telephone companies, at the time when they construct their telephones, the adoption of such a mode of completing their electric circuits, which they can readily do, as will prevent their delicate, sensitive and feeble currents from disturbance by the moderate or strong currents which are essential to the operation of other electrical enterprises in which the public are interested. Watervliet Turnpike and Railroad Co. v. Hudson River Telephone Co., 21 N. Y. 397, 404.
    . III. The right of the Railway Company to operate its road by the use of electricity as its motive power, is unquestionable. And, in doing so, its rights to employ what is known as the “ Sprague Single Trolley Overhead Systern” for the operation of electric street railroads, is clear. It adopted that system with the assent and concurrence of the city of Cincinnati, acting through its duly authorized board.
    IV. The primary and dominant purposes for which the highway is dedicated or established, are travel and transportation. Its use for any other purpose is secondary and subordinate to its use for those purposes. In other words, the highway is the common property of the community at large for use by them in travel and transportation; and, therefore, permissory grants to use them for any other purpose, are necessarily qualified and subject to control by the public through their agents. As a consequence, the use of the highway for such other purposes is. subordinate to the right which may be granted, by the public authorities, to any one to provide means to facilitate, by new and additional methods, travel and transportation thereon.
    The streets of Cincinnati are held in trust for the benefit of the public, to the end that the public may enjoy the right of traveling and transporting their goods over them. The city, as trustee, cannot permit them to be used in any manner that will, in any wise, impair or abridge the enjoyment by the public of every device which will facilitate their use for the primary and dominant purposes of their dedication. Hence, the Telegraph Association, instead of having exclusive and monopolistic rights by reason of the permission granted to it to erect poles in the streets and string wires thereon, has rights that are qualified; they are subservient to the use of the streets by any mode of travel which will promote the purposes of travel and transportation thereon agreeably to their dedication. It cannot abridge, interfere with, disturb, or place any obstacle in the way of, the use of the streets for travel and transportation in the same manner and as fully as if such permission had not been given to it.
    The fact that a highway may be used for a purpose other than that of travel thereon, does not give priority of right to so use it, as against its use for travel in a mode which may - not have been employed at the time the use of it for a purpose other than travel was commenced. The use of a highway for a purpose other than travel must be inferior and subservient to the perpetual use of it for travel án'd transportation; for, otherwise, the highway might be substantially diverted from the very purposes to which, when established, it is expressly and forever dedicated:
    While, therefore, it is within the power of the general assembly to enlarge .the' benefit to be derived’from highways, so as to include other purposes than those of mere travel and transportation; yet, the use of them for such' other -purposes is, and must necessarily always be, in subordination to the paramount right of their public use for travel and transportation. Smith v. Telegraph Co., 2 Ohio C. C. Rep. 259; Mt. Adams & Eden Park Incline Plane Ry. Co. v. Winslow et al., 3 Id. 425; Willis v. Erie T. & T Co., 34 N. W. Rep. 337; Blanchard v. W. U. Tel. Co., 60 N. Y. 510; Story v. Eley R. R. Co., 90. N. Y. 122; Sheldon v. W. U. Tel. Co., 51 Hun 591; Tuttle v. Brush Electric Co., 50 N. Y. Superior Ct. Rep., 464; Mt. Tel. Co. v. Colwell Lead Co., Id. 488; Cooley’s Constitutional Linn, sec. 688; Mills on Eminent Domain, sec. 205; Spring Grove Av. Ry. Co. v. Cumminsville, 14 Ohio St. 523; Taggart v. Newport Street Railway Co., 19 Atlantic Rep. 326; Pierce v. Drew, 136 Mass. 75; Julia Build. Asso. v. Bell Tel. Co., 88 Mo. -; Lewis, Em. Dom., secs. 131, 226, and cases there cited; Halsey v. Rapid Transit Co., 20 Atl. Rep. 869, 864; Dillon, Municipal Corp., secs, '698, and 698a, and cases there cited; Western Union Tel. Co. v. Williams, 11 S. W. Rep. 106; Clement v. The City of Cincinnati, 16 Weekly Law Bulletin, 355; Hinchman v. Paterson Horse R. R. Co., 17 N. J. Eq. 75; Jersey City & Bergen R. Co. v. Jersey City & Hoboken Horse R. Co.; Halsey v. The Rapid Transit Railway Company, 20 Atl. Rep. 859.
    Y. The general assembly did not affect or abridge the use of the streets or other highways for travel, by the legislation concerning telegraph companies. In view of the object for which streets are. dedicated by the original proprietors who ■ lay out city plats, it would have been incompetent for the legislature to have done so. But there was no such intenti'on; ‘ On the contrary, such a conclusion is expressly excluded, by section 3454, Revis'ed Statutes, which gives the privilege of constructing telegraph lines along and upon any .public- road, and is subject to the express prohibition that .telegraph lines shall not incommode the public in the use of any public road. This is a continuing prohibition, and is necessarily so in order to prevent highways from being diverted from their primary and dominant purpose. Bingham v. Doan, 9 Ohio 605; Railway v. Railway, 30 Ohio St. 604.
    YI. .The act of March 30, 1877, (74 O. L. 66,) expressly empowered the municipal authorities therein named to authorize any Inclined Plane Rahway Company which had been theretofore or which might be thereafter incorporated, to use electricity as a motive power for the propulsion of their cars.
    Under the power so conferred, the board of public works of Cincinnati, in 1885, granted to The Cincinnati Inclined Plane Railway Company, the plaintiff in error, authority to use electricity as a motive power for its ears; and, in 1888, the Board of Public Affairs granted to this company authority to use a specific specified system for so doing, namely: The Sprague Single Trolley System.
    YII. The Telegraph Association did not and could not acquire a right to a monopoly of the earth or air in the line of th'e streets of the city of Cincinnati in the use of electricity. It yrould have been incompetent for the general assembly to have conferred such a monopoly upon-them. Art. XII., sec.. 2 of the constitution. Moreover, the general assembly did not assume, either directly or indirectly, to confer such a monopoly upon telegraph or tel ephone companies. It granted to them simply a naked power to operate lines of telegraph or lines of telephone: subject, however, to the provision that the mode of operating them should never incommode the public in the use of the highways for travel and transportation.
    YIII. The recognition of such a right as that claimed by the Telegraph Association would be detrimental to the public in many ways.
    . The nature and magnitude, unreasonableness and invalidity, of the claim of the Telegraph Association, the far-reaching and injurious effects and consequences to the public of sustaining it, and the real point in controversy between the telegraph and electric street railway companies, are drawn by a master-hand in the case of East Tennessee Telephone Co. v. The Knoxville Street Railway Co., in the chancery court of-Tennessee.
    IX. The railway company has not appropriated, nor attempted or threatened to appropriate, any of the property of the Telegraph Association. It does not use, nor has it threatened to use, any of the telephone property. The gravamen of the complaint is, that the railway company and the Telegraph Association both use the earth within the limits of the city of Cincinnati for a return electric current, and that the current of the Telegraph Association being feeble, delicate and sensitive, and the current of the railway company being of greater intensity, the telephone is disturbed by the grounded electric circuit of the railway company; and that inasmuch as the Telegraph Association commenced using the earth as a return circuit before the railway company commenced using it for the same purpose, the former acquired a vested right as against the latter to the exclusive use of the earth within the limits of Cincinnati for a grounded electric .current. Unless, therefore, the Telegraph Association has thus acquired an exclusive right or franchise to the use of the whole of the earth within the limits of the city of Cincinnati for a grounded circuit, then no right or franchise of the association is interfered with, much less appropriated, by the railway company; and if the former cannot utterly exclude the latter from the use of the earth as a grounded electric circuit, as it certainly cannot expect upon the assumption of such an exclusive right, then the railway company is in the lawful use and enjoyment of its rights, franchises and property; and if such rightful use has caused or will cause damage to the Telegraph Association, it is damnum absque injuria. Frazer v. Brown, 12 Ohio St. 294, 299; Rockwood v. Wilson, 11 Cush. 226; Pennsylvania Company v. Merchant, 119 Penn. St. 541; Charles River Bridge v.
      The Warren Bridge, 11 Peters 420; Boulton v. Crowther, 2 B. & C. 703; Nichols v. Marsland, L. R. 10 Ex. 255.

