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THE

Law of Electricity

Including

Electrolysis, Electrical Injuries, Powers,
Duties and Regulation of Electrical Companies,
Eminent Domain, Taxation, Electrical Contracts,
Municipal Ownership, Abutting Owners, Interfer-
ence with Currents, Injuries to Appliances,
Conduits, Street Railways, Master
and Servant and Evidence

COVERING THE DECISIONS OF THE UNITED STATES,
ENGLAND AND CANADA

By
ARTHUR F._CURTIS

of the New York Bar, Co-editor of Street Railway Reports,
and Griffin and Curtis on Chattel Mortgages
and Conditional Sales

 

ALBANY,N. Y.
MATTHEW BENDER & COMPANY

INCORPORATED
1915
i ~O 26 FT}

Coprricut, 1915
BY _
MatrHew BEnvER AND CoMPANY, INCORPORATED.

13

J. B. Lyon Company
Printers and Electrotypers
Albany, N. Y.

 
PREFACE.

Tue Law or Exectricity, unlike the subjects of most law
books, does not cover a recognized branch of jurisprudence.
A book on such a subject, instead of treating of a definite
legal topic, discusses the law of a single force, and follows
the permeations of this force through the general rules of
the various branches of the law.

A judge or lawyer examining a text-book on the law of
Municipal Corporations, or Evidence, or Real Property,
or any one of scores of other subjects, expects to find
treated therein certain definite propositions of law and no
others. His expectations are, as they should be, anticipated
and fulfilled by the author. But obviously the situation is
vastly different when the work covers the rules applicable
to a single force, such as electricity, rather than following
some time-honored branch of the law.

A book on the Law or Etecrricrry must treat exhaus-
tively such purely electrical matters as Electrolysis, Elec-
trical Injuries, Powers and Duties of Electric Companies,
etc., and must also, to a certain extent, touch the law of
Municipal Corporations, Eminent Domain, Taxation, Con-
tracts, Franchises, Streets and Highways, Abutting Own-
ers, Nuisances, Street Railways, Telephones and Tele-
graphs, Negligence, Master and Servant, Evidence, and
many other subjects of lesser importance. The mere state-
ment of the various sources of the material, necessarily
implies that not all the law relative to such branches can
be included in a work of this nature. To treat exhaustively
all the law of Municipal Corporations, of Master and
Servant, of Evidence, and of Contracts, even neglecting the
many other subjects referred to, would require the -publi-
cation of a set of books comparable in weight to our modern
encyclopedias; and, when prepared, that part of the law
directly involving the electric current would be submerged
in the flood of legal learning.

Thus it is, that the purpose of a work such as this is
fulfilled when the well-known rules of law are applied to
the electric current. To illustrate with a specific example,
a question arises as to the effect of a contract between an
electric company and its consumer. It is evident that it

[iii]
iv PREFACE.

may be of advantage to the searcher to have before him
in one set of books the law of all kinds of contracts as
well as the law of electrical matters, but yet there are other
lawyers and other litigations, and he should not expect all
the law on collateral subjects in one book or in one set of
books. In this book is discussed the law of contracts
only so far as the law of that branch has been developed
and adjudicated by cases involving electrical contracts.

No little difficulty has been experienced in defining the
boundaries for a work on the Law or Exscrriciry. The
practice adopted by authors and digesters for a century
has established definite limitations on the scope of many
legal topics. But the Law or Execrricity is too modern
to have acquired an established scope. Clearly such a work
must cover all matters pertaining directly to the electric
current itself, and an earnest endeavor has been made to
extract from all sources all propositions of law relative
to the current. But how much farther is it permissible to
go? Street railway companies use large quantities of elec-
tricity for the moving of their cars, but not all street rail-
way law is electrical law. The law of street railways
includes many propositions, such as the payment of fares,
the eviction of passengers, transfers, collisions with travel-
ers, premature starting of cars, and others, which have no
place in a work on electrical law. In the same way, the
law of telephone and telegraph companies must be cur-
tailed, for only parts thereof find a place in a work on
the Law or Exsecrriciry. It is essential that this book
should include, not only the law of the force of electricity,
but also the law relative to those appliances which are
intimately associated with the current, such as poles, cross-
arms, wires, etc. But can the writer legitimately go fur-
ther? The temptation to pluck a flower just outside of
the boundary of the road may be irresistible, but, when
gathered, another equally attractive appears but slightly
farther from the main way. Thus, one may be led by
scarcely perceptible steps until he loses sight of his course.
It is, perhaps, not advisable that the traveler pass along
regardless of the situation in adjoining lands, for the way
is best understood when its environments are fully known.
But it is always to be remembered that a definite journey
is to. be made and that diversions into by-ways, except
under unusual circumstances, are not advisable.

Dexa, N. Y., April 5, 1915.

Artruur F. Curtts.
 

 

TABLE OF CONTENTS.

 

 

[v]
TABLE OF CONTENTS.

 

 

 

 

 

 

 

 

CHAPTER I.
INTRODUCTORY.
PAGE.

SECTION’ 1. Hl6Ctrigity: co c2.55 @ wewin ec pads baw dad ve Mlaw oe Hr Kae ee 1
2. Nature: of iii cce ci nngacanig ne tees tps aR eee ea ek Hoes 2
3.2 —==)As) Property is du sees meee s anne eek ae eee we ee we eale sy 6
4, —— As a Subject of Larceny.......... 0... cc cece cece ees 7
5. Electric Companies; in General............-... 0. cece eee 8
6. —— As Quasi-Public Corporations.............. 0.0. eee eee 9
7. As Manufacturers 1.0.0.0... 0. cece sec e cece eens eeeenee 9
8. Street Railway Companies.......... 0... c cece eee e eens 19
9. Telegraph and Telephone Companies; in General............ 20

10. Contrasted: ..ccidds annie oe seed 14a eee Bae eee Gee des 20
11. —— “Telephone” as “Telegraph ”............ce cece evens 23
12. cAPplAnees Sideciaie.« a diadsi ca aa Mianewalw te Mee eae Anne Bae 27
‘13. As Real or Personal Property............:eseeeeeeeaee 28
14. Use of Electricity for Effecting Death of Criminals.......... 32
15. Electrical Terms Defined...... 0.0... ccc cece eee cee cece eee 34
CHAPTER II.
POWERS AND DUTIES OF ELECTRIC COMPANIES.

GEcTION 16. Incorporation ....... 0 cece cece cee cere tee een eet enenes 40
17. Powers; in General o.oo eiiccs ee ice ccs nese aerate eee sued wae 41
18. Power to Supply Current; in General............000. sce ee 42
19. Gas Company’ «02.464 sedan cette tad y saa tanta cea 42
20. Street Railway Company..........0.0eccceeeee scenes 43
21. —— Telegraph and Telephone Companies.................. 44
22. Corporations Dealing in Appliances.................06 44
283. Territorial Limitations ...........0 0: cece cece nent eee eeeeee 45
24. Operation of Street Railway........ 0... c cece cece eee eens 47
25. Furnishing Light and Gas........ 0... ce cece cece eee eeeeee 47
26. Manufacture or Installation of Electrical Appliances........ 47
27. Use of Water Power to Generate Electricity................ 48
28. Rates ......... Bia ccs aang ehbusin sit Grass d dno: sesne Steg Reker ese NR EES 49
29. Minimum Charge ......... cece cece ee cence ent nneees 51
30. Restriction of Competition.......... 2.00 cece cere eeee 53
31. Consolidation ........ 0. ccc ee eee ete eee e eens badieais 55
32. —— Purchase of Stock of Rival Company.............seee 55
33. Mortgage of Property............-+--ee eee esate eae 56
34, Franchises .............+ Sas Dacti calle) subd a tyuilages avasivasaasacs inca euatiacnes © 57
35. Eminent Domain ............ cece cece teen een e eee ceeees 58
viil

TasLe or CoNnTENTS.

CHAPTER III.

DUTY TO FURNISH CURRENT WITHOUT DISCRIMINATION.

SECTION

SECTION

36.
37.
38.
39.
40.
41.
42.
43.
44,
45.
46.
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.

57.

58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.

70.
71.
72.
73.
74.
75.
76.
77.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In, General: os -siue see ov sage as wea wanes eekleelyeeeranegens 59
Municipality Owning Electric Plant........-.........000. 61
Discontinuance of Business.......... 0... ccc eee ee eee ee eee 62
What Constitutes Discrimination; in General.............. 65
Difference: sin, “Rate csscsiecnewpaaaw x steeaeulacseesers siete ga 65
—— Experimental Contracts 1.2.0.0... 0... ee eee eee 66
—— Contract and Meter Classes of Patrons................ 67
—— Discount to Customer Furnishing Lamps.............. 68
Procurement of Right of Way to Customer’s Premises.. 68
—— Furnishing Transformers ................00 02 eee eees 69
Excuses for Supplying Current; in General................ 69
Violation of Company’s Rules................0000 eee 70
Defective Interior Wiring................ 00.0 eee 72
==— Absence: of Contracts sc: ces wesae cucu. cua beat Las 73
Nonpayment of Rates.......... 0... c eee cee eee eens 73
Waiver Of EXCUs@ ccc cc1-olsiuen vedelnln tance ea eed ars 74
Remedies; Mandamus ........... 0... cee cee cece ee eeeeeee 74
Injunction: csieoduicnnes tga eg wag wee eae Ree aee MeeNS 74
—— Damages for Failure to Serve...............2.20.000- 75
Recovery of Difference Charged and Customary Rates.. 75
Penalty for Failure to Furnish Current............... 17
CHAPTER IV. .
EMINENT DOMAIN.

Eminent Domain is a Sovereign Power.............00..0000 80
Constitutional Limitations ......... 00... cc cece eee eee ee 81
Legislative Questions .......... 0... cece cece ccc e ee eeeees 84
Discretion of Company...........-.... cece ccc eee eee eee 84
Furnishing Electricity as a Public Use; in General Be ue 86
Lighting of Municipal Streets...................000. 91
—— Operation of Railroad................ 02... ccc cece 92
-——— Delivery of Current to Other Electric Companies...... 93
—— Not Necessary That Every Inhabitant Be Benefited... 94
Service to Inhabitants of Another State............... 95
Combination of Private and Public Uses.............. 96
Right to Condemn is Strictly Construed................... 100

Corporations Entitled to Exercise; Statutory Delegation of
Power 1s) Required... cccsecins guchacine nee j asa wamny wees 101
Electric Companies .......... 00... 102
—— Municipal Corporations ........................00000, 105
—— Foreign Corporations ................. 0... cece eee ee 106
—— Street Railway Companies................-......0-0, 108
—— Telegraph Companies ............ 0... cece cece eens 110
—— Telephone Companies ............ 0.0.02. cceeecuueee 111
Lessees of Public Service Corporations................ 112
Prerequisites to Exercise of Power...................0000- 113
TasLe oF CoNnTENTS. ix

 

 

 

 

 

 

 

PAGE.

Section 78. Prerequisites to Exercise of Power; Municipal Franchise... 113
79, —— Contracts for Furnishing Service..................00. 114
80. Municipal Regulation .............. cece eee eee eee 115
81. Necessity of Taking............ cece cece cece reece eee 116
82. Property Condemnable; Water Power................-+05: 118
83. —— Location for Power Plant........ccceeeee eee e ee eee ees 121
84. Tranemission Line: .ics.scseescsaedesec eee cas ide ross 121
85. —— Railroad Right of Way...........-...... det Groauaiaiers 123
86. Rights of Owners Abuting Highway.................. 128
87. Property of Other Quasi-Public Corporations.......... 129
88. Petition or Complaint.............- Me Nas Was Gieale da dee pee 130
89. Damages; in General........ 0.0... cece cece ee eee eens 132
90. —— Telegraph or Telephone Line along Highway........... 134
91, ——Telegraph or Telephone Line along Railroad Right of

Waly so scentepse taney Aap ade. Bg ssdud Uaioe hetero oh aig Aa 136
92. —— Entry on Lands before Payment.............. 0.000 eee 142
CHAPTER V.
TAXATION.

SecTION 93. Poles and Wires as Realty for Taxation Purposes.......... 143
94, Taxable as “ Manufacturing” Companies.................. 143
95. Exemption from Taxation..........00.c cece ce eee eee ee 144
96. —— Exemption of Municipal Lighting Plant.............. 144
97. Patent: Rights: <siguis's campo sas bese bauieeeien Kadlees sede 145
98: Capital Stock: wa. icveceseseg ee vate seer ee Gass ee ewe Ra S 145
99. Mranchises: ., sa sox leere 24 Fons ce kad EN ace ae eR eee 145

100. License Fees for Poles.......... 0.000 e cece cee eee eens 146
101. Tax upon Receipts........... cee eee ee cee teens 150
102. Special Assessments 11.2.0... . cece eee eee tenn eens 151
103. Street Railway Companies............... 000 eee cece eens 152
104. Telegraph Companies; Analogy to Taxation of Electric Com-

panies: cic scorers vwee be seme ete sees neers eada vee eos 152
105. —— Tangible Property May Be Taxed by State............ 153
106. FP ANCHISE i555: 5 en wvietasieaiartin le sap ace easd outed DAG seman ete se Miasees 155
107. —— Capital Stock 6 ..cc0ii ss cease peace de bene e ena neae nae 157
108. Tax on Business or Occupation of Company........... 138
109. ——~- Charges upon Poles and Wires..............00 ee eeeee 160
110. —— Enforcement by Injunction Restraining Operation of

COMPANy 2 viene waxstela ante cea we Re Pek es Mae SEER 169
111. Telephone Companies ............. cece cece eet tee eee eee 169

CHAPTER VI.

CONTRACTS FOR ELECTRICAL SERVICE.

SECTION: 112. Tn General, o...65eciec sated ine sated 2 Ee Ba WES ES ENN a4 48 173
113. Monopolistic Contracts .............e000- Ai aurd eater essere 175
Ld, “Meter Rate: gace sictdin se Gere nes Maa ed oenee cals Gog Waa eee eal 175
115. Ascertainment of Amount of Current Used........... 176
116. Minimum Charge ........ 0.0 ccc ev eee eeeceneer eee eae ee 178
SECTION

SEcTION

SECTION

TasLe oF CONTENTS.

 

 

PAGE
117. Assignability of Contract.........ccsececeencereeceenes 178
118. Release of Company from Liability for Niepligense aglae Rear 180
119. Recovery by Company of Compensation..........--+-.++++ 181
120. Recovery by Customer of Damages............+-+00++- ee 183
121. Recovery by Customer of Over-payment..........--+.----- 185
122, Specific Performance of Contract.............202 eee eee 186
123. Injunction to Restrain Breach of Contract.........-....-- 187
124, Municipal Lighting Contracts............2.5+ esses eeeeee 190
CHAPTER VII.
MUNICIPAL LIGHTING CONTRACTS.

125, Scope of Chapters... cides isan os adeuss sues sus oaae sauce 191
126. Discretion as to Lighting Streets.............. cece ee eeee 192

127. Contract an Exercise of Proprietary, Not Governmental,
Powers .......+- Te Gavan & Graighetava SW Nlgre sO REE a COS 194
128. Power of Municipality to Make...........-.. 0. ce eee eee 195
129. —— Annexation of Municipality to City.............-.... 198
130. Validity of Contract... 2.0.0.0... cece cece ee ecco eens 199
131. Compliance with Formalities; in General...............-. 202
132. Who May Make Contract on Behalf of Municipality... 203
133. —— Municipal Officer Interested in Electric Company..... 205
134. ——Submission of Vote of Inhabitants.................. 206
135. —— Award of Contract to Lowest Bidder................ 207
136. Debt. Limit. 64.5 ssancsvsadees seew cs avedes vnme one dea e ee ae 209
137. Duration of Contract; Absence of Statutory Restriction.... 210
138. —— Statutory Limitation upon Period................... 212
139. —— Beyond Term of Officers Executing Contract.......... 214
140, EXCIUSIVENESS: io o-ciciciece ou eid os signin ee bisieie ee sreield 8 6 wimiee aie ar 215
141. Implied Contracts .......... cece cece cece cence eens 215
142. Special Assessments for Street Lighting.................. 217
143. Remedy of Company.......... ccc cece cece eee e eee e ce enes 218
144, Defenses of Municipality................ 0. cee eee eee eee 219
145. Taxpayers’ Action .......... cece eee ee eee eee e ee nnes 222

CHAPTER VIII.
MUNICIPAL OWNERSHIP.

146. General Observations ........ 0... cece ee cece eee e cc aane 223
147. Constitutional Questions ...... Tish iooUs beae Rete Eke eee 224
148. Statutory Authority for Municipal Ownership............ 227
149. Express Authority ........... 0. cece cece ee re Snare, a 228
150. Implied Authority ........... cece ccc cc eee e ee ttc eeaenee 230
151. —— Public Lighting ................. dekeeinentaaaaesss 230
152. Private Lighting ..........c cece eee cece cece cnet eens 233
153. Inherent Authority .......... cece ccc ee ccc n ccc eens 234
154, Municipal Ownership of Conduits.................. 0.005 236

155. Sale to Inhabitants of Surplus Power from Plant for Public
Wighting: -iaaecsegehogeum seda aeves Boe the Maden ebiaces oe 236

156. Grant of Franchise to Electric Company as Bar to Municipal

Ownership jc2csi-awtharebeaws deadaacaeadere codewe ones 238
SEcTION

SEcTION

SECTION

TaBLeE of CoNTENTS. xi

 

 

 

 

PAGE,

157. Purchase by Municipality of Plant Owned by Electric Com-
PONY: ios gcisien's Seek 05 ewe SoHE CaM ee aloe eNO ROR 240
158. Location of Power Plant ach. drosb Ena tovae Sok ashen Ber ala Drae Hiauaelovee 242
159, Furnishing Current for Operation of Street Railway....... 243
160. Right to Make Profit... ..... cece cece ccc e nec eee ences 243
161; Territory: ‘Served, ic) eakagcey sticedepawaed 4 4 wae 245 4a nak 244
162. Service to Nonresidents.............. 0. .e ee eeeee eres 244
163. Vote of Inhabitants.......... 0... cece eee cece ence eee eee 245
164. Debt Limit) ucswisa sree co saccdtoe bee Sh aawasian abemacces 248
165. Contracts for Construction or Equipment of Plant........ 250
166. Payments for Plant.......... ccc cece cece cece ee ee eens 251
VOT, == BOnd 8 sipesiteaah's gan o ee vanes panes seamed awakledns 252
168. —— Special Assessments upon Property Owners........... 253
169. Recovery for Current........... ccc cece tect eee cece ee eens 254
170. Employees Running Plant.......... 0... cece cece ee eeeeeeee 255
171. Grant to Others of Right to Use Municipal Poles.......... 256
172. Liability for Torts........ 0. ccc cece cece eee eteeettees 257

CHAPTER IX.
RIGHT OF WAY FOR LINES; POST ROADS ACT.
178. General Observations .........0 0s ee cece ener tence eeeees 258
174, Electric Lines Through Public Domain................... 259
175, Telegraph and Telephone Lines in Indian Reservations.... 261
176. Post Roads Act; in General.........0..e cece eee ba es seta 264
177. Constitutionality of Statute............ cece eee eee 265
178. —— Purpose of Statute... ... ccc ee eee eee eee eee 267
179. —— What Are Post Roads........cce ccs ce cc ec eect eaeuee 268
180. —— Effect of Statute....... cc. cece cece cece cect eee eee 270
181. ——-No Application to Telephone or Electric Companies... 275
182. —— Use of Materials from Public Lands................ 276
183. —— Rights not Transferable.............0 ee cece ee eeeeee 276
184. —— Priority of Government Messages..............00000. 276
185. —— Purchase of Lines by Government................... 277
186. Acceptance of Obligation to be Filed................. 277
187. Under or Over Navigable Waters; in General............. 278
188. Injuries to Vessels.......... 0... c cece eee eee e ee eeee 279
189. ——JInjuries to LineS.......... ccc ec cc cree eee e eee e reese 283
190. —— Over Rivers .....- ccc cece eee e eee ee ete ences 285
191, —— Oceanic Cables ......... cece cece eter eee eseeens 286
CHAPTER X.
FRANCHISES; IN GENERAL.

192. Primary and Secondary Franchises..............-...000. 288

193. Street May Properly be Used for Lighting and Communica-
TOMS ose veces seo eae Ss Wee ESS Wee nade y Asha 5 290
194, What Constitutes a Franchise..........-00 seers ee se eens 290
195. Necessity of Franchise; in General...............eeseeeee 294
196. Line of Individual along Rural Highway............. 297

 
xii TasLE or CONTENTS.

 

 

 

 

 

 

 

 

 

 

 

 

PAGE.
SecTion 197. Necessity of Franchise; Turnpikes.............0000--0+- 300
198. Rights Given by Franchise.........-....0eee seer cere eene 300
199. Protection from Impairment; in General...........-..-.- 302
200. —— Regulation of Company............ cece ceenneeeene 306
201. —— Discontinuance of Highway..........-+eeeeeeceeeeee 307
202. —— "aX On, ccc teeter Ieaesle se aigiayerse Dameron e awe tala 308
203. Grant to Other Companies.........00. eee e eee e eens 308
204, —— Municipal Ownership of System............-..+0000- 309

205. ——Injury to Appliances from Moving Buildings along
SETOGEEY oshcsciviews cinascnuase gue Raise cues dae A Manierdie SG eo ROSS 309
206. —— Grant Not Utilized.......... cc ccc cece ee ee eee eens 310
207. —— Enforcement of Conditions Annexed to Grant......... 311
208. —— Reservation of Right to Revoke............+2.+00- ,. 312
209. Transfer of Franchise; in General..............2.-+-006: 313
210. —— Ratification or Estoppel............ 0... cece teen eee 315
211. ——— Assignment of Part of Franchise..............++00+ 316
212. —— Mode of Transfer............2 cece cence cence enee 316
2138. Rights of Parties After Transfer................+464. 317
214. Forfeiture of Franchise; in General..............-...000- 317
215. Waiver’ of “Horfeiture is cciccsceeie seins cae ee eqn g parents 319
216. Function of Court..............02- settars: cuneen iain neha x 320
217. Surrender or Modification of Franchise.................. 321
218. Duration of Franchise...........-.. cece eee cece erences 322
219. Exclusiveness of Franchise; in General...............20.- 324

220. Implication of Power to Grant Exclusive’ Franchise
from Control of Streets.........- cece ccc e ee nett eee 329

221, Exclusive Feature Does Not Render Entire Franchise
VO1d: cides aimiercgeukuas Mage Sey eenunte elation maine 330
222. Exclusive as Against One Not Having a Franchise.... 331
223. Conditions Annexed to Franchise; in General-............. 332
224. —— Duty of Imposing Conditions.....................04. 335
225. ——- Waiver of Conditions............cc cee ce eee teenies 336
226; ———HstOppel. auiwi ss codsivomawe a osiamrniaeuwigg ewer ees 337
227. Enforcement of Conditions...................00.0008 337
228. BONG: sso hagisheecieaatan on Ginesa os RANA Be EON AR Eee 339
229. —— Duration of Franchise.............. 0.000 ccc eee eeee 340
230. Free Service to Municipality........................ 340
231. Liability for Damages............ 0.0... cece nae 341
BON, ——$ == POOR a. 2 2ilalisais da dndetssabaci once: da bpdesasle ae olnlcegtuth Soandvarenn aie aeteern etwas 341
2382 ary MATOS srs acniaaletun ees dee nda aan aca nea equa BieeS 343
234. Percentage of Proceeds............. 0.0.0.0 cece ecaaes 343
235. ===" PowerPlant joe. ssisdesstars viii aiemneiercn baci acc ¥ ink. apeareraes 344
236. —— Rates for Service.............0 cece cece ence ese aaus 344
237. —— Revocation of Right.............. 0.0.00 cece ecu 345
238. —— Time Limit for Construction of System.............. 346
BO WATE tcc atiearticn ed eondehd muita aie vndhin Ydedaheaos aimee laeeetes 347
240. Remedies; Franchise Holder.............. 0. .cc ecu eae 347
D241 =" Stabe: ec-csuesine Seep eaemanin & WRRLRe tcameveck Sraieuer de waseaness 351
242, —— Municipality .......... cece cece cee eee cea e ences 351

DAB. -—-—— Taxpayers i.0d decid Weis aewenad uigiiha esuew ve Ratna 353
Section 244.
245.
246.
247,
248,
249,
250.
251,
252.

253.
254.
255.
256.
257.

SEcTION 258.
259.
260.

261.
262.

263.

264.
265.
266.

267.
268.
269.
270.
271.
272.
273.
274.
275.
276.

SEcTION 277,
278.

TaBLeE oF CoNTENTS. xiii

CHAPTER XI.
FRANCHISES; GRANTS BY STATE.

 

 

 

 

PAGE.
Franchises Emanate from Sovereign Power.............-. 354
Permission of State Board................eeeeeeeeee 356
—— Franchise Granted by Constitution.................. 357
Statutes Giving General Right to Use of Highways........ 358
—— Application of Such Statutes to City Streets......... 359
Grant Not to Incommode Publie Use of Highway..... 361
Statutes Giving Right along Streets................00000: 362
Statutes Giving Right Outside of Municipality............ 363
Legislative Grant ‘Subject to Control of Municipal Officers;

IM GENEL oo iiise Gee awa am aw sped t pS Gas BOE ee eee The 364
Municipal Regulation of Poles and Wires...........-. 366
Municipal Designation of Location...............0405 367

Special Charter Provisions in Particular Municipalities.... 373
Legislative Grant Subject to Consent of Abutting Owner... 373
Grant: BY COUT: 6: asccisions aa ues eiateiese oS ocsse aia e orarei wey maee 375

CHAPTER XII.

FRANCHISES; MUNICIPAL GRANTS.
cope: Of DiscussiOMls i. 6ie sveis vse aves Foi Secs BAS Sige oes Wee a 377
Grant of Franchise, a Legislative, Not Proprietary, Act.... 377
Right to Grant Depends upon Delegation of Sovereign

 

 

 

 

Powers: in: Getieraly oes sasavs o26h dos ete ie kanes 379
—— What Constitutes Delegation of Power............... 380
—— Municipal Power Subject to Consent of Abutting

OWNEDS f55 0 bdr ead biG sieia oi aSae ee eaae Bel saa ares 382

‘Subsequent Grant of Authority as Ratification of Prior

Grane Corrie os Me yeaah en wem tie euaee aja 383

Modern Tendency of “ Home Rule”.................. 333
Grant to Corporation Not Organized.................0005 384
Power Conferred on Municipality After Aeeenvanee by Com-

pany of Statutory Grant........ 0. ccc eee eee eee 385
Effect of Annexation of One Municipality to Another...... 385
Necessity of Designating Location of Poles............... 386
Body or Officials Authorized to Make Grant............... 387

Delegation by Municipality.................. cee eee 388
Procedure for Granting Franchise; in General............. 388

Sufficiency of Resolution... ........ 2.005 e cece eee eeee 390
—— Approval of Board of Estimate...................4. 391
—— Approval of Inhabitants............ cc cece cece ee eee 392
—— Sale of Franchise........ cc cece cece cece ence e eects 393
Proof of Franchise.......... 20. cece cece ee tees eneennens 395

CHAPTER XIII.

ABUTTING OWNERS.
General Observations ........ ccc ce cece cette tence eens 397
Conflict of Opinion as to What Constitutes Additional Servi-
TUdE wes doe ssescied ook Gwe tu die yee cane Gea ie seas cals 399
xiv

TABLE OF CONTENTS.

 

 

 

 

 

 

 

 

 

 

 

 

PAGE.

Sxction 279. Distinction Between City and Rural Highways........... 400
280. Electric Lines as Additional Servitude; in General........ 403
281. —— Public Lighting ......... 2... cee cee ee eter e eee eee 405
282. Private Lighting ............ ec cee ee ence e eee eeeee 408
283. Street Railway as Additional Servitude...............+-- 410
284, Telegraph and Telephone Lines as Additional Servitude; in

GONG oeccaoroe cacao ee Dies See ane tas OES G 410
285. View That Line is Additional Servitude.............. 415
286. View that Line is Not Additional Servitude.......... 416
287. Telephone and Telegraph Contrasted..............4-. 418
288. Conduits ..........02..00 eee 2a tied 8 4a dine Yi Wine s-« eeesntee ae 419
289. Fee Not Owned by Abutting Owner............ 00: see eeees 420
290. Absence of Franchise.............. ccc cee erect cece eeee 422
291. Special Damages Sustained by Adjoining Owner........... 424
292. Obstruction to Ingress and Egress..............0000- 427
293. Shade Trees; in General..... abana areca te a ANS eh nl aeRO 430
294. ——- Extent and Mode of Cutting Trees................... 432
295. Damages: cea views s cameos dese sees ees was CeRE < oe 433
296. Remedies of Abutting Owner; Ejectment.................. 437
297. Injunction ........... dsb araeiSiwa $5 Ayes, B29 Guna SANS ac 43y
298, DATARS ER: aoe oc ananthe: 6:0 cehsue 68 scat eras @ eed! oiolg, ws araiteas! weapons Wana 44]
299. Rights of Subsequent Purchaser................0eee eee 442
300. Consent pf Owner to Construction of Line................ 443

CHAPTER XIV.
LINE ALONG OR ACROSS RAILROAD.

SECTION 301, In: Genetal) jpcscv tgs cima 4 gigas pee so meee ins. ds SUS 447
302. Grant by Railroad of Right of Way................. 0.05 449
303. Additional Servitude upon Owner of Servient Estate... 450
304. Railroad Entitled to Compensation...................00. 453
305. Expiration of Grant........ 00.0 cece cece e eee eas 454
306: —— Title to Appliances upon Expiration................ 455
307. Maintenance of Telegraph Line by Railroad............... 456
‘308. Personal Injuries; in General...............00.00 cee eee 457
309. Liability of Railroad.......... 0... cece cece eee 458
310. Liability of Owner of Wire.............. cece eee eee 462
311. —— Contributory Negligence .............. cece cece eens 463
312. Right of Railroad to Cut Wire Crossing Track............. 464

CHAPTER XV.
LINE OVER PRIVATE PROPERTY.

SECTION 313. General Observations ............00 ccc ccc sees cece cctece 465
314. Grant of Right of Way; in General....................08. 465
315. —— Construction of Grant......... 0... ccc cee ee eee 466
316. BICense? a.ags o.554 ign ey G4 whe € BAA ae HM a pa lamin ead baw 467
317. —— Free Service as Consideration for Grant............. 468
318. —— Proper Use of Easement Granted.................... 468
$19. —— Line along Easement for Water Main................ 469
 

 

 

 

 

 

 

TaBLE oF ConTENTS. XV
PAGE.

Sxcrion 320, Rights of Purchaser Subsequent to Erection of Line....... 470
321, Remedies of Owner; Removal of Line......... sade aauees 470
322. —— Damages ........eceeceseees a aaa NeR Raa aver Ne® «rveereays 471

CHAPTER XVI.
REGULATION OF ELECTRIC COMPANIES.

SECTION: $23. In. General... ccsvssansces ieee sedes vesvaned stave sarees 474
324, Reasonableness of Regulations............00cceeseeeeeeee 475
325. State Statutes ............ seine Se ee ea 476
326. Public Utility Commissions.......... 0.0... cee eeeee cece 477
327. Power of Municipal Corporations; in General.............. 479
328. —— Municipality Cannot Deprive Itself of Police Power... 481
329. Form of Regulation........ 0.0.0 eee e cece cece eee eees 481
DBO es RAGS a5 6.8 86a eos desu “adn eoepresanena cob ay huauena ocahaad ace 481
331. Matters Which May be Regulated; in General............. 483
B32. —— = Boles: a siaisccncdeaeaveg ta eielalaay obaadag awed teem pees Gages ASE
BOSe SS WARES. eslinin es paiats catecenre WRU Fe siholas Se epdie Sew NeHEE 485
B84. = ates: sisas said Fa Ga LE SO ee ENE ree es Sew a EGE oe 486
335. Blectricians ..cs0e sss sas vaws ectow tea saws ease ce 489
336. Street Railway Companies............:cccceceereeeeeeee 490
337. Telegraph and Telephone Companies.............ceeeee- 491

CHAPTER XVII.
CONDUITS.
SECTION 338. In General ociiseci css cei vedavseeew ves vcwwecwaws se nodews 496
339. Power to Compel Company to Place Wires Underground; in
Gemer a 234 cece ctracgcuastdpens atoeer are cecal wl taneous eras 497
340. ——— When Requirement is Unreasonable.................. 500
341. Electric Wires Distinguished from Telephone or Tele-
graph Wires) ccs asice cos ache sod Roe eeaie se Oradea Eee wens 501
342. Municipal Ownership of Conduits.............. cc cece anne 502
343. Corporate Ownership of Conduits; Contract by Municipal
Officers for Conduits.......... 0. e cece cece eee ee eee 504
344. Franchise to Construct Conduit..................00. 505
345. —— Excavations in Streets.......... 0c cece center eens 507
346. Duty to Permit Companies to Use Conduits........... 508
847. Injuries to Conduits........ 0... ec cec eset eee eenn ents 509
348, Injuries from Conduits......... ccc ee eeceetesceoerrence 511
CHAPTER XVIII.
INTERFERENCE WITH ELECTRICAL CURRENTS.

SecTION 349. General Observations ..........ceeeee ee ee erence eens 513
350. Electric versus Electric Company; in General............ 515
351. —— Limitations on Prior Occupant’s Rights.............. 517
352. Later Company Engaged in Public Lighting.......... 518
353. Remedy by Injunction... ........ 000: ee eee ee eee cece 519
354. Telephone versus Telephone Company............-...... 520

355. Telephone or Telegraph versus Street Railway Company; in

General: esieiie be suns ee. Fee Boa a wtagass dad Stadio aeeravacncdve ds
XVi

SECTION 356.

SECTION

SECTION

SECTION

357.
358.
359.
360.
361.
362.
363.
364.
365.

366.

367.
368.
369.

370.
371.
372.
373.
374,
375.
376.

377.
378.
379.
380.
381.
382.
383.

384,
385.
386.
387.
388.

389.
390.
391.
392.

TaBLE oF CONTENTS.

 

 

 

 

 

 

 

 

PAGE.

Telephone or Telegraph versus Street Railway Company;
Different: Views: <6 0cccseyr creas vai saanssnalgs ceed eveees4 527
Negligence of Street Railway Company............--- 528
Contact of Lines.......... eee ee ee eee eee nents 530
—— Effect of Municipal Regulations............----++++- 530
—— Remedy by Injunction...........cce cece eee eeeeeeee 531
Telegraph or Telephone Line not along Highway..... 532
Telephone or Telegraph versus Electric Company; in General. 534
EIN 1 rn C6 sce -stae seyret has aes attests oe SOS 535
CONdUItS: npsesigam eras sdeware axe paTneE Remo sreRIOS 535
—— Injunction ...............-...065. bbeedenatbe asa 536

CHAPTER XIX.

INJURIES TO LINES.
AniGOnerall 5 see sie shieneaperiguenccuar ea oasible tasers Weasels 537
Criminal Diability  sgecmes st0:vus a vediies Sudawie tings ee des 538
Removal of Wire Crossing Railroad Track................ 539
Moving Building along Street; Moving Building an Extraor-

dinary Use of Street.........- 0.0 cece eee eter tee eees 541
— Injury to Street Railway Line..................6..- 542
—— Injury to Electric Line............ ccc cece eee 544
— Injury to Telephone Line................ 0. cee ee eee 545

Negligence of Building-Mover............-..--.0 eee 546
—— State or Municipal Regulation of Building Moving.... 546
—— Injury from Wires to Person Moving Building....... 548
—— Contract to Move Wires...... 0... ce cece ee ee eens 549
CHAPTER XX.
ELECTROLYSIS.
Defined) 2. siscisine dies tema ae erst webiet nasties asc ayninnlet 550
A Question of Minor Importance....................00005 551
Result of Negligence..........-. ee cece cence eee te eeee 551
Puntion Of COUPMB 1 isc newer ratings aed den ee eae 552
Complaitiing: Party® 3c ssconsay ion eciauins wer awe seoeedexattras 553
Responsibility of Other Railways Not a Defense........... 554
Expert Testimony ................. tier Acsuatonerm betes oedigy 554
CHAPTER XXI.
STREET RAILWAYS.
Scope of Discussion.............. cee cece cece ence ceeuee 555
Electricity as Motive Power; in General.................. 556
Permission to Use Granted by Municipality.......... 559
—— Charter Power of Company to Use Electricity........ 561
Delegation to State Board of Power to Permit Use of
Electricity’ scasnveaicesen seeedsveaies,veawna due moecea een 562

 

Distinction Between Railroad and Street Railway.... 562
Injuries to Passengers; in General
— Electrical Explosion ............ 0c. cece cece eee aee 564
—— Electrical Shock

 
TaBLE OF CoNTENTS. xvii

 

 

 

 

PAGE.
Section 393. Injuries to Passengers; Collision with Post in Proximity to

SDR ACK; caved vignettes aot O i et eee ae a oats Be ae ay 573

394. PROMCY? POLS: swicki errs Gieseio ts Rial A wins Wa ethos ale eaten BY 577

395. Ownership of Cato. coecccnsdenicvae eee ade eee y es 578

396. Injuries to Travelers; in General.......... 0.02.20. 00 0000. 578

397. Third: Rail. csss-vcs see e cena cere dee setae e ceateenes 579

398. Cale sSlOt: sc dacdre haus d tye Ate ON aah sh Sie eas cadigca secant Bos 581

399. Injuries to Employees........ 0... cee ccc eee eee 582

CHAPTER XXII.

INJURIES TO PERSONS AND PROPERTY; DUTY AND LIABILITY OF

ELECTRIC COMPANIES IN GENERAL.

 

 

 

 

 

 

 

 

 

 

 

 

 

Section 400. Eleetric Company Not an Insurer; in General............. 5383
401. Rule ‘in Kentucky .::.:::+.se0sssweesea ceerees series es 587
402. —— Rule of Rylands v. Fletcher..............--....005 589
403. —— Analogy Between Electric Companies and Keepers of

Ferocious Animals ........ ccc cece cece eee e ee eee eee 590
404, Degree of Care to be Exercised by Electric Company; in

General issues seca oe it hace oa eknane ewes eee Cos Ya 591
405. Ordinary ‘Care 2: cs.cccssws eeu ss awe eee seiees 595
406. Extraordinary Care: sinus sacsad ores e's eee ces stars 600
407. Contractual Relation Not Essential to Liability........... 605
408. Duty as to Customers........- 0... c cece ce eee eee nees 606
409. Persons on Customer’s Premises...............---0- 610
410. Duty to Children... 0.0.0... 0. cc eee cc cece cee eteeee ence 611
411. Duty to Telephone or Telegraph Company; in General.... 612
412. —— As to Dangerous Currents of Other Companies........ 612
413. ——As to Customers......... 0. cee ccc ccc cence ene 614
A414, -——===AS, to TYAVGlGR Ss sicciais.e susie’ oes graces ine wierd 6 aos bupue ara danas 614
415. As to Persons on Private Property.................. 615
416. Liability Dependent on Ownership of Appliance; in General. 616
417. Defective Appliances of Customers.................. 618
418... Successors a: cs casev ae nie x oeetew ied ama tea was eda wees 622
419. Wires Permitted on Same Pole.............. 0000s eee 623
420. Violation of Ordinance; in General................000005 624
421. Ordinance Does Not Lessen Duty................04.. 626
422. Proximate Cause ...... ccc cere cece teen eee eeene 626
423. —— Advisability of Ordinance, Not an Issue............. 627
424, ——- Violation of Ordinance by Person Injured............ 628
425. Liability of Municipal Corporation; Injuries from Municipal

PIANG: occ teerke cee tations 28e Geet ee Te RA » 628
426. Care of Highways...... 0... c cece eee eee eee 633
427. Appliances of Other Companies................0005- 634
428. Nuisances; in General............ 0.0 cece ee ee eet 637
429, —— Power plant ........00 cece eect e ete ene tet eeneee 638
430. —— Appliances ......0. ccc cece cence ee tenets 641
431. ReLGE nsiecunnieie ne ae daiy ew umatlnea gaeieemel ian eee ee 643
432. Joint Tort-feasors; in General.......... 2... cece eee ere eee 645
433. Contribution or Indemnity............ 0.0 eee eeee 647
434, —— Release of Onésssiisaecisc cee icraessiaencees veered 650
XVili

SECTION

SECTION

SEcTION

TABLE oF CONTENTS.

CHAPTER XXIII.
PROXIMATE CAUSE.

 

 

 

 

PAGE
435. In General 1.0.0.0... cece eect eee eee tenner ne neneee 652
436. Concurring Negligence ............ esse eee cnet re eneees 654
437. Injury Not Anticipated; in General...............+-2+05- 655
438. Anticipation of Particular Injury Not Required...... 658
439. Unlawful Acts of Others............ 0.0 cece eee 659
440. Distance Unimportant .............0 0: e ce eee eee tenes 659
441. Intervening Agency; in General............. 200 ee ee eeee 660
442. Aetiof Godeucunuecuee sania e deine iowa Stee gree 661
443. —— Fastening Wire to Defendant’s Wire..............+.- 661
444, ——Intervening Act of Third Person..............+-065- 662
445, ——-Third Person Caring for Wire in Street............. 664
446. —— Interference with Poles........... Pha sbuahGuineiasnatnnay auenaes 666
447. —— Frightened Horses ..........,.. 002 sere e cette ener 667
448. After Time to Remedy Condition..................., 669
449. Primary Cause an Accident............ 0. 0c see e eee neces 669
450. Negligence Charged Not a Cause.............000 cee eee 670
451. Contributory Negligence .......... 0. cece eects 671
452. Function of Court and Jury.......... esc ee eee eee eeeee 671

CHAPTER XXIV.
ACT OF GOD.
453s Tn General 3 snsevciey sins 5. ara dA S encarta Viemoe tena BWaraens 673
454, Anticipation of Act of God.......... cece eee eee eee ee 675
455. Negligence Concurring with Act of God................... 676
456. Timely Repairs to be Made................ cc eee ec ee eee 678
457. Lightning; Conduction into Building..................... 679
458. —— Burning of Buildings in Proximity to Line.......... 682
459. ——Injury to Person Passing Near Wire................ 683
460» = LIC CNS CO: sain hiwiieereuswee nstadaewsenbins dupione nal 6383
461. —— Warning Not to Use Telephone During Storm......... 684
CHAPTER XXV.
TRESPASSERS AND LICENSEES.

462; Ini General) coca siesngs Hida wags stens ma ulew warns suns Lies 685
463. Licensees: wc ecess3e ee cia Seew ees Da R ER TEES EO sei GE stele dele 688
464. Premises of Electric Company................ 0000 cee eee 690
465;. Winemen’ scsi sadiedcamianre dion dane Ain ienateeR eeaen aR A . 691
466. Peace Officers ........ 5... cece cece cence cece cee e ee eeeees 692
AGT CMUAPEN: acisaiciainnara dos teasing geree ana gadeeesaseogarne 692
468. Doctrine of Attractive Nuisances; in General.............. 693
469. ——— Poles -sscaas nanan g Seeares Sede Aan mines er dareantons 694
4102 = WIPES) aiceniaeaomat eer oo asda Dueeawcde bain ee eee nants 695
471. ——Guy Wires ..... behaves: Face dee aE gansta Sew Newbee wee 696
SEcTION 472.
473.
474,
475.
476.
477.
478,
479.

480.

481.

482.

483.
484,
485.
486.
487.

488.

489.

490.

491.

492,

493.
494,

SEcTION 495.
496.
497.

498.

499.

500.

501.

502.

503.
504.

505.

506.

507.

508.
509.

TaBLE OF CoNnTENTS. xix

CHAPTER XXVI.
APPLIANCES; IN GENERAL.

 

 

 

 

 

 

PAGE,
In General 1.0.0.0... 0 eee cece eee ee Hi htanubsds via Wa anannuiasatiass 698
Inspection; in General... ...... 0.0... cc cece cee cee tetas 699
= SMUinICIPAlity: a cames annie os une eas Beaa aarRe awl gale ee ete 700
—— Sufficiency of Inspection.............. 0.0. c ee eee eee 700
—— After Storm .iccsscccaverieeeset tea ewadbeeki saan 702
Notice:ot Detects x <.idisac esuaseset aidinievasez pinvanaacPnnse ae avecni jonas 702
Repairs; in General................. Ghee eevee 703
—— Constructive Knowledge of Defects...............0.. 706

— After Creation of Condition for Which Company Is not
Responsible: jacc.t stresses age @ ak aya tie Seas aishe eaveng ancitranasione oe doaens 708
—— Negligence in Making Repairs..............-- 0.00005 710
—— Municipality ...... 0. c cece eee ee eee 710
Duty upon Discontinuance of Service...............00000% 711
Duty to Shut off or Turn on Current; in General.......... 712
—— Injury to Employees of Other Companies............. 714
In Case of Fir@ccncssnetoeneeenerioe ees des aairs saa 715
Poles; HOCstyeni as. sscicigins Acad eens eccdenrs Macca eae iecn and UeRSs 715
SOUNdHEES: sooo aria ot Grams aternas puree uaa aeeian Loan 720
— Abandoned Poles .......... cece cece cece cence eens 722
Crops ATMS ocx aenekiseeees Caples awivaeslan pans caer 723.
Blectri¢ SHOCK: as.c284 cassava aeons waa aren sig ewied Tee 724
FAN SLOV ICTS, as 6. ge, site cacs asa 4 sone vse sae derceasacasosuestigcecaniohincensun dedceas 725
Streets Wight so iiace <r sacsvasasa pines sie ataeonmnigudvaus eae see Gteaneapauace 727
TMGEPLOR! “WATLING hac scsi c tae Yolen tps) Brann veda oa honsaS Sab oo aintae, 729

CHAPTER XXVII.
WIRES.

Height); in. General) oiicnavdce-afeins vonage dasaieadiaweuass 733
—Falling ...... snnesea GeBiaid weave Seenles el Meuings alae 735
——Sagging .......... Eee Ne ATE Stee Tees Medea ae 742
Proximity to Other Wires; in General................... 744
Joint Liability ........ 6... eee eee ees . 749
Proximity to Other Objects.......... 6... c cece eee ee eee ee 751
SOUMAHESS: oi sucnirara ew eicwainasanaenaen dead Eaicudadlenaaroanaeasy ode 752
Erection of WireS............ ccc cece ene eens diate tena henigst 754
Ansulation. a5 diiews dice ccraanrer were Moai Wee aaa 6 754
Guy Wires; Location........... 0. cece eee eee eee eeee 755
Proximity to Charged Wires............... baieed mats 756
—— Encasement ...... ccc cece cette cece eter eeaseeas 758
Spank WATS) iia cisciaww aid arias nosiudin bisa eaate Meg uniamar 759
GUE A WATE  iceiiesavioner a) ais ctuctevitn dha iaedivei a) ahi shea ayer ciadapans Auth D'S) Seas 760
Dead or Abandoned WireS...........seeceeececereeeneane 763
SEctTrion 510.
511.
512.
513.
514,
515.
516.
517.
518.
519,
520.
521.
522.

SEcTION 523.
524.
525.
526.
527.
528.
529.
530.
531.
532.
533.
534.
$35.
536.
537.
538.
539,
540.
541.
542.
543.
544.

SEcTION 545.
546.
547.

548.

TasLe or CONTENTS.

CHAPTER XXVIII.
INSULATION OF WIRES.

 

 

 

 

 

 

 

 

 

PAGE
In General) wccdesanewswargengins Vas ew cigceeertine Rea Res 765
An Alternative Duty........66 0000s eee e eee ee eee eens 772
Insulation at Particular Places; Through Trees..........- 772
Side of Buildings..........---. ee eee eee eee eee 773
—— AWMEINGS 0... ee teen eens 775
— Roofs of Buildings...........--+ eect eet e eee ete 776
Bridges 1.0.0.0... 22 cece cece cece e ete ene e eee enas 778
—— Elevated Railroad ........... cece cece cree eee eens 780
AT POLES sasicinoco esata ne oR PORE SAS DE pe SE OE EEE 781
—— Between Poles ........ cece eee n eee e een e eet eeee 785
Near Other Wires...........0 0c ccc ceeeeee reer ee cries 787
—— Over Vacant Lots.......... 5. cece eee tener rece enes 788
—— Miscellaneous Places ...........seeeeeeeeee wiayeieesl ciate 790
CHAPTER XXIX.
CONTRIBUTORY. NEGLIGENCE.
General Observations ..........00 cc ccc e cece eee eee e eens 791
Burden Of Prootes, si06:0siisicin ee wagie cee Oey aie esate wala artee 793
In Case of Death........0cc.cccces tae en nase eeenes 793
Collision with Wire in Highway; in General..........-... 796
Failure to See Wire in Highway.................... 797
Knowledge of Presence of Wire in Highway.......... 799
Collision: With, POC ics crcenweas ead Covina np ecdiaotiaaatawinas 801
Touching Dangerous Appliance; in General............... 801
Knowledge of Danger an Important Factor........... 802
— — Knowing Danger of Appliance...................... 803
—— Not Knowing Danger of Appliance.................. 808
—— Negligence in Not Knowing Danger.................. 811
—— Apparent Insulation .............. 00. cee eee ee teens 814
—— Necessity of Touching Wire..................2.---- 815
Lineman Touching Wire When Grounded............. 816
—— Contact Between Two Wires...............-0+-+ ++ 817
Failure to Use Rubber Gloves.................0.0005 818
Injury from Interior Appliance..................0000000. 820
GHG ED 55ers pioteco save a pesinlgyernsipisiene swe avec We eae samen ote ed 822
Imputed Negligence 1.1.0.0... 0.0.0 cece c cence eee eee 824
Acts in Emergencies........ 2.0.0... 0. cc cece cece ee ce ees 825
Assumption of Risk... 2.0.2... ccc cee ce eee ences 826
CHAPTER XXX.
INJURIES TO EMPLOYEES.

General Observations .............. 0c cece cece e eee eee 828
Degree of Care to Avoid Injury to Servant................ 829

Duty to Furnish Servant Place in Which to Work; in
General) | cs tee sree aeials dant ydeaccnealanterwinn alas salelane SS reasiceinny 831

 
Section 549.

SECTION

550.
551.
552,
553.
554.
555.
556.
557.
558.
559.
560.
561.
562.

563.

564.
565.
566.
567.
568.
569.
570.
571.
572.
573.
574.
675.
576.
577.
578.
579.
580.
581.

582.
583.
584.
585.
586.
587.
588.
589.
590.
591.
592.
593.
594,

Taste or CoNTENTS. Xxi

 

 

 

 

 

 

 

 

 

 

 

PAGE,

Duty to Furnish Servant. Place in Which to Work; Poles... 836
Cross-aF iis Sysco eters Sadia wtswueal es cbtandiees eplede 838
A WIREE. sian as done’ cesee SonRee do keee Gee eee 839
—— Turning Current On or Off......20-..0.0...2000..5-. 841
—— Appliances of Other Companies..............--....0. 842
——Tnterior Witing «2. .e0ccs sew dea eee ene tad oe tena es 844
—— Street Railways ........ 0. 0c cece een ee eee e rescence 845
Duty to Furnish Servant. with Suitable Tools and Appliances. 847
Duty of Inspection; in General.........0.2.. 00.00 e cece ee 850
—— Poles and Cross-arms.......... 0.2 e ccc ee eee eee 853
—— Appliances of Other Companies.............. by an e3 854
Duty to Make Repairs... 2.00.00... cee cece cee eee es B55
Duty to Warn Employees... .. 22.2... - 200. e eee cence eae 856
Duty to Promulgate Rules. . ie ta tae neeuees yi par BOO
Duty to Employ Campetent: Worker, Sd Geeks Savers suede ances 861
Assumption of Risk by Servant; in Gemeral............... 862
== Defective. Pole: suo cs necue eget eee Guges cadens ser emss 865
= Crose-arms: siseee bs deee eats) ceses seed see ex sali s 869
Shock from Master’s. Appliances..........0..-..-000.000- 869
— Shock from Appliances of Another Company.......... 872
——'Street Railway Employees. ...........-...00 0c eee eee 874
Contributory Negligence; in General..................... 875
Failure to Use Rubber Gloves.................200 08 877
—— Use of Safety Belts... scsi is nca rcs aeee cs isen oocaeus 878
— Contact with Appliance Known to be Dangerous...... 878
Contact with Appliance’Not Known to be Dangerous... 879
Touching Wire While Grounded..................04. 881
—— Failure to Discover Defect in Pole................... 881
Disobedience of Master’s Orders.........-2....020005 883
Street Railway Employees............ 0.00. cee e eee 884
Acts in Emergencies..........05 00 secs ee este eens 835
Negligence of Fellow Servants..............ccceeueeaeeee 886
Independent Contractors .......... 0 cece cca ener ee ence 889

CHAPTER XXXI.
EVIDENCE.

Judicial Notice; in General.......... cece cece eee cece 892
Properties of Electricity... ....... 00. e cece eee eens $93
—— Danger of Electricity... 0.0... 0. ccc eee eee 894
— Generation and Transmission of Electricity........... 895
— Electric Lights 2.ccis cs ccad ceveiews ce ans cts eeae sees 896
iPnting .cccwaris see ake He one hea Meee Seca ey S 896
POLES saijsepicais wigiesorer dre Sand aay aanee) davagaay od, wn snabelds e-Mtwrenenthiva a 898
—— Electric Companies ............ 0.0 cece tee e eee eens 898
——Telephone and Telegraph..................00e ee euee 899
== Street: Rallwaye: sos cudiece ku Peis sade dae sees 900°
Res Ipsa Loquitur; in General.............. 00. c eee eeeaee 900
Relation between Parties........... cee cece eee eee 904
Ps WAN OR Sg Goes Maas ar sieneg gains eum eS Siam a gu ances 905
Xxli

SEctTIon 595.

596.
597.
598.
599.
600.
601.
602.
603.
604,
605.
606.
607.
608.
609.
610.
611.
612.
613.
614.
615.
616.
617.
618.

TasLe oF CONTENTS.

 

 

 

 

 

PAGE

Res Ipsa Loquitur; Poles. ..............00 2 eee cece ener 909
Street: Lamps) swe x vase nsec aeuiias eoyeaares ene 909
—— Interior Appliances ............ cece cece e een eee 910
Telephones) ics. s.ccic ie sonsastiass Laced Cesk a aor LIES SOE REE 912
—— Street Railway Operation...............eeeeee cere 913
Real Evidence: 46 sian sgcicangieisuniasan am nas aayend Salnecnecten 916
Hearsay; in, General siccicecices curs de ce seee seg pains eee 917
To Show Mental State.......... cee cece eee e ee cee $138
—— Res Gestz ...... Siti Rie Raawegs ewe Sela ee ewe See 919
= AGMISSIONS’..cseecsiiens s.donOO a ve ealbaea nde 4a aes ease ee 920
Expert Evidence; in General.............-00 22 eee eee eee 920
Competency Demanded ........ 0.020... cece ee eee eee 921
—— Relevancy Demanded ......-..... 00s eeee eee e eens 922)
—— Ultimate Fact for Jury......... 2... c cee ee ee ee ee eee 923
—— Propriety of Construction......... 00.000 cece e ees 923
—— Manasement .oiccscecerccniietcene cevaweners oaas es 924
—— Electrical ACtion: oo sis ec cis h8 cea sere ike og ere tne nde ease 925
Street Railways 1.0.0.0... 0. cece eee tee eee eens 925

Res Inter Alios Acta; in General..............2.0.00. 0005 926
—— To Show Mental State.............. 2. cee eee eee 927
—— To Show Cause of Accident................... 00000. 928
—— Gondition of Same Appliance at Different Time....... 929
—— Subsequent Repairs or Precautions.....:.........+.. 931

Sufficiency of Evidence........... 0... cece cece ee cece cane 932
 

 

TABLE OF CASES.

 

 

[xxiii]
TABLE OF CASES.

(References are to pages.)

Aaron v. Missouri & K. Telep. Co.. 89 Kam. 186...........cce evens 689
Abbott v. City of Duluth........... 104 Fed. 883.................. 360

Abilene L. & Water Co., v. Robinson.

Abrams v. City of Seattle..........
Adams v. Central Indiana Ry. Oo..
Adams v. Louisville, etc., Ry. Co..
Adams v. Syracuse Lighting Oo.....

Adepe v. City of Thomasville.......
Aga v. Harback........-..--.eeees

Agincourt S. S. Co. v. Hastern Ex-
tension Teleg. Co............000-
Ahern v. Oregon Telep. ‘Co.........
Aiken v. City of Columbus..........
Akron, Town of, v. McElligott......
Alabama City, ete., Ry. Co. v. Apple-
CON ohio cashes Se PRES 06 SS
Alabama Interstate Power Co. v. Mt.
Vernon—Woodbury, etc., Co.......
Alabama, ete., Ry. Co. v. Cumberland
Telep. & Teleg. Co...............
Albany, City of, v. Watervliet, etc.,
Rix GOs % sos unesti ots meses tae
Alberty v. State............. ce eae
Alexander v. Nanticoke L. Co......
Alice, etc., Telep. Co. v. Billingsley.
Allegheny County L. Co. v. Booth. .
Allegheny County Light Co. v. Ma-
Toney ..
Allen v. Atlantic & P. Teleg. Co..
Allen y. Clausen..........
Allentown, City of, v. Western Union
Teleg. Co...
Alpena Elec. L. Co. v. City ache San
——  v. Kline ....
Alton Railway & Tilum. Co. v. Foulds
Alt v. State......
Ambre v. Postal ‘Teleg. “Cable Co. .
American Dist. Teleg. Co. v. Oldham.
American Elec. Co. v. City of Waseca.
American Lighting Co. of Baltimore
v. McCuen
American Loan & Trust Co. v. Gen-
eral Hlec. Co. .... cece seas cesses

(Tex. Civ. App.) 131 8. ‘W.'299. 836

838, 865, 866, 867, ‘882
60 Wash. 356..... 602, 732, 902, 911
38 Ind. App. 607.............. 866
(Miss.) 13 So. 932 ............ 20

137 N. Y. App. Div. 449....... 430
431, 432, 433

9 Ga. App. 880.. 630, 710
140 Towa 606. .. . 881, B44, ‘845, 847
‘855, 856.

76 L. J. (K. B.) 884.......... 283:
24 -Oreg. 276...... 596, 613, 665, 764
167 Ind. 139............... 630, 736
(Iowa) 147 N. W. 773......... 489
171 Ala. 324...... 584, 591, 609, 699:
702, ‘911, 931

635 So. 2B7........... 0c eee 86, 118.
88 Misc. 438........ 26, 27, 108, 111.
76 Hun N.Y. 136.......... 655, 762:
140 Pac. 1025..........0.. 0066 33.
209 Pa. St. 571........ 607, 768, 911

33 'Tex. Civ. App. 452. 667, 716, TIT

216 Pa. St. 564............ 505, 506
62 Pittsburgh Leg. Jour. 59..... V7T
21 Hun (N. Y.) 22......... 668, 721
W14 Wis. 244.............. 354, 356
148 Pa. St. 117.........08. 162, 163:
130 Mich. 413............00.005 217
(Mich.) 146 N. W. 652......... 66
81 Til. App. 322...597, 607, '739, 911
88 Neb. 259........ 20, 359, 538, 540:
43 Ind. App. 47........ 862, 873, 895
148 Ky. 320....... ....635, 637, 722
102 Minn. 329...........0-.... 251
92 Md. 703 .............-0e ee 205
71 N. H. 192........ 9, 56, 291, 31%

[xxv]
TasLe oF CaszEs.

(References are to pages.)

American Rapid Teleg. Co. v. Hess. .

American Telep. & Teleg. Co. of Ala-

bama v. Town of New Decatur....
—— v. Morgan County Telep. Co...
American Telep. & Teleg. Co. v.

BOWER 6 ouisies peep adinn saneinas s
_— v. Harborcreek Tp. ...........
. Jones .
Ss ASOTSD 2.5 Siatdisecattarne eeeenesake
- Millereek Tp. .............
. Pearce .

IH

American Union Teleg. Co. v. Town
of Harrison

Ampt v. City of Cincinnati........
A. M. Richards Building Moving Co.

v. Boston Elec. L. Co............
Anderson v. Inland Telep. & Teleg. Co.

—— v. Jersey City Elec. L..Co....
—— v. Jersey City Elect. L. Co....
—— v. Mt. Sterling Telep. Co......
—— v. Seattle-Tacoma Interurban

RY COs isa sceieiec assent s agpeiales ey
Andreas v. Gas & Electric Co. of

Bergen; Con sscossccmsivaaven sy <8
Andrews v. Abertillery Urban Coun-

CLD 2.25 shod 8s tpexsuages wsap bya teaceteeatov earns
—— v. Delhi & Stamford Telep. Co.

—— v. North River Elec. L. & P. Co.
Anglea’s Adm’r yv. East Tennessee
+ Telep. Co. ........ eee. ce oh atemasaian a aes

Anglin v. American Constr. & Trad-
DAB COS: 2 dk aizrndeswndchaayscioed: GRuaxerauecd aceite
Angola Ry. & Power Co. v. Butz....
Annapolis Gas & Elec. L. Co. v. Fred-
ericks .
Anoka Waterworks, Elec. L. & P. Co.
v. City of Anoka................

Anthony v. Cass County Home Telep.
Oi. sci Gigi enseae daiwa Hel eale-ataiere
Anthony Avenue, In re............
Arbuckle-Ryan Co. v. City of Grand
Ledge . 4
Argersinger v. Com. Power Co......
Arkadelphia Elec. L. Co. v. City of
Arkadelphia .

rr Pie ee

Arkansas Telep. Co. v. Ratteree....
Armour & Co. v. Edison Electric Tlu-

minating Co. .......ee seen ence

Armstrong v. Grant..........+..5.
Arnold v. Connecticut Co...........

125 N. Y. 641... .492, 493, 498, 499,
500, 502, 504, 642

176 Fed. 133.......ccceeceeees 305
188 Ala. 597. .... cece eeeneeees 523
20 Ind. App. 32 .......+ee-- eee 887
23 Pa. Super. Ct. 487...... 492, 493
78 Ill. App. 372....... 416, 441, 445
27 Tex. Civ. App. 127.......... 462
195 Pa. St. 643.........-.-000- 493

71 Md. 535...272, 273, 451, 452, 453
202 Mo. 656...85, 111, 124, 125, 137
140, 141, 898

31 N. J. Eq. 627. .367, 492, 493, 538

80 N. Y. 408. ........0 ec eee eee 32
21 Ohio Cir. Ct. R. 300......... 505
188 Mass. 265.......+.-20-000- 548
19 Wash. 575 ....832, 851, 855, oe
8
63 N. J. L. 387........ 598, 767, 790
64 N. J. Law, 664............. 804
27 Ky. Law Rep. 868....... 467, 468
38 Wash. 387 ......--eceeeeeee 581
61 Neds, Ls 69s ss naaas cass 409

(1911) 2 Ch. (Eng.) 398, 80 L. J. Ch.
724.
36 Mise. (N. Y.) 23....398, 437, 444

445
24 Mise. (N. Y.) 671........ 77, 78
142 Ky. 539. .647, 766, 782, 794, 817
873
109 N. ¥Y. App. Div. 237........ 879

52 Ind. App. 420........ 17, 35, 834
112 Md. 449. .778, 917, 927, 930, 931
109 Fed. 580..195, 197, 209, 303, 305

350

165 Mich. 388..... 675, 683, 922, 925
46 Mise. (N. Y.) 525....... 152, 301
122 Mich. 491.............. 249, 251
164 Mich. 282 ............. 856, 870
99 Ark. 178. .474, 475, 476, 480, 482
487, 488

57 Ark, 429 . ccs cnnavaawedins 754

115 N. Y. App. Div. 57....9, 59, 76

174, 183, 185, 186
56 Hun (N. Y.) 226........... 504
89: \Contty 9Fvxisces ceainsaveeat 839, 864
TaBLE oF Cases. xxvii

(References are to pages.)
Arnold .v. Goldfield Third Chance

 

 

 

 

 

Min Cor vaca ntonievae wecuoress 32 Nev. 447. .cccecescsewenc ces 32
Arpin v. City of Thief River Falls.. 122 Minn. 34 ............. 293, 393
Asher v. City of Independence...... 163 S. W. 574...........56, 630, 751
Atkinson v. Chatham.............. 29 Ont. (Canada) 518. .647, 648, 801
Atlanta Consol. St. R. Co. v. Owings. 97 Ga. 663...590, 595, 704, 707, 710

746, 747
Atlantic Coast Line R. Co. v. Postal :

Teleg. Cable Co... 2..........005. 120: Gas: 268 ocd ncsccanesvaice 136, 137
Atlantic & Pacific Teleg. Co. v. Chi- :

cago, etc., R. Co...... cece ee eens 6 Biss. (U. S.) 158......... 272, 273

v. Philadelphia .............. 190 U. S. 160.162, 163, 164, 165, 167
Atlantic Postal Teleg. Cable Co. v. 498

City of Savannah................ 133 Ga. 66.....6. ccc eee cece ens 159
Attorney-General v. Edison Telep. Co.

of London .......0.ccccecccenees » DL. RB. 6 Q. B.D. 244........ 24, 25
—— v. Leicester Corp. ......++.ee- (1910) 2 Ch. (Eng.) 359....... 48
—— v. Metropolitan Elec. Supply

COs aaaeeist aeleys aes) Siayianevave seanetecsin svat eee (1905) 1 Ch. (England) 757... 45
—— v. Pontypridd Urban Council.. (1906) 2 Ch. (Eng.) 257....... 42

v. Public Lighting Commission
of Detroit ..........-...00- . 155 Mich. 207........00ceeeees 251
v. Sheffield Corp. ............ 106 L. T. (Eng.) B67. cece eee 48
v. Walworth L. & P. Co....... 157 Mass. 86.......e cece eee 296
Attorney-General of Massachusetts v.

Western Union Teleg. Co......... 14d Ue S40 isisonaiiexoanan
Augusta Ry. Co. v. Andrews........ 89 Ga. 653.......... cee ee
Augusta Ry. & Elec. Co. v. Beagles... 12 Ga. App. 849
—— v. Weekly . 2... ccc eeeeeeeeee 124 Ga. 384...............

Ault v. Nebraska Telep. Co......... 82 Neb. 434 ............4.

Aument v. Penn. Telep. Co.......... 28 Pa. Super. Ct. 610. .674, 708, 762

Austin, City of, v. Nichols.......... 42 Tex. Civ. App. 5........ 726, 920

Avery v. Vermont Elec. Co......... TD: Vite 28S cise gvissiahare es sreceeee dears 93
B.