      B. A. Ferguson, for plaintiff in error, also filed an elaborate brief in the case.
    The case was, also, argued orally, by John S. Wise and B. A. Ferguson, on behalf of plaintiff in error.

      Peclc <f> Shaffer, for defendant in error.
    I. Defendant’s rights are derived by grant from the state of Ohio, pursuant to the provisions of chapter 4, sections 3454 to 3471, of the Revised Statutes.
    II. Defendant in error is a common carrier of messages, an occupation of a public nature, as distinguished from a merely private business, and of that sort for which the power of eminent domain may be properly exercised. Hockett v. State, 105 Ind. 258; A. U. Tel. Co. v. Bell Tel. Co., 36 Ohio St. 296; State v. Am. News Co., 43 N. J. L. 381; Pierce v. Drew, 136 Mass. 75; C. & P. Tel. Co. v. B. & O. Tel. Co., 66 Md. 399; People v. Hudson Tel. Co., 19 Abb. N. C. 466; State v. Bell Tel. Co., 23 Fed. Rep. 539; N. O. R. Co. v. Southern Co., 53 Ala. 211; Revised Statutes, 3456, 3458, 3461.
    III. The City and Suburban Telegraph Association, as its name indicates, was incorporated as a telegraph company, and began business as such, but it acquired from the patentee the right to use the telephone soon after it came into existence, and has since the year 1878 been largely engaged in the conduct of the telephone business. Its power to do so cannot be disputed, for it has been held that the telephone is a telegraph, and that legislative authority to operate the one necessarily includes the other. Atty.-Gen. v. Edison Telephone Co., 6 Q. B. D. 244; Wisconsin Tel. Co. v. Oshkosh, 62 Wis. 32; Chesapeake Tel. Co. v. B. & O. Tel. Co., 66 Md. 399. See also Revised Statutes, 3471, mating the provisions of the chapter relating to telepraph companies applicable to telephone companies.
    IY. Sic utere tuo ut alienum non Icedas. The principle embodied, in the above maxim underlies the cause of action set forth in the original petition. The railway company is so using its own property and privileges as to inflict a grievous injury upon the defendant’ in error, and that too when it is wholly unnecessary. King v. Ward, 4 A. & E. 384, 406; Story v. Hammond, 5 Ohio, 376, 377; Rhodes v. City, 10 Ohio, 159, 160; McCombs v. Town Council, 15 Ohio, 474, 480; Railroad Co. v. Keary, 3 Ohio St. 206; Carman v. Railroad Co., 4 Ohio St. 399, 415; Railroad Co. v. Barber, 5 Ohio St. 541, 558; Clark v. Fry, 8 Ohio St. 358, 383; Columbus Gas Co. v. Freeland, 12 Ohio St. 397, 398; Railway Co. v. Railway Co., 30 Ohio St. 604, 616, 617; Tiffin v. McCormack, 34 Ohio St. 638, 644; Crawford v. Rambo, 44 Ohio St. 279, 282.
    V. As already pointed out, plaintiff’s current causes injury, to defendant in two ways; but just here we wish to call attention to the fact that each is an invasion of defendant’s property. There can be no discussion about the truth of that assertion, so far as. relates to injury caused by the current entering upon defendant’s wires lawfully grounded upon the premises of the subscribers. A moment’s consideration will produce the conviction that the injury from induction is of the same nature. By bringing the varying current of plaintiff near to the wires of defendant, injurious currents are induced in the latter, a result perfectly well known, and produced in accordance with laws the operation of which have been known since the time of Faraday. The practical applications of the principles of induction are innumerable. The currents sent forth by all dynamo generators are induced currents. The diaphragm of the telephone is moved by them. In the language of Mr. Lockwood, induction is nothing more or less than one well-known way of generating or developing electricity. There is no difference in law between this mode of producing an injury and that which would be produced by conduction. Suppose it were known that if a wire bearing a varying current were brought near' another, forming part of a closed circuit, a degree of heat sufficient to set fire to a building would thereby be generated in it, would not any one wilfully or negligently bringing about the condition of affairs which would produce such a result be liable for the injuries thereby occasioned? In the case of induction the injurious current does not actually escape from plaintiff’s wires and pass to those of the defendant, but the result is the same. An injurious effect passes from plaintiff’s wires to those of defendant, a mischievous force is communicated, as accurately and surely as if the. current itself were transmitted, and we cannot perceive why there should be any difference in the legal -relations of the parties arising from the mode of communicating such force. No amount of declamation about the triumphs of electricity and the great things to be done by it in the near future can justify those who employ it so as to injure the property or rights of others. If the mill and the sewing machine are to be run by it, the. miller and the seamstress must see to it that they thereby do no harm to their neighbors. They can no more be permitted to use the earth promiscuously for return currents, if they invade the property of others and cause injury there, than the miller could discharge the water from his race-way into the street and leave it to find its way to'the nearest stream through the property of others. Any person thereby injured would have a right of action for the nuisance so created. If a similar effect is produced by the discharge of electric currents into the earth, a similar legal result would seem to. follow.
    We need not seek at large for a description of the term “nuisance,” inasmuch as our own Supreme Court has defined it. Cooper v. Hall, 5 Ohio, 320; Columbus Gas Co. v. Freeland, 12 Ohio St. 392, 397; Reinhardt v. Mentasti, 40 Alb. L. J. 490, 492.
    VI. There is no difference in legal responsibility between -the person who permits electric currents to escape or be .communicated tó the property of his neighbor, to the injury of the latter, and one who permits water, gas, or odors to escape in the same way and with similar effect. The case does not fall within that class of cases as to .percolating waters where it is held that he who digs a well on his own land, and thereby cuts off the underground stream which supplies his neighbor, is not liable for the injury, but rather to that class, distinguished from the above, where it is held that he who pollutes the underground source of supply is liable for the injury so caused. This very distinction is pointed out in Frazier v. Brown, 12 Ohio St. 294, at p. 312. It is the basis of the decision in Ballard v. Tomlinson, 29 Ch. D. 115; Kinnaird v. Standard Oil Company, 11 Ky. L. Rep. 692; Hodgkinson v. Ennor, 4 B. & S. 615; Jacobs v. City, 18 W. L. B. 65; Tenant v. Goldwin, Salk. 361; Gould v. McKenna, 86 Pa. St. 297; Rylands v. Fletcher, 3 App. Cases 330; Collins v. Chartiers Gas Co., Supreme Court of Penn., January 3, 1891, of which an abstract is given in the Weekly Law Bulletin of April 13, 1891, vol. 25, .p. 237.
    VII. Plaintiff below might have safely rested its claims upon the law of nuisance, pure and simple, as laid down in Reinhardt v. Mantasti, supra, but did not choose to do so ; the evidence offered on its behalf showing not only the injury due to the action of the railway company, but also that it was within the power of that company to avoid the injury by the use of a system “ well known, and easily applied, and in more or less frequent use ” throughout the country. The failure and refusal of the railway company to make use of this well-known means of avoiding an injury, thus foreseen, brings tbe case within the class to which Railroad v. Keary, and Codlins v. Chartier’s Gas Company belong, resting upon the law of negligence. The refusal to use the preventive was, under the circumstances, distinctly an act of negligence.
    VIII. A good deal has been said about the delicacy of the telephone; yet, notwithstanding the fact that it is a delicate instrument, it has, with grounded circuits, come into universal' use, and withstood all the tests of time and experience. The evidence is conclusive that it did exceedingly well in Cincinnati, until defendant began its attack. It is sufficiently hardy to answer all its purposes, and nothing more is necessary. As matter of law, it is a novel proposition that “ delicate ” property may be injured with impunity. The sanie claim was unavailingly made in Cook v. Forbes, 5 Equity Cas. 166.
    IX. Of course it is suggested that even if the operation by defendant of its road in the maimer complained of is a nuisance as to us, yet it is to the interest of the general public that the road should be operated; i. e., defendant is patriotically urging that our private property should be appropriated in the interest of the public and that of its own stockholders. As a matter of fact there is no such preponderance of interest of the general public. The public is as much interested in having telephone service as street railway service; the former can be given only by using electricity, the latter can be furnished by using horses, mules, or cable operated by steam. Aldred’s Case, 9 Coke Rep., 57b at 59a.; Jones v. Powell, Palm. 539, quoted in Pollock on Torts, p. 333; Tipping v. St. Helen's Smelting Co., B. & S., at 615; King v. Ward, 4 A. & F. 384; Terre Haute Gas Co. v. Teel, 20 Ind. 131, approved and followed in Pettis v. Johnson, 56 Ind. 139.
    X. Again, it is said that defendants should not be held liable for injuring our property if we can protect ourselves from the injury resulting from its acts. It is shown that properly to protect ourselves would involve a very large expense, so large as to render the attempt practically unavailing. But we are under no such obligation against a wrong-doer. So to hold would make self-defense not merely a right but an obligation. This court in Col. Gas Co. v. Freeland, 12 Ohio St. 392, has spoken on this subject. Gould v. McKenna, 86 Pa. St. 297; Cook v. Champlain T. Co., 1 Denio 91, 99, 101; Satterfield v. Rowan, 9 S. E. Rep. 677; Athens Mfg. Co. v. Rucker, 4 S. E. Rep. 885.
    XI. It is seriously alleged in the answer and in argument, that our position amounts to a claim to the exclusive use of the earth for electrical purposes. This is a very catching way of putting the argument, but it will not bear investigation. The position of the railway company amounts to the making of that identical claim. They assume the right to take possession by superior electric force of all the highway, to invade. abutting property, and enter upon any electric conductor they may find there, and if any injury is caused thereby, so much'the worse for'the sufferer. If he complains, their answer is “ do you own the earth ? ” Who claims to own the earth? The man who objects to having cast upon it any form of pollution which may do him injury, or he who says that he will cast upon it what lie pleases regardless of the consequences to others. Who claims to own the air ? He who simply objects to its contamination, by smoke, or noise or stench, or he who says, '“ you don’t own the atmosphere, and I will throw into it what I choose.”
    XII. Something has been said during the progress of this-ease to the effect that other causes interfere with the successful operation of the telephone with grounded circuits,.- and therefore it is argued the railway company should not. be held liable for the injury caused by it. As a matter of' fact, the testimony of the witnesses is unanimous and uncon-, tradicted to the effect that the telephone service along the line of this railway was efficient and satisfactory, until the single trolley was put into operation. As a matter of law, it will not do to say that an injury by one person licenses the commission of similar injuries by others. This claim has been so frequently negatived in cases analogous to this, that we do not think it necessary to say more about it. Walter v. Selfe, 4 De G. & S. 323; Crump v. Lambert, 3 Eq. Cas. 414; Crosbey v. Lightower, 2 Ch. 478, the syllabus 2; Pennington v. Brinsop Coal Co., 5 Ch. D. 769.