Backus v. City of Virginia......... 142 N. W. 1042........ 228, 241, 252

Badger Lumber Co. v. Marion Water

Supply . ..... see cece cee e ec eeee 48 Kan. 182 ................., 30
Badger Telep. Co. v. Wolf River

OLED: COs. :ccadiors cers iarintiava,samnuasacnngsaars 120 Wis. 169 .............. 00 313
Bailey v. Bell Telep. Co. of Buffalo.. 147 N. Y. App. Div. 224....636, 717

718
Baker v. City of Cartersville....... 127 Gee 221i ssw esdawiaewc anes 228
Balderson v. Portland Telep. Co.. 173 Mich. 412...........06- 754, 800
Baltimore, City of, v. Chesapeake,

ete., Telep. Co.......-.. cece eens 92 Md O92) aie siels ates aiaidiordesranceee 506
Baltimore City Pass. Ry. Co. v. Nu-

ONE): cialve hace arto aaa scares nant oRTomS 86 Md. 349 ........... 568, 572, 753
Baltimore, Mayor, etc., of, v. Grand

Lodge of Ancient Free and Ac-

cepted Masons ...........-.2.00. 60 Md. 280 ......... PSUs Satasess 15
Baltimore & Ohio Teleg. Co. v. West-

ern Union Teleg. Co............-- 24 Fed. 319..........000. aeeee 448
Baltimore & O. S. W. R. Co. v. Peo-

lO es racine Gece Aerts SRT 200 TIL. 541. i etievaeseaitens 250
Banks v. Highland St. Ry. Co...... 136 Mass. 485.............. 296, 642
Barber v. Hudson River Telep. Co. . 105 N. Y. App. Div. 154... .433, 434

442, 443, 444, 445
XXVili

TaBLE oF CasEs.

(References are to pages.)

Barhite v. Home Telep. Co. of Roch-
BLED 9. oa bs yctow widens pabeerekte sad
Baries v. Louisville Electrie Light Co.
Barker v. Boston Elec. L. Co........
Barrett v. New England Telep. &
Teleg. Co.
Bartlesville Electric L. & P. Co. v.
Bartlesville Interurban Ry. Co....
Barto v. Iowa Telep. Co...........

Bates Machine Co. v. Trenton, etc., R.
Co. .

Baxter Springs, City of, v. Baxter
Springs L. & P. Co.

Bay City Tract. & Elec. Co. v. Bay
City .

Beaming v. South Bend Elec. Co..

Beard v. City of Hopkinsville.......
Beattie v. Boston Elevated Ry. Co..
Beaumont Tract. Co. v. Brock.
Beaver County v. Central Dist. &
Print. Teleg. Co..........00.05.
Beck v. Indianapolis Light & Power
Co. .
Beebe y. St. Louis Transit Co.......
Beggs v. Edison Elec. Illum. Co..
Belding Light & Imp. Co. v. City of
Belding .

Bell v. City of Glenville............
—— v. David City
Bell Telep. Co. v. Ascot............
—— v. Belleville Elec. L. Co........

v. Detharding .
—— v. Montreal St. Ry. Co........

v. The Rapid
Belvidere Gas & Electric Co. v. Boyer.
Benson v. American Illum. Co......
Benthin v. N. Y. Cent., ete........
Bentley v. Missouri & Kansas “Telep.
Co. .
Benton v. North Carolina Public
Service Co.
Bergin v. Southern New England
Telep. Co. ... Smatts
Berley v. ‘Western Union Teleg. Co...
Bernier v. St. Paul Gaslight Co. .
Berry v. Cumberland Telep. & re

Co.
Berstein v. Philadelphia Elec. Co..
Bessette v. Conkey Co..............
Bevis v. Vanceburg Telep. Co. .
Beyer v. Peoria, etc., Traction Co..
Bice v. Wheeling Electrical Co......

Biddle vy. Leavenworth L., H. & P.
Co. .

eee ema eee eee eee ee eee

50 N. Y. App. Div. 25. .354, 362, 367
ie 393, a 493, 494
118 Ky. 830.. a . 766, 824
178 Mass. 503. he T seer beed Gad 782
QOL Masai VT > cates aaa ween 921
26 Okla. 453. .293, 297, 332, 348, 389
126 Lowa 241.592, 699, 831, 843, 851
$62, 865, 873
70 N. J. L. 684..........10, 13, 17
64 Kan. 591...... 204, 216, 303, 396
155 Mich. 393 .............227, 251
45 Ind. App. 261. .689, 782, 812, 813
817
D5. Ry BBO isin asm sein ec arncase 6 209, 210
201 Mass. 3....... .565, 568, 578, 914
48 Tex. Civ. App. 41........... 301
219 Pa. St. 340.25 ceases siecas ses 472
36 Ind. App. 600........... 178, 188
206 Mo. 419............... 846, 903
96 Ala. 295............. 14, 18, 55
128 Mich. 79.195, 197, 198, 206, 207
210
27 Ohio Cir. Ct. BR. 181........ 557
94 Neb. 157........... 239, 515, 520
Quebec Rep. (16 C. 8S.) 486..... 28
12 Ont. (Can.) 571........ 534, 535
17 W. N.C. (Pa.) 505......... 24
VAS) Med) Billa aves acewairen een <2 870
10 Quebec Superior Ct. (Can.)

162 $44 «ki swa ee eey 526, 531
5 Gan “Exch, EV Bh ia tance senda tym ancora 2 285
122 Til. App. 116...... 840, S71, 881
102 N. Y. Supp. 206.........72, 620
24.N. Y. an Shiv. DOBiss acess x 459
142 Mo. App. 215...... 670, 755, 759
165 N. Car. 354 ......0.... 601, 773
70 Conn. 54. .646, 699, 748, 813, 855
82 S. Car. 360......... 837, 882, 886
92 Minn. 214...... 839, 864, 871, 921
95 Miss. 729 ............4. 767
235 Pa. St. 53....700, 707, 711, 737
194 U. S. 324. ....0....00..00.. 553
121 Ky. 177...... 376, 716, 717, 898
156 Til. App. 47................ 927
62 W. Va. 685... .602, 610, 700, 726

820,
87 Kan. 604. .746, 748, 750, 751,

911
873
TaBLE oF CasES.

(References ave to pages.)

Billington v. Eastern Wisconsin ce
& Light Cp.. ats
Bilotta v. Media, ‘ete. “Ry. Co..
Birmingham Ry., H. & P. Co. v. Can-
FEO os areca aca tgantens Raise igre arty gos
Birmingham Ry., L. & P. Co. v. Cock-

 

v. Murphy .

Birmingham Traction Co. v. So. Bell
Telep. & Teleg. Co............-..

Birsch v. Citizems’ Elec. Co.........

Bishop v. Riddle

v. snes Mountain Bell a
Co. .

Black v. Metropolitan ‘St. ‘Ry. Co. .

v. Metropolitan St. By. Oo..

— Vv. ey, Mountain Bell Telep.
Co.

 

 

 

CO. e: eas44 eee etEee eRe eaess

Blackstone v. Central of spoils aa Ae
CO. se. cdaweeaae oh fas

 

 

v. Village of Benton..........
v. Western Union Teleg. Co.....
Bland v. Cumberland Telep. & Teleg.
Ce ia saat ath eqn at chmnieicioes apabing: Oysevasnt
— v. Shreveport Belt Ry. Co..
Blank v. Kearne
Blashfield vy. Empire State Tei &
Teleg. Co. ...
Block v. City of Meridian..........
v. Milwaukee St. R. Co...
—— v. Salt Lake City Rapid Transit
Oe fa sdesce a cbobed: De era size wlapeon bo nahn
Blood v. Manchester Elec. L. Co...
Bloss v. Oneida Ry. Co..
Blumenthal v. Brooklyn Union Elev.
R. Co.

Blust v. Pacific States Telep. Co....

Board of Trade Teleg. Co. v. Bammett.

Booker v. Southwest Missouri R. Co.

Borell v. Camberland Teleg. & Telep.
Cow a. ss

Pa Elec. Co. v. Boston Terminal

 

 

eee eee ee eee

Boston’ Safe Deposit & T. Co. v. Bank-
ers & Merchants’ Teleg. Co. .
Bourget v. City of Cambridge...
Bourke v. Butte Elec. & P. ‘Co.

   

Bowerman v. Inter-Ocean Telep. &
MON6R HOO: S sicicninsialescyequ nia anands aes “eons

Bowling Green erecae Co. v. Dean’s
BRK woe os cudsintoyes

 

xxix

187 Wis. 416 22.0... senseecen. 804
220 Pa. St. 542............0000. 805
V77 Ala, 422. ......4.....8, 830, 876
(Ada.)} 60 So. 304. ......626, 761, 762
170 Ala. 530. .565, 570
2 Ala. App. 588... 584, 591, 597, 918
119 Ala. 144..........528, 530, 532
36 Mont. 574.670, 767, 774, 793, 802
51 Tex. Civ. App. 317... .24, 25, 367
33 Utah, 464 ................. 740
162 Mo. Ap} = aud, 915, 926
217 Mo. 672... 570, 571, 904, 915
26 Utah 541.0... ee ee. 887
(Mo. App.) 167 S. W. 457. ...602. 603
617, 621, 628, 786, 809

112 Ga. 762 ..... 461
(Tex. Civ. App.) 149 S. W. 1086. 871
80 N. J. Eg. 10........ 374, 405, 439
109 Ill. App. 569.......230, 248, 253
60 N. Y. 510. .279, 280, 281, 283, 642
33 Ky. Law Rep. 399.......... 296
48 La. Ann. 1057.............. 837
44 N.Y. App. Div. 592......... 205
147 N. ¥. 520................. 442
169 Fed. 516. ................. 218
89. WAS. OT Lessig. ges orgiethdia 33 aes 761
9 Utah Bl 1... 0.2.2... 426, 428
68. .N. H. 340... 196, 210, 211, 222
162 N. Y. App. Div. 200.. -.D79, 641
158 N. Y. App. Div. 558... .565, 568
578, 914

48 Oreg. 34.....00..00 00008 848, 861
107 Ill. 507. ~ 398, 416
144 Mo. App. 273. .604, 677, ‘736, 906
133 La. 630. ..........+. 671, 677
184 Mass. 566.....0000-4 «+496, 507
36 Med. 288.........2....0004. 82
156 Mass. 391................. 636
33 Mont. 267.595, 597, 699, 703, 707
1, 778

121 N. ¥. App. Div. 22........ 445
813

142 Ky. 678. .601, 766, 782, 812,
82

7, 917
XxX

TaBLe oF CAasEs.

(References are to pages.)

Bowman v. Farmersville Mill & L. Co.
Boyd v. Portland Elec. Co..........

 

v. Portland General Elec. Co. .
Brabham v. Am. ae & Teleg. Co...
Bradford, City of, v. N. Y. & P. Telep.
& Teleg.
Bradley v. Central Vermont Ry. Co..
Brady v. Western Union Teleg. Co..
Braham v. Meriden Home Telep. Co..
v. Nassau Electric R. Co......
Brantman v. City of Canby.........
Braun yv. Buffalo Gen. Elec. Co......
Brennan v. Schuylkill Tract. Co.....
Bulge v. Jackson Elec. Ry., L. & P.
0

 

v. Los Angeles Pac. R:
Brigatine, Borough of, v. Holland

Trust Co.
Brinckkord v. Western Union Teleg.

Co. .
Britton v. Cent. Union Tel. Co......
Brod v. St. Louis Transit Co.......
Broderick v. City of St. Paul........
Bronson v. Albion Telep. Co........

 

Bronx Gas & Elec. Co. v. City of New
York .

Brooklyn, City of, v. Nassau Electric
R. Co.

Brooks v. Consolidated Gas Co......
Broome v. New York & New Jersey
Telep. Co.
Brown v. Asheville Elec. L. Co...... 7
—— v. Consolidated Light, Power &
Ice Co.

— v. Edison Illum. Co., of Balti-
more City
— v. Gerald .
—— v. Maryland Telep. & Teleg. Co.
of Baltimore
— v. Metropolitan St. Ry. Co....

eee eee etme ee rete
Cente ree ee ene tena e anes

v. Northern Cal. Power Co....
v. Panola L. & P. Co..........
—— v. Radnor Tp. Elec. L. Co....
v. West Riverside Coal Co.....
Brownwood, City of, v. Brown Teleg.

& Telep: Cosas vcssccverasececes

Brubacer v. Kansas City Elec. L. Co.

Brucker v. Gainesboro Telep. Co..
Brunelle v. Lowell Electric Light
Corp.

Brush Elec. Co. v. Jones Bros. Elec.

Co.
Brush. Elec. Illum. Co. v. Consol., etc.,
Subway Co.

(Tex. Civ. App.) 158 8. W. 200. 803
37 Oreg. 567. .585, 593, 674, 679, 709
40 Oreg. 126. .673, 675, 677, 737, 902
903, 904, 906, 907

41 Oreg. 336.......... 798, 823, 904
T1ISs Cab 8 x waar ee wariioeseminie aks 887
206: Pa. B82) 0 oils tonscads wear ES 352
196 Mass. 360....459, 460, 462, 464
113 Fed. 909.......0.ceeeeeeee 862
97 Miss. 326...........00-. 430, 436
72 N. Y. App. Div. 456.579, 903, 916
119 Minn. 396 .........+....-- 631
200 N. Y. 484..... 767, 770, 788, 794
27 Pa. Super. Ct. 188.......... 574
86 Miss. 584 ....... cece eee eee 575
L56: Cals, 492. scccvincewain arse gress 888
(N. J. Eq.) 37 Atl. 438..... 295, 296
58 Hun 610 ..........-2.4. 512, 894
131 Fed. 844.......... 836, 856, 867
115 Mo. App. 202.......... 563, 565
90 Minn. 443. 266 ces eesene es 204
67 Neb. 111. .416, 422, 423, 430, 431
440

17 Misc. (N. Y.) 483..196, 199, 203
44 N. Y. App. Div. 462........ 477
70 N. J. L. 211........ 767, 775, 794
42 N. J. Eq. 141...... 374, 416, 440
138 N. Car. 533........ 398, 432, 433
(Mo. App.) 109 S. W. 1032... .5, 900
903, 906, 908

90 Md. 400............ 766, 774, 908
100 Me. 351....... 9, 84, 90, 98, 104
101 Md. 574 ............... 20, 44
60 N. Y. App. Div. 184.582, 604, 679
702, 708

14 Cal. App. 651...... 535, 746, 749
137 Gas 302. caaece creer sas vaces 773
208) Pa. 458s sicwaa acai 45, 102, 129
143 Iowa 662.............. 676, 678
(Tex. Civ. App.) 152 S. W. 709.. 24
25, 358, 360, 492, 493

130 Mo. App. 439. .601, 616, 699, 704
705, 709, 712, 767, 772, 822, 824

NOD Wie: OD abies mseameaiaveas cea 612, 926
188 Mass. 493....181, 618, 619, 620
628

10 Ohio Dec. 767....... 41, 45, 392
60 Hun (N. Y.) 446........ 504, 509
TABLE OF CASES.

XXX1

(References are to pages.)

Brush Elec. L. Co. v. Kelley........
—— v. Jones Bros. Elec. L. Co.....
—— v. Lefevre .
—— v. Montgomery . ..........64.
Bube v. Weatherly Borough........
Buckbee v. Third Ave. R. Co.......
Buckley v. Westchester Lighting Co.
Buckner v. Hart ..............065-
Bullmaster y. City of St. Joseph....
Bunke v. New York Telep. Co.......
Burke v. Mead ..........-2.ee000e
v. Union Coal & Coke Co......
Burnett v. Ft. Worth L. & P. Co....
v. Postal Teleg. Cable Co.......
ee v. Columbus Citizens’ Telep.
Oss Sac bas ea esgastiaiarovenakey Kiev oecetsue ear Ved
v. Johnstown Pass. Ry. Co....
a ae vy. American Telep. & Teleg.
Os: 43 ig sis cratsnaes ab oligos shee sa ous S
Burt v. Douglas County St. Ry. Co..
sa v. Cumberland Telep. & Teleg.
Oh 4 ids Hehe aele ey a oad bo teley

ery

 

 

 

Burton Telep. Co. v. Gordon........
Butler v. Aurora, etc., R. Co........
—— v. City of Cincinnati .........
v. Frontier Telep. Co.........
Byerly v. Consolidated Light, Power

© lee: Cos nies is wears sans sacar ws

 

Byrd v. Pine Bluff Corporation.....
Byron v. N. Y. State Pr. Teleg. Co..
Byron Telep. Co. v. Sheets..........

Caglione v. Mt. Morris Elec. L. Co..
Cahill v. New England Telep. &
Peleg. CO. cits gegen d sade es cous
Caldwell v. Glazier................
Fes City of, v. Bunceton Telep.
California-Oregon Power Co. v. City
of Grants Pass..............000-
California Portland Cement Co. v.
Wentworth Hotel Co.............
California State Teleg. Co. v. Alta
ee Co.

Calumet Elec. St. R. Co. v. Gross..
Calumet Service Co. v. City of Chil-
VOM 5. 5-34 trips oats wees a aisle ee Beate
Cameron v. Lewiston, etc., St. Ry. Co.
Campbell v. Springfield Traction Co.
v. United Rys. Co. of St. Louis.
—— v. Western Hlec. Co...........
Canadian Pac. Ry. Co. v. Moosehead
Telep. €Ososiesicds siouding ede onde

 

C.

126 Ind. 220.......2eeeeee 739, 798
5 Ohio Cir. Ct. 340............- 379
93 Tex. 604.......c000e ....769, 776
114 Ala, 433.........0 ee eee 216, 217
28 Pa. Super. Ct. 88........ 618, 619
64 App. Div. 360.......... 570, 571
93 N. ¥ App. Div. 436.737, 805, 806
52 Fed. pe saad ean. Nes etree 561
70 Mo. re. © aon Feta osenaseve NRE 630
110 N. ae Div. 241....470, 473
159 Ind. 252 ...... cece eee 10, 48
157 Fed. 178........-.00045 863, 871
102 Tex. 31 ...... 625, 685, 777, 792
71S. Car. 146..........4.. 466, 472
30 Ohio Cir. Ct. Rep. 74.. 6, 419
213 Pa. 143 21... cece eee eee ee 575
224 Ill. 266 ........... 415, 439, 441
83 Wis. 229........... 570, 571, 572
(Ky.) 118 8. W. 287...660, 673, 720

721
25 Ohio Cir. Ct. 641...........- 761
250. M0 oe essen tadsece w wstetiee 581
25 Ohio Cir. Ct. 772..........4. 295
186 N. Y. 486...........- 487, 471
130 Mo. App. 593..601, 646, 767, 789

934
102 Ark. 631.618, 619, 631, 844, 853
26 Barber (N. Y.) 39.......... 837
122 Ill. App. 6........-0000005. 681
56 App. Div. 191. .692, 704, 729, 826
193 Mass. 415......... 847, 863, 865
138 N. Y. App. Div. 826........ 31
112 Mo. App. 722.......0...6.. 393
208 Fed. 173.........+-478, 483, 487
16 Cal. App. 692............... 31
22 Cal. 398.........4.. 303, 324, 356
66 Oh. St. 166.....399, 409, 422, 440
70 Ill. App. 381............ 605, 786
148 Wis. 334........00...00005 291
103 Me. 482............... 573, 574
(Mo. App.) 163 S. W. 287...... 831
243 Mo. 141.......... 4, 5, 662, 759
113 Mich. 333................. 30

106 Me. 363..101, 123, 124, 125, 453
454
XXX1i

Tape or Cases.

(References are to pages.)

Qamal & cee R. Co. v. Crescent
‘City R. R. Co.. pee
Cannon, Ex Parte .
Capital City L. & Fuel Co. v. City of
Tallahassee . ....... 2 sew eeeeee
Capital Elec. Co. v. Hauswald..
Capital ‘Gas & Electric Co. v. Davis’

 

Adm’r eRe
Capron v. City ‘of Taumton...... ees
Carey v. Manhattan Ry. Co.. owe

Caron v. La Cité De St. Henri......

Carpenter v. Capital Elec. Co..
Carr v. Manchester Elec. Co........
Oarroll v. Grande Ronde Elec. Co...

ee City of, v. Carthage iene

 

Carthage, Village of, v. Central N.Y.
‘Telep. & Teleg. esa nice eye

Cartright v. Liberty Telep. Co..
Carver v. State .......-.cccceesewe

Cary v. Blodgett ...............000
Cascade Town Co. v. ae Water &
P. Co. ... irate
Casey v. Chicago City Ry. Boevernes
Cassady v. Old Colony : si. Ry. Co..
Castle v. Bell Telep. Co............
Cater v. Northwestern Telep. Exch.
MONO 8 shes curiae aeailaha eh gucnarte aa oem aegis ee aia

oo v. Lenox Construction Com-

antral Elee. Co. v. Street Lighting
District of Woodbridge Tp. .
Central Georgia Power Co. v. Mad-
paired pag hm ae Sotiela Aare -aice wee Satin
Stone
Gentvel Penn. Telep. & Supply Co. v.
Wilkesbarre & West Side Ry. Co..

 

Central Union Telep. Co. v. City of
Conneaut 20.0.0... cece ecw eae
— v. Sokola........... ee eee eee

—— v. Sprague Elec., etc., Co......
—— v. Village of Columbus Grove..

Cessna v. Metropolitan St. Ry. Co...
Chaffee v. Télephone & Teleg. Constr.

OOS cea. anes cacao n tie cos aot Sek habe tes Gene
Chalmers v. Paterson, etc., Telep. Oo.
Chamberlain v. Iowa Telep. Coke vests
Chandler v. City of Seattle.........
Chant v. Clinton Telep. Co.........

“119 Towa 619.......

ie sectias DOO

44 La. Ann. 485......
seweeeee ee BBS

(Cal.) 138 Pac. 740. .
42 Fla. 462. 310, 311, 824, 327, 330

 

78 Ill. App. 359... fend nukeadarsemnes

138 Ky. 628 .........4.- . . 89, BOT

196 Maga. 4166 ce cee ese tmw es BOG

116 N. Y. App. Div. 247. ..-857, 859
864, 871

9 Quebec Superior Ct. (Canada)

FOO ea cate zat tee ae. 705, 706, 748
178 Ill. 29. .... 408, 409
70 N. H. 308. 1647, 859, 863, 869
47 Oreg. 424. , 5, 593, 705, 706, 737

80s

97 Mo. App. 20...316, 380, 381, 896
209 Mo. 688 ......... eae s 474, 485
185 N. Y. 448..... 355, 362, 367, 492
498

205 Mo. 126. A432
11 Ga. App. 22. . 265, "267, 270, 716
; 718
10 Cal. App. 463...........228, 247
VSL, Med:) TOW is. iss Spares me 48
169 Ill. App. 425........... 592, 830
184 Mass. 156...... 36, 565, 567, 915
49 N. Y. App. Div. 487...... 403, 419
60 Minn. 539. .399, 401, 402, 413, 414
417

122 N. Y. App. Div. 672........ 857
226 Pa. St. 86.2... ne eee eee 909
71 N. J. L. 408........ wee 2, 16, 220
TOD: Gia 24 G se ate eicucs senate de as 130
139 Ga. 416...............182, 133

ll Pa. Co. Ct. 417.......24, 25, 526
528, 530, 532

167 Fed. 274.......... 256, 534, 895
34 Ind. App. 429. .676, 677, 704, 738
745, 764, 808

(Ohio) 2 Am. Electl. Cas. 307. 525, 526:
28 Oh. Cir. Ct. R. 181. .100, 101, 107

108, 130
118 Mo. App. 659..........871, 879

"$84, 361, 380.
(Wash.) 141 Pac. 331.......... | 228
130 Wis. 533..494, 733, 734, 756, 797
TABLE oF CasEs.

(References are to pages.)

Chaperon v. Portland Gen. Elec. Co.

Chapman v. Capital Traction Co....
—- Vv. ee Rys. Co.........
Gharetis v. Village of L’Anse. .
ee Cit; Ciccvee v. Postal
eg, Cable ¢ ‘
gue Towm L. © P. Co., Matter of.
Chase v. Michigan Teleg. €o.. :
Chattanooga Elec. Ry. Co. v. Mingle.
Vi MOOre: exis ie steuw ce eeee se
Chesapeake, ete, Telep. Co. v. Balti-
more, et¢., Teleg. Go...
Chesapeake & P. Telep. Co. v. Balti-
more .......
v. City of Baltimore. . iam
—— v. Mackenzie .

 

 

 

Chester, City of, v. Western Union
Teles, GOs vnseiwes oa eemne ede os

Chicago, City of, v. Chicago Telep.
Co.

 

 

 

Ghinaee Edison Co. v. Hudson......
Chicago, ete., R. Co. v. Bussell......
v. Sny let eos echoes ule
Chicago Gen. St. Ry. Co. v. Elliott...
Chicago Great Northern R. Co. v.
FLU OI ee 5 cog gai sweeties Rees
Chicago Suburban Water & Light Co.
v. Hyslop
Chicago Telep. Co. v. Hayes.........
v. Northwestern Telep. Co.....

 

 

Chicago Union Tract. Co. v. New-
miller
Chicago Veneer Co. v. Jones........
Chipchase, Matter of.........-.....
Chisholm v. New England Telep. &
Teleg. Co..
Chittick v.. Philadelphia “Rapid Tran-
SI CO aie iieccgiaie oe Weavers ARG wei ene
Choctaw Elec. Co. v. Clark.........
Chretian v. New Orleans Rys. Co...
Christensen v. City of Fremont.....

— v: Metropolitan St. Ry. Co..
Cincinnati, etc., R. Co. v. Village of
Bowling Green..........0..00.00-
Cincinnati Gas & Elec. Co. v. Arch-
deacon
Cincinnati Inclined Plane Ry. Co. v.
Suburban Teleg. Assoc............
Cincinnati Traction Co. v. Holzen-

xxxiii

41 Oveg, 39....... 699, 703, 705,, 768
737, 902, 906, 932

37 App. D. C. 479............ 573

140 Fed. 784...0........08. 458,, 641

 

145 Fed. 886..........458, 459, 460
154 Mich. 304...............728, 802
3 Am. Wlectl. Cas. 56.......... 159
183 Fed. 160..... 0, 14, 34, 35, 36
121 Mich. 631 623
103 Tenn. 667 , 907
ITZ. Tenn 531.....0..... 000000 846
66 Md. 399..........000 00: 24, 25
89 Md. 689....24, 293, 303, 351, 506
90 Md. 638... 507
74 Md. 36. 1398, 401, "416, 421, 427
28° 429, 442

3 Lancaster Law Rev. (Pa.) 164. .164
168

230 Ill. 157...... 291, 292, 343, 344
356, 365

55 Ill. App. 429. .......0000. 45, 385
102 Tl. App. 202............-- 577
ZG SAL SLB ios svauet sued eeesue'e 904, 915
66 Ill. App. 639...856, 858, 870, 872
QL Us: 298m sce aca ees 459, 460, 464
120 Towa 582..........000008. 452
88 Fed. 941.............06.. 44, 302
205 Wed. 248i jb ccecciaie eussvenese es 461, 462
D227 AI s B08. 2 scicasecinabiels wecrcen 870
121 Tl. App. 313.......... 342, 624
199 Ill. 324....... 324, 325, 348, 384
491, 521, 523

215 Til. 383...... 565, 568, 902, 914
143 Ky. 20... ...ceeceeeeeeeeas 831
66 Kan. B80 ssi ssa vias eeaanss 172
185 Mass. 82..832, 837, 848, 866, 873
O24. Pa. Sti. 18 wise es Saaeek 656, 657
28 Okla. 399..832, 833, 848, 861, 916
V3: Has, TOL. eae ceew aac caus 569
45 Neb. 160...... 228, 229, 230, 231
232, 233, 234, 236, 252

187 Fed. 708 sac ccace nice ceees 576
57 Oh. St. 386........... 44, 60, 490

80 Ohio St. 27....655, 768, 782, 783
48 Oh. St. 390... .290, 312, 525, 526
74 Oh. St. 379. ..... 0.0.0 577, 915
XXXIV

TaBLE oF CASES.

(References are to pages.)

Citizens Elec. L. & P. Co. v. Sands..
Citizens’ Elec. Ry., L. & P. Co. v.

Beeld xe esicspiutsatnuan oa enone Dus awe Guanes
Citizens Gas Light Co. v. Inhabitants

of Town of Wakefield............
Citizens’ L., H. & P. Co. v. Lee.....
Citizen’s L. & P. Co. v. Lepitre......
Citizens’ Ry. Co. v. Gifford.........
Citizen’s Ry. & L. Co. v. Case......
Citizen’s St. Ry. Co. v. Batley......
Citizens’ St. R. Co. v. Hoffbauer.....
Citizen’s Telep. Co. v. Ft. Wayne &

8. Ry: Cosas: camervasweaiacasds
—— v. Thomas

ee er ee ey

—— v. Westcott’s Adm’x...........
Citizen’s Telep. Co. of Kentucky v.
Wakefield

City Elec. St. R. Co. v. Conery......

City Ry. Co. v. Citizens St. R. Co...
City & Suburban Teleg. Ass’n v.

Kelly
Clairain v. Western Union Teleg. Co.,
Clancy v. N. Y. & Queens Co. Ry. Co.
Clara Killam: isess.ceweese naan een

——— v. Johnson County Telep. Co...

SSS 5 SS 2 cr et ee pS ees ye wees

—— v. St. Louis & 8. Ry. Co......
—— v. Union Iron & Foundry Co...
Clarke v. Nassau Elec. R. Co.......
Clarksburg Elec. L. Co. v. City of

Clarksburg

Clausen, etc., Brewing Co. v. Balti-
more, etc., Teleg. Co............--

Claussen v. Cumberland Telep. &

Clay Centre, City of, v. Clay Center
TG, (REP CO snags toscorecocaragaeediocansacns
Clearwater Co. State Bank v. Bagley
Delep:. CO is.iiarece areata imeouneineesy
Cleary v. St. Louis Transit Co......
Cleburne Electric & Gas Co. v. McCoy.

Clements v. Louisiana Elec. L. Co....

— v. Potomac Elec. Power Co....
Cleveland v. Bangor.............4..

Cleveland, etc., Ry. Co. v. Ohio Postal

95 Mich. 551........600055 197, 343
26 Ohio Cir. Ct. R. 691... .599, 601
737, 822, 906
162 Mass. 432..........-0000ee 241
(Ala.) 62 So. 199. .831, 851, 855, 864
29 Can. S. C. (Canada) 1...... 831
19 Tex. Civ. App. 631..587, 595, 596
(Tex. Civ. App:) 138 S. W. 621. 647
159 Ind. 368 ...6 e.ccsas dene nese 753 °
23 Ind. App. 614.............. 574
(Ind. App.) 100 N. E. 309. .527, 529
45 Tex. Civ. App. 20...613, 664, 665
700, 705, 706, 739
907, 908, 924, 933
124 Ky. 684. ..0...000eessseees 807
(Ky.) 126 8S. W. 127...... 704, 756
757, 856
61 Ark. 381...... 584, 591, 595, 597
654, 655, 704, 738, 748
166 Us Ss 587 ceca cvsaessavnn. 561
28 Oh. Cir. Ct. B. 820...... 849, 880
40 La. Ann. 178,............ 831, 839
82 N. Y. App. Div. 563........ 906
L. R. 3 Adm. & Eecl. (Eng.) 161, 284
73. N. H. 431.......... 100, 101, 109
160 Cal. 30...226, 228, 229, 234, 239
244, 247, 248, 249, 326, 327, 357
137 Towa 81...........0.0e eee 862
146 Iowa 428.......... 834, 865, 923
234 Mo. 396...604, 646, 767, 781, 890
234 Mo. 436................ 832, 856
9N. Y. App. Div. 51........ 579, 916
47 W. Va. 739....304, 305, 326, 327
328, 331, 380, 384
(N. Y.) 2 Am. Electl. Cas. 210...272
398, 426, 427, 429, 498, 500, 502
126 La, 1087...... 675, 677, 679, 704
* 708, 721, 739
78 Kan. 390....... fase ai 322, 324
T16 Minn. 465 6 oe g is cccosins a ceersae 57
108 Mo. App. 433...... 736, 741, 906
(Tex. Civ. App.), 128 S. W. 457.. 655
713, 742, 925
44 La. Ann. 692... .625, 626, 707, 766
770, 776, 793, 794, 815
26 App. D. C. 482...... 626, 773, 792
87 Me. 259, 5 Am. Elect. Cas.
GAG sof Bcivacteayere va-dnshaveasancinws 667, 716
67 Oh. St. 306.........126, 137, 139
TaBLE oF CASES.

(References are to pages.)

Clonts v. Laclede Gaslight Co......
Clough v. Rockingham County Light
& Power Coss: ssersisansccssenes

Coburn v. New Telep. Co...........
Colburn v. City of Wilmington......
Cole v. Parker..........00c eee eee

Coles v. Midland Telep. & Teleg. Co..
Collins v. District of Columbia......
Colorado Elec. Co. v. Lubbers......
Colorado Springs Elec. Co. v. Soper. .
Colorado Springs Gazette Co. v. Sim-
mons
Columbus v. Dorsey
Columbus, City of, v. Columbus Pub-
lic: Service Co. esc. cao ees wena se tye
Columbus Citizen’s Telep. Co. v. City
of Columbus
Colusa Parrot Mining & Smelting
Co. v. Monahan..............00 0
Combs v. Delaware & Atlantic Teleg.
& Teleps, C0 seis essa ines 0 4 eletearscantw
Commercial Elec. L. & P. Co v. Jud-
son

v. Tacoma
Commonwealth v. Brush Elec. L. Co.
—— Vv.
—— v. City of Boston.............
—— v. City of Paducah............
v. Edison Elec. L. Co.........
v. Keystone Elec. L. & H. & P.
Cy. ks wat cet Qed 2a eh bse ioersos
v. Louisville Gas Co..........
—— v. Northern Elec. L. & P."Co..
v. Pennsylvania Telep. Co..
—- v. Smith

 

 

 

 

 

rca

Conklin v. Central N. Y. Telep. &

Dele ps 3G cis sie shce pian van ehada tee abc
Connell v. Koekuk Elec. Ry. & P. Co.
Connor v. City of Marshfield.’......
Conrad v. Springfield Consol. Ry. Co.