    XIII. The railway company plead its franchises as a defense to the action of plaintiff below. It was originally a horse railroad, and continued such until June, 1889. The act under which it consolidated its lines — 74 Laws, 66 — provides that “ no other motive power than animals shall be used except with the consent,” etc., of the local authorities. At the time of the passage of that act, 1877, such a thing as an electric railway was unknown. The act neither requires nor expressly permits the operation of an electric railway. There is not anywhere in the statutes any express authority for the existence of such a road. The only show of legislative authority which can be found is that which is claimed to be inferred from the provision as to “other motive power,” found in said act. The utmost that can be claimed from these words is that they may permit the existence of an electric road. They do not expressly authorize, much less do they require it. Franklin Wharf Co. v. Portland, 67 N. C. 46; Haskell v. New Bedford, 108 Mass. 208; Profer, etc., v. Lowell, 7 Gray 223 ; Dillon Mun. Corp., sec. 1048; Dillon Mun. Corp., sec. 660; Viner Abr., “Nuisance,” F; Columbus & Hocking Coal Co. v. Tucker, 25 W. L. B. 105; Parrot v. C. H. & D. R. R. Co., 10 Ohio St. 624; Railway v. Gardner, 45 Ohio St. 322; Rex v. Pease, 4 Barn. & Ad. 30; Vaughn v. Taff Railway Co., 5 H. & N. 678; Hammersmith, etc. Railway Co. v. Brand, L. R. 4 H. L. 171; Queen v. Bradford Navigation Co., 6 B. & S. 631; Geddis v. Proprietors of Bann Reservoir, 3 App. Cas. 430; Attorney General v. Colney Hatch Lunatic Asylum, L. R. 4 Ch. App. 136; Attorney General v. Gas Light and Coke Co., 7 Ch. D. 217; Gas Light and Coke Co. v. Vestry, etc., 15 Q. B. D. 1; Metropolitan Asylum District v. Hill et al., 6 App. Cas. 193; Cogswell v. R. Co., 103 N. Y. 10; Braender v. Harlem Lighting Co., 2 N. Y., Supplement, 245; Shively v. Cedar Rapids, etc., Ry. Co., 74 Ia. 169; B. & P. R. Co. v. Fifth Bap. Church, 108 U. S. 317; Hickok v. Hine, 23 Ohio St. 523; State v. Ry. Co., 37 Ohio St. 176, 177; Coats v. C. R. W. Co., 1 Russell & Mylnie, 181; Pittsburgh Junction Bailroad, Appeal, 122 Pa. St. 511. The law is laid down in the same way in Hatch v. Railway Co., 18 Ohio St. 119; St. Paul Union Depot Co. v. City, 30 Minn. 359; Milwaukee, etc., Ry. Co. v. Faribault, 23 Minn. 167; B. & O. Ry. Co. v. North, 103 Ind. 486; New Jersey So. Ry. Co. v. Commissioners, 39 N. J. L. 28; Prospect Park, etc., R. Co. v. Williamson, 91 N. Y. 552; Roston, etc. R. Co. v. Lowell, etc. Ry. Co., 124 Mass. 368; Matter of City of Buffalo, 68 N. Y. 167; B. & O. Ry. Co. v. Bellaire, 4 Bulletin, 201, Lewis on Eminent Domain, sec. 268, et seq.; King v. Ward, 4 Ad. & Ell. 348; People v. Newton, 112 N. Y. 396, 407-8.
    XIY. Injunction is the proper remedy. Crawford v. Rambo, 44 Ohio St. 287; Imp. Gas Co. y. Broadbent, 7 H. L. C. 601; Crump v. Lambert, 3 Eq. Cases, 409; Wood on Nuisances, 900; Attorney General v. Consumers' Gas Co., 4 Ch. App. 71; Learned v. Hunt, 63 Miss. 373; Gas Co. v. Vestry, 15 Q. B. D. 1; Hickok v. Hine, 23 Ohio St. 531, 532; Fleming v. Hislop, 11 App. Cases, 686; Lingwood v. Stonemarket Co., 1 Eq. Cases, 77, 336; Perrine v. Taylor, 43 N. J. Eq. 128; Braender v. Harlem, 2 N. Y. Sup. 245; Roberts v. Arthur, 24 Pac. Repr. 922.
    .XV. Has the railway superior rights in the streets ? The claim that we must yield to their alleged superior right is not well founded. If plaintiff acquired the right to plant electric appliances in the streets by virtue of the resolutions of the board of public affairs of 1885 and 1888, the defendant was occupying those streets when such rights were acquired, by virtue of a grant from the state, which so far as the public was concerned gave it a complete right of way. The only persons who could make objection were the abutting owners, and they had made none. On the contrary they had by years of silence, acquiesced in defendant’s occupancy. Then came plaintiff with its claim of right at discretion to push aside, injure or destroy this legally existing public agency. Observe that there is neither law, ordinance, nor resolution, anywhere requiring plaintiff to propel its cars either by electricity, or by any special electric device. The claim is that it all rests in their discretion, as to whether they will make use of electricity at all, and as to the mode in which it shall be used, and that if plaintiff elects to adopt a mode which will drive every telegraph and telephone pole and line from the street, the latter must go. N. O. R. Co. v. Southern Co., 53 Ala. 211; State v. Am. News Co., 43 N. J. L. 381. How then can one be said to have a right superior to that of the other ? Unless there is some flaw in defendant’s title, some weakness which can be pointed out, how is its position any the less legal than that which plaintiff claims ? The only answer made to these questions is that the plaintiff is using an instrumentality in furtherance of travel. But we have already seen that the public may enlarge the use of the street; and if the abutter does not complain, there is no one who can. Dillon Mun. Corp., 3d ed., sees. 656, 657, 683, 688, 697, as to water pipes; 698, telegraph poles. Young v. Yermouth, 9 Gray 386; Attorney General v. Cin. Gas Co., 18 Ohio St. 262, 292; Kumler v. Silsbee, 38 Ohio St. 445. Same case in Dist. Court, 6 W. L. B. 82.
    XYI. Plaintiff has no power to construct or operate an electric railway. By virtue of its original grants plaintiff was restricted to the use of animal power. It was admitted and was in evidence that the ordinance named was accepted in writing by The Cincinnati Inclined Plane Railway Co., thus creating an express contract between that company and the city. Council has never modified or repealed the above mentioned provisions of any of these ordinances. The act of March 30, 1877, (74 Laws, 66,) the sole reliance of plaintiff, contains the same restriction. Third Avenue Case, 112 N. Y. 396; People v. Thompson, 98 N. Y. 6. See also authorities above cited. 14 N. Y., 506; Dillon Mun. Corp., original section, 208; Central Bridge Co. v. Lowell, 15 Gray, 116; Louisville v. McKean, 18 B. Mon. 13.
    XYII. It was claimed below, and the claim may be repeated, that it is not for us to raise the question of plaintiff’s •want of power to operate. ' A sufficient answer to that proposition is found in Zanesville v. Zanesville Gas Co., 23 W. L. B. 8, 14; Railroad Co. v. Commissioners, 35 Ohio St. 1; Cilley v. City, 2 W. L. B. 135; Ketchum v. Duncan, 96 U. S. 659; Steel v. Smelting Co., 106 U. S. 447; Bispham Equity, sec. 289; New York Rubber Co., v. Rothery, 14 N. E. R. 269; Fox River Co. v. Kelly, 14 N. W. R. 744; Burbank v. Frey, 65 N. Y. 57; Dixon Co. v. Field, 111 U. S. 94.
    • Aaron F. Perry, for defendantin error, also, filed an exhaustive brief in the case. 3. D. Peck and Selwyn N. Owen, also, argued the case orally on behalf of the defendant in error.
   Dickman, J.