Consolidated Elec. L. Co. v. People’s
Elec. L. & Gas Co................

Consol. Elec. L. & P. Co. v. Healy..
v. Koep
Consolidated Elec. Storage Co., In re.
Consol. Gas Co. v. Brooks..........

 

XXXV

160 Mo, App. 456...... 604, 655, 845
75. Nu He 84.020. axenacesae 545, 548
156: Ind. 90: sc eves ewes vs ca wee 420
4 Pen. (Del.) 443...... 636, 673, 674
679, 800

27 Tex. Civ. App. 563....... 602, 623
67 N. J. L. 490........ 110, 111, 182
30 App. D. C. 212..........0085 489
Il Colo. 505............05. 841, 931
38 Colo, 12635203 .sacacsveeanes 736
22 Colo. App. 303.............. 856
119 Ga. 363............000, 803, 814
17 Ohio Dee. 291.............4. 256
(Ohio) 104 N. E. 534......... 343
162 Fed. 276...... 670, 765, 776, 908
218 Pa. St. 440............. 613, 843
2). Wash: 49 nis vec cyeedeaseess 146
17 Wash. 661..... 304, 313, 320, 346
204 Pa. St. 249.............0.. 151
145 Pa. St: 147................ 16
97 Mass. 555..........0005 372, 642
31 Ky. Law Rep. 528 ba igelG alee 144
145 Pa. St. 131...:.......005 1l, 16
193 Pa. St. 245...-.......05 16, 18
(Ky.) 1228. W. 1164.00.07... 145
145 Pa. St. 105...... 11, 13, 15, 145
18 Phila. (Pa.) 588......... 24, 25
92 Yl BB). cca dee svesunad dew araade as 158
185 Pa. St. 628............ 492, 506
9 Pa. Co. Ct. 542...........00,0- 558
210 Ill. 70..... 4, 302, 592, 596, 686
693, 695, 765, 790, 802

214 Ill. 545...334, 337, 474, 479, 486
625, 672, 765, 786, 818

130 N. Y. App. Div. 308....... 841
181 Iowa 622......... 686, 766, 789
128 Wis. 280...... 241, 245, 250, 252
240 Til. 12........ 347, 490, 625, 626
627, 628, 762

94 Ala. 372...... 250, 327, 474, 485
515, 516, 517, 518

519, 894, 895, 896

65 Kan. 798...... 694, 696, 766, 779
65 Kan. 735.........00005. 655, 656
26 Atl. 983..................., 10
53 Atl. 296............ 774, 775, 802
109 Md. 186..704, 705, 707, 766, 782
818, 898, 917, 923, 925, 932
XXXV1

TABLE OF OASES.

(References are to pages.)

Consolidated Gas, Electric L. & P. Co.
v. Chambers
Consumers” Gas & Elec. L. Co. v.
Congress Spring Co........-..+-.
Continental Ins. Co. v. N. Y. Gas,
Electric, etc., Co..........ee eens
Cook v. North Bergem Tp............
—— v. Wilmington City Elec. Co..
Co-Operant Telep. Co. v. St. Clair. .
Corby v. Missouri & K. Telep. Co..

Cosgriff v. Tri-state Telep. & Teleg.
COs .kccenidssdisansante era aries

Cosgrove v. Kennebec L. & H. Co..
Courtney v. Niagara Falls Hydraulic
Bs MIG: COnpcnnsci wigiegaaradaeies

Coverdale v. Edwards..............

Covington Gas Light Co. v. Covington.
Craighead v. State..............0..
Cramer, Ex parte............0000--
Crandall v. Consol. Telep. & ae &

Elec. Co.
v. New York, etc., R. Co......
Crawford Elec. Co. v. Knox County

Power Co.
Crawford v. Standard Telep. Co......
Crawfordville, City of, v. Braden....

 

Crompton v. British Columbia Elec.
- Ry. Co.
Crosby v. Portland Ry. Co..........
Crouch v. City of McKinney........

e
Crowder v: Town of Sullivan......
Crowe v. Nanticoke L. Co..........
Crown v. Nanticoke L. Co..........
Cumberland, City of, v. Lottig......
Cumberland Teleg. & Telep. Assoc. v.
United Elec. Ry. Oo..............

Cumberland Telep. & Teleg. Co. v.
Adams

 

v. City of Calhoun............
—— v. City of Mt. Vernon.........
— v. Coats
—— v. Cosnahan

v. City of Evansville..........

 

v. City of Hickman............
. Graves’ Adm’r..............

v. Hopkins
v. Hunt

ce ey

cee mar eee e erences

122 Md. 324.2... nce eee eee eee 869
61 Hum (N. Y.) 133........ 378, 424
TOS ING Vic VSG acca -oe osere Sarasin. cree 901
TO Ns De Li EUG ioe tesa csecrraatone as 435,
9 Houst. 306...... 584, 704, 740, 305
168 Fed. 645..831, 856, 872, 873, 880
231 Mo. 417...... 832 834, 851, 852
854, 866, 858

15 N. Dak. 210....... 272, 275, 401
402, 416

98 Me. 473...........00+--- 426, 821
138 N. ¥. App. Div. 383... .857, 863
864

155 Ind. 374...... 292, 312, 346, 351
353, 354, 356, 538, 642

22 Ky. Law Rep. 796........... 47
(Tex. Cr.) 47 S. W. 128...-.... 538
62: Tex: Ori Ms escaw ese cian 489, 789
14 Ariz. 322....... 654, 664, 732, 761
19 R. I. 594....... 459, 460, 462, 464
110 Me. 285..........+6.... 54, 289
189 Towa 331..........0.. 000 ee 701
130 Ind. 149...... 232, 234, 235, 893
, 896

10 W. L. R. (Canada) 377...... 607
53 Oreg. 496........... 737, 742, 906
47 Tex. Civ. App. 54....287, 238, 239
326

128 Ind. 486.......... 325, 326, 481
209 Pa. 580........-2000005- 599, 911
206: Pa. BT es sin scot s via gos eeccce es 623
95. Md y-42 5.0 ecssscssew aca 769, 777, 824
93 Tenn, 492.......... 525, 528, 530
» 532

28 Ky. Law Rep. 1265. .832, 840, 848
120 Ky. 34....... 401, 415, 417, 418
128 Fed. 272..... 831, 833, 838, 851
852, 853, 856, 866

V6) Ry 247 ca saccwevas 171, 294, 296
MG Ind. Ui cna ceanan sma cs 317, 642
100 TI]. App. 519........... 755, 758
(Miss.) 62 So. 824..... 601, 613, 745
746, 748, 751

127 Fed. 187.......... 275, 293, 301
314, 321

129 Ky. 220...63, 319, 336, 345, 394
31 Ky. Law Rep. 972...... 832, 850
, 873

TOT Rye. 85 Osea la gente tearnternt 171
108 rein, OOF s sauiceiaeae Siiteiaie, OND
TaBLE oF CASEs. XXXVii

(References are to pages.)
Cumberland Telep. & Teleg. Co. vy.

 

 

 

KTane saws so ya ade Hawa ge Se 48 Ind. App. 67...... 4, 592, 599, 655
657, 686, 736, 745
—— v. Louisville Home Telep. Co.. 114 Ky. 892...... 522, 350, 522, 523
——— v. Magness’ Adm’x............ 106) Keys 380 Ye vie siicnesaiagigeninee pan 870
—— v. Martin’s Adm’r............. TUG Keys: BOS inc nite irae aomquenveaiae 674, 684
—— v. Pierson ............ceeceee 170° Ind 543: sess seseex eng awe 743
——-V.Shaw sicsscieadosnseecuaas 102 Tenn. 818 ea seceeesee ss cue 435
—— v. United Ry. Co.............. 42 Fed. 273........ 24, 527, 529, 530
—— v. Ware’s Adm’r.............. 115 Ky. 581........... 646, 766, 769
—— v. Warmer .....-...eeeseeeees 25 Ky. Law Rep. 1843.......... 721
—— v. Woodham ................. 99 Miss. 318...... 655, 658, 745, 746
— v. Yazoo, ete, R. Co.......... 90 Miss. 686................06. 111
Cummings v. Wichita R. & Light Co. 68 Kan. 218................4.. 576
Cunningham v. City of Cleveland.... 98 Fed. 657................ 326, 379

Cutler v. Pittsburgh, Silver Peak Gold
Mii! CO ie aas sce se gst Rceve ses nica seconcininen 34 Nev. 45...840, 851, 853, 864, 871
v. Putnam L. & P. Co........ 80 Conn. 470.599, 742, 743 760, 817
Cynthiana Telep. Co. v. Asbury..... V4 7 Key B0T oe anes. 4 waicavars ane 615, 739

D.
Dabson v. Postal Teleg. Cable Co.... 79S. Car. 429................. 472
Daily: Vi. State lice ica cos cae snes eanate 51 Oh, St. 348, 5 Am. Electl Cas.

186: cassatasaadeeres 272, 416, 430

Dakota Central Telep. Co. v. City of

TUTOn: ease siabenurie teen seats 165 Fed. 226........... 291, 364, 365

Dallas Elec. Co. v. City of Dallas.... 23 Tex. Civ. App. 323. .209, 564, 570
571, 915, 929
Dalton v. Receivers...............- 4 Hughes (U. 8.)180........... 459
Daltry v. Media Elec. L., H. & P. Co. 208 Pa. St. 403....593, 603, 617, 737
738, 745

Dannenhower v. Western Union Teleg.

COs rac eee saheblite Hai Street Dackevante Seaways 218 Pa. 216. sos secsaus 664, ,665, 705
Danville, City of, v. Thornton....... 110 Va. 541..605, 768, 782, 811, 813
Danville St. Car. Co. v. Watkins.... 97 Va. 713...........000 cc eee 463
Darby v. City of Union Springs.... 172 Ala. 709. .193, 195, 228, 229, 231

234, 629

D’Arcy v. Westchester Electric Ry.

COs ii calle eic torn paibicttcbaweare Goes ease 82 App. Div. 263. .570, 571, 904, 915
Darling v. Newport Electric Light

COs oie eG cciiee sme uaEE Seats TA Ne He BIB s oscaseweawe teas 443
Davenport v. King Elec. Co......... 242 Mo. 111.......... 593, 601, 736
Davenport Gas & Elec. Co. v. City

of Davenport .............-..0- 124 Towa 22...... 195, 212, 215, 344
Davidson v. Stuart................ 34 Can. Sup. Ct. 215........... 871

v. Utah Independent Telep. Co. 34 Utah 249............... 615, 755
Davis v. Fremont................4.. 135 N. Car. 588............ 207, 247

v. Pacific Telep. & Teleg. Co... 127 Cali 31200. caaeavews 24, 25, 539
——v. Port Huron Engine &

PRYESHER” CO’, ac secieerifdveteoa naisyrogos 126 Mich. 429................. 874
Davoust v. City of Alameda........ 149 Cal. 69. .629, 630, 631, 686, 789
Davy v. Hyde Park................ IG ‘Oh: OC. C2 50 Tis adicwawa cacavas 212
Dawson v. Lawrence Gaslight Co.... 188 Mass. 481......... 832, 837, 866
Day v. Consolidated Light, Power &

Tee: Go: sstsas eee aaa mares S 136 Mo. App. 274...... 601, 686, 693

767, 777, 822, 825

Dayton, City of, v. City Ry. Co...... 26 Ohio Cir. Ct. 736..551, 552, 553
554

Decatur, City of, v. Hamilton....... 89 Ill. App. 561............ 636, 637
XXXVili

TaBLE oF CasEs.

(References are to pages.) |

De Castor v. Compagnie Francaise du
Teleg. de Paris...............44.
Decatur L, P. & Fuel Co. v. Newson
Dechert v. Municipal Elec. L. Co.....
Deerfield River Co. v. Wilmington
Power & Paper Co..........+.00

DeFrates v. Central Union Telep. Co.
DeKalb County Telep. Co. v. Dutton.
,DeKallands v. Washtenaw Home
Telep.
vue v. United Telep. & Teleg.
OS avdorghts aha rapauche ce atucmnont aa nl anaealaoaye Var

Delaware & Atl. Teleg. & Telep. Cos.,

Matter of License Fees...........
Delaware & Madison Counties Telep.

Co. v. Fleming
Denison, etc., Ry. Co. v. Freeman...
v. Johnson ..........000 000 ee
Denison L. & P. Co. v. Patton......

 

Denson v. Georgia Ry. & Elec. Co...
—— v. Mammoth Spring Elec. L. &

Py COs cs cena seegree es aatawe 4 eae
Denver, City of, v. Hubbard........

—— v. Sherrett

ee ey

Denver Consol. Elec. Co. v. Lawrence.

—— v. Simpson

—— v. Walters

Denver Tramway Co. v. Reid.......

Detroit, City of, v. Circuit Judge of

Wayne County................008
Detroit, etc., R. Co. v. Railway.....
Devine v. Brooklyn Heights R. Co...
Devlin v. Beacon L. Co.............
Dewey Hotel Co. v. U. S. Elec. L. Co.
Di Bari v. J. W. Bishop Co.........
Dickey v. Maine Teleg. Co..........
Dickinson v. City of Boston........
Diller v. Northern Cal. Power Co....
Dillingham v. Crank...............
Dillon v. Allegheny County L. Co...
Dirken v. Great Northern Paper Co..
District of Columbia v. Dempsey....

Dixon v. Louisiana Elec. L. & P. Co.
Dixon v. Western Union Teleg. Co...
Dobbins v. Western Union Teleg. Co..
Doboy & Union Island Teleg. Co. v.

De Magathias...................
Dodd v. Consolidated Traction Co...
Donohue v. Public Service Ry Co....
Donovan v. Allert.................
v. Kansas City Elevated Ry. Co.

 

85 Hun (N. Y.) 231.........-
(Ala.) 59 So. 615...........---
39 N. Y. App. Div. 490. .729, 731,

83 Vt. 548..81, 88, 91, 94, 97,

113,
943 Til. S56) cs asecneeeenton ens
928 Il. 178.......+45- 415, 417,

153 Mich. 25. .848, 864, 874, 886,

215 Pa, St. 241..585, 602, 612,
614, 745, 820,

87 Pa. Super. Ct. 151..........

(Ind. App.) 102 N. E. 163......
38 Tex. Civ. App. 152..........
36 ‘Tex. Civ. App. 115...... 570,
(Civ. App.) 135 8. W. 1040..

746, 748, 784, 786,

VS5) GG. VB Di ace sense! esscavece 592, 595,
LOS: ATK. TG dic srecctnsaccraeaied sata w ace
17 Colo. App. 346..... 194, 195,
209, 210, 211, 213,

88 Fed. 226. .584, 587, 595, 635,
31 Colo. 301..180, 181, 586, 603,
607, 609, 610, 699, 726, 820,

21 Colo. 371..591, 601, 604, 736,
39 Colo. 301. .584, 601, 765, 775,
4 Colo. App. 53. .4, 563, 570, 571,
915,

V9: Michic. SS sassy sctsne a Seetevag aeaoors
DTA eS 4B eccacwcerecat aioe tonnes
1 N. Y. App. Div. 237..........
192 Pa. St. 188........ 710, 737,
17 App. D. C. 356.......... 353,
199 Mass. 254...........00-005-
46 Me. 483............ 742, 743,
188 Mass. 595.............6.65
162 Cal. 531. .724, 736, 906, 907,
87 Tex. 104. .457, 459, 647, 648,
179 Pas St. 482. wane ec ee
110 Me. 374............... 856,
13 App. D. C. 533. .636, 665, 679,
47 La, Ann. 1147 e535 hccccececas
68 Fed. 630................ 862,
163 Ala, 222.......... 723, 801,
Bo) POO. COT wane Sater nls Maw yt ecensianate
Bl NG a Ey 2O Vs ssceseie sisrauers excranars
19! IN Jet 8 Vas cages Shes ones
11 N. Dak. 289....398, 411, 416,
157 Mo. App. 649...... 563, 578,

726

905
200
215.
637
700
606
911
743
906
824
924
894
926

208
239
754
796
497.

825
630
918
649
764
864
705
708
876
868
826

278
578

439
915
TasLE oF CasEs.

. (References are to pages.)

Dorff v. Brooklyn Heights R. Co..

Doty v. American Telep. & Teleg, Co.
v. Village of Johnson..........
Dover v. Glouchester Elec. Co.......
Dow v. Sunset Telep. & Teleg. Co....

 

Downs v. Andrews.............000.
—— v. Missouri & Kansas Telep. Co.
Doyle v. La Crosse Uity Ry. Co.....
Dreisbach v. Ross.............0.05
Drown v. New England Telep. &

Teles. Cos sa. sis. ca Kast ves esi aes

Drown v. New England Telephone &
Peleg: COs: weiccese obec oe Aes 38S

Dugan v. Erie County Elec. Co......
Duke v. Postal Teleg. Cable Co......
Duluth, City of, v. Duluth Telep. Co.
Dumphy v. Montreal L. H. & P. Co..
Dunbar v. Hollingsworth & Whitney
Co. .
Dunham y. Black Diamond Coal Co..
Dunlay v. United Tract. Co.........
Dunn v. Cavanaugh................
Dupree v. Alexander.............4-

v. Tamborilla ................
Dusenbury v. Mutual Teleg. Co......
Dutcher v. Rockland Electric Co....

 

xxxix

95 N. Y. App. Div. 82...... 565, 569
128 Venn. 329.........0-06- 111, 472
(Vt.) 77 Atl. 866........... 81, 119
155 Fed. 246...... 765, 782, gil, 812
157 Cal. 182..36, 37, 38, 647, 648
, 104, 746, 747, 750, 765, 932

145 Mo. App. 173........ 000065 689
161 Mo. App. 274. .689, 743, 745, 748
148 Wis. 280.......... 594, 596, 830
195 Pa. St, 278ico 2. cass ee aes 31
80 Vt. 1:...646, 747, 748, 750, 751
768, 812, 813, 827, 908

81 Vt. 358..747, 748, 812, 813, 827
873, 917, 921

DAL Pa 29 's-5. scones; 5 0 sews tebe os 700, 702
11: Se Cate O85 scsi a cea aawiwaes 107

84 Minn. 486. .304, 358, 360, 367,
(1907) A. C. (Eng.) 454. .589,

109 Me. 461........... 0.0000
239 TM. 457i css tocine Hawdinve san
18 Pa. Super Ct. 206..........
185 Fed. 451. .691, 765, 771, 775,
29 Tex. Civ. App. 31. .832, 851,

27 Tex. Civ. App. 603..........
11 Abb. N. C. (N. Y.) 440... .83,
123 N. Y. App. Div. 765. .704,

786, 812, 813, 818, 819, 820,
Dwyer v. Buffalo Gen. Elec. Co..... 20N. Y. App. Div. 124. .700, 724,
Harp v. Phelps........eeceeeeeeee. 120 Md. 282............... 716,
East Boyer Telep. Co. v. Town of

Vail nnd te iak ssc han sae ees 136 N. W. 120............. 358,
East Canada Creek Elec. L. & P. Co.,

Matter ‘of sivcaedacbcata niu teu, sas 49 Mise. (N. ¥.) 565........ 91,
Eastern, etc., Teleg. Co. v. Cape Town

Tramways Co. ......-..0.seeeee L. R. App. Cas. (1902) 881....
East Grand Forks, City of, v. Luck.. 97 Minn, 373..................
East Orange Tp., Inhabitants of, v.

Suburban Elec. L. & P. Co........ 59 N. J. 563...... 292, 304, 367,
East River Elec. L. Co. v. Grant.... 57 N. Y. Super. Ct. 553........
East St. Louis Elec. St. Ry. v. Sliger. 65 Ill. App. 312................
East Tennessee Telep. Co. v. Ander-

son County Telep. Co............. 115 Ky. 488............... 294,
East Tenn. Telep. Co. v. Bower..... VAS Keys TT Fisse anc wire ioe Site $208 see
East Tennessee Telep. Co. v. Carmine. 29 Ky. Law Rep. 479....... 646,
—— v. City of Frankfort.......... 190 Fed. 346...... 294, 303, 305,
—— v. Chattanooga .............. (Tenn.) 2 Am. Elect]. Cas. 323.
—— v. City of Russellville......... 106 Ky. 667..... sun ed anes sys
—— v. Knoxville St. Ry. Co...... (Tenn.) 3 Am. Electl. Cas. 400.

v. Sims’ Adm’r
Easton Power Co.'v. Sterlinworth Ry.
Supply Co.....ccccs cence creees

 

18 Ky. Law Rep. 761..711, 764,
22 Pa. Super. Ct. 538

491
734

858
839
566
890
852
854
837
142
167
827
752
818

717
361
119

589
255

391
292
570

350
879
858
315
532
295

525

526
920
xl

TaBLE oF CasEs.

(References are to pages.)

Eaton v. City of Weiser............
Eby & Smith v. City of Lathrop..
Hosoonty Ta & P. Co. v. Hiller.......

—— v. Sheridan
——— ¥, Stephen 6 vs vue se saves s sors
Eddleman v. Union Co. Traction &
Power COs: soseiep oda ees nego es
Edison Elec. Co. v. City of ae:
Edison Elec. Illum. Co. v. Jacobs..
Ve HOOper: ies s sow 6 snsieme-ee ave
Edison Elec. Illum. Co. of Williams-
port v. Citizen’s Elec. Co........

Edison Elec. L. & P. Co. v. Mer-
chants’ & Mfg’rs Elec. L., H. & P.
COs. sui 3 sa bested ease wulecer 3 baat Soo Haat oe

Edison Elec. L. & P. Co. of St. Paul
v. peat S SiR wie rete estate oie

 

Co.
Eels v. American Telep. & Teleg. Co.
E. E. Souther Iron Co. v. Laclede

Eickhof v. Chicago, etc., Ry. Co.....
Eigenbrod_ v. Canberiaua Telep. &
Peleg. Coin o2xiwe ss eae ns eosin s
Eining v. Georgia Ry. & Elec. Co....
Ela v. Postal Teleg. Cable Co.......
Elec. Imp. Co. v. City & County of
San Francisco. ..........cceen ees
Electric Power Co. v. City of New
York

Pewee erm ete eet eee ween eee

Co.
—— v. City of New York..........
Electric Teleg. Co. v. Overseers of the
Poor of Salford.............0.00-
Ellinwood v. Reedsburgh...........
Elliott v. General Constr. Co........
— v. Newport St. Ry............
Ellsworth v. Metheney.............
El Paso Gas, Elec. Light & P. Co. v.
City of El Paso..............0080.
Emerson v. The Commonwealth.....
Emery v. City of Philadelphia......
Empire City Subway Co. v. Broadway
& 7th Ave. R. Co.............008
Emporia, City of, v. White.........
Ennis v. Gray
Ensign v. Central N. Y. Telep. &
Tele: COs 5. gues soa5 saaie nis ssccieg sin eidiave
Epperson v. Postal Teleg. Cable Co. .
Eppley v. Bryson City..............
Ergo v. Merced Falls Gas & Elec. Co.
Erslew v. New Orleans, etc., R. Co..
Erwin v. Missouri & Kansas Telep.
Co.

see te eee weer ensee ee ee erence

12 Idaho 544....... eeee. 630, 823
128 Mo. App. 315.......... 295, 314
203 Ill. 518..592, 613, 646, 704, 708
738, 742, 743, 744, 745, 751

200 Il. 439........ cee ee ee aeee 934
87 Ill. App. 220........-..005. 726
217 Il. 409..........-02-5-- 92, 110
178 Fed. 425.......... 212, 213, 217
8 Kulp (Pa.) 120.......... 196, 211
85 Md. 110..........00006- 290, 301
235 Pa. St. 492........ 515, 516, 517
519, 520

200 Pa. St. 209...515, 518, 519, 520
110 Minn. 163....541, 542, 544, 547
185 Fed. 615..310, 541, 544, 547, 548
223 Pa. St. 93...........-. 690, 806
143 N. Y. 183. .24, 25, 398, 402, 403
411, 412, 416, 422, 437

109 Mo. App. 353.............. 176
77 ‘Ill. App. 196............ 571, 915
121 La, 228.......0. cee ee eee 867
133 Ga. 458...... 592, 738, 745, 750
1 Ne We Laverne asiswess 5 664, 672, 754
45 Fed. 593...........6.5- 486, 893
29 Misc. (N. Y.) 48........... 538
75 Hun (N. Y.) 68........ 537, 538
29 Mise. (N. Y.) 48........ 498, 500
241. J. N.S. Mag. Cas. 146.... 28
GIS Wik. 1S Li ccgecs Spa's asbee.« 234
93 Neb. 453............... 856, 859
18. RT, COT ees asses canae es 574, 575
LOE (Weds VQ 5-5 3 sigicie-a-istaavns gene's 839
22 Tex. Civ. App. 309...... 201, 204
MOS Pa. VU acc scsu.s ee he sims 327
208 Pa. St. 492........ 603, 633, 738
87 Hun (N. Y.) 279........ 325, 326
74 Kan. 864...... 630, 667, 704, 736
87 Hun (N. Y.) 355... .606, 768, 776
79 N. Y. App. Div. 244...... 615, 721
155 Mo. 346............... 674, 879
157 N. Car. 487...100, 101, 105, 106
161 Cal. 334.................. 879
49 La. Ann. 86............ 459, 462

863
 

 

 

 

TaBLE CF CasEs, xli
(References are to pages.)
Escambia County Electric L. & P. Co.

y. Sutherland ...........-...045 61 Fla. 167....... 584, 608, 610, 925

Essex Co. Elec. Co. v. Kelly........ 57 N. J. L. 100... .832, 836, 837, 848
849, 851, 852, 862, 905
Estabrook v. Newburgh L., H. & P.

GO. saalseanee es shies Mea eee sees 141 App. Div. 683............. 752
Evans v. Eastern Kentucky Telep. &

VOLO 5 COs wads pcaseceaser sath. er0s 85 Sere Y 124 Ky. 620...... 676, 678, 681, 711

v. Holman..........0ce es eeee 244 Tl. 596........... 209, 248, 250
Evanston Elec. Ilum. Co. v. Kocher-

SPOLPOT . spsses, canchsvety da aeeac nce e MOE Gee 175 TI, 26 sais eos nue eo sigee soa 12
Evansville Gas & Elec. L. Co. v.

Raley isi casks seine ves meee ners 38 Ind. App. 342........... 853, 866
Evansville Gas & Elec. Co. v. Robert-

SOW fa.ca carne serait # inva od iva vale uae. averaiee-S (Ind. App.) 100 N. E. 689. .830, 831

833, 839
Evansville, ete., Tract. Co. v. Mont-

BOMCTY .. eee cere eeeee 50 Ind. App. 528. .720, 721, 722, 928
Ewald v. Mich. Cent. R. Co........ 107 Ill. App. 294.............. 868
Ewart v. Village of Western Springs. 180 Ill. 318................--. 254
Excelsior Elec. Co. v. Sweet......... 57 N. J. L. 224........ 728, 909, 92%
Fallsburg Power & Mfg. Co. v. Alex-

BHU ayaises es seraceacacaysere ewes duaisce eotais 101 Va. 98........ce cee eee 88
Farley v. New York, ete, R. Co..... 87 Conn. 328................-. 459
Farmer v. Columbia County Telep.

COs. 5 gid apes oF oraleere eo schenslins ato 72 Oh. St. 526........ 365, 366, 376
Farmers’ Telep. Co. of Quimby v.

Town of Washta.............-008 (Iowa) 1383 N. W. 361..352, 389, 392
Farrell v. Winchester Ave. R. Co.... 61 Conn. 127.................. 561
Fawcett v. Town of Mt. Airy........ 184 N. Car. 125...230, 236, 246, 247
Fechet v. Drake.............000008 Di ATAR, 2OO., ose ceecieiectiasaauecavare: aualandss 31
Ferrell v. Dixie Cotton Mills........ 157 N. Car. 528............ 694, 697
Fickeison v. Wheeling Electrical Co. 67 W. Va. 335.......... 7, 618, 619
Finch v. City of Ottawa............ 190 Fed. 299..... 591, 738, 746, 747
Firebaugh v. Seattle Elec. Co....... 40 Wash. 658..... 565, 568, 903 915
Fish v. Kirlin Gray Electric Co..... 18 S. Dak. 122............ 705, 730

Vie TPP OULIS a poche vyies 9 3a areumie lear 26 Okla. 337..857, 859, 860, 862, 864
v. Waverly Electric L. & P.Co. 189 N. Y. 336............4- 923, 930
Fisher v. City of Mt. Vernon....... 41 App. Div. 293.......... 717, 825
v. City of New Bern.......... 140 N. Car. 506. ..598, 629, 630, 706
740, 768, 772

Fitch v. Central N. Y. Teleg. & Telep.

COs 055-03 edesaicd anole hele Shel Bs gee 42 N. Y. App. Div. 321..... 701, 721

Fitzgerald v. Edison Elec. Tllum. Co. 200 Pa. 540...... 603, 768, Lh a
776, 81
ee v. Central Georgia Power
PSs HE EES dete yD Kame seme 140 Ga. 511... cece eee eee 188
Flood v. Western Union Teleg. Co.. 131 N. Y. 603......... 829, 838, 869
Floyd Jones v. United Electric Light

GOL aie dirave fatale death lal eye fe bodega ety avene 55 Misc. (N. Y.) 529........ 9, 643
Flynn v. Boston Elec. L. Co......... 171 Mass. 395............0005- 921
Foley v. Jersey City Elec. L. Co.... 54N. J. Law 411...... 591, 736, 795

? 796, 809, 862, 863
—— v. Northern Cal. Power Co.... 14 Cal. App. 401...... 673, 676, 679

699, 702, 708

Forbes v. Williamantic F. Elec. Co.. 19 Oreg. 61.......0000 eee eee 30, 31

Forsythe v. Baltimore & O. Teleg.Co. 12 Mo. App. 494...........05. 427
xlii

TaBLE OF CASES.

(References are to pages.)

Ft. Madison St. Ry. Co. v. Hughes. .

 

 

137 Iowa 122.........541, 542,

Ft. Smith, City of, v. Hunt......... 72 Ark. 556........-4- 148, 149,
Ft. Worth, etc. Ry. Co. v. South-

western Teleg. & Telep. Co........ 96 Tex. 160... .85, 125, 755, 758,
Foster v. City of Cape May......... 60 N. J. L. 78...... 0 eee eee eee
Fox v. Village of Manchester...... 183 N. Y. 141... .635, vee -

* a
Frankfort, City of, v. Commonwealth. 29 Ky. Law Rep. 699..........
Franklin v. Northwestern Telep. Co. 69 Iowa 97............+.++: 24,
Frantz v. Citizen’s Elec. Co......... 231 Pa. St. 589...768, 782, 812,
Frauenthal v. Laclede Gas Co...... 67 Mo. App. 1......eceeeeeees
Frazier v. East Tennessee Telep. Co. 115 Tenn. 416........ sence eeee
v. St. Louis, etc., Refining Co.. 150 Mo. App. 419.......+0+0+6:
Frederick Elec. L. & P. Co. v. Mayor,

etc., of Frederick City.......... 84 Md. 599.......-.seseeeee 14,
Frederick v. People..............0 83 Ill. App. 89...........0005-
Freeman v. Missouri & K. Telep. Co. 160 Mo. App. 271..... 616, 699,

704, 705, 743,

746, 750, 751,

v. Brooklyn Heights R. Co.... 54 N. Y. App. Div. 596.........

French v. Robb.............+0.. oe. )«6 OT NOS. OL. 260.2... eee eee

Friesenhan v. Michigan Telep. Co... 184 Mich, 292.............. 679,
Fritz v. Salt Lake & O. Gas & Elec.

Ds CO iss ves viewer es eal eos peewee cele 18 Utah 493..830, 835, 861, 887,
Frontier Telep. Co. v. Hepp......... 66 Misc. (N. Y.) 265...........
Fulton Co. Gas & Elec. Co. v. Hudson

River Telep. Co.............20008 130 N. Y. App. Div. 343.......
—— v. Greib Rubber Co........... 75 N. J. Law 525.......... 845,
Fulton L., H. & P.. Co. v. Oswego

River P. Transmission Co........ 128 N. Y. Supp. 290....... 348,
Fuselier v. Great Southern Telep. &

Peleg: Coie sei scenes cvs aes ess wa 50 La. Ann. 799.........0 00 eee
F. W. Cook Investment Co. v. Evans-

ville Terminal Ry............... 175 Ind. 3....... ..19, 100, 101,

G.
Gaetjens v. City of New York...... 132 N. Y. App. Div. 394. ..631,
Gage v. Conners.............00005 . 142 App. Div. (N. Y.) 228. .394,

Gainesville, City of, v. Gainesvill
Gas & Elec. ‘P. Co............ 00

 

City of Gainesville...............
Galveston, etc., Ry. Co. v. Pigott....
Galveston, H. & S. A. Ry. Co. v.