The Cincinnati Inclined Plane Railway Company was incorporated in the year 1871, under the act of May 1,1852, entitled, “ An act to provide for the creation and regulation of incorporated companies in the state of Ohio.” On March 30,1877, the legislature passed an act authorizing any inclined plane railway or railroad company theretofore or thereafter organized under the act of 1852, to hold, lease, or purchase, and maintain and operate such portion of any street railroad leading to or connected with the inclined plane as might be necessary for the convenient dispatch of its business, upon the same terms and conditions on which it held, maintained, and operated its inclined plane; “ provided, that no other motive power than animals shall be used on the public highways occupied by such street railway company without the consent of the board of public works in any city having such board, and the common council, or the public authority or company having charge, or owning any other highway in which such street railroad may be laid.”

In September, 1885, the Cincinnati Board of Public "Works adopted a resolution, consenting “ to the use either of electricity, cable or compressed air, as a motive power by The Cincinnati Inclined Plane Railway Company upon the highways in which the street railroads, connected with its inclined plane, and held and operated by it, are laid.” In October, 1888, the railway company, setting forth the resolution giving such consent, and stating that it had decided to use electricity as a motive power on its road, made application to the board of public affairs — the legally constituted successor of the board of public works — for permission to erect along the entire length of its road the poles, wires, and other appliances necessary to operate and maintain its entire line from Fifth and Walnut streets to the Zoological Garden, as an electric road. And thereupon, the board of public affairs, acting under authority of the act of March 30, 1877, and in furtherance of the grant made by the board of public works, granted the application of the railway company, upon the following condition: “ 1st. The poles to be made of iron of "the size and pattern, and the wires to be strung in the manner as shown on the plan submitted to this board, and hereby approved.”

In February, 1889, in accordance with the provisions of section 3306 of the Revised Statutes, the stockholders of the railway company extended the northern terminus of its road at the Zoological Garden to the village of Glendale. And in March, 1889, the Board of County Commissioners of Hamilton county, by resolution, granted the application of the Railway Company to use and occupy the Carthage turnpike to its northern terminus, by double tracks, and with necessary appendages and appurtenances of an overhead electric railroad system, so as to enable the company to permit continuous, rapid, and safe transportation between Fountain Square in Cincinnati and the village of Carthage. A provision in the grant provided for the removal by the county commissioners, of any and all telegraph and telephone poles which might interfere with the operation of the electric road. This provision, however, was afterwards modified by the action of the commissioners, so as to locate the telegraph and telephone poles at the curb line.

The plan submitted to and approved by the board of public affairs is known as the “ Sprague Single Trolley Overhead System.” Under the supervision of the engineer of the board, the poles were erected and wires strung; —and about the beginning of June, 1889, the Railway Company had put its street railway in operation under that system, as far as the Zoological Garden; and at the commencement of the original action, was engaged in constructing its extension along the Carthage pike under the grant of the county commissioners, with the necessary appendages and appurtenances of the single trolley system.

In the Sprague System, the electricity used to operate the motors under the cars, is conveyed to them by a single overhead trolley wire, and a single arm or pole attached to the car, and carrying a contact wheel which runs along and presses up underneath the trolley wire. The current passes down the pole or arm to the switch apparatus on board the car, through the motors, thence to the wheels and to the tracks. It then passes back to the station along the iron rails of the track interlaced together by conducting wires, and finally connected by a conducting wire with the negative pole of the dynamo, the greater portion of the current flowing along this line of the track as the return current. Some portions of such current, however, are unavoidably diverted through whatever conductors are in proximity and which themselves have grounded circuits, but generally returning to the source in which it originated, by means of the metallic ground connection of the rails as extended by the wire to the dynamo.

The single trolley system is in use on nine tenths of the railroads in the United States using electricity. As compared with the double trolley method, it is deemed more simple, less liable to disarrangement, much cheaper, and not liable to accidents which would blockade the cars. It has proved successful, and its general adoption, with full knowledge of the double trolley method, furnishes strong proof that it is the most approved system. And, in the finding of facts by the court at general term, there is nothing in disparagement of the single trolley system in itself, but it is held objectionable because it includes the grounded circuit, which the defendant in error has adopted, and claims a monopoly of its use as against the Railway Company, as an essential part of its telephonic system.

It is evident, therefore, that the Railway Company derived from the legislature the right to use on its road other motive power than animals ; that it acquired the franchise of using electro-motive power; and eliminating from view the Telegraph Association, it is making lawful use of such franchise, in a manner authorized by the statute.

The City and Suburban Telegraph Association was incorporated July 1, 1873, as a telegraph company, with lines extending from Cincinnati to Hamilton, in Butler county, under laws since embodied in the chapter of the Revised Statutes, regulating “ Magnetic Telegraph Companies,” and containing section 3454, which provides: “ A magnetic telegraph company heretofore or hereafter created may construct telegraph lines, from point to point, along and upon any public road, by the erection of the necessary fixtures, including posts, piers, and abutments necessary for the wires; but the same shall not incommode the public in the use of such road.”