Pigott)  o.0 dae vag ues Soa Wess ee mioHe
Gannett v. Independent Telep. Co. of

Syracuse
Gannon v. Laclede Gaslight Co.....
Ganster v. Metropolitan Elec. Co...
Gardner v. Metropolitan St. Ry. Co..
—— v. Schenectady Ry. Co........

v. Springfield Gas & Elec. Co..
Gareau v. Montreal St. Ry. Co......
Garner v. Chicago Consol. Tract. Co.

 

(Fla.) 62 So. 919..............
65 Fla. 404...9, 63, 64, 65, 475,

63 Fla, 425........... 482, 483,
54 Tex. Civ. App. 367

54 Tex. Civ. App. 367..........
55 Mise. (N. Y.) 555...... 362,
145 Mo. 502
214 Pa. 628

Seen wwe meee nee rene

113 N. Y. App. Div. 133... .829,

154 Mo.
22 0. L.

543
481

873
205
796
928
144

25
813
807
418
856

15
192
701
744
157

437
798

921
510

649
853

643
471
109

632
633
895

75
488

487
649

845

403
906
639
573
856
926

639
914
TasLe oF CasEs.

(References are to pages.)

Garretson v. Tacoma Ry. & P. Co...
Gaslight & Coke Co. of New Albany
v. City of New Alban
Gastonia, City of, v. Citizens’ Nat.
Bank: jacccsaae cea wen ta views s vies

Gathright v. H. M. Byllesby & Co..
Gavin v. Fall River Automatic
Peleps (COs .ssias setae waseu vsow
Gay v.  Milwalii oe Elec. Ry. & L. Co.
— v. Mutual Union Teleg. Co....
a v. N. Y. & Penn. Telep. & Teleg.
0.

ee ay

Geissmann y. Missouri Edison Elec.
Co. ...... Syeidhcie os dsievaa@s-a.aayatelete-akave

General Elec. Co. v. Morganton E. L.

& P. Co
—— v. Murray
v. Town of Ft. Deposit........
Geneva, City of, v. Geneva Telep. Co.

 

Geneva-Seneca Elec. Co. v. Economic
Power & Constr. Co..............
Geneva, Trustees of Village of, v.
Brush Elec. L. Co..........--2.0-
Gents v. Spring Valley Coal Co.....
Gentzkow v. Portland Ry. Co.......

German v. Brooklyn Heights R. Co..

German-American Ins. Co. v. N. Y.

Gas & Elec. L., H. & P. Co........
Gibbons v. Brush Elec. Illum. Co....
Gibbs v. Poplar Bluff R. & P. Co....
Gilbert v. Duluth Gen. Elec. Co....

Gilchrist v. Dominion Teleg. Co.....
Gillett v. Chester & Media Ry. Co..
Gilmore v. Milford, etc., Ry. Co.....
Giraudi v. Elec. Imp. Co...........

Giuricevic v. City of Tacoma........
Glander v. Milwaukee Elec. Ry. & L.

Co.
Glassey v. Worcester Consolidated

Railway Co. ........... cece eeee
Gleason v. Missouri River Power Co.
Gloster v. Toronto Elec. L. Co......

Gloucester Electric Co. v. Dover..

nk:
Goddard v. Chicago, ete., Ry. Co.
Ve Hugler g6 0s asa ad ost daisies
Godfrey v. The Streator R. Co......
eeuuon v. Western Union Teleg.

ee ce

 

xliii

50 Wash. 24.......... 705, 707, 757
166 Ind. 406.065 essences ces 214
(N. Car.) 81 S. E. 755......... 246
154 Ky. 106........... 336, 345, 395
185 Mass. 78..........0-e0eees 858
1388 Wis. 348.............. 902, 915
12 Mo. App. 485....... 417, 425, 427
144 N. Y. App. Div. 874... .844, 855
931

173 Mo. 654........ 4, 604, 767, 770
774, 818, 909

122 N. Car. 599.......00esca0- 57
32 Tex. Civ. App. 226......... 841
174. Alas: T79's 0:6 dis: cccassvowie se Gini 250
30 Misc. (N. Y.) 236...... 498, 501
502, 503

136 N. Y. App. Div. 219.41, 349, 351
50 Hun (N. Y.) 581........ 649, 650
155 Ill. App. 628...... 592, 738, 761
54 Oreg. 114. .605, 689, 700, 704, 706
707, 811, 812, 813, 814, 827

107 N. Y. App. Div. 354... .565, 566
915

103 N. Y. App. Div. 310....729, 924
36 N. Y. App. Div. 140........ 832
142 Mo. App. 19............... 728
93 Minn. 99...... 598, 607, 746, 747
821, 930

3 Prigs. & Bur. (N. Br.) 533... 432
2 Pa. Dist. Rep. 450........ 428, 559
193 Mass. 44.......... 565, 902, 914
107 Cal. 120..... 594, 600, 604, 735
. 776, 810, 812, 815, 908

57 Wash. 329............ 0c eee 633
155 Wis. 381.............040.. 818
185 Mass. 315...........0cu08 663
46 Mont. 395.............. 829, 830
38 Can. Sup. Ct. 27....586, 589, 604
705, 768, 779

153 Fed. 139.............. 802, 826
120 Fed. 490.......... 765, 774, 930
104 Ill. App. 526.............. 409
222 Ill. 462....... 844, 901, 905, 911
56 Ill, App. 378...679, 704, 707, 708
87 8. Car: 440.355) anasto dias 887
160 Cal. 410....... 48, 475, 476, 484
157 Mo. App. 596..590, 618, 704, 705
707, 708, 742, 748, 745
xliv

TaBLE oF CasES.

(References are to pages.)

Gordon v. Ashley..................
Gorham vy. Eastchester Elec. Co......
Gosport, Town of, v. Pritchard......
aul Edison Elec. Illum. Co. of

er ee i

Govan v. New Orleans & C. Ry. Co..
Graham v. City of Boston..........
Grand Rapids Elec., etc., Co. v. Grand
Rapids Edison, etc., Co...........
Grant v. Sunset Telep. & Teleg. Co..
Grant’s. Pass Banking & T. Co. v. En-
terprise Mining Co...............
Graver v. Edison Electric I!lum. Co.
OF Brooklyn... wi. csevereeeees

Graves v. City & Suburban Teleg.
ASSN 5 xciis oi oad os Ha see esd aan

—— v. Washington Water Power Co.

Gray v. York State Telep. Co.......
Great Western Sugar Co. v. Parker..
Great Falls Power Co. v. Webb....

Greberstein v. Stone & Webster En-

gineering Corp. .................
Green v. Pittsburg, ete., Ry. Co.....
Greene v. Boston Elev. Ry. Co......
v. Western Union Teleg. Co....
Greenville, City of, v. Branch.......

 

Greenville Gas, Elec. L., P. & Fuel

Co. v. City of Greenville..........
Greenwood v. Eastern Oregon L. & P.

CO: scaswawessonmeres cede amides
Greif v. Buffalo, etc., Ry. Co........
Gremnis v. Louisville Elec. Co......
Griesner v. Suburban Elec. Co......
Griffin v. Jackson L. & P. Co......
v. N. Y. Telep. Co.............
v. United Elec. L. Co..........
Griffith v. New England Telep. &

Neéleg: Coes: .0eeyss3 awe evaces oes
Griveaud v. St. Louis Cable & Western

Bye COS esas 2 shscineisoe gonad eco aap ei
Gross v. South Chicago City R. Co..
Guest v. Edison Illum. Co..........
Guile v. LaCrosse Gas & Elec. Co....
Guinn v. Delaware & A. Tel. Co.....
Gulf Ice Mfg. Co. v. Bowers........

 

 

Gunn v. City of Jacksonville........
Gurnsey v. Northern California Power
CO.,  ratisniat ae ai eet wnW Re sKTS ee Ras

LOU N, Yi U8G6 cece ce ces os enwe es 623
80 Hun (N. Y.) 290............ 398
156 Ind. 400. .194, 195, 204, 218, 219
29 Mise. (N. Y.) 241...... 49, 50, 51
60, 65
THY Da. B25 0.5 os see da dene sas 874, 884
156 Mass. 75......cceeeeeeeeee 636
33 Fed. 659........... 325, 328, 329
7 Cal. App. 267........ 755, 758, 798
58 Oreg. 174.... 2... . cee een 7
126 N. Y. App. Div. 371....50, 65
66, 67
132 Fed. 387,.............. 756, 759
44 Wash. 675...... 586, 685, 687, 696
768, 780
41 Mise. (N. Y.) 108...... 416 439
22 Colo. App. 18....... 457, 459, 461
123 Tenn. 584....87, 97, 98, 99, 102
108, 118, 119, 475, 487
205 Mass. 431.............. 858, 887
ZV) Pas St. BAY 5c ace comand oom 914
207 Mass. 467.............. 864, 871
FQ. HOG. 25 Ors sssce: sc seein sco: ero ge oe 866
(Tex. Civ. App.) 152 S. W.
ATS wien cece 685, 692, 778, 832, 836
839, 851, 852
165 Mich. 135................. 378
(Oreg.) 146 Pac. 336...593, 734, 737
205 N. Y. 239............--.00. 857
20 Ky. Law Rep. 1298...... 766, 776
224 Pa. St. 328............ 825, 826
128 Mich. 653.............. 623, 660
141 N. Y. App. Div. 1...... 852, 854
164 Mass. 492..... 686, 766, 774, 812
12 Nos GAN ss picn win pane Rs 680, 681
33 Mo. App. 458...........0000: 582
73 Il. App. 217............0.. 463
150 Miche 438.4 0 sed s4 wax tide 829
T45) Wiss VOT seascee eas ace seas 845
T2.Ne de Li 276.0 ee 686, 757, 761
80 Miss. 570..... 24, 25, 137, 142, 405
406, 427
(Fla.) 64 So. 485.............. 830
160 Cal. 699...... 379, 380, 398, 404
405, 408, 438
TaBLE oF CasEs.

(References are to pages.)

H.
Haertel v. Pennsylvania L. & P.Co.. 219 Pa. St. 640........ 602, 812,
Haines v. Twenty-second St., ete., Ry.

OG: bed chedola a eaheas Swe eanele hae ats 1 Pa. Dist. Rep. 506...........
Nagerla v. Mississippi River Power

COs: se cu wise eraletel dina twielbane-ars veo axe 202 Fed. 776....11, 18, 86, 104,

; 119,

Hall v. Union Pac. R. Co.......... 5 McCrary (U. 8.) 257........ :

Halleran v. Bell Telep. Co........... 64 N. Y. App. Div. 41...... 421,

Halliday v. National Telep. Co.....-- (1899) 2 Q. B. (Eng.) 392......

Halpern v. New York Edison Co.... 61 Misc. (N. Y.) 288........ 66,

Halsey v. Rapid Trans. St. Ry Co.. 47 N. J. Eq. 380...............
Hamilton Gaslight. & Coke v. City of

Hamilton: «2+ sciences esewn say seas. 146 U. 8. 258....305, 613, 738,

749, 750,

Hammond v. Kingman & Co........ (Ind. App.) 101 N. E, 385......
Hand v. Central Pennsylvania Tele-

phone & Supply Co............... 1 Lack. Leg. N. (Pa.) 351. .613,
Hankey v. Philadelphia Co......... 5 Pa. Super. Ct. 148........440,
Hannibal, City of, v. Missouri & K.

Telep:: COsc.cas sod eaanne ses Genes 31 Mo. App. 23............ 492,
Hannum v. Hill..........-- eee eee 52 W. Va. 166..... Boise srecatias ties
Hanrahan v. City of Baltimore...... 114 Md. 517...............0005
Hanson v. Hunter Elec. L. Co...... 86 Iowa 722...........4....222,
Hanton v. New Orleans, etc., Power

COn ciien wueme as tmmee oa matte vag aes F24. Toa, 562). asies os nici ee .. 746,
Harrington v. Com’rs of Wadesboro. . 153 N. Car. 437...599, 630, 683,

919,
Harris v. Eastern Wis. Ry. & L.Co.. 152 Wig. 627..................
Hart v. Allegheny County L. Co.... 201 Pa. 234.......... 816, 819,
878,
Harton v. Forrest City Telep. Co.. 141 N.C. 455..... 615, 653, 655,
671, 672, 707, 721,

Hardwick, Village of, v. Vermont

Teleg. & Telep. Co............... 70 Vt, 180... sscvtas cesieweawnses s
Harp. v. Cumberland Telep. & Teleg. .

GOsy Bess peatets catcnerny ers focal ses otevante Rateoolate 25 Ky. Law Rep. 2133........
Harrison v. Kansas City Electric

BAGH COs os -asens oe asapess cys wesnietg soe isis 195 Mo. 606........... 661, 662,
Harrisburg, etc., Ry. Co. v. Harris-

burg, ete., Ry. Co..........06.0. 15 Pa. Co. Ct. 389.......... 114,
Harrison v. Detroit, etce., Ry. Co.... 187 Mich. 78..................
Harroun v. Brush Elec. L. Co....... 12.N. Y. App. Div. 126. .840, 877,
Harter v. Colfax Elec. L. & P. Co.. 124 Iowa 500..... 585, 601, 618,

730,
Hartford, City of, v. Hartford Elec.

LIiGht COs aie saviscras tari ns adres 65 Conn. 324.......... 205, 208,

Hausler v. Com. Elec. Co. ......... 144 Ill. App. 643....... 592, 625,
785, 812,
Hauss Elec. L. P. Co. v. Jones Bros.

Hlet. CO) cassis desma tee gear d'a sesudnas© 10 Ohio Dec. 709........... 365,
Haverford Elec. L. Co. v. Hart...... 13 Pa. Co. Ct. 369..... 401, 408,
Haworth v. Mineral Belt Telep. Co... 105 Mo. App. 161........... 843,
Hay v. City of Springfield.......... 64 Ill. App. 671............ 230,
Hayes v. Chicago Telep. Co........ ZUG TN Abe. s eisiack 63 uve asarevee
—— v. Southern Power Co.......... 95 S. Car. 230....691, 696, 768,
Haynes v. City of Seattle.......... 69 Wash. 419.............006 a.

814
561

107
120
459
425
890

68
425

745
751
863

703
746
442

493
930
509
392

747
810
931
694
850
881
667
722

493
832
712

172
862
930
619:
912

211
765
818

366
425
880
250
650
790
754
xlvi

TaBLE OF CASES.

(References are to pages.)

Haynes v. Raleigh Gas Co...........

Hays v. Columbiana Telep. Co......
Hazelhurst, Town of, v. Meyers.....
Heck v. Greenwood Telep. Co........
Heckert v. Central District & Printing

Teleg. Co.
Hector v. Boston Elec. L. Co.......-
Heiberger v. Missouri & Kansas Telep.

COs shees sGy Sains ap ginters 82 areas eye

Heidt v. Southern Telep. & Teleg. Co.

Helena Power Transmission Co. v.
PT Atb: i.5 sicsdues: 04-sneteD a9 deeas wb ecoceue
Helfrick v. Ogden City Ry. Co
Hempstead, Village of, v. Ball Elec.
DCs, 960s was aca seg. g ea alaces So ert
Henderson, City of, v. Young........
Hendrickson v. City of New York..
Henning v. Western Union Teleg. Co.
Henry v. Prendergast.............--
Henry L. Doherty & Co. v. Rice......
Herbert v. Hudson River Elec. Co..

—  v. Lake Charles Ice,
Waterworks Co.

Herkimer iaused L. & P. Co. v. John-
son. .
Herlitzke v. La Crosse Inter-Urban
Telep. Co.
Sencn v. City of Pittsburgh.......
Hershfield v. Rocky Mountain Bell
Telep; (G0s wea s54 sive 22s geese ca aes
ye v. Municipal Electric Light
Heskeli v. Auburn L., H. & P. Co..
Hesse v. Meriden, ete., Tramway Co..
Hester v. Town of Greenwood.......
Hewett v. Western Union Teleg. Co.

cy

Hickok v. Auburn L., H. & P. Co....
Hicks v. Western Union Teleg. Co....
Higgins v. Manhattan Elec. L. Co...
Hill v. Pacific Gas & Hlec. Co.......
Hilliard v. George G. Fetter L. & H.
COs a sips at a oiate rns elegans estar’ s bananas
Hine v. "Bay City Consol. R. Co..
Hipple v. Edison Elec. Illum. Co. of
Pottsville...
Hobbs v. Long Dist. Telep. Co.......
Hoboken Land & Imp. Co. v. United
Elec. Co. of N. Ju... . ee. cee eee
Hockett v. State... .......... eens
Hodges v. Western Union Teleg. Co..
Hodgins v. Bay City...............

Bas eh te: We he HEB HS. 6 eV etta i

Hodgins v. City of Torontu.........
Hoffman v. Leavenworth Light, Heat
& Power Co.

114 N. Car. 203...593, 605, 737,
793, 796, 810, 906,

12 Ohio C. D. TOF cheese ee 425,
84 Miss. 7......-. 404, 405, 406,
35 Ind. App. 244......--..--6+-
206 Fed. 653.....00ceeeeeeeeees
174 Mass. 212......--- 690, 769,
133 Mo. App. 452..... 285, 286,
739, 743, 902,

122 Ga. 474...... 584, 592, 595,
675, 676

35 Mont. 108........0.eeeees 86,
7 Utah 186........00ceeeee 459,
9 N. Y. App. Div. 48.......- 338,
119 Ky. 224......-- cee eee 244,
38 N. Y. App. Div. 480........
41 Fed. 864...... 705, 738, 803,
51 Ind. App. 43..........++5-45
186 Fed. ae i fibu  NERS 3 late fala ite
136 N. Y. App. Div. 107. .617,
906,

111 La. 522. .655, 677, 704, 709,

751, 766, 788,
37 N. Y. App. Div. 257.........
145 Wis. 185.......... 700, 740,
204 Pa. St. 509........ 593, 631,
12 Mont. 102...... 290, 382, 417,
89 N. Y. App. Div. 569........
209 N. Y. 86...... 685, 686, 689,
75: Conn. ST sud cose s Vous teens
V72 Ind. 2796.4 2 sue eis she's 322, 335,

4 Mackay (D. C.) 424. .265, 267,

426, 429, 638,
200 N. Y. 464......... 685, 781,
V6T WN. Car, 619.5 ice sccsdue 2 cosas
(N. Y.) 3 Am. Electl. Cas. 167. .

22 Cal. App. 788....7, 618, 619,
12T Kye 95 cee is ccaws aime saces
115 Mich. 204..............06.
240 Pas QMwa sawed eas 768, 782,
147 Ala. 393.401, 402, 414, 417,
71 N. J. Law 430.......... 621,
105 Ind. 250..................
72 Miss. 910............... 162,
156 Mich. 687....601, 631, 766,
19 .Ont. App. (Can.) 537......
91 Kan. 450
TaBuE oF Caszs.

(References are to pages.)

Hoffmeier v. Kansas City & Leaven-
worth R. C0... veces caer even cs
Holden v. Gary Telep. Co...........
oe v. The Brooklyn Heights Ry.
Ob dco. ac etausnsuar do ayeuatanernseveuayale arene Zor
Holmes v. Union Teleg. & Telep. Co..
Home Telep. and Teleg. Co. v. City of
Los Angeles..................00.
Home Teleg. Co. v. City of Nashville.
Home Telep. Co. v. Common Council
of New Brunswick ..............
ee Wi HIGIdS 5: dee cris cessing ce tiecaaacess
SVL WEL ecient eeipe s+ slits iiss

Hook v. Bowden...........ceeecoee
Hooker v. Utica Turnpike Co.......
—— v. Kansas City Elev. Ry. Co...

Hooper v. Baltimore City Pass. R. Co.
Hopkin v. Hamilton Elec. L. etc., Co.
Hopkins v. Michigan Tract. Co......
Hoppe v. City of Winona...........

Horan v. Rockwell..............005
Hord v. Pacific Telep. & Teleg. Co...
Horne v. Consol. Rys. L. & P. Co....
Horner v. City of Eaton Rapids....

—— v. Oxford Water & Elec. Co....

—— v. Southern Power Co.........
Horning v. Hudson River Telep. Co..
Hot Springs Elec. L. Co.. v. Gity of

Hot Springs .................04.
Hough v. Grants Pass Power Co.....
Houma, Light & Ice Mfg. Co. v. Town

OF HUM. oo05 f5ce'8 a so 883 Saw Gs
Houston, Borough of, v. Washington,

CLG, RY, OO secs a ysis avargrivean is
Houston v. Durham Tract. Co......
Houston Elec. Co. v. Robinson......

Houston Lighting Power Co. v.

HOOPEF gies scse sa Wien diaedaes 4 ans
Hovey v. Michigan Telep. Co.......
Howard v. Corporation of St. Thomas.
Howard, in ré......... ec cece sees
Howell Elec. L. & P. Co. v. Village

of Howell, ...csie ecieawecesicesnd as

Howley v. Central Valley R. Co.....
Hoyt v. Southern New England Telep.

COs is aa theses artes be trays Mawes ae nie
Huber v. LaCrosse City R. Co.......

Hudson Elec. L. Co. v. Inhabitants
Of, HudsOM, ss. « scoidew ase ee gn eae
Hudson River Elec. Power Co., Mat-
COL OL. 5 csncdeacs fo arcs “Gv endhssinttarayeed sac seh
Hudson & M. Telep. & Teleg. Co. v.
Linden Tp, . sacoes osies cas ne cease

xlvii
68 Kans. 881 vices cvccccieeseens 875
109 Minn. 59.........0ccc cence 837
128 N. Y. App. Div. 821....641, 741
16 N. Y. Supp. 563............. 624
211 U.S. 265.............. 494, 495
118 Tenn. 1............. 22, 23, 26
62 N. J. DL. 172... cee ee eee 368

150 Ala. 306...... 650, 654, 665, 764
(Ind. App.) 101 N. E. 1020..... 587

595, 703, 706, 739
140 Mo. App. 331. .290, 338, 347, 349

12 Wend. (N. Y.)............. 99
159 Mo. App. 416. .699, 703, 704, 757

759, 601, 907, 908
B85 Md. 509% cca ceceeae es anes 556
21 C. LL. T. 441............ 639, 640
144 Mich. 359......... 572, 809, 816

113 Minn. 252... .378, 593, 636, 767
771, 778, 890

110 App. Div. 522.......... 563, 574
68 Wash. 119................6- 867
144 N, Car. 375...593, 604, 605, 729
122 Mich. 117..... 197, 301, 322, 354
355, 381
153 N. Car. 535...50, 51, 61, 67, 176
474, 487
154.N; Cars 18l vce c ceases conus 180
111 App. Div. 122..... 737, 746, 761
70 Ark. 300.........+-.006- 147, 303
41 Oreg, 531... . cc cece eee ees 841
127 La, 726....... 228, 239, 252, 326
234. Pas St. 245 cise s save sages 301
155. Nv Car. 4c. ac coee ea 730, 911
(Tex. Civ. App.) 2 St. Ry. Rep.

BOS oe cid aanneeenis wheat. ceatogad see 874
46 Tex. Civ. App. 257..705, 737, 809
124 Mich. 607......... 739, 743, 798
19 Ont. (Canada) 719.......... 627
(Mass.) 105 N. E. 636.......... 829
132 Mich. 117. ...195, 216, 217, 233

245

* 213 Pa. 36.......... aipeimee eee 563
60 Conn. 385....... 00 c eee eens 434
92 Wis. 636. .575, 656, 658, 671, 831
839, 856

163 Mass. 346........-.00-0 05 24]
173 Fed. 934.........00e eens ll, 14

80 N. J. L. 158...333, 368, 371, 373
xlviii TABLE OF CASES.

(References are to pages.)
Hudson River Power Transmission

                    

 

Co. v. United Traction Co........ 98 N. Y. App. Div. 568........ 182
Hudson River Telep. Co. v. Forrestal. 56 Misc. 133............... 403, 416
Hudson River Telep. Co. v. Water-

vliet Turnpike Co...............- 135 N. Y. 393. .25, 525, 526, 558, pa
Hudson Telep. Co. v. Jersey City.... 49 N. J. L. 303............ 304, 370
Hudson River Water Power Co. v.

Glens Falls Gas & Elec. L. Co...... 90 N. ¥. App. Div. 513...... 178, 187
—— v. Glens Falls Portland Cement

COs «eo ede ese eee es eke se ayare 107 N. Y. App. Div. 548... .179, A
Hughes v. Gen. Elec. L. & P. Co..... 107 Ky. 485........... 639, 644, 927
Hughes v. Lambertville, etc, P. Co.. 53 N. J. Eq. 435............-. 30
Hulse v. Home Telep. Co........... 164 Mo. App. 126. .852, 854, 866, 868
Humbert v. West Penn. Rys. Co..... 228 Pa. St. 440.......--. 0006: 468
Hivayenese v. Raleigh Coal & Coke

GOs es meen Sew oe ee Kee aw oe aR $0) Si WL 808 « cseieicciacs na ie bine econ 840
Hurd v. City of Fairbury.......... 87 Neb. 745..... preita Was wate 228, 248
Huscher v. N. Y. & Queens Elec. L.

BPC sr. sssuerg oo suassesa-t ia fonda cate: ts diay 139 N. Y. Supp. 537........ 708, 727

@ CO. htsshie oma seo tee Seg aes 158 App. Div. 422..... 699, 727, 902

903, 910

Husey v. London Elec. Supply Corp. (1902) 1 Ch. 411.............. 73

Hutchins v. Sleepy Eye Telep. Co... (Minn.) 147 N. W. 279........ 841

Hyatt v. Williams................. 148 Cal. 585.............-. 230, 233
Hyde Park Thompson—Houston L. Co.

Ma CROLCOR canecese:arehsinse #4 9 sybansd.5.0 auiace 64 Ill. App. 152....... 639, 644, 645

I.

Illingsworth v. Boston Elec. L. Co.. 161 Mass. 583....766, 782, 783, 827

Illinois Teleg. News Co. v. Meine.. 242 Ill. 568................... 134
linois T. & S. Bank v. Ottumwa

Elee, Ri Ove .smasysadarees selees 89: Wed. 286 ciecces see ie cee casos 57
Illinois Terminal R. Co. v. Thompson 210 Ill. 226............... 459, 464
Tllinois Steel Co. v. Kinnare........ 100 Til. App. 208.............. 883
Illyes v. White River L. & P. Co.... 175 Ind. 118.......... 101, on 132
Independent Telep. Co., Matter of.. 133 N. Y. App. Div. 635... .362, 373
Indianapolis Cable St. R. Co. v. Citi-

zens’ St. R. Co..... secs eee ees 127 Ind. 3693025 0nee< wes casa 560
Indianapolis L. & H. Co. v. Dolby.... 47 Ind. App. 406..585, 591, 592, 597

605, 745, 908, 933
Indianapolis St. Ry. Co. v. Haver-

BS ELCIE vita eure hciy apeuagslh de aes ley a heamoees 35 Ind. App. 281.............. 574
Indianapolis Telep. Co. v. Sproul. . 49 Ind. App. 613........... 838, 869
Indianapolis Traction & Terminal Co.

v. Richey (Ind. App.)........... 80 Ne By 170s.5 os og vcaawae ices 574
Indiana Natural & Illum. Gas Co. v.

Marshall «s,s %..2sue2csstea sas dam ss 22 Ind. App. 121.............. 850
Indiana Ry. Co. v. Calvert......... 168 Ind. 321............... 490, 547
Indiana Union Tract Co. v. Sullivan. (Ind. App.) 101 N. E. 401..... 831
Indianapolis & C. Tract. Co. v. Arl-

ington Telep. Co................. 47 Ind. App. 657...... 467, 470, 534
International & Great Northern Rail-

road Co. v. Telephone and Tele-

graph Co. 1... cece ee cece eee nes 2 21 Am. & Eng. Corp. Cas.

Sedu seenve se eae den ee 537
TABLE OF

(References are to pages.)

Ingleside Mfg. Co. v. Charleston L. &

Water Ci asi iciies ce iewen meek oa
International L. & P. Co. v. Maxwell.
Iowa Union Telep. Co. v. Board of

Equalization ..........eeeeeeeeee
Irish v. Union Bag & Paper Co......
Irvine v. Town of Greenwood.......
Irwin v. Great Southern Telep. Co...

Jacks v. Reeves.........ceceeevees
Jackson Fibre Co. v. Meadows
Jackson-Hazard Telep. Co. v. Holli-

day’s Adm’r.
Jackson & S. St. R. R. v. Simmons. .
Jackson v. Wisconsin Telep. Co......
Jacksonville Elec. L. Co. v. City of

Jacksonville . 2. 11... .. ee eee
Jacksonville Elec. Co. v. Sloan

Jacksonville Ice & Elec. Co. v. Moses.

James v. Cranford,................
Jamestown, City of, v. Home Telep.

Oo Sa: Ga Ga Subuace chs Axed ba cueay aie
Janesville St. R. Co. v. State........
Jaynes v. Omaha Street Ry. Co......
Jeffrey v. Union Elec. L. & P. Co....
Jenkins v. Louisville Home Telep. Co.
—— v. St. Paul City Ry. Co........
Jenney Elec. L. & P. Co. v. Murphy.
Jennison v. Waltham Gas Light Co..
Jewell v. Excelsior Powder Mfg. Co..

Johns v. Cumberland Telep. & Teleg.

CG. 6 & Seki Gs meess ceokee AU ae
Johnson vy. Bay’ City sic aan aia 25.
Johnson v. Phemasn donated Co....
Johnston v. Clark & Son

 

a v. New Omaha, etc., Elec. Light
Od as ge ahi dedeoy eb alae g eyelet eagle
Johnston v. New Omaha Thomson—

Houston Elec. L. Co..............
Johnson v. New York & P. Telep. &

Pelee OOo. soit sie cnoegacar aca suncagn e's ark
v. Northwestern Telep. Exch.

 

 

Johnston v. Syracuse Lighting Co..
Joliff v. Muncie Elec. L. Co.
Jones v. Carter
We PMG 66 asic 5: Seca eee es
v. North Georgia Elec. Co..

v. Postal Teleg. Cable Co

v. Schuylhill Light, H. & P. Co.

CasEs. xlix
76 S. Car. 95........0e eee 102, 472
27 Tex. Civ. App. 294...... 745, 747
67 Towa 250...........0000- 24, 25
103 N. Y. App. Div. 45........ 845
89 S. Car. 511............. 630, 633
37 La. Ann. 63....417, 421, 424, 425
78 Ark. 426...... 742, 743, 753, 796

798, 906

159 Fed. 110..... 837, 850, 853, 866
143 Ky. 149..376, 667, 716, 719, 720
107 Tenn. 392.............. 812, 813
88 Wis. 243....... 676, 678, 682, 898
36 Fla. 229........... 225, 228, 229
52 Fla. 257....4, 592, 831, 841, 855

864, 886, 924

(Civ. App.) 134 S. W. 379. .594, 642

676, 700, 701, 702, 796, 930

123 N. Y. App. Div. 558... .864, 870

125 N. Y. App. Div. 1. .333, 334, 343
373, 379

BT WAG. 12 ose cded. gale maineg Paros 5
bo: Neb. 631) vcs vastness ogee 427
171 Mo. App. 29.........6.005 818
(Ky.) 120 8. W. 276........... 720
105 Minn. 504... .846, 851, 903, 905
LIS: And: 566) i: sce a snes aaa. 849
201 Mass. 352.............. 38, 869
143 Mo. App. 200. .829, 830, 832, 845

863, 885

25 Ky. Law Rep. 2074.......... 472
164 Mich. 251..... 693, 736, 752, 822
54 Hun (N. Y.) 469........ 405, 425
7D. L. RB. 361, 4 O. W. N. 202.. 586

590

78 Neb. 24...695, 808, 824, 894, 895
THA N@Ds. 712 iin: oi3 es eoase eh oAleaes 24 5
76 N. Y. App. Div. 564.......... 403
64 Minny. 87 ssc ce oie gee Vs 2 663
VIS! Ind. 143. ck ales one ee ge akeee 494
193 N. Y. 592... .829, 832, 869, 883
(Ind.) 105 N. E. 234........... 103
45 Tex. Civ. App. 450.......... 296
W28) AVA, 217 occas te eave seas 654, 738
125 Ga. 618..... 80, 86, 99, 100, 122
91 8. Car. 273.. . 851, 852, 854, 866

867, 882
202) Paw Sts W640 2 deka dee ds 203
] TasLE oF CASES.

(References are to pages.)

 

 

 

Jones v. Union Ry. Co...........4+ . 7 Am. Electl. Cas. 447..740, 753, 759

760, 906, 907
—— v. Union Ry. Co.............. 50 Mise. N. Y. 651..... 617, 661, 709
Jonesville, Village of, v. Southern

Michigan Telep. Co...... wd Afadana isan 155 Mich. 86.....-..+..0-6- 491, 493
Joplin, City of, v. Southwest Missouri

Light CO. si svieivecieescsneneed 191 U.S. 150.......... 239, 326, 327
Jordan v. Delaware, etc., Telep. Co.. 24 Del. 107....... 436, 434, 445, 446
—— v. Missouri & Kansas Telep. Co. 136 Mo. App. 192.......... 879, 880
Joseph v. Edison Elec, Co........... 104 La. 634...........2005- 721, 722
Joy v. City of Terrell (Civ. App.).. 138 S. W. 213......... 225, 239, 326
Judge v. Narragansett Elec. L. e a BE Re Ts, TOS saivia ever ccersidinceigce serncs 795
Julia Bldg. Assoc. v. Bell Telep. Co.. 88 Mo. 258....... 399, 401, 415, 417
Junior v. Missouri E. L. & P. Co.... 127 Mo. 79.......---+-+0-- 878, 869

K.