In 1878, the Telegraph Association became the licensee' of The American Bell Telephone Company, with the exclusive right to use all its patents in Cincinnati and certain territory adjacent thereto, and although organized as a telegraph company, entered upon the business of a telephone company. After obtaining the license to use the telephone, the Telegraph Association erected poles and wires upon the streets wherein the railway of the plaintiff in error is situated, and which was then being operated as a horse railway. These poles and wires were mainly erected in the years 1881 and 1882. But prior thereto, in 1880, the following section was added to the telegraph law: “ Section 8471. The provisions of this chapter shall apply also to any company organized to construct any line or lines of telephone; and every such company shall have the same powers and be subject to the same restrictions, as are herein prescribed for magnetic telegraph companies.” But, without this section making the provisions of the chapter relating to telegraph companies expressly applicable to telephone companies, we think that the term “ telegraph,” as a mode of transmitting messages or other communications, is sufficiently comprehensive to embrace the telephone.

It is thus apparent, that while the Telegraph Association was organized after the incorporation of the Railway Company, it had planted its poles, and strung its wires, and entered upon the business of a telephone company before the Railway Company had put its street railway into operation with electricity as the motive power; that permission, in due form of law, was granted to the Telegraph Association to place and maintain its poles and wires for the purpose of supplying telephonic communication to its subscribers in Cincinnati and vicinity, and also as a means of communication for its longer lines.

But, it is urged, that the franchise of the Telegraph Association to construct lines of telephone is greatly impaired by reason of the single trolley railway using a grounded circuit, whereby, a large part of the electric current flows off from the rails to the surrounding earth, and to and upon all telephone wires which may be connected with the earth in proximity to the railway. The action is described as conduction, causing more or less of electric current to be poured into the earth and into all electric conductors connected with the earth, thereby reaching telephone wires in a grounded circuit, and creating loud and continuous noises upon the wires, which disturb telephonic communication. This disturbance, however, results not solely from the earth circuit of the Railway Company, but also from the fact, that the defendant in error likewise relies upon the earth for its return circuit, by connecting with the earth the end of its wire furthest from its electric batteries. The telephone wires are carried from the phones of subscribers to the gas pipes in the rooms wheré the phones are located, or to water pipes, or to the earth, in order to make a complete circuit. The interference, moreover, with the operation of the telephone, is said to be largely attributable to the delicate mechanism of the telephone wires and phones. The wires, being designed to carry the extremely small current needed for telephone transmission, are too small in size to carry successfully the strong current passing into them from electric railways.

It is claimed, that in addition to this conduction or leakage disturbance, the single trolley electric railway introduces serious disturbances on telephone lines by induction, for the reason, that such electric railways employ large wires to convey the current used for the propulsion of their cars, and this current is constantly and rapidly changing its strength ; that these rapidly changing currents in the electric railway wires induce disturbing currents in parallel telephone wires near which the electric railways have been built, and thus prevent a successful transmission of telephonic messages.

These interferences with the telephone service may be obviated, it is stated, by the Railway Company giving up the single trolley system with the ground circuit, and substituting the double trolley system with its two trolley wires, two trolley wheels, and electric current passing from one wire through one trolley, through the motor, back through the other trolley to the other wire, and so back to the generator, without escaping to the earth. The grounded circuit, it is insisted, should be abandoned and surrendered to the sole use and service of the defendant in error. But, it is admitted, that other remedies of the telephone disturbances may be easily obtained by constructing the telephone with a complete metallic circuit, or by resort to what is known as the McCluer device, consisting of a single return wire, to which a number of telephone wires are attached.

Conceding that the mode adopted by the Railway Company of propelling its cars by electricity is an interruption to the telephone service of the defendant in error, and calculated to impair its franchise in the manner contended, the inquiry is suggested, whether the Railway Company must yield up a useful franchise that the same may be exclusively enjoyed by the Telegraph Association, or whether the Association shall adapt its system to existing- conditions; whether the Company shall change from the single to the double trolley system, from the grounded to the metallic circuit, or whether the Association shall use either a complete metallic circuit, or resort to the McCluer device. It is immaterial on which party the expense of the change may fall the more heavily. It is a question of legal right, and'as remarked by Lord Hatherly, L. C., in Attorney-General v. Colney Hatch Lunatic Asylum, 4 L. R. Ch. Ap. 153, “ the simplest course, as far as regards the administration of justice, is to ascertain-the exact state of the law which regulates the relations of the parties; and, having done so, to proceed to act on it, without any reference to the difficulties of the case on the part of those against whom it is obliged to decide; leaving those parties to relieve themselves as they best can from the position in which they have placed themselves, and if there be no other mode of escape, to cease to do the acts which occasion the wrong.”

When the Telegraph Association erected its poles and lines in 1881 and 1882, with the design' of conducting the business o£ a telephone company, it found the Railway Company operating its street railway with authority under the Statute to use other motive power than animals, to wit, electricity, cable, or compressed air, upon obtaining the consent of the board of public works. The telephone business was not among the probabilities when the streets of Cincinnati, now made use of by the Telegraph Association, were dedicated or condemned for the public use. The primary aud dominant purpose of their establishment was to facilitate travel and transportation; they belong from side to side and end to end to the public, that the public may enjoy the right of traveling and transporting their goods over them. The telephone poles, and wires, and other appliances, are not among the original and primary objects for which streets are opened, for, they may be placed elsewhere than on the highways, and yet accomplish their purpose. In Taggart v. Street Railway Company, 16 R. I. 668, it was said by Dttkeee, C. J., that telephone poles and wires are not used to facilitate the use of the streets for travel and transportation; “ whereas, the poles and wires of the railway company are directly ancillary to the uses of the streets as such, in that they communicate the power by which the street cars are propelled.” As a general rule, an occupation of the streets otherwise than for travel and transportation, is presumptively inferior and subservient to the dominant easement of the public for highway purposes, for if not so, the primary object of their dedication or appropriation might be largely defeated. And, the fact that permission is granted to occupy the streets or highways for a purpose other than travel, does not confer a prior and paramount right to occupy them to the exclusion of their use for travel in a mode different from what obtained when such permission was given.

The main purpose of streets or highways being to facilitate travel and transportation, new and improved agencies for effecting that purpose must be presumed to have been in contemplation, in addition to those in existence when the ways were established. To those improved agencies, devised for the convenience and advantage of the community iu general, the franchise of the telephone company to occupy the streets for carrying on its business, must be secondary and subordinate. “ The use of a highway for the purposes of a street railroad, involves the application of new appliances and modes of travel, rather than,of any new principle. In both; a corporation is employed and invested with rights in the highway; in both, an expenditure of money is required to put the road in a condition for use and to keep it in repair; but in both, the great leading object and public benefit is the accommodation of travelers, who may have occasion to use them at fixed tolls or rates of fare, and not the profit of the proprietors.” Ranney, J., in Street Railway v. Cumminsville, 14 Ohio St. 523, 545.