Kahn v. Kittanning Elec. L. Co.... 238 Pa. 70........-...-see sees 909
Kampman v. Mendoza............4. (Tex. Civ. App.) 141 8S. W. 161, 830
Kankakee Ry. Co. v. Whittemore.... 45 Ill. App. 484............... 738
Kansas City v. Gilbert............. 65 Kan. 469...........64.. 665, 736
Kansas City, City of, v. File 60 Kan. 157..636, 704, 705, 707, 736
— v. Wyandotte Gas Co......... 9 Kan. App. 325...........005 221
Kansas City Elevated Ry. Co. v.

GHGEE ye nace raysrannacnnaye sian one Th Kans. SOD oc cas.eccasuanawie 727
Kansas City Southern Ry. Co. v.

ROPERS <2. 5 wis ioe smarciiet ome atueieg 203 Fed. 462.............. 885, 921
Karpenski v. Borough of South River 83 N. J. Law 149.............. 630
Katafiasz v. Toledo Consol. Hlec. Co. 24 Oh. Cir. Ct. 127....599, 607, 821
Kath v. East St. Louis, ete, Ry. Co. 232 Ill. 126...... 863, 875, 884, 932
Kaukauna Elec. L. Co. v. City of

TCAD occas. Snecrtiese sian S am oes 114 Wis. 327..... 182, 219, 220, 221

339, 342, 347, 383
Keator v. Scranton Traction Co..... 191 Pa. St. 102............ 564, 577
Keefe v. Narragansett Elec. L. Co... 21 R. I. 575...... 618, 620, 769, 777
Keeley v. Boston Elev. Ry. Co...... 192 Mass. 481....833, 864, 841, 871
Keene Syndicate v. Wichita Gas,

Electric Light & Power Co....... GO Kean 284 poo sje ceiseacsensias Sinus pevs 55
Kellogg v. Denver Cons. Tramway Co. 18 Colo. App. 475..... 853, 865, 866
Kelly v. Boston Elev. Ry........... 214 Mass. 461............ 0000s 858
—— v. Com. Elec. Co............. 167 Tl. App. 210.............. 877

v. Erie Teleg. & Telep. Co..... 34 Minn. 321.......... 837, 848, 887
Kemmler, Matter of............... 136 U.S. 436.05 esac nencsecaas 33
Kemp v. Hazelhurst..............: 80 Miss. 4438...............00. 245
Kennealy v. Westchester Elec. Ry.

CO ack ciiacs angeaes ecb Ryne tetladeus Arerepnsetvest 86 N. Y. App. Div. 293.767, 782, 890

Kennedy v. City of Lansing........ 99 Mich. 518.................. 636

v. City of New York......... 99 N. Y. App. Div. 588........ 219
—— v. Metropolitan St. Ry. Co.... (Mo. App.) 107 S. W. 16...... 903
Kennelly v. City of Jersey City.... 657 N. J. Law 293............. 423
Kennett Elec. L. Co. v. Borough of ;

Kennett Square................. 8 Kulp (Pa.) 105.......... 205, 206
Kenosha, City of, v. Kenosha Home i

Melepi.. CO iaiersrs jejenorersicasorngs. aservacsnens 149 Wis. 338.......... 332, 334, 341
Kensington Elec. Co. v. Philadelphia. 187 Pa. St. 446............... 340
Kentucky Electric Company v. Buechel 146 Ky. 660.............. 1, 16, 17
Keokuk v. Ft. Wayne Elec. L. Co... 90 Iowa 67....... oi Siesta gecesi 392
Keokuk Elec. Ry. & Power Co....... 146 Towa 679.......... eeearene 468
Kepner v. Harrisburg Tract Co..... 183) Paw St: Qh es nos aca isoa aack 909

Kester v. Western Union Teleg. Co.. 108: Fed. 926............cc0 eee 272
TasLE oF CASsEs.

(References are to pages.)

Keystone State Telep. & Teleg. Co. v.
Borough of Ridley Park..........

Kibbie Telep. Co. v. Landphere......
Kienle v. Fred Gretsch Realty Co..

Kight v. Metropolitan R. Co........
Kilbourn City, Village of, v. Southern
Wisconsin P. Co....... 0... secon
Kile v. Union Elec. L. & P. Co......
Kimball Bros. Co. v. Citizens’ Gas &
Electric Cow... 1... cee eee eee ee
Kirby v. Citizens’ Telep. Co........
Kirkpatrick v. Metropolitan St. Ry.
Oe secsiaaretedrcsetartash etakeroare sand vevainere 8
Kiser v. Colonial Coal & Coke Co....
Kittanning, Borough of, v. Western
Union Teleg. Co...........00005

Klages v. Gillette-Herzog Mfg. Co..
Klosterman v. United Elec. L. & P.

COs odsnses Uaeiies. biacearl sas eebye

Knoxville Water Co. v. Knoxville. ...
Knutter v. N. Y. & N. J. Tel. Co....
Koplan v. Boston Gaslight Co......
Kost v. Ashland Borough..........
Kraatz v. Brush Elec. L. Co........
Kremer v. N. Y. Edison Co........
Krimmel y. Edison Illum. Co.......
Krueger v. Wisconsin Telep. Co.....

LaCrosse, City of, v. LaCrosse Gas &

BGC: ‘CO sire ic seseale wieinietels sawn ieeie 3
Ladd v. Brockton St. Ry. Co........
Ladd, Village of, v. Jones..........
Ladow v. Oklahoma Gas & Elec. Co.

La Duke v. Hudson River Telep. Co.

Lake Charles Ice, L. & Water Works
Co. v. Lake Charles..............
Lake Shore, etc., R. Co. v. Chicago,
CbCy Ryn CO. ess niece hyde ea eee
Lambeth v. Southern Power Co.....
Lambert v. Westchester Elec. R. Co..
Lamborn v. Bell
Lancashire Telep. Co. v. Overseers of
the Poor of Manchester..........
Lancaster v. Edison Elec. [lum. Co.
Lancaster, City of, v. Briggs.......
Lancaster’s Adm’x v. Central City L.
& UP. COs ss save sshawnw nen yes ace

L.

 

28 Pa. Super. Ct. 635. .295, 338, 339
346, 347, 380, 642

151 Mich. 309... .290, 303, 310, 545
133 N. Y. App. Div. 391....184, 186
188

21 App. D. C. 494.......... 568, 904
149 Wis. 168.......... 478, 487, 488
149 Mo. App. 354...... peaasiahte eee 863
141 Towa 632..............065 184
17 S. Dak. 362.............4.. 417
161 Mo. App. DID a. asttele wate 577, 900
(Va.) 79 8. E. 348........ 662, 692
26 Pa. Super. Ct. 346..... 164, 166
168, 562

86 Minn. 458..............08. 889
101 Md. 29.......... ccc eens 182
117 Towa 451......... 585, 591, 595
597, 598, 625, 766, 769

772, 782, 786, 794, 818

200 Us. Ss 22s wea scsnea ves news 239
67 N. J. Law 646.............. 887
177 Mass. 15..............0005 554
236 Pa. St. 164.............06. 637
82 Mich. 457..... 745, 841, 930, 931
102 N. Y. App. Div. 433...847, 848
130 Mich. 613................. 867
106 Wis. 96...... 398, 401, 416, 642
145 Wis. 408.......... 289, 291, 343
180 Mass. 454............. ‘875, 885
61 Ill. App. 584............ 234, 254
28 Okla. 15....... 585, 593, 596, 601
625, 768, 784

124 N. Y. App. Div. 106........ 858
136 N. Y. App. Div. 136... .832, 851
854

N06: Ga. 68.556 eee ies ie es eemes 230
48 Ind. App. 584.... 533
152 N. Car. 371........... , 134
191 N. Y. 248......... 718
18 Colo. 346............ 120
52 Ls Te, 198s sew esasnensaves 28
8 Pa. Co. Ct. 178...... 144, 149, 485
118 Mo. App. 570..172, 333, 343, 344
137 Ky. 3065.0 cece deeeces eae 848
+

li Taste OF CASES.

(References are to pages.)

Lanigan v. Brooklyn Heights R. Co.
Lanning v. Pittsburg Pe Co..
Lansdowne vy. Citizens’ Elec. L. & P.

CG a4 fries arse apshesiths, oases 28S 4 Ronee Os
Lansdown, Borough of, v. Delaware

County & P. Elec. Ry. Co.........
Lapsely v. United Blectric Co. of N. J.
Larkin v. Queensboro Gas & Elec. L.

CO. viswasess cease ee eek meen es x
v. Western Union Teleg. Co...
Larson v. Central Ry. Co...........

 

Lascher v. Fahnstock Printing Co..
Latimer v. General Electric Co.....

Latrobe v. Western Union Teleg. Co.
Laughlin v. Southern Public Service
ea

Co.
Leavenworth Coal Co. v. Ratchford.

Lee v. Elec. L., H. & P. Co.........
v. Maryland Telep. & Teleg. Co.
v. Stillwater, etc., Ry. Co.....
Leeds v. New York Telep. Co.......
Lefever v. Northwestern Heat, Light

GE PL COs siiscea ands Seaweed
Leloup v. Port of Mobile............
Gent ‘vi Tilyous os seenss ded. ess games
Leonard v. Brooklyn Heights R. Co..
Leque v. Madison Gas & Elec. Co....
Lewis Adm’r v. Bowling Green Gas-

light Co.
Lewisville Light & Water Co. v. Lester
Lexington Ry. Co. v. Fain’s Adm’r...
Lighthipe v. City of Orange........
Lincoln St. Ry. Co. v. Cox..........
Linn v. Chambersburgh Borough....
Linton v. Weymouth L. & P. Co.....
Little v. American Telep. & Teleg. Co.
Mi ao Go coesaaieya tons dco duabataues
v. Central District & Printing

Teleg. Co.
Little Falls Elec. & Water Co. v. City

of Little Falls................4..

Little Rock Ry. & Electric Co. v.
Newman

Livermore v. City of Millville.......

Livingway v. Houghton Co. St. Ry.
Co.

 

 

 

 

 

Lloyd v. City & Suburban Ry. Co..
Loeber v. Butte Gen. Elec. Co......
Lofton v. Jacksonville Elec. Co......
Logan v. Pennsylvania Telep. Co..
Logan y. United Rys. Co. of St. Louis.

125 N. Y. App. Div. 622........ 719
229 Pa. St. 575...... 0. eee eee 909
206 Pa. St. 188............ 201, 203
9 Pa. Super. Ct. 621........... 147
79 N. J. Law 131............. 883
158 N. Y. App. Div. 414........ 878
82 Mo. App. 155.............. 740
56 Ill. App. 263....... 592, 597, 601
736, 906

B21 Pas St, 49 sccssessesaaeees 177
81 8. Car. 374........ 857, 858, 872,
879, 880

PAM 282 cts s aieu dein aisle 0 456
83 S. Car. 62.........-005- 705, 737
140 Fed. 558.............. 880, 896
81 N. Y. App. Div. 637......... 829
5 Kan. App. 150...... 671, 704, 708
736, 826, 906

140 Pa. 618.............-. ase. 836
97 Md: 692) icc sv stseeae cans amess 616
140 N. ¥. App. Div. 779........ 750
178 N: Vs V18isccaawa wars ies: 660
119 Wis. 608............... 207, 211
127 We S. G40. gs wise sarees aire was 158
106 N. Y. App. Div. 189....409, 420
57 N. Y. App. Div. 125...... 565, 569
1383 Wis. 647.............. 742, 813
135 Ky. 611..601, 621, 808, 809, 919

(Ark.) 160 8. W. 861....50, 77, 174
24 Ky. Law Rep. 1443..587, 728, 809

75 N. J. L. 365..........00. 233, 243
48 Neb. 807 22. ssn0e > oseyes 829, 850
160 Pa. St. 511........ 225, 226, 249
188 Mass. 276......... 736, 766, 906
96 N. Y. App. Div. 559...... 437, 443
6 Pen. (Del.) 374.............. 469
213 ‘Pa. St. 229 s0 5.834 yedes 716, 717
102 Fed. 663...... 192, 194, 197, 211.
239, 303, 305, 381

OL ATE. 89. gc on eae oui aaa es 52, 477
(N. J.) 90 Atl. 380............. 253
145 Mich. 86...... 832, 837, 851, 852
882, 887

110 Ga. 165............0005 743, 798
16 Mont. 1....... 405, 421, 425, 429
GL FS 98 asic ste a's gape a3 wade 463
40 Pa. Super. Ct. 644.......... 441
166 Mo. App. 490........... 565, 570
TaBLE OF CaAsEs.

(References are to pages.)

Logansport, City of, v. Smith........

Lomoe v. Superior Water, L. & P. Co.
London Elec. Supply Corp. v. Priddis.
London Mills, Village of, v, Fair-

view-London Telep. Circuit........
London Mills, Village of, v. White. .

Lonergan v. La Fayette St. Ry. Co..
Long v. Johnson County Telep. Co..
Long Acre L. & P. Co., Matter of....
Long Acre Elec. L. & P. Co., Matter

OLE Graaaieal namic inshadiasiaarnsee Tontnnntea ats

Long Distance Telep. & Teleg. Co. v.
Schmidt
tome Sault Development Co. v. Ken-
ne
Looney v. Metropolitan R. Co......
Lord v. Inhabitants of Wakefield....
v. Manchester St. Ry..........
Los Angeles Gas & Elec. Corp. v. City
of Los Angeles................04.
Lough v. Unterbridge..............
Louisville Bagging Mfg. Co. v. Cen-
tral Passenger Ry. Co............

 

Louisville, City of, v. Cumberland
Telep. & Teleg. Co........-......

 

v. Louisville Home ‘velep. Co..
Louisville, ete., R. Co. v. Hardin’s
AGW? ecopasorrnnaavee nae ex oeain
Louisville, ete., Tract. Co. v. Worrell.
Louisville Home Telep. Co. v. Beeler’s
Adm’r
—- v. City of Louisville..........
rie vy. Cumberland Telep. & Teleg.
Os: a trd eddies nara emawnls eeaiga

 

v. Gasper
Louisville Lighting Co. v. Owens...
Louisville & N. R. Co. v. Bowling
Green Ry. Co.............04. ait
v. Hahn’s Adm’r..............
‘——— v. Mulfinger’s Adm’x.........
—— v. Western Union Teleg. Co...
Lower Merion Twp. v. Postal Teleg.
Cable Co.
Lowther v. Bridgeman.............
Lucas v. Ashland L., Mill & P. Co..
Ludwig v. Metropolitan St. Ry. Co..
Luehrmann v. Laclede Gas Light Co.

 

Lundeen v. Livingston Elec. Light Co.
Lundy v. Southern Bell Telep. &

Dele gin Gi. caciceceasssch asivanesereausctin ye sevacoys
Lutes v. Fayette Home Telep. Co....
Luther v. Standard L., H. & P. Co..

liii

47 Ind. App. 64...... 592, 595, 605
655, 745, 750

147 Wis. bis cece sesce 705, 709, 757
18 T.L. R. (Eng.) 64........... 178
105 Ill. App. 146...... 303, 390, 391
208 Ill. 289....... 111, 112, 303, 352
379, 391

(Ind.) 3 Am. Electl. Cas. 273.. 558
134 Towa 336...........-4. 834, 856
51 Mise. (N. Y.) 407........ 313, 315
117 N. Y. App. Div. 80...... 313, 314
315, 508

188 Ni We BG lcnintoae- act nestnarsnme: 509
157 Ala: 891 co nasasaumes ess 134, +135
158 N. Y. App. Div. 398..81, 86, 88
200 U. S. 480..............06. 829
185 Mass. 214................. 866
74.N. H. 295.......... 565, 567, 568
163 Cal. 621 « cs hich re ween eer aree 150
143 Ne Ys 271) 20 Tox ocstasesaaass 50
(Ky.) 3 Am. Elect]. Gas. 236..5, 425
426

224 U. S. 649..... 303, 305, 313, 315
322, 385

149 Ky. 284...........008. 343, 344
154 Ky. 282.....0.......c0e eee 875
44 Ind. App. 480...... 565, 568, 914
V25 RY 5, BOG winvecee cere cave wearensee ticle 689
180 Key. 61D cscs ewsnenaeaaes 395
111 Fed. 668.......... 492, 493, 521
522, 423

123 Keys 1282 ossaon wns snore wna 755
32 Ky. Law Rep. 283..728, 909, 910
110 Res FBR. 5. 5 nescee-neroiele oes R62
185. ys QO Vie save nisite’s: guevsraveioes 460, 461
26 Ky. Law Rep. 3............. 459
207 Hed. Daas: ox sae eens 4, 125, 454
25 Pa. Super. Ct. 306.......... . 169
57 W. Va. 306......... 360, 376, 418
92 Neb. 550.......... 18, 84, 86, 119
71 N. Y. App. Div. 210. .582, 901, 916
127 Mo. App. 213...... 585, 661, 699
707, 767

17 Motity 32% 22s aass80s 668, 755, 756
90 S. Car. 25...... 593, 599, 605, 739
155 Ky. 555.........6. 321, 338, 394
2OS NS Va BSS ee sige gv ome ged ws 842
liv

TABLE OF CASES.

(References are to pages.)

Lutolf v. United Electric L. Co......

Lydon v. Edison Elec. lum. Co..
Lydston v. Rockingham County Light
& Power COww..cctvee ne aeawees oe
Lynch v. Metropolitan St. Ry. Co..
Saginaw Valley Tract Co..
Lynchburg, etc., St. Ry. Co. v. Dam-
eron
Lynchburg Telep. Co. v. Booker.....
Lyons v. City of New Albany......

= Vv.

M.

Mackay Teleg. & Cable Co. v. City
of Texarkana.............eeeeee-
Macon v. Paducah St. Ry. Co......

Madison, City of, v. Thomas........
Magee v. Overshiner..............-
Mahan v. Michigan Telep. Co........
v. Newton & B. St. Ry. Co..

Maier v. Chicago City Ry..........
Majenica Telep. Co. v. Hee epost
Malay v. Mt. Morris E. L. Co.......

Malone v. Waukesha Electric Light
COs: sprees, Mitre en hemnineuceunnae se

Mangan v. Hudson River Telep. Co..

Mangan’s Adm’r v. Louisville Elec. L.
Co.

 

Manhattan & Bronx Elec. Co. v.

Fornes
Mannon v. Camden Interstate Ry. Co.
Mantell v. Bucyrus Telep. Co.
Maraman v. Ohio Valley Telep. Co..
Marion Elec. L. & Ice Co. v. Roches-

ter
Marion L. & H. Co. v. Vermillon....
Marion St. Ry. Co. v. Shaffer......
Marquette Cement Mfg. Co. v. Wil-

liams
Martin v. Boston, ete, R. Co.......
Martin v. Citizens’ Gen. Elec. Co...
vy. Des Moines Edison L. Co...

 

Maryland Telep. & Teleg. Co. v. Clo-

THAN go sa panirgs SONG Rage ha sue dior
Mason v. Boston, etc., Ry. Co......
v. Cranbury Township ........
Massy v. Milwaukee Elec. Ry. & L.

 

Ce ee eee cme ee
Maudlin v. City Council of Greenville.
‘Maxwell v. Central District & Print-

ing Teleg. Co.................005
May v. City of Gothenburg.........
Mayfield Water & L. Co. v. Webb’s

Adm’r .

194 Mass. 53.......44- 699, 701,
712,

209 Mass, 529......-0-0 eee ceee
Ti NG Eb 2S i iadce stasncie ssuacdnte 724,
90 N. Y. Supp. 378......-....-5
153 Mich. 174.......-....-- 867,
95. Vas. 845.0005 ome s mime ss Maes
103 Va. 594........... 686, 739,
(Ind. App.) 103 N. E, 20..4, 830,
856,

199 Fed. 347...... 270, 334, 491,
110 Ky. 680...... 601, 704, 705,
736, 756,

1380 Ga. 153..........6. 713, 822,
150 Ind. 127.......... 413, 417,
192) Michi, 242 os. eis-c.0 eigpees-s seepage»
189 Mass. 1........... 761, 763,
166 Ill. App. 500.........----.
43 Ind. App. 306........... 363,
41 N. Y. App. Div. 574...... 841,
120 Wis. 485..... ‘varices ant
50 Mise. (N. Y.) 388...690, 784,
122 Ky. 476.......... 585, 588,
611,

47 Mise. (N. Y.) 209.......391,
56 W. Va. 554...... 0.00 00es 564,
20 Ohio Cir. Ct. 345........ 427,
25 Ky. Law Rep. 784........ 349,
149 Ky. 810........... ere 48,
51 Ind. App. 418.......... 864,
9 Ind. App. 486..............4.
280) TM, 26 iescierwnrndieswamnsas anne

205 Mass. 16..... 565, 566,

29 Ky. Law Rep. 103..........
131 Towa 724..... 597, 598, 831,

835, 875,
OF Md. 620. ieee caseivedavinaens
190 Mass. 255..............4..
68 N. J. L. 149... .196, 203, 206,
143 Wis. 220............... 814,
33 S. Car. 1 .......... 231, 233,
51 W. Va. 121....418, 422, 423,
88 Neb) 172 ia iseeic emi cae 325,

33 Ky. Law Rep. 909. .685,
694, 695,

704
723
795

809
902
868

200
920
831
873

492
709
823
917
418
317
817
574
470
862
928

423
814

604
726

392
907
428
389

73
877
578

888
914
816
833°
923

838
574
210

888
234

425
328

693
696
TaBLE oF CASsEs.

(References are to pages.)

Mayhew v. Yakima Power Co.......
Maynard v. Memaha Valley Drainage

Dist.NOs ies 4si0 eaeute he wa eens 4 oe
Mayo v. Town of Washington.......
McAdam v. Central Ry. & Elec. Co. .
McAllister v. Jung..............06.
McCabe v. Narragansett Elec. L. Co. .
McCann v. Johnson Co. Telep. Co...

—— v. Strang. ....... cece eee
McCaughan v. Home Savings Bank. .
McCaughna v. Owosso & Corunna

Wee.” COs: Scsesuer3 8s coat aars sou a area
McCormick v. District of Columbia. .
McCrea v. Beverly Gas & Elec. Co..
McDonald v. Postal Teleg. Cable Co.
McDonough v. Boston Elev. Ry. Co..
McGilora v. Seattle Elec. Co........
McGorty v. Southern New England

Teleps GOs a isge ahave ake Setrerseoagh Boe ive

MclIhinny v. Village of Trenton....
McIsaac v. Northampton Elec. L. Co.
v. Woonsocket Elec., etc., Co...
McKay v. Southern Bell Telep. Co...
McKim v. City of Philadelphia......
McLaughlin v. Louisville Elec. Co...

McLean v. Brush Elec. L. Co........
McMaster v. City of Waynesboro....
McMeekin v. Central Carolina Power

CO lis: sates vine ete sea dine 3 sabe

 

McMullen v. Edison Elec. Illum. Co..
McNamee v. Western Union Teleg. Co.
McQuillan v. Willimantic Elec. L. Co.
McRae v. Metropolitan St. Ry. Co..

MeWethy v. Aurora El. L. Coe.....

Mealey v. City of Hagerstown......
Meehan v. Holyoke St. Ry. Co......
Mehan v. Lowell Elec. L. Corporation.
Memphis Bell Telep. Co. v. Hunt....
Memphis, City ef, v. Postal Teleg.

Cable C0. x cisdaceeswases dene ees
Memphis Consol. Gas & Elec. Co. v.

BOM see gusctle. 0-e Se srenesniaee uapans Saauctaute ea
—— v. Latson . .......e cee e eee
—— v. Simpson . ...........eeees
Vi SPOATS se i oad cisely oe pie dss
Memphis Street Railway Co. v. Kart-

TPH 3 «. savie sence shat eeeablees

Meola v. Quincy Mining Co........
Mercantile T. Co. v. Atlantic & Pac.
R.

lv

72 Wash: 431, wcee.sduee casaca 735
(Neb.) 143 N. W. 927.......... 48

122° Ns (Cand. give sascca oe paces. 247

67 Conn. 445...... 599, 831, 839, 840
112 Il. App. 138.............. 581

26. Rs Teh cectecss 2's siccass yng 726, 820
69 Kan. 210. .400, 401, 402, 4165, 417
422

97 Wis. 551 ............... 638, 640
160 N. Y. App. Div. 123........ 844

129 "Mich. 407.............. 685, 690

4 Mackey 396.................. 417
216 Mass. 495.............. 766, 772
22) Ree De VSI once s 854, 866, 869, 8835
208 Mass. 436......... 570, 904, 915
61 Wash. 38...........02 eee ee 559
69 Conn. 635 ...........00, 851, 854

146 Ala. 679, mem.......... 539, 540

167 N. Y. 208. . 832, 843, 855, 866

4 868

148 Mich. 380.............. 242, 639

172 Maas. 89.2... 00.000000% 853, 866
(R. I.) 83 Atl. 754............ 883

111 Ala. 387.......... 738, 748, 750

QUT Paz. St. 248 on. ccc ae cee ee 8 635
100 Ky. 173. .587, 604, 766, 770, 774

909

8 Ohio S. & C. P. Dec. 619...... 408

122 Ga. 231...... 194, 195, 196, 206

80 S. Car. 512. .86, 94, 97, 102, 640

75 N. H. 258..9, 10, 18, 82, 86, 99

118, 119

13 Mise. (N. Y.) 392...606, 655, 711

160 N. Y. App. Div. 785........ 807

70 Conn. 715). aes c cage cocews 883

125 Mo. App. 562. .563, 570, 571, 914

915

202 Ill. 218. .379, 383, 384, 406, 407
421, 423

92 MG: 74. ne peat acs emia 225, 228

186 Mass. 511 ...........6.... 921

192) Massy 58 iccsis sncinve o's Hawi 835, 886

16 Lea (Tenn.) 456............ 432

145 Fed. 602...... 161, 162, 163, 168
152 Fed. 677...... 765, 782, 815, 817
1385 Fed. 969 ....607, 821, 910, 911

(Tenn.) 109 S. W. 1155..... 816, 880

113 Tenn. 83 .............. 618, 620

110 Tenn. 277..... 602, 605, 740, 903
907

174 Mich. 305..829, 830, 831, 840, 864
£63! Beds 513s ose is-carsnenale eavare 273, 274
lvi

TaBLE oF CasEs.

(References are to pages.)

Merced Falls Gas & Elec. Co. v.
Murne? x53 cere so amae esemee ears
Merchants’ Mutual Telep. Co. v.
Hirshman ...........-. 002 eeeeee

Merchants’ Police & Dist. Teleg. Co.
y. Citizens’ Telep. Co............
Mercur v. Media Elec. L., Heat & P.
COs canes chine cakes nae se Bale

Merica v. Ft. Wayne & W. V. Tract.
On. sain se ante Sana tine area saa caae
Mertinek v. Swift & Co............
Metropolitan Elec. Supply Co. v. Gin-
Deri 6 ess Rew Eas oe ces hae ee ee
Metropolitan Home Telep. Co. v.
WMEPSON scious sais oss MGS Las HHS
Metropolitan St. Ry. Co. v. Gilbert. .
Metropolitan Trust Co. v. Dolgeville
Blee. Le, & oP. CO. sia c c caiaye coe aveuass
Metz v. Washington Water Power Co.
Meyer v. Menominee L. & Tract. Co.
v. Standard Telep. Co.........
—— v. Town of Boonville..........
v. Union L., H. & P. Co.......
Meyers v. Detroit, etc., R. Co.......
Michigan City Gas & Elec. Co. v.
Dibka

 

 

Michigan Telep. Co. v. Charlotte....
v. City of Benton Harbor.....

 

—— v. City of St. Joseph..........
Midwood & Co. v. Manchester Corpo-

PAGON: oi oes eee sé oe ake ees eS
Miles v. Postal Teleg. Cable Co.....
Miller v. Chicago, ete., R. Co........
v. Detroit, etc., Ry. Co........
v. Kenosha Electric Ry. Co....
y. Lewistown Elec. L., H. & P.
yv. Missouri & Kansas Telep. Co.
v. Ouray Elec. L. & P. Co.....
v. Town of Pulaski...........

 

Co.

 

v. United Railways & Elec. Co.
Millerville Gas-Light Co. v. Vineland

L. & P. Co
Millville Tract. Co. v. Goodwin.....
Milne v. Providence Telep. Co.......
Minden-Edison L. & P.’Co. v. City of

Minden
Miner v. Franklin Co. Telep. Co....
Minneapolis Gen. Elec. Co. v. City of

Minneapolis
—— v. Cronon..........20..0es eae

Minnesota Canal & Power Co. v.

2 Cal. App. 720...474, 475, 479, 480
484, 485

43 Ind. App. 283...... 428, 429, 441
442, 641

123 Ky. 90....... 350, 353, 394, 395
19 Pa. Super. Ct. 519... .60, 65, 66
67, 176

49 Ind. App. 288.........-. 846, 851
122; Towa: Gllcex ssapees sees 727, 731
(1901) 2 Ch. 799 ......-..45-.- 188
202 Mass. 402......... 291, 292, 293
70 Kan. 261. .586, 592, 600, 601, 761
35 Mise. (N. Y.) 467....... 46, 56
72 Wash. 188......... 650, 659, 705
151 Wis. 279..... 686, 693, 768, 789
122 Towa 514...........-..... 434
162 Ind. 165.......... 198, 353, 389
151 Ky. 332............. . -769, 789
166 Mich. 403............. 459, 464
(Ind. App.) 100 N. E. 877. .592, 597
605, 756, 796

93 Fed. 11...303, 305, 306, 491, 493
121 Mich. 512......... 355, 358, 360
367, 491

121 Mich. 502..... 303, 307, 313, 491
(1905) 2 K. B. (Eng.) 597..... 512
55S. Car. 408. 5 vice caves ce tae 682
132 Ill. App. 41............ 831, 846
125 Mich. 171.............. 431, 432
1385 Wis. 68............... 738, 741
212 Pa. 593...... 727, 742, 743, 796
141 Mo. App. 462..837, 868, 882, 905
18 Colo. App. 131.......... 729, 730
109 Va. 187......... 84, 87, 89, 95
98, 105, 106

108 Md. 84... ces cies scene ces 581
72 N. J. Eq. 305.......... 331, 348
53 N. J. Hg. 448...... 541, 543, 549
29 ORs BBG ss aca sdinare 8 eruarta es 816
VA NW. 6130.6 6 assets, ee 239
83 Vt. 311....... 832, 844, 862, 864
194 Fed. 215...... 73, 475, 480, 482
166 Fed. 651..... 618, 619, 621, 691
803, 912

97 Minn, 429...... 5, 80, 81, 82, 86

97, 99, 100,

101
TABLE oF CasEs.

(References are to pages.)

Minnesota Canal & Power Co. v.

 

Missouri v. Murphy................
Missouri Edison Elec. Co. v. Lewis. .
Ve Weber oy jas eiwianresa sink yoo
Missouri Elec. L. & P. Co. v. Car-
MOG Yo aceSaengns stag ween ease

Missouri River Telep. Co. v. City of

Mitchell .
Mitchell v. Charleston L. & P. Co...
v. City of Negaunee

 

—— v. Raleigh Elec. Co...........

v. U. 8. Coal & Coke Co......
Mitchell, City of, v. Dakota Cent.
Telep. Co.

 

Moberly v. Richmond Telep. Co.....
Mobile, etc., R. Co. v. Postal Teleg.
Gable? CO. cca sey d atin «, bcuceeeass seacauede

Mobile Elec. Co. v. Sanges.........
Moersdorf v. N. Y. Telep. Co........
Moffat v. N. Y. Edison Co..........
Mogk v. N. Y. & N. J. Tel. Co......
Moglia v. Nassau Elec. R. Co.......
Monds y. Town of Dunn............
Monett Elec. L., P. & Ice Co. v. City

of Monett) 20s 0 ccanwrcssces sation
Monmouth County Electric Co. v.

Central R. Co. of New Jersey....
Monongahela City v. Monongahela

Elec. L. Co.

Monongahela L. & P. Co. v. Rose Hill
Elec. L. Co.
Montclair L. & P. Co. v. Town of
Mo mtelar oii ics 094 wid Bice gies aa wee
Montgomery, City Council of, v.
8) FL ANG a. sens rg eeeisteln: Oe Bre Reed eee
Montgomery L. & P. Co. v. Montgom-
ery Tract: Co. ¢ weisina ro pawns eon
Montgomery L. & W. P. Co. v. Citi-
zens’ L., H. & P. Co.............
Montreal v. Standard L. & P. Co....
Montreal L., H. & P. Co. v. Lawrence.
= Ve Vapond s 6 os¢eees seead een

Montreal Park & Island Ry. Co. v.

MeDougall . 1... 0.60... ee eee eee
Montreal St. Ry. Co. v. Gareau.....
Mooney v. Borough of Luzerne.....
Moore v. Chattanooga Elec. Ry. Co..
v. Camden & T. Ry. Co........