In the case Hudson River Telephone Company v. The Watervliet Turnpike and Railroad Company, 121 N. Y. 397, the right of the telephone company to enjoin the railroad company from operating its road by electricity under- the single trolley system, incidentally came under consideration. In delivering the opinion of the court, Andrews, J., after-stating that the use of a grounded circuit is not necessary to a telephone system, and that the substitution of the metallic for the earth circuit, besides obviating the disturbance caused by the defendant’s road, would promote the general efficiency of the telephone service, says: “ The plaintiff is but one of a large number of telephone companies which, under the general permission of the statute for the incorporation of telegraph companies, have erected poles and strung their wires in the streets of the cities and villages of the state. The claim that under this permissory grant they can exclude the use of the streets by electric railways, or for other street purposes requiring the use of electricity wherever the use of this agent interferes with the use of the telephone, although the municipality may consent and the public interest will be promoted by the other uses to which the streets are sought to be subjected, needs but to be stated to induce hesitation.” In the last entitled case, the telephone company erected poles for its wires, and perfected its system of telephone communication, several years before the railroad company substituted electricity in place of horse power for the movement of its cars.

The authority given by statute to a telephone company to construct its lines from point to point, along and upon any public road, under the continuing prohibition that, “ the same shall not incommode the public in the use of such road,” would plainly indicate an intention on the part of the legislature that the company shall exercise such franchise with reference to the comfort and convenience of the traveling public, and shall not, in any manner, abridge or impair the use, by the public, of the most approved methods of travel and transportation. And a reasonable interpretation of the statute would lead to the conclusion, that to impair the public enjoyment of an approved method of conveyance on the streets, would be in derogation of the statutory prohibition that the public shall not be incommoded in the use of the roads or highways.

The statutory permission to the Telegraph Association to construct its telephone lines along and upon the highways, was not, therefore, without qualification. But, whether the legislature had or had not imposed the condition, that the-public should not be incommoded, the Association, in our, judgment, acquired its privilege or permissory grant, subject to the duty of so changing and adjusting, when necessary, its system of operating its telephone lines, as not to curtail the enjoyment by the public of the best inodes of travel and. transportation upon the streets. Whether all who go on the streets shall have the most convenient and expeditious passage and carriage of person and goods, has not been made dependent upon the manner in which the defendant in error-has preferred to locate its poles, stretch its telephone wires, or form the electric circuit.-

It is in recognition and maintenance of the superior easement of the public in the streets, that city councils are re-, quired to “ cause the same to be kept open and in repair, and free from nuisance; ” that the streets are graded and paved, and proper regulations of police provided to govern the actions of persons using them; that the abutting owner, though having a peculiar interest and easement in the adjacent street, appendant to his lot, has no right to place permanent obstructions in the street, or do any act on his own land, outside the limits of the street, that will make the way inconvenient or hazardous, or less secure than it was left by the municipal authorities. Crawford v. Delaware, 7 Ohio St. 459; Elliott on Roads, 311; Mallory v. Griffey, 85 Penn. St. 275; Milburn v. Fowler, 27 Hun, (N. Y.,) 568; Dillon’s Mun. Cor. § 1032, and cases there cited.

In The King v. Russell, 6 East, 427, the right of the owner to load and unload his wagons in the highway before his. warehouse, was held to be entirely subordinate to the right of public passage, and must not be exercised in such a manner as unreasonably to abridge or incommode the latter right. The court say: “ The primary object of the street was for the free passage of the public, and anything which impeded that free passage, without necessity, was a nuisance. If the nature of the defendant’s business were such as to require the loading and unloading of so many more of his wagons than could conveniently be contained within his own private premises, he must either enlarge his premises, or remove his business to some more convenient spot.” As against the public easement in the highway, a telephone company that obtains the naked permission to locate its poles and wires along the streets, should, we think, stand on no higher vantage ground than the owners of property abutting on the streets, who hold or acquire their property subject to all the consequences which may result, advantageously or otherwise, from any public and authorized use of the streets, in any mode promotive of, and consistent with the purposes of establishing them as common highways. *

This paramount easement or. estate which the public acr ■quires in the streets, carrying with it a special interest in the adoption of the most approved systems of modern street travel, cannot be made subservient to the telegraph or telephone when admitted on the highway, without the clearest expression of the legislative will. In Hickok v. Hine, 23 Ohio St. 523, it was held, that when the legislature has power to require one public easement to yield to another more important — a fortiori where the other is inferior — the intention to grant such power must appear by express words, or by necessary implication; and such implication arises only when requisite to the enjoyment of the powers expressly granted, and can be extended no further than such necessity requires. We fail to discover any authority, either express or impliéd, to subordinate the public easement in the streets to the privileges exercised thereon by the Telegraph Association, under the general terms of the statute permitting the erection of ■ posts, piers, and abutments necessary for its telephone wires, and especially when coupled with the condition, that the same shall not incommode the public in the use of the highway.

The demand made by the Telegraph Association is, not that the Railway Company shall so modify its existing electrical apparatus as not to interfere with the telephone service, but shall forever abandon the use of an essential part of its electro-motive system, or be perpetually enjoined. In other words, the Association claims the exclusive use of the grounded circuit, inasmuch as the mechanism of the telephone is so Complex, and the electric currents employed so delicate and sensitive, that they cannot be used without disturbance from the heavier currents employed by neighboring electrical enterprises that operate with the grounded circuit. We find no foundation for such an exclusive franchise or right. When the Telegraph Association began its operation under the- telephone system, neither the statute authorizing it! to erect and maintain poles, wires, and other necessary fixtures, nor the ordinance under which it obtained the power to-extend its lines in the streets, gave an exclusive right either to '-use the earth for a return circuit, or a complete metallic circuit formed by double wires. The legislature did not grant the right by general enactment, nor was the municipal Corporation empowered by the legislature to give the Telegraph Association the exclusive right to make use of its streets so as to create a monopoly. In State v. Cincinnati Gas Light and Coke Co., 18 Ohio St. 262, it was held, that a municipal corporation cannot without clear legislative authority, grant an exclusive right to the use of the streets for certain purposes to an individual or corporation. To enable it to grant such an exclusive right by ordinance in the nature of a contract, the power must be shown to have been expressly granted, or to be so far necessary to the proper execution of the powers which are expressly granted, as to make its existence free from doubt.