 

101 Minn. 197....114, 115, 116,

120) Ui Ss 18s esse ses nesses s 474,
86 Mo. App. 612............ 177,
102 Mo. App. 95........... 497,

72 Mo. App. 584...........0...

92S. Dak. 191............. 291,
45 8. C. 146...... 679,
113 Mich. 359..... 225, 226, 228,
129 N. Car. 166....5, 625, 707,
67 W. Va. 480.......0..06. 832,

25 S. Dak. 409... .172,

38 Mont. 521.606, 613,
686, 738,
126 Ky. 369...... 332,

120 Ala. 21..110, 124,

76 Miss. 731. .137, 138,
101 Tenn. 62...... 124,

169 Ala. 341...... 851,
(N. J. L.) 87 Atl. 473..........
116 N. Y. Supp. 683............
78 N. Y. App. Div. 560........
127 N. Y. App. Div. 243... .725,

163 N. Car. 108........ 703, 922,
186 Fed. 360...... 240, 303, 352,
by se. Oe 0 oe 31,
12 Pa. Co. Ct. 529..... 475, 480,

485,
30 Pittsb. Leg. J. (Pa.) 301....
67 N. J. Law 151..............
148 Ala. 194 ..............000.
19] Wed. 657  accc0c ees ase seve
147 Ala. 359 .......... 342, 472,

L: R. (1897) A. C. (Eng.) 527..
39 Can. Sup. Ct. 326..........
40 Que. 8. C. (Can.) 196. .515,

517,
36 Can. Sup. Ct. 1......... 830,
21 Canada L. T. 128........ 638,
186 Pa. St, 161 vies densi sawn
119 Tenn. 710......... 846, 875,
72) Ni Se Das S99 saw san cee oa oie.

lvii

120
121
476
182
511

176

304
737
244
251
768
818
848

343
391

657
788
394

137

518

864
639
637
884
lviii TasLe oF CASES.

(References are to pages.)

Moore v. Carolina Power & Light Co.
—— v. City Council of Harrodsburg.
—— v. Champlain Elec. Co.........
‘ennessee Telep. Co..
Moran. y. Corliss Steam Engine Co..
Morgan v. Bell Telep. Co...........

      

v. Westmorland Elec.Co.......
Moren v. New Orleans Ry. & L. Co..
Morhard v. Richmond L. & R. Co....
Morison v. American Telep. & Teleg.

COs mane xiowis ses omy ore Oe ees eames
Morrice, Village of, v. Sutton.......
Morris v. Loughborough Corp.......
v. Rounsaville. ..............
Morristown v. East Tennessee Telep.

 

 

Co.
Mt. Pleasant a. Co. v. Ohio, etc.,
a Coy sienneagamets eode esa keels

aie a aiaes ecteonanasery adelabece de puedakeat satan
Mulligan v. McCaffrey Seine Aves donee
Mullin v. Genesee Ce. Elec. L., P. &
Gas, CO oa saais ss wins cs doesn ny aes
Muncy Elec. Light, Heat & Power Co.
v. People’s Light, Heat & Power Co.

Munroe v. Fred T. Ley & Co........

Murphy v. Coney Island & Brooklyn
Rie COs: tog acgitistenns ttagecing custeeiives Biot

—— y. Hudson River Telep. Co..

v. Pacific Telep. & Teleg. Co..

Murray v. Cowherd ...............

Muskegon Tract. & L. Co. v. City of
Muskegon . .......c csc ee cece ence

Musolf v. Duluth Edison Elec. Co...

 

Mutual Union Teleg. Co. v. City of
Chicago: ss sisimgas anata ores Seas
Myers v. Edison Electric Illuminating
Cae oe. Specks Hseaatas Ginter alsa auehoanneussaepavenar

Myhan v. Louisiana Elec. L. & P. Co.

N.

Nacogdoches L. & P. Co. v. Thomas &
Richardson .........se cece eens

Nagle v. Hake........--...2eseeeee
Nat. Automatic Fire Alarm Co. of
Oregon v. City of Portland.......

163 N. Car. 300...398, 430, 434, 435
32 Ky. Law Rep. De as Aanaos 244
88 N. Y. App. Div. 289........ 78
T4C.C. A. 220 souweeaeaes 3 876, 884
21 R. I. 386........... 845, 848, 930
11 Quebec Superior Ct. 103. .663, oe
213 Pa. St. 151...752, 768, 782, 933
125 La. 944 ...... 593, 625, 766, 786
111 N. Y. App. Div. 358..... 607, 726
115 N. Y. App. Div. 744........ 466
139 Mich. 643......... 201, 212, 214
(1908) 1K. B. 205.......... 75, 184
182 ‘Gas. 462 sce sees saeins wane 548
115 Fed. 304.303, 312, 331, 390, 391
140 Ill. App. 27........ 338, 349, 521
169 Ind. 214. .109, 110, 112, 123, 638
38 Pa. Super. Ct. 3....602, 768, 773
229 Pa. St. 54........ 602, 768, 773
182: Mass. 4203324 sae gisieve-ecauce 876
202 Ni. Vo 278 ascvanxs 833, 834, 887
218 Pa. St. 636...196, 211, 330, 349
350

Tee Ped AGR nw esomiacpayed 866, 868
65 N. Y. App. Div. 548......... 848
187 N. Y. App. Div. 450........ 850
68 Wash. 643 ............. 866, 924
TAR Whigs BBY nes scniencemn arene 721, 722
167 Mich. 331... .225, 239, 240, 253
264, 328

108 Minn. 369. .4, 585, 593, 604, 651
657, 689, 699, 702, 767, 786, 818
930

16 Fed. 309 ............... 491, 493
225 Pa. St. 387..857, 858, 864, 889
0, 891, 894

63 N. J. L. 573... .368, 370, 371, 374
437

41 La. Ann. 964. .835, 855, 856, 857
876

(Civ. App.), 138 S. W. 1080..9, 60
; 71, 189

123 Wis. 256.......... 546, 596, 746
59 Oreg. 409 . 0... .. eee eee eee 295
TasLe oF Cassgs.

(References are to pages.)

National Fire Insurance Co. v. Den-
ver Consol. Elec. Co..............
National Subway Co. v. City of St.
LOUIS or 9% veneers tue aoeaves
National Telep. Co. v. Baker.......
Neacy v. City of Milwaukee........
Neal v. Wilmington & N. EH. Elec. Ry.
Co. .

Nebraska Telep. Co. v. City of Fre-

TOD i cas cc Fessasa sess. oe ds tues ersuersoerarnanes
v. Western Ind. Long Dist.
MTelép.i COs cect Sera thaws rene eatbiasess
v. York Gas & Elec. Co........
Nelson v. Branford L. & W. Co......
v. City of Murfreesboro.......

 

 

 

—— v. Narragansett Elec. L. Co..
— Vv.
v. Union Railroad Co.........
Neuert v. City of Boston...........
Nevada, City of, v. Eddy...........
Newark Elec. L. & P. Co. v. Garden.

 

 

Newark E. L. & Power Co. v. McGil-

 

Newberry v. Bristol Tramways & Car-
riage Co.
New Castle Vi Mets. CO's 6 sexes eae
New Castle, City of, v. Central Dist.
& Printing Teleg. Co. ............
New England Teleg. Co. v. Town of
Essex .
New England Teleg. & Telep. Co. v.
Boston Terminal Co.............

—— v. Butler .
—— v. Moore .
New Hope, Borough of, v. Western

Union Tel. Co
New Hope Telep. Co. v. City of Con-

cordia .
Newman v. Village of Avondale.....

New Martinsville, Town of, v. Enter-
prise Telep. Co.............0.545
Newnom vy. Southwestern Teleg. &
Welepy COs vo wceacowaeriiernnseulnen aie
New Omaha Thomson-Houston Elec.
L. Co. v. Anderson..............

v. Baldwin .
v. Dent .

a

v. Rombold .
New Orleans, City of, v. Gon So.
Telep. & Teleg. Co
New Orleans, etc., R. Co. v. Southern
& Atl. Teleg. Co......... eee eee
Newport Illum. Co. v. Tax Assessors.

 

lix

16 Colo. App. 86..618, 619, 621, 894
189 Who, BU sicveciveoduaians ‘ex BOE
L. R. (1893) 2 Ch. Div. 186.527, 589
151 Wis. 504 .............. 228, 356
3 Pen. 467...592, 595, 654, 757, 797
798

72 Neb. 25........ 316, 318, 320, 396
68 Neb. 772 ............05: 361, 642
DT Neb 284: suisse saseccteeiem arses 535, 536
75 Conn. 548 .............. 765, 779
179 Fed. 905...... 197, 198, 325, 327
. 329, 381

26 Re Te 258% fo sbise-satiedsdioes 663, 728
DOR. Te 2OIy ke raanmacen saiearea 728
ZORA 28M cvdeecoetiwancenaies 927, 928
120 Mass. 388 ......... Sines 632
123 Mo: 55 lcscs cesesontoeuenss 22y
78 Fed. 74...686, 689, 693, 765, 769
782, 783

62 N. J. L. 451... .685, 714, 715, 819
62 N. J. L. 505 hoe atts . 598, 737, 906
107 L. T. (Eng.) 801....... 563, 577
16 Pa. Co. Ct. 668.......... 148, 150
207 Pa. St. 871.026.0008. 08 492, 493
206 Fed. 926.......... 161, 270, 272
182 Mass. 397....308, 355, 491, 496
497

156: Fed, 821 cess sicnmarccnesas 874
179 Fed. 364............... 736, 751
16 Pa. Super. Ct. 306.......... 164
81 Kan. 514...... 358, 360, 368, 369
31 Week. Law Bull. (Ohio) 123. 292
296, 304, 314, 316, 351, 642

68 W. Va. 726......... a aes 342
(Tex.) 47 S. W. 669........ 671, 871
73 Neb. 84...585, 595, 625, 691, 715
787

63 Neb. 180 ...........-. eee 887
68 Neb. 668....... 762, 767, 862, 871
67 Neb. 393...... 686, 757, 758, 791
68 Neb. 54 ...........200.- 839, 872
40 La. Ann. 41........ 171, 303, 312
DAT SOU x te cerca 'aanarterateren 110, 274
19 R. I. 682... .29, 43, 195, 218, 295
lx

TABLE oF CASES.

(References are to pages.)

New Union Telep. Co. v. Marsh....

New York Cent., etc., R. Co. v. Daily.
New York, City of, v. Interborough

R. Co. v. Cen-

New York City, ete.,
tral Union Teleg. Co

New York Edison Co. v. City of New
York .

New York Elec. Lines Co., Matter of.

New York, etc., R. Co. v. Russell....
——— v. Western Union Teleg. Co...
—— v. State, Broome
New York & N. H. R. Co., Appeal of.
New York & New Jersey Telep. Co. v.

Bennett .

—— v. Borough:of Bound Brook....
—— v. Deixheimer .
—— v. Kast Orange Tp.
—— v. Speicher .
N. Y. & Penn. Teleg. Co. v. Couders-
port Borough
New York & Queens Elec. Light &
Power Co. v. Long Island Machine
& Marine Construction Co........
New York Telep. Co. v. DeNoyelles
Brick Co.
Niagara L. & O. P. Co., Matter of..
Nichols v. City of Minneapolis......

—— v. New York & Penn. Telep. &
Tel@g:. COs. ccc ieisee ccs ne.n sare kt

Nicoll v. N. Y. & N. J. Telep. Co....
Nolan v. Central Georgia Power Co..

—— v. Newton Street Railway Co..
Noon v. Gem Irr. Dist....+........
Norfolk & P. Traction Co. v. Dailey’s
Adm’r
Norfolk Railway & Light Co. v.
Spratley .

North Amherst Home Telep. Co. v.
Jackson .
North Arkansas Telep. Co. v. Steiner.
North Baltimore Pass. Ry. Co. v.
North Line Ry. Co...............
North Chicago City R. Co. v. Lake
View .
Northeastern Telep. & Teleg. Co. v.
Hepburn .
Northern L. & P. Co. v. Stacher....

Northern Telep. Co. v. Iowa Telep.
COs isn suicesangiaticcet ga wierapenesecaastete seria taes
North River Elec. L. & P. Co. v. City
of New York

96 N. Y. App. Div. 122..... 111, 112
116, 129, 332, 347, 362, 492

57 Misc. (N. "Y.) Sieber as 129
125 N. Y. App. Div. 487........ 449
21 Hun (N. Y.) 261........... 362
199: App. Divi. 728. cine inners 218
201 N. Y. 321..... 293, 310, 311, 354
508

83 Conn. 581 ...... cee eee eee 470
36 Hun (N. Y.) 205............ 31
50 N. J. L. 482..... cc eee eee 131
80 Conn. 623 ........ eee eee 497
62 N. J. L. 742... .595, 599, 704, 738
61, $10

66 N. J. L. 168. .367, 368, 372, 375
11 N. J. Law Jour. 246..... 545, 546
42 N. J. Eq. 490..........000.4- 368
BO ING is Das 28 is i wie iseceisisuwiere nein oe 689
49 Pa. Super. Ct. 46............ 172
123 N. Y. App. Div. 552....176, 177
154 N. Y. App. Div. 845... .135, 136
111 N. Y. App. Div. 686. 83, 86, 142
33 Minn. 430..... 636, 704, 739, 764
799

126 N. Y. App. Div. 184... .434, 445
467

62 N. J. L. 733........ 128, 412, 416
134 Ga. 201. .81, 82, 86, 97, 99, 119
130

206 Mass. 384 ................ 926
205 Fed. 402............... 630, 680
111 Va. 665. .596, 680, 681, 711, 764
103 Va. 379. .586, 596, 598, 737, 903
907

26 Ohio Cir. Ct. R. 89.......... 759
95 Ark. 275.......ccceeeeeeeee 859
MO MA. (238) oie-0tisizaseiard ereiate cerns 560
LOS Th, 207. ss cacwns mweeveewas 557
73 N. J. Hg. 657.............. 469
13 Cal. App. 404. .82, 102, 116, 118
120, 130, 477, 487

(Iowa) 98 N. W. 118.......... 521
48 N. Y. App. Div. 14...... 193, 216
TasLE oF CaSEs.

(References are to pages.)

North Shore Elec. L. & P. Co. v. Port

Jefferson Elec. L. Co.............
Northwestern Telep. Exch. Co. v. An-

Gerson! s+. ssa detec niee canadien ss
—— v. City of St. Charles........
— v. Chicago, etc., Ry. Co.......
—— v. City of Minneapolis........

Northwestern Telep. Co. v. Twin City
Telep. Co
Northwestern Elee. Co. v. Zimmer-
TAD? isis cs gers Se wea Seabees
Norwalk, etc., Elec. L. Co. v. South
Norwalk i. swiss gece e sae nies aie
Norwich Gas & Elec. Co. v. City of
Norwich .
Norwood, Borough of, v. Western
Union Tel. Co.

0.

Oakland Elec. Co. v. Union Gas &
Elec. Co

Oakley v. City of Atlantic City....

O’Brien v. City of Erie............
v. J. G. White & Co..........
Oconee Elec. L. & P. Co. v. Carter....
O’Connell’s Adm’r v. Louisville Elec.

L. Co.

 

O’Connor v. Nova Scotia Telep. Co..
O’Donnell v. Boston Elevated Ry. Co.
v. Inhabitants of North Attle-
borough .
v. Kavanagh *
O’Flaherty v. Nassau Elec. L. Co....
O’Gara v. Philadelphia Elec. Co.....
Ogden City, City of, v. Crossman....
Ogden City Ry. Co. v. Ogden City...
Ohio Postal Teleg. Cable Co. v. Board

of Com’rs of Sandusky County....
Ohrstrom v. City of Tacoma........
Old Colony T. Co. v. City of Omaha.

v. City of Wichita ...........
a v. Glens Falls Gas & Elec. L.
Co.

Peer me reer erm tree erences

 

 

 

Olin v. United Elec. L. & P. Co......
Olson v. Nebraska Telep. Co........
Omaha Elec. L. & P. Co. v. City of

Omaha .
Opinion of Justices ...............
Oregon Short Line R. Co. v. Postal

Teleg., Cable. Co's. .:5 seis: suse s 6 2s
Orillia, In re

151 N. Y. App. Div. 63........ 349
12 N. Dak. 585... .304, 310, 541, 542
545, 546, 547

154 Fed. 386.......... 294, 295, 385
76 Minn. 334...21, 24, 111, 123, 273
81 Minn. 140. 304, ’306, 307, 358, 360
385, 492, 493, 501

89 Minn. 495 ............ 521, 522
(Oreg.) 135 Pac. 330....... 107, 132
TL Conny. 381) yea wceaienn Seen 374
76 Conn: 865) 4 wade vreau noes as 241
25 Pa. Super. Ct. 406.......... 166
LOT Me. 279) 5.is seins cen eanie aces 46
63 N. J. L. 127...198, 202, 204, 207
2 212, 681

7 Pa. Dist. Rep. 491........ 236, 503
105 Me. 308 ............4.. 654, 841
111 Ga. 106. .100, 101, 118, 119, 122
21 Ky. Law Rep. 1362. .587, 766, 839
875

22 Can. Sup. Ot. 278........... 432
205 Mass. 200......... 512, 593, 598
212 Mass. 243 ...........0.05. 630
158 Tl. App. 599.............. 616
34 N. Y. App. Div. 74. .737, 902, 908
(Pa.) 90 Atl. 529............. 776
17 Utah 66 .cscieecs savcw ees 170, 172
7 Utah 207 -.4c.s2ccane es aves 109
140 Fed. 692............... 491, 493
57 Wash. 121.......... 747, 929, 933
230 U. 8. 100. .42, 305, 306, 322, 323
346, 474

123 Fed. 762. .41, 303, 313, 314, 350
107 App. Div. 505....593, 737, 764
906

82 Mise. (N. ¥.) 427........... 185
87 Neb. 598. .624, 832, 843, 859, 874
179 Fed. 455.......... 322, 323, 380
150 Mass. 592 ............ 225, 226
lll Fed. 842.......... 108, 124, 141
7 Ont. L. (Can.) 389.......... 144
xii

TABLE OF CASES.

(References are to pages.)

me v. Southern Bell Telep. & Teleg.
Ose. syhtcey + phone ee Sele 2a wate Be
Osborne v. Auburn Telep. Co........
Ottawa Elec. Co. v. Cunningham...
Overall v. City of Madisonville......
v. Louisville Electric Light Co.

 

Owen. v. Portage Telep. Casta
Owensboro, City of, v. Cumberland
Telep. & Teleg. Co..........-.06.

—— v. Knox’s Adm’r
—— v. York’s Adm’r
Owensboro City R. Co. v. Haden....

Pacific Postal Teleg. Co. v. Irvine....
Pacific Telep. & Teleg. Co. v. Hoffman
CCM. sagem via Maas theirs wo aisuas
Pacific Postal Teleg. Cable Co. v.
Western Union Teleg. Co.........
Pacific Telep. & Teleg. Co. v. Parmen-
ter .
Vi Starla a iiintene 4 sauaws tyerorniowns
Paducah Light & P. Co. v. Parkman’s
AOI sori: conan ea tinse gandletes
Paducah Ry. & L. Co. v. Bell’s Adm’r.
Paine v. Elec. Illum. & P. Co. of
Long Island City

 

were mere rer eence

—— v. Geneva, etc., Tract. Co......
Palestine, Village of, v. Siler........

Palmer v. City of Helena...........
—— v. Kinlock Telep. Co. ........
—— v. Larchmont Elec. Co........
Pamona, City of, v. Sunset Telep. &

Melee. (COs sds v.03 weadaacsse Seite ss Sens
Panhandle Telep. & Teleg. Co.......
Paris Elec. L. & Ry. Co. v. Southwest-

ern Teleg. & Telep. Co...........

Parkersburg Gas Co. v. City of Par-
KGPEDUPE cscs s etn Gees HOw ee eas
Parsons v. Charleston Consol. Ry., G
& Be Coe ei ciae ss oes eeyae-s ats
Passaic, City of, v. Public Service
Corporation of New Jersey......

Patapasco Electric Co. v. City of Bal-
AUN OLE 5 gee esis eon nib g emus stain S.A
Paterson Ry. Co. v. Grundy.........
Patten v. City of Chattanooga......
Patterson v. San Francisco, etc., Ry.
COi oa patna Reh GRE Re Reese

cr

180 N. Car. 627. ....cscccccccee 849
189 N. Y. 393......... 403, 416, 421
20 Quebec K. B. 481........ 590, 911
125 Ky. 684. .230, 231, 237, 244, 250
20 Ky. Law Rep. 759....4, 587, ate
82
126 Wis. 412...... 792, 821, 896, 897
174 Fed. 739..292, 303, 305, 307, 313
323, 345, 346, 379, 382, 495
116 Ky. 451. .630, 634, 700, 746, 766
TT] Key: 298 ots aeaine gaege oie 822, 823
155 Ky. 283... cieee eveasscaves 461
49 Fed. 118: oc icdicygnwase ce 398, 415
208 Fed. 221... 6. sc esisne ees 672, 756
50 Fed. 493 3.4 neces ine ee cee es 447
170 Fed. 140.......... 654, 664, 721
206 Fed. 157 ..........00. eee 850
156 Ky. 197.........4, 604, 766, 787
27 Ky. Law Rep. 428...... 766, 832
64 N. Y. App. Div. 477....677, 746
747, 748, 810, 818
115 N. Y. App. Div. 729... .563, 565
567, 568, 569, 903, 914
225 Ill. 630. .630, 632, 633, 635, 757
810
40 Mont. 498 ................. 250
91 Mo. App. 106........... 47, 848
158 N. Y. 231..... 404, 405, 407, 427
224 U. 8. 330.............. 26, 226
(Civ. App.) 136 S. W. 1129..... 686
757, 801

(Tex. Civ. App.) 5 Am. Electl.
COB: 262) oo siete se seis 4 esse 534, 536
30 W. Va. 435....196, 199, 218, 324
69 S. Car. 305... .594, 703, 768, 788
75 N. J. Eq. 379. .46, 320, 481, 482
642
110 Md. 306........... 297, 300, 352
51 N. J. Eq. 213. .538, 558, 641, 642
108 Tenn. 197................. 353
147 Cal. 178. .565, 568, 569, 901, 902

914
TaBLE oF Cass.

(References are to pages.)

Patterson Coal & Supply Co. v. Pitts-
burg Rys. Co. ......... 0.0 eee
Patterson & Passaic Gas & Elect. Co.
v. State Board..............0005-
Payne v. Golbach .............004.
—— v. Witherbee, Sherman & Co...
ae v. Tri-State Telep. & Teleg.
Oe ree eer rrr e
Peaty v. City of New York.........
Peck v. Newburgh L., H. & P. Co.....
Bethan, Town of, v. Pelham oo

Pence v. Chicago City Ry. Co.......
Peninsular Telep. Co. v. McCaskill. .
Pemebaket y. San Joaquin L. & P.
oO. .
Pennsylvania R. Co. v. Lilly Bor-
ough .
Pennsylvania Telep. Co. v. Hoover...
—— v. Varnau .

Pensacola, City of, v. Southern Bell
Telep. Co.
Pensacola Teleg. Co. vy. Western Union
Teleg. Co. ..ccs cece ecccreeecsens

cay

People v. Board of Assessors of City
of Brooklyn .............eeeeeee
—— v. Board of R. R. Com’rs......
—— v. Campbell .
—— v. Central Union Telep. Co..
—— v. Chicago Telep. Co. .........

— . -————- ..

—— v. Consolidated Teleg. & Elec.
Subway Co.
v. Coler .
vy. Com’rs of Taxes............
v. Durston .
v. Eaton .
y. Ellison .

Oem e eee ete mentee

v. Feitner .
Kemmler .
v. Metropolitan Telep. & Teleg.

a

. Monroe .
. Public Service Commission. .
Rice .

ee

adaa_

x

Squire: 6 csi dneaerseeas sede
. Stevens .
7 Thompson mee
. Transit Development Co....
Wells .

 

Ue) Ce

assaa

Omer ee er owen te eenn

lxiii

37 Pa. Super. Ct. 212.......... 909
(N. J. L.) 54 Atl. 246..146, 150, 151
14 Ind. App. 100.............. 289
200 Nis Vis 572s caenss woeaesay 76, 186
111 Minn. 331 ................ 549
33 Mise. (N. Y.) 231.......... 631
132 N. Y. App. Div. 82...... 638, 644
131 Ga. 826 oo. cccsceeewess 895, 396
VOT Mase: 477 2 iiss cadets 858
155 Til. App. 480.............. 838
64 Fla. 420................ 680, 898
158 Cal. 579...... 584, 691, 715, 790
B07 Paw 180: aia sd wom s eae 457
24 Pa. Super. Ct. 96......... 25, 111
5 Lanc. Law Review (Pa.) 401.. 703
742, 748, 797, 930, 931

AO Bas IGL. iss cipal essen oe aveiae 170
96 U.S. 1....265, 266, 267, 269, 271
272, 274

19 N. Y. App. Div. 599...... 145, 146
30 N. Y. App. Div. 69........ 562
88 Hun (N. Y.) 527...... 11, 16, 145
192 Ill. 807............. ,..808, 314
220) Tih. 2986-0 a deg a ea geese 351, 386
245 Ill. 121..303, 321, 354, 355, 356
378, 379, 380, 385, 386

ASTON, V5 68 2 ssiecsis cad ances sea tieutss 505
190. Nis. Yo 268) osvie is atiaeed. 655 aint 387
58 Mise. (N. Y.) 249.......... 146
VIS NG Yi s569 sss: ss ie senate ye kes 33
100 Mich. 208 ................. 417
115 N. Y. App. Div. 254... .293, 310
504

45 Mise. (N. Y.) 12............ 29
119 N. W. 580...... cece eee 33
31 Hun (N. Y.) 596........ 362, 394
85 N. Y. App. Div. 542...... 505, 508
163 N. Y. App. Div. Tbe scutes 189
188 N. Y. 151 ............. 43, 55
162 N. Y. App. Div. 207....146, 150
151

145 U. 8. 175....476, 497, 498, 500
504

2038) Na Ys Tis ase ved seas ava nee 478
65 How. Pr. (N. Y.) 451...... 405
131 N. Y. App. Div. 174..... 92, 637
135 N. Y. App. Div. 644...... 29, 30
129 N. Y. 543.........10, 11, 13, 16
lxiv

TasBLE or CASES.

(References are to pages.)

People v. White.................65
We WAN COX io ae saig seionn ob Scseand gris
People’s Elec. L. & P. Co. v. Capital
Gas & Elec. Co..............2005
People’s Home Telep. Co. v. City of
Gamesville . ..ccesees cans cesses
People’s Telep. Co. v. Conant.......
People’s Telep. & Teleg. Co. v. East
Denn. Telép. C0... ccccecsiace ess
—— v. President, etc., Turnpike
Roads Giswy sontnorncugiesMoncnan dae
ee Waterworks Co. v. Peoria Ry.
Ons seg es MOAN ee ee Sees

Perham y. Portland General Elec. Co.

Perry v. Ohio Valley Elec. Ry. Co..
Peters v. Lynchburg Light, etc., Co..
Pettingill v. City of Chelsea
Phelan vy. Edison Elec. Ilum. Co.....
Phelps v. Berkshire St. Ry..........
v. Board of Com’rs of Howard

GOUNb Ys: te syecer ts eisoritetuy carer sue
Philadelphia, City of, v. American

Union Teleg. Co.............2.005
— v. Atlantic & Pac. Teleg. Co...
—— v. Postal Teleg. Cable Co......
—— v. Western Union Teleg. Co....
—v.—.

 

 

v.
Philbin v. Marlborough Elec. Co..
Phillips v. American Telep. v. Teleg.
Co. .
v. Postal Teleg. Cable Co......
Philipsburg v. Cent. Penn. Teleg.,
EE COs sericss nar so: aie gant cas accra Seaeee ochasnincney
Phillipsburg Elec. L., Heating & P.
Co. v. Inhabitants of Town of Phil-
Tipp BUT Bo: co. sion: ssiectcshers ist farses arate
Phoenix L. & Fuel Co. v. Bennett...

 

Piedmont Elec. Ilum. Co. v. Patter-

BOTA Sj AI Riki ee teh gids cea tarot s
Pierce v. Camden, G. & W. Ry. Co...
Vi IDECW er oie a en atad aekie seals een
—— v. United Gas & Elec. Co......
Pike v. Cedar Rapids & M. C. Ry. Co.
Pike’s Peak Power Co. v. City of

Colorado Springs

 

Pikesville, ete., R. Co. v. State......
Pinney & Boyle Co. v. Los Angeles

Gas & Elec. Corp.................
Pittsburg Hydro-Elec. Co. v. Liston.

Platt v. City of Englewood.........
Plattsburg, City of, v. People’s Telep.
Platismouth, City of, v.° Nebraska

Telep. Co.

Pee eee ee ere ee ew te eens

11 Barb. (N. ¥.) 28........+.... 99
207 Nu Ne 86 0cass exes as 477, 478
116 Ky. 76...326, 349, 394, 478, 479
(Tex. Civ. App.) 141 S. W.'1044. 332
334, 359, 360

198 Weds: 624.00 siaise aac vac 870
103 Feéd. 242 2 ccc case newewnae 524
199 Pa. St. 411............. 24, 25
181 Fed. 1001....34, 35, 36, 37, 38
39, 550, 551, 552, 553

33 Oreg. 451. .585, 593, 605, 768, 778
809, 810

70 W. Va. 697..........00% 618, 619
108 Va. 333......-.... 618, 619, 912
IGN: Wass: (368 5.3 etn dasa araieie ane 631
24 Mise. (N. Y¥.) 109........ 55, 57
210 Mass. 49.......... aimee THR 472
117 Md. 175..........-. 716, 717, 801
TG? Pais St: AG io cieists ccdietwiavercangie 162
102 Ned. 254.0... asic a escna ecg steers 165
67 Hun :2)) scswncgenny aware 2 162, 163
81 Fed. 948............005. 164, 168
11 Phila. (Pa.) 327........... 268
89 Fed. 454...... 162, 164, 165, 166
(Mass.) 105 N. E. 893...... 770, 772
TAS. Carn Bilic conse icnieve nace 472
130 N. Car. 518: 2245 s0cas aeawes 452
22 W. N. C. (Pa.) 572........ 172
66 N. J. Law 505. .289, 304, 319, 320
8 Ariz. 314..584, 601, 605, 671, 674
680

SS Wile, BAT 2 ese assoc tess dutucheuraaleevars ce 881
58 N. J. Law 400.......... 875, 885
1386 Mass. 75.......... 398, 414, 417
161 Cal. 176........... 697, 808, 822
152 Towa 58............-...08. 840
105 Fed. 1....49, 194, 287, 303, 382
392, 835.

88 Md. 563 0 siiceesaesiewe aes 875, 885
(Cal.) 141 Pac. 620........ 487, 488
70 W. Va. 83..84, 87, 95, 102, 107
115, 835

G8 ON. Ds i 28 Mecscansanenaa pais 204
88 Mo. App. 306....... 171, 172, 393
80 Neb. 469. .304, 307, 379, 380, 492

493
TasLe oF Cases.

(References are to pages.)

Point Pleasant Elec. L. & P. Co. v.

Borough of Bay Head............
Politowitz v. Citizens’ Telep. Co.....
Pomeroy v. Boston, etc., Ry. Co.....
Poor v. Madison River Power Co....
Portland, City of, v. Metzer........
—— v. New England Telep. & Teleg.

Co. .
Portland ‘Ry. L. & P. Co. v. City of

Portland
Posey v. Town of North Birmingham.
Post v. Suffolk, L. H. & P. Co......
Postal Teleg. Cable Co. v. Adams...
Postal Telegraph-Cable Co. v. Ala-

bama, ete., R. Cov... 0... ee eee ee
Postal Teleg, Cable Co. v. Baltimore.
v. Borough of New Hope......
Brantley
Breult sees saws aeacnnne coo
Charleston. .... see ey ay
Chicago, etc., Ry. Cesare
City of Chicopee ce
City of Los Angeles........
City of Newport............
City of Norfolk............
City of Richmond...........
City of Worcester..........
Cleveland, ete., R. Co.......
Hatons so 9 sass oo seed ee sews

 

SAAS SASS AS AA's

. Farmville, ete, R. Co......
 VONEBS (a s8ise) is adioas ors oiowe Son are

LTT FEET

adssa
1A
e
Se

 

. Southern Ry. Co............
. State
v. Taylor
Postal Teleg. Cable Co. of Idaho v.
Oregon Short Line Co............
Postal Teleg. Cable Co. of Louisiana

v. Morgan’s, ete.; 8. 8. Co

TT

v.

v.

v. Patton . etal WV ear cease ape giao SVG
v

v

 

Poston v. Cumberland Telep. & Teleg.