■ In the year 1838, Professor Steinheil made the important discovery of the practicability of using the earth as one half, or the returning section of an electric circuit. Professor Morse claimed to have made the discovery about the same time, but he failed to obtain a patent therefor. It was the discovery of an elementary principle of science, of a truth in physics, of a law in the operation of the forces of nature, and was not bounded by the trammels of the patent law. For forty years before the telephone was discovered, the use of the earth as a conducting medium in the formation of an electric circuit, had been the common property of any electric enterprise. By what grant or title, then, did it become the especial, peculiar and exclusive franchise of the Telegraph Association ? As it did not originate in legislative or municipal grant, so, such exclusive franchise did not spring from priority in its exercise. Where a right is common and universal, and capable of being exercised by all at the same time, there is no applicability of the rule, that he who in its enjoyment is prior in point of time is prior in right. He who is first in the field does not thereby gain a monopoly of use.

■ It is contended, however, that the defendant in error, by virtue of its grants, acquired, before the Railway Company had a right to use electricity as a motive power, a vested interest in the telephone system as it now operates it, with a grounded circuit, and that not even the legislature of the state could take away from it or injure this franchise, on the faith of which it has expended its capital and labor. Special privileges or immunities are under the control of the legislature. If granted, they may be altered, revoked,, or repealed by the general assembly. Art. 1, see. 2, of the Constitution. And, while corporations with valuable franchises may be formed under general laws, all such laws may, from time to time, be altered or repealed. Constitution, art. 13, see. 2. In view of these constitutional provisions, it is clearly within the power of the general assembly to authorize one class of corporations to use in the streets, electricity with the grounded circuit, as a motive power, and another class to employ the same or a similar agency for the transmission of telegraphic or telephonic messages. And, if the proper exercise of the rights granted to the one class under general law, is irreconcilable, and plainly interferes with a prior grant to a corporation of the other class, it may be construed as the intention of the legislature to deny an exclusive franchise, if not to repeal the antecedent grant.

In considering the advantages conferred upon them by the grant of their corporate rights, it is evident that the primary object or design of the state in granting the franchises of telegraph and telephone companies, is, in a large measure, to subserve the public benefit and convenience, and not the mere pecuniary advantage of the owners of the corporate property. The exercise of their corporate privileges is subordinate to the accomodation of those who travel on the streets or highways — “the profit to the proprietors being a mere mode of compensating them for their outlay of capital in providing and keeping up the public easement.” Shaw, C. J., in Commonwealth v. Temple, 14 Gray, 69, 77. It is in contemplation of such companies being thus subservient to the promotion of the public convenience and welfare, that the legislature has granted to them the privilege, among others, of exercising the power of eminent domain, by entering upon any land, and appropriating so much thereof as may be deemed necessary, for the erection and maintenance of poles, piers, abutments, wires, and other necessary fixtures.

Having received their corporate franchises from the state, they hold them in implied trust for the benefit of the community at large, and subject to the constitutional grant of legislative power to control the exercise of those franchises, in the future, as the public good may require. A franchise, if granted by the state with a reservation of a right of repeal, must be regarded as a mere privilege while it is suffered to continue, and the legislature may take it away at any time, and the grantees must rely for the perpetuity and integrity of the franchise granted to them, solely upon the faith of the sovereign grantor. Pratt v. Brown, 3 Wis. 603; Cooley on Const. Lim., 472, (6 ed.) But in-the absence of such a reservation, its force and effect may be attained through the constitutional power vested in the general assembly to alter or repeal, from time to time, all general laws under which corporations are formed, and to alter, revoke, or repeal all special privileges or immunities that may have been granted.

In illustration of what we have said, is the case, Railway v. Railway, 30 Ohio St. 604. In that case, The Lake Shore and Michigan Southern Railway Company instituted proceedings to appropriate, for the construction of its railroad, the right and privilege of crossing with its track and way the track and way of The Cincinnati, Sandusky and Cleveland Railroad Company. It was the decision of the court, as set forth in the syllabus, that every railroad corporation in this state accepts its charter and franchises, and owns and uses its tracks, subject to the power of the state to authorize the construction of other railroads across its tracks whenever the public welfare may require. Neither the priority of one charter over the other, nor the prior location or construction of a railroad thereunder affects this right. Under the constitution and laws of this state, the right of one railroad corporation to cross the track of another in constructing and operating its road, is derived by grant of the franchise so to do from the state, and not by purchase or appropriation from the road first located and constructed. The latter has no vested exclusive right to such crossing for its use, against the right of the public, to a crossing. The court further held, that the railroad company, across whose track a right of way was condemned, could not recover for an injury to its franchise as a railroad; and that detention of trains, loss of future business, or additional expenses incident to the future exercise of its corporate powers, could not be taken into the account in estimating consequential damages.

. It is contended, however, in behalf of the defendant in error, that conceding the Railway Company and the Telegraph Association to be upon an equal footing on the streets and highways in the enjoyment of their respective franchises, the company is bound to conform to the rule sic utere tuo ut alienum non Icedas. In the view which we take of the relation to each other of the parties to the action, we deem it unnecessary to inquire, whether there has been a want of conformity, and to what extent, if any, on the part of the Railway Company, to the requirements of the legal maxim. Nor do we think it necessary to inquire, how far, the company making a lawful and careful use of its own property, or of a franchise granted to it by the proper municipal authorities, may be held liable for damages incidentally caused to the association.

From the undisputed facts in the case, as disclosed in the record and printed arguments of counsel, it is evident, as we have already seen, that the Railway Company acquired from the state and from the city of Cincinnati, authority to erect and maintain poles and wires in the streets or highways, and to use electricity as a motive power for its cars. Clothed with such authority, we have, upon weighing the allegations in the original petition, and applying to them the well settled principles governing the legal rights of the public in the highways, reached the conclusion, that the facts set forth in the petition are not sufficient to constitute a cause of action. We are of the opinion, that there has been no invasion of the rights of the Telegraph Association by the plaintiff in error, and that the Telegraph Association is not entitled to the relief prayed for in its petition. The judgment, therefore, of the superior court at general and special term must be reversed, and the original petition dismissed.

Judgment accordingly.