Q
S

Potera v. " City of Brookhaven......
Potsdam Elec. L. & P. Co. v. Village

of Potsdam
—— v. Village of Potsdam.........
Potter v. Collis............ 0.00.0
— v. Swanton Tract. Co..........
Potts v. City of Philadelphia.......
—— v. Shreveport Belt Ry. Co......
Poulson v. Nassau Elec. R. Co.......

lxv

62 N. J. Hq. 296....... 368, 374, 481
115 Mo. App. 57....... 703, 704, 738
193 Mass. 507............. 573, 574
41 Mont. 236.835, 864, 872, 879, 888
58 Oreg. 276. .469, 480, 482, 487, 488
103 Me... 240... ces cece eew ences 29
200 Fed. 890.......... 474, 475, 476
154 Ala. 511. .231, 233, 234, 629, 632
77 Mise. (N. Y.) 369..409, 421, 441
158: Ws Ss 688: di tacss anes ts 154, 156
68 Miss. 314..............0.... 141
79 Md. 502........ 161, 168, 265, 272
192 U.S. 55, 248. Ct... 0.0000. 165
TOT Ala. 683 isc a. oa sssiets oases £ 436
39 N. Y. Supp. 220............ 135
153°UW. S. 6920 cease acnwwdss 159, 160
30 Ind. App. 654........... 124, 125
207 Mass. 341............. 491, 494
164 Cal. 156. .155, 156, 161, 358, 359
25 Ky. Law Rep. 635....... 163, 272
TO] Via. 128 a5. ites eile s 162, 168
99 Va. 102........ 154, 155, 160, 265
202 Mass. 320.............005. 499
04. Hed. 234). 2 ¢ sas eas ges ccs savass 124
170 Ill. 513..110, 398, 415, 437, 442
443

96 Va. G61... wicca ea ce een wees 127
133 Ala. 217..704, 706, 724, 740, 742
VS: Gia QB) 6 ssa crais 4 oa boa 666, 721
107 Ala. 640.............00005. 436
225 Ill. 249. .626, 650, 831, 843, 856
857, 872, 873

49 La. Ann. 1270.............. 126
23 Utah 474..85, 108, 110, 116, 125
126, 131, 137, 139, 140, 142, 278

114 Fed. 787..110, 123, 124, 140, 141
SS Vie: G20 GF a diets ores ete ae scans 127
163: Key. 1ST ec eice es eee eas 130, 134
89 Fed. 190................ 131, 142
110 Md. 608................... 494
192 U.S. 64...... 163, 165, 167, 168
104 Fed. 623. .108, 124, 131, 137, 273
49 La. Ann. 58....124, 127, 137, 138
139, 141

94 Tenn. 696.............-.05: 435
95 Miss. 774. .603, 728, 736, 822, 910
112 N. Y. App. Div. 810........ 227
49 Mise. (N. Y.) 18........... 227
19 N. Y. App. Div. 392........ 562
16 Pa. St. QT esiscs sok oSaes ¢ nace 559
195 Pa. St. 619............. 55, 208
110 La. 1....586, 759, 760, 801, 817
18 App. Div. 221...... 565, 567, 914
Ixvi TABLE OF CASES.

(References are to pages.)

 

 

 

 

Poulson v. Nassau Elec. R. Co....... 30 App. Div. 246. .565, 566, 903, 914
Poumeroule v. Postal Teleg. Cable

OO. tee meeiGemiaonaansadennes 167 Mo. App. 533...... 755, 758, 759
Powers v. Independence Long Dis-

tance Telep. Co.............0000 19. Wdaho 80 ties ste totic ev sad 723

v. State Line Telep. Co........ 116 N. Y. App. Div. 737... .403, 416
Prather v. Jeffersonville, etc., R. Co.. 52 Ind. 16...........00e cece eee 456

v. Western Union Teleg. Co... 89 Ind. 501............ 449, 451, 456
Predmore v. Consumer’s L. & P.Co.. 99 N. Y. App. Div. 551. .745, 747, 822
Prentiss v. Cleveland Telep. Co...... 32 Week. Law Bull (Ohio)..... 427
Presbyterian Church, Trustees of, v.

State Board ..................-- 55 N. J. L. 4386...........0.26. 499
Presley v. Kinlock-Bloomington

Welep.: COs. sssic ecpive'g ndteauen oasis 158 Ill. App. 220. .626, 738, 745, 748

v. Kinlock-Bloomington Telep.

CO) 6s, o sie bee sieeleaan aes casio < 164 Ill. App. 167.............. 616
Previsch v. Butte Elec. R. Co....... 47 Mont. 170.............. 574, 576
Primrose v. Western Union Teleg. Co. 154 U. S.1........... 02.0000 20
Prince v. Lowell Elec. Light Corpora-

PLOWS: ogo. ce hea bern doo SKC DA Pore 201 Mass. 276....736, 793, 794, 795

803, 925

Pritchard v. Edison Elec. Ill Co..... 92 App. Div. 178...... 639, 640, 644

v. Edison Elec. Illum. Co..... V79. NG Ns; S64 oso. nave ves arses aca 639

Proctor v. San Antonio St. Ry. Co... 26 Tex. Civ. App. 148. .626, 889, 890
Providence, City. of, v. Providence

Wes, Bo. Cis icine niologssanideasts en dpaces cxgae V22: Keys 280 ss ssie 0 suasecs: os cote 208, 217
Public Service Corp. v. Town of West-

fel de. isco Ge anata ce ae some casinear orn 80 N. J. Eq. 295............ 364, 368
Purnell v. McLane, Mayor of Balti-

more: City’ 6 sa swuse esa ose sais 98) Md. 589 50s cesers oe svnene eaccvare 236, 503
Putman v. Grand Rapids........... 58 Mich. 416. .196, 212, 213, 218, 222

236, 503
Q.
Quebec Ry. L. & P. Co. v. Fortin.... 40 Can. Sup. Ct. 181........... 872
Queen City Telep. Co. v. City of Cin-

CINNALA wiceyia ete sg wee ss xen s 73 Oh. St. 64......... 375, 376, 505
Queensboro Gas & Elec. Co. v.

Schoneke .. 1. cece eee ewe eee 76 Misc. (N. Y.) 190....... 174, 177
Quill v. Empire State Telep. & Teleg.

Cop aera Seat steree os Mom meecanmaws AB OL ING Yi Decsasnscade? avcnne acs Gane 623, 659
Quincy Gas & Electric Co. v. Bau-

MANN wh. 2 ses Keew eae news or msess 104 Ill. App. 600. .585, 587, 592, 595

675, 917
—— ¥, Schmitt: 20.0054 co00 scar oes 123 Ill. App. 647...... 676, 726, 911
Quinlan v. Lackawanna Steel Co.... 107 N. Y. App. Div. 176........ 887
Raab v. Hudson River Telep. Co..... 139 N. Y. App. Div. 286... .832, 843

855, 880
Raines v. East Tennessee Telep. Co.. 150 Ky. 670................... 755
Raker v. Toledo & Indiana Ry....... 30 Oh. Cir Ct. 78...... 835, 860, 918
Raleigh R. R. v. Davis............. 19) Ni © i AGT scsi ae 5 a pon de sive 99
Raley v. Evansville Gas & Elec. Co.. 45 Ind. App. 649.............. 766

812, 813

Rambo v. Empire Dist. Elec. Co..... 90 Kan. 390...... 766, 782,
TABLE OF CasEs.

(References are to pages.)

Rand v. Marshall..................

Randall v. Ahearn & Soper.........
Ratterman v. Western Union Teleg.
COs weraieieila sec nay Sar aheteials Mises wea
He v. Kansas City Long Dist. Telep.
Os 6's sg ve dais ow anne oe Nae e's ae
Read v. City & Suburban Ry. Co.....
Readfield Telep. & Teleg. Co. v. Cyr..
Reagan v. Boston Elec. L. Co.......
Redding v. Central Georgia Telep.
Co...
Reed v. American Dyewood Co......
v. City of Anoka.............
—— v. Norristown Elec. L. & P. Co.
Reeder v. Lehigh Valley Coal Co.....
Reeve v. Colusa Gas & Electric Co...
Reeves y. Philadelphia Traction Co..
Regina v. United Kingdom - Elec.
Teleg. Co. 20... eee ccc ee nce eee

 

Register v. Tidewater Power Co..

Reid v. Nfld. Co. v. Anglo-Am. Teleg.
Co. .

—— Vv. “Trowbridge Svvanereie bye ‘ecu Bere eae

Reidel v. West Jersey & 8. R. Co.....
Reiser v. Edison Elec. Illum. Co. of
Brookl yo «6 s.cwas evi bce snc aes
Reynolds County Telep. Co. v. City
of Piedmont
Rhode Island Suburban Ry. Co., Mat-
ter of
Richmond, City of, v. Lincoln.......
v. Southern Bell Telephone Co..
Richmond Passenger & Power Co. v.
Robinson . .
Richmond Ry. & Elec. Co. v. Rowles.
v. Gathright
v. Hudging............eeeeeee
Richmond & P. Elec. Ry. Co. v. Rubin

 

 

 

Ridley Park, Borough of, v. Citizens
Elec. L. & P. Co
Riker v. New York O. & W. Ry. Co...

ee

Riley v. City of Independence......
v. New England Teleg. & Telep.
Co. .
Riverside, ete., Ry. Co. v. City of
Riverside.
Roake v. American Telep. & Teleg.
Co...
Roaring Springs Townsite Co. v. Pa-
ducah Telep. Co..............00-
Roberts v. City of Fargo...........
—— v. Wisconsin Telep. Co........
Robinson v. City of St. Thomas.....
Rocap v. Bell Telep. Co. of Philadel-
phia. ..
Roche v. New York Edison Co.......

 

84 Vt. 161, 78 Atl. 790....174, 228
230, 244, 245, 255
34 Can. Sup. Ct. 698........... 819
127 Un Sv 4b sicuee acces svseess 189
87 Kan. 665.......c0cec ese eeee 74
115 Ga. 366............... 744, 825
95 Me. 287........0000. 30, 291, 356
167 Mass. 406......... 776, 771, 815
6 Ga. App. 831.............005- 872
231 Pa. Ste 48h oie sj davesck aces 832
85 Minn. 294..192, 194, 196, 197, 211
239 Pas, SOV wos ss sss esas ccsvend 40d ane 819
231 Pa. St. 563............ 742, 840
152 Cal. 99............ 856, 870, 880
152 Pa. St. 153...........0.005 560
9 Cox ©. C. 174, 6 L. T. (N. 8.)
soUe Layee eae Tee Re we 641
an ee "81 8. E. 926 vices eae 869
C. R. (1910) A. C. (Eng. P. C.) 449
78 Miss. 542. .196, 204,. 308, 207, 208
211, 215
177 Fed. 374.......... 580, 687, 694
76 Misc. (N. Y.) 563..... 77, 78, 79
152 Mo. App. 361...... 510, 726, 911
DOR DGB wisswreecd aise 6 eis ialens eis 110
167 Ind. 468...........2... 630, 631
174-U.S.. 16h. wecesccawes 24, 25, 275
100 Va. 394............ 0. ce eee 579
92 OV 8. 1885 eek wdc eaie y 571, 572, 928
OP V8 G2T omc 2ce sine a dane a et ae 564
100 Va. 409........... 578, 905, 916
102 Va. 809...594, 596, 674, 746, 747
750, 763, 821
9 Pa. Super. Ct. 615............ 147
64 N. Y. App. Div. 357..836, 837
851, 852, 854
(Mo.) 167 S. W. 1022.......... 925
184 Mass. 150......... 341, 716, 719
118 Fed. 736........ 74, 75, 187, 243
41 N. J. Eg. 35.............00. 440
(Tex. Civ. App. ) 164 S. W. 50... 416
10 N. Dak. 230............ 202, 203
77 Wis. 589...... 667, 862, 869, 878
23 Ont. Rep. 489........... 322, 326
230 Pa. St. 597........ 674, 682, 913
84 Mise. (N. Y¥.) 427.......... 752

lxvii
xviii

TaBLe or CasEs.

(References are to pages.)

Rochester, City of, v. Bell Telep. Co.
of Butfalo

Rochester Telep. Co. v. Ross........
Rockebrandt v. City of Madison.....
Rockingham County Light & Power

Co, Vi, Hobbies cccctaceevscoaies

Rock Island, Cy off., v. Central
Union Telep. Co..............24-
Rocky Mountain ‘Bell Telep. Co. v.
Salt Lake City R. Co.............

Rodgers Adm’r vy. Union Light, Heat

& Power COs 0386566568 060 beviae
Roebling v. Trenton Pass. R. Co.....
Rollo v. Alladio...........cceeeee
Romana v. Boston Elev. Ry. Co.....
Romano v. Vicksburg Ry. & L. Co...
Rosenstein v. Fair Haven & W. R.

CO ate sates eas, acats Sates aha fe tenes
Rough River Telep. Co. v. Cumber-

land Telep. & Teleg. Co...........
Rowe v. New York & N. J. Telep. Co.

—— v. Taylorville Elec. Co.........

Rowley v. Am. Illum. Co............

—— v. Newburgh L., H. & P. Co..

Roy v. Great Northwestern Teleg.
Co. of Canada..........cccenees

Royal Electric Co. v. Heve..........
Rucker v. Sherman Oil & Cotton Co..

Rugg v. Commercial Union Teleg. Co.
Rumovicz v. Scranton Elec. Co......
Runyon v. Kanawha W. & L. Co.....
Rural Home Telep. Co. v. Arnold...
v. Kentucky, etc., Telep. Co....
Rushville Gas Co. v. City of Rush-

Ville! pcre da aceteaens seaviins symas
Russ v. Pennsylvania Telep. Co......
Russell v. Bell Telep. Co...........
Russellville Home Telep. Co. v. Com-

MONWEA. i citcns everdeae tee too ve
Rutland Ry., L. & P. Co. v. Claren-

don Power: Coveccas cows eeasige cos
Rutland Elec. L. Co. v. Marble City

Hlees Dus COvscsxwa sears sae aed os
Rutledge v. Swinney............006

Ryan v. Oshkosh Gaslight Co.......
v. St. Louis Transit Co........
Rylands v. Fletcher..... oi Sphere esti ze

 

 

52 N. Y. App. Div. 6....... 333,
337, 338, 492,
500, 501, 504,
125 N. Y. App. Div. 76.. 345,
9 Ind. App. 227... ....00ee cerns

72 N. H. 531..9, 59, 61, 81, 82,
87, 92, 102, 103,

132 Ill. App. 248...... 303, 323,

(Utah) 3 Am. Electl. Cas. 356. .
526, 528,

(Ky.) 123 8. W. 293. .685, 689,

58 N. J. L. 666..........-..6-
BU OPER. VOM e ssccisceias oeasiesoxaisvavecuse
(Mass.) 105 N. E. 598........
(Miss.) 9 Am. Elect]. Cas 624..

78 Conn. 290 sia visevaewons ver

OG ig. WO scccergica dive 350,
66 N. J. L. 19....598, 613, 737,

746, 750, 761, 762, 796,
114 Ill. App. 535. .584, 592, 714,

83 N. Y. App. Div. 609... .851,
151 N. Y. App. Div. 65...... 655,
(Can. )

2 one Superior Ct.
BD: coe cassts os ceacosadg tender nvarie ah ossveeee

(11 Kings Bench)
594, 607, 608, 726,
29 Tex. Civ. App. 418. .595, 686,

Quebec ‘Rep.

GG Vib: 208 i. sca tramcstapecann atiitiatrosy
44 Pa. Super. Ct. 582...... 691,
68 W. Va. 609........ 768, 778,
(Ky.) 119 S. W. 811..........
128 Keys 209s ccc ca pins nase van ae
12] Indy 212. iscs eens 225, 228,
15 Pa. Co. Ct. 226......... 427,
110. W. R. 800............0..
33 Ky. Law Rep. 182..........
86 Vt.46 0+ peices ams 84, 87,
65 Vt. 377... .304, 515, 516, 517,
170 Mo. App. 251. .832, 838, 852,

869,
138 Wis. 466............... 707,
19U Mo. 621......., 767, 790, 812

L. KR. 3 H. L. C. (Eng. ) 330.532.

384
498
562
363
255

86
122

350

525
532

7866
784
559

688
729

584

389
738
802
765
786
854
789

432
436
911
768
776
418
790
908
732
322

252
429
857

444
129

519
854
883
757
890
589
TasLe or CasEs.

(References

Saginaw v. Swift Elec. Light Co..
Saginaw Power Co. v. City of Sag-
inaw
Saginaw Union St. Ry. Co. v. Michi-
gan Central R. Co
Salem, City of, v. Anson........000-

Salmon v. City Elec. Ry. Co.......
San Antonio Edison Co. v. Dixon...

San Antonio Gas & Elec. Co. v. Bad-
CET S8.i5: cd. tendo iv anes uen crac denuded
San Antonio Gas & Elec. Co. v. Mou-
TON: 6 4 6 odes tee Eee Raha e oes
v. Speegle
San Antonio, etc.,
hibeahigh ete., Telep.

 

Ry. Co. v. South-
GOS snrnnesuecaxerdie

                         

Sandgaive v. Independent Telep. Co..
San Francisco, City of, v. Western
Union Teleg. Co.............0.08
San Juan L. & Tr. Co. v. Requena....
San Marcos Electric L. & P. Co. v.
Compton ..
Santa Rosa Lighting Co. v. Wood-
ward
Saratoga Springs, Village of, v. Sara-
toga Gas, Electric Light & Power
COs sa nice 204 Rane KR ERK wedi es

Saures v. Stevens Mfg. Co..........
Savage v. Rhode Island Co.........
Savannah Elec. Co. v. Bell
Savannah, etc., R. Co. v. Postal Teleg.

Cable: €0s, cisacessosmas aeaeesone
Saxton v. Northwestern Telep. Exch.

Scannevin & Potter v. Consolidated
Mincral Water Co.

saa Vv. eee Water Power
Co.

Scheiber v. United Telep. Co...

esse vy. Western Union ‘Teleg.
Co. .

Schenck v. “Borough | of ‘Olyphant. .

Schenkel v. Pittsburgh, etc., Tract.
COs 39 a aie rgrarnia anderson can teies

Schmidt v. City of Chicago

-——~— v. Coney Island, ete, R. Co....

Schultz v. Faribault Consol. Gas &
BCG. WOy. axicajese cus mareaaaiere, sueabeupstegiacs

Schweitzer’s Adm’r v. Citizens’ Elec.
Co.

Scofield v. Town of Poughkeepsie. .

lxix

are to pages.)
113 Mich. 660................. 149
193 Fed. 1008.......... 303, 319, 321
OL MICH. 687 vcccccr ent caaeae 541
40 Oreg. 339...... 333, 339, 340, 346
354, 355, 356, 375
124 Ga. 1056.............. 573, 578
17 Tex. Civ. App. 320. .649, 689, 837
844
46 Tex. Civ. App. 559. .625, 705, 763
782
(Tex. Civ. App.) 145 S. W. 1040. 835
(Tex.) 60 S. W. 884...655, 768, 786
93 Tex. OSs asin ted ie salen 24, 111
56S. W. 201............ 25, 137
38 Wash. 313. .858, 861, 862, 885, 887
96 Cal. 140... scnex aeneees newer 155
224 U. 8. 88.......55. 607, 725, 910
48 Tex. Civ. App. 586.......... 758
119 Cal. 30...........0008- 207, 222
191 N. Y. 123....474, 475, 477, 478
‘ 487, 488
196 Mass. 543............. 844, 853
28 RTs BOE aoncceeeinsewarna aie 874, 884
124 Ga. 663........... 596, 600, 720
115 Ga. 554...84, 102, 124, 132, 142
81 Minn, 314.........-..00005. 838
25 RK. T. 818... cece es eees 30, 31
63 Wash. 18...... 738, 741, 903, 907
66 Oh. St. 215..........00- 409, 439
153 Ind. 609............... 623, 631
26 Pa. Super. Ct. 343...... 165, 166
181. Pas 19] wscisveweeewaeas 250, 251
194 Pa. St. 182............0.. 740
107 Tl. App. 64.........00008, 635
26 N. Y. App. Div. 391...... 573, 574
82 Minn: 100%... sc. esea cee 767
21 Ky. Law Rep. 608. .588, 766, 790
122 N. Y. App. Div. 868. .635, 638
lxx

TABLE oF CASES.

(References are to pages.)

Scott v. Iowa Telep. Co.............
an v. Scranton Elec. L. & P.

Scranton, City of, v. Scranton Elec.
Di CET. CO vic: cravein i danai oatepaninwien-s
Scranton Elec. L. & H. Co. v. Seran-
ton, ete., Power Co...............
Scrymser v. Seabright Elec. L. Co..
Seaboard Teleg. & Telep. Co. v. Kear-
TROY? hy a. oo) faster csc stie id ccnp steers bus aduince sit
Seattle Elec. Co. v. Snoqualmie Falls
OWED COe i.ce3 a tesla at acncmiacerin monsoons
Seattle, etc, Ry. Co. v. Seattle-
Tacoma Power Oo.............0645
Sedlmeyer v. City of Fitzgerald.....
Seith v. Commonwealth Elec. Co.....
Seitzinger v. Borough’ of Tamaqua. .

Selectmen of Wellesley v. Boston &
We St RY COs. eae oman asmades
Selkirk, Town of, v. Selkirk Elec. Co.
Shade v. Bay Counties Power Co....
Shank v. Edison Electric Illuminat-
Inp CO} sacaswemas ewemee cece es
v. Great Shoshone, etc., Power

Oe ie ssuser as heist aio ststsibaviiicecapgvnie i aittcauaneie cs
Shasta Power Co. v. Walker........
Shawinigan Hydro-Elec. Co. v. Shaw-
inigan Water & P. Co............
Shawnee Light & Power Co. v. Sears

 

Sheehy v. Clausen..............06.
Sheffield Co. v. Morton...°.........
Shelbyville Water Co. v. People ex

rel, Craddick ............-0.0005
Sheldon v. Western Union Teleg. Co.
Shelfer v. City of London Elec. L.

Shelton v. United Elec. R. Co.......
Sherman Gas & Electric Co. v. Bel-
CL OTN) gntes coro ecrts ceaterinnaserakorteeeRarene enone des <i

Sherzer v. Lincoln Traction Co..
Shinzel v. Bell Telep. Co. of Philadel-
phia .

Short v. Fort Dodge L. & Power Co.
Shugard v. Union Traction Co......
Sias v. Lowell, L. & H. St. Ry. Co..
Sills v. Columbus St. Ryz Cope sisi0+-s
Simmons v. City of Toledo.........
—— v. Shreveport Gas, Elec. L. &
P. Co.

Simonds v. Maine Telep. & Teleg Co..
Simonton v. Citizens’ Elec. L. & P.
Co. .

Simpson v. City of Nacogdoches....

126 Towa 524.......cceeeeeeees 886
8 Pa. Co. Ct. 626.......... 144, 145
122 Pa. St. 154......... 43, 326, 327
33 Pa. Super Ct. 431.......... 151
4C. P. (Pa.) 18.............. 326
T4.N. J. Hg. 587..........-.0-5 18
68 N. Y. App. Div. 283........ 508
40 Wash. 380.........- 175, 186, 187
63 Wash. 639...... 177, 178, 182, 183
140 Ga. 614.0. oe cde ee nine 548
241, Ty, 252 iia icc eeccaarewiene 6 653, 666
187 Pa. St. 589..194, 196, 203, 210
211

188 Mass. 250....45...0000800% 44
20 Manitoba (Canada) 461. .295, 323
V52: Calls, WO ssee cscs essen te peas ence 816
225 Pa. St. 893 66000000 canes 887
205 Fed. 833..........00005 734, 797
149 Fed. 568............... 86, 130
45 Can. Sup. Ct. 585........... 242
21 Okla. 13..585, 602, 635, 637, 757
908

26 Misc. (N. Y.) 269........... 353
161 Ala. 153.686, 693, 716, 768, 789
gg 8 | Ee 5 29
51 Hun (N. Y.) 591......., ... 755
(1895) 1 Ch. 287.......... 639, 643
89 Tenn. 423.......... 739, 753, 869
NOS Tex. BO, cies dcosaianae accconeaees 640
91 Neb. 407........... 458, 462, 463
31 Pa. Super Ct...221, 401, 417, 426
427, 430

149 Towa 303...............00. 820
201 Pa. St. 562................ 889
179 Mass. 343....685, 686, 859, 866
28 Week. L. Bull. (Ohio) 172.. 426
8 Ohio ©. C. R. 535............ 425
116 La. 1033. .590, 655, 709, 745, 746
49, 751

104 Me. 440............... 302, 641
28 Tex. Civ. App. 374...... 685, 687
: 692, 695

(Tex. Civ. App.) 152 S. W. 858. 228

252
TaBLE oF CasEs.

(References are to pages.)

Sioux Falls L. & P. Co. v. Coughran.
Slabaugh v. Omaha Elec. L. & P. Co.
Smart v. Louisiana Elec. L. Co......
Smedley v. St. Louis, etc., R. Co....
Smith v. Allegheny County Light Co.
v. Brooklyn Heights R. Co.....
—— v. Central District Printing &
OLE) OOo. so ete cde deasie dna a asin te Warsaw
—— v. Chester Tract. Co...........
—— v. East End Elec. L. Co.......
—— v. Manhattan Ry. Co..........
v. Milwaukee Elec. Ry. & L..
Co...
v. Missouri & K. Telep. Co..

 

 

 

—— v. Twin City Rapid Transit Co.
Co. .

Brmerl vy. American Union Telep.

COs 3 sue Ss wae s ohihee oe ise Seka ae
Snee v. Clear Lake Telep. Co........
Snell v. Clinton Elec. L., H. & P. Co.
Snyder Ice L. & P. Co. v. Bowron...

Snyder v. Fort Madison Sc. Ry. Co..
Synder v. Mutual Telep. Co.........
— v.N. Y. &N. J. Telep. Co.....
—— v. Wheeling Elec. Co..........
Sommer v. Public Service Corpora-
tion of New Jerse
Sorrell v. Titusville Elec. Traction
Co...
South ‘Caroline, etc., R. Co. v. Amer-
ican Telep. & Teleg.
South Covington & Cincinnati St. Ry.
Co: V2 SMIth oss chine ncenaue seals
South McAlester-Eufaula Telep. Co.
v. State
South Omaha Waterworks
Vocasek .
South Texas Telep. Co. v. Tabb.....
South Shore G. & E. Co, v. Ambre..
Southern Bell Telep. Co. v. City of
Richmond
Southern Bell Telep. Co. v. Francis. .
Southern Bell Telep. = Teleg. Co. y.
Clements
v. Constantine
We MCU yer | cjccesiewie ive tracts
v. City of Mobile.............

ry

a<
5
4.
3
3

. Davis

Baer eww ern e erence
Cette nee eee e eee

Ce Ut)

aAddsq
2
=
4

27 S. Dak. 443.40, 102, 118, 120, 131
87 Neb. 805..............0005. 430
47 La. Ann. 869............ 862, 881
118 Mo. App. 103.......... 463, 464
62 Pitts. Leg. Jour. (Pa.) ..655, 852
82 N. Y. App. Div. 531...... 906, 932
2 Ohio C. C. R. 259........... 416
231 Pa. St. 308..............6- 846
198 Pa. St. 19.............00. 703
112 N. Y. App. Div. 202........ 849
127 Wis. 258.3 g0ccs ieee ceed es 880
113 Mo. App. 429.....665, 675, 818
930

102 Minn. 4..781, 803, 810, 827, 890
933

45 Pa. Super. Ct. 378.......... 878
24 8. Dak. 361........ 740, 799, 826
196 Ill. 626.......... 9, 59, 65, 69
(Civ. App.) 156 S. W. 550. .655, 768
782, 785, 803

105 Towa 284.............. 427, 439
135 Iowa 215.......... 651, 756, 819
73 N. J. Law 535...... 832, 858, 873
43 W. Va. 661........ 599, 738, 907
79 N. J, L. 349..... ...776, 815, 890
23 Pa. Super. Ct. 425.......... 712
65 S. Car. 459................ 111
27 Ky. Law Rep. 811..570, 571, 915
25 Okla. 524...... 264, 356, 381, 494
62 Neb. ‘T10. .ssaveecesnen sees: 823
52 Tex. Civ. App. 213....... 616, 755
44 Ind. App. 435........... 766, 785.
103 Fed, 31....... 333, 345, 364, 365
109 Ala. 224.......... 431, 432, 433
QB Vas, Visa sesiess nates warcatden aisles 882
Gl Weds Gis emcees due: 5 cote eauans 431
137 Ale. 601........... 680, 681, 897
162 Fed. 523..... 294, 295, 301, 303
350, 356, 358, 359

139 Ga. 566...... 836, 844, 854, 867
12 Ga. App. 28...7438, 744, 745, 751
809, 906, 908

124 Ga. 1050............... 743, 797
I37 Ala. 600s 06s see se anus s 711, 712
165 Fed. 263.................. 417
LUD Gas, TQ wis esi oie keene os nee 680
12 Ga. App. 463..831, 843, 880, 881

lxxi

884
Lxxii

TaBLE oF CASES.

(References are to pages.)

Southern Electrical Supply Co. ¥.
Rolla Elec. L. & P. Co............

Southern Elec. L. & p Go. v. City of
Philadelphia ....

Southern Express Co. v. B. R. Elec-
UTAC: CO), 4s saree anivotiaenn seic niga ages talk eaies

Southern Express Co. v. B. R. Elec-
trie Co.

Southern Inv. Co. v. Postal Teleg.
Cable Co.

Southern Kansas Ry. Co. of Texas v.
POLRTEUM: stn ctvahan oct sweats asarencges ornare es

Southern Power Co. v. Walker......
Southern Teleg. & Telep. Co. v.
Evans
Southern Wisconsin Power Co., Mat-
ter of
Southside Elev. R. Co. v. Nesvig....

Southwest Missouri Light Co. v.
Scheurich: 5. cnawsdaswvenae vows
Southwestern Tel. Co. v. Kansas
City; etes. Rye COsas-cain sence cos
Southwestern R. Co. v. Southern &
Atlantic Teleg. Co...............

Southwestern Teleg. & Telep. Co. v.
NDCLOS: grasses diitiigitaveresernctie's aie ese os
Vi Beatty? wasines wenn s taameare

v. Braham

Wi BRUCE: siascacsicee Saiee Maun asacsancs

v. Gulf, etc., Ry. Co..........

. Ingrando
. Keys & Casey.............-.
. Luckie

ad

We SELELSY? ac eieis. grace osaiid see euouaecous
v. Thompson

v. Tucker
v. Sanders

vy. Smithdeal ..............048

= Aeialis ECS Sie Gelgn wore

Whiteman

Southwestern Telep. Co. v. es
TON ..ccersswcesernses

ULL

75 Mo. App. 622.......+0000- 9, 30
191 Pa. St. 170..........e ee eee 16
T26 Ga. 472.2... 2... ccc ce see ee eee 256
L2G Gas AT Din wi: vececne re ee toaia.8% 251
156 N. Car, 259... cscecnes 450, 453
(Tex. Civ. App.) 153 S. W. 636. 460
464
89 S. Car. 84......... 102, 107, 122
54 Tex. Civ. App. 63..680, 893, 919
140 Wis. 248): 2 vececveaasicus 87, 118
214 Ws 463.6 ccees sce canes sey 847
174 Mo. 235....... 86, 100, 101, 118
108 “Haas. G00 acc ous seesaw 47, 107
46 Go. 48 yes deiaecden setae 453, 454
04. ATK. 254 wicca 680, 681
63 ATK: Gb nccccss cs te waeecwas 612
ie Civ. App.) 8 Am. Electl.
Viiv od aelnencesnes walewn 432
89 Ane. 581. .595, 613, 615, 616, 733
901, 902, 906, 908
(Tex. Civ. App.), 148 S. W.
G96... dicsagvecnenes 457, 459, 462
(Tex. Civ. App.), 156 S&S. W.
W146 s asec denims cereus on aces 680
(Civ. App.) 52 S. W. 106..24, 25
124, 137, 138, 139
27 Tex Civ. App. 400...... 673, 674
50 Tex. Civ. App. 648.......... 683
(Tex, Civ. App.) 153 S. W.
TUBS: 5. si piereitisciere gine pa sea aee 924
86 Ark. 648 ce cccvs caved awe 625, 626
50: Ned. 810i109 oncavinsnewsow. 683, 742
(Tex. Civ. App.) 138 S. W.
1181 Sucusrdhts ctcvantud Sanh ence cleus 648, 649
(Civ. App.) 155 S. W. 663.... 586
739, 788, 907, 908
(Tex. Civ. App.) 142 S. W.
1000 . wot eee eee ee eee 546, 547, 932
50 Tex. Civ. App. 476. .837, 853, 866
(Tex. Civ. App.) 1388 S. W.
DAS nessun cavir seat aan asseermaruiee: 879
104 Tex. 258..... 416, 422, 430, 432
440, 442
(Tex. Civ. App.) 126 8. W. 942. 442
36 Tex. Civ. App. 163... ...372, 473
56 Ark. 206...... 837, 851, 858, 862

863, 866
Taste or Cases

(References are to pages.)

Sparks v. Philadelphia, etc., R. Co..
Spaulding v. Inhabitants of Peabody.
Speight v. Rocky Mt. Bell Telep. Co.
bpires v. Middlesex & M. Elec. L.,
He Ge Rb CO. 524s wince tines aie s
Springfield, City of, v. Postal Teleg.
Cable Cos wsscsswe eae caiet oes tees
Spokane, City of, v. Colby..........
Spratt v. Helena Power Transmission
Co.
Spring Creek Drainage Dist. v. El-
gin, ete., Ry. Coss crescent es nnes
Staab v. Rocky Mountain Bell Telep.
COs sceeatiaincae Otaa ea ae Bae es

Standard Light & P. Co. v. Muncey. .

Standard L. & P. Co. v. Montreal...
Stanton Mut. Telep. Co. v. Buchanan.
Staring v. Western Union Teleg. Co.
Stark v. Lancaster Elec. L., H. & P.
Co.
— Vv. Muskegon Trac. & L. Co..
v. Pennsylvania Telephone Co.
Starr v. Southern Bell Telep. & Teleg.
CG 5 sere angiia Wedvis Heigertas Plans ateneheys seers
State-v: Allen: cs .ceseeeess vi neeaen
v. American, etc., News Co....
— v. Anderson ................
— v. Block ..........-. eee eens
v. Board of Chosen Freeholders
of Cumberland...............005
v. Brasington
— v. Brotzer
—— v. Butte Elec. & P. Co........
— v. Cadwallader
—— v. Centralia—Chehalis Elec. R.
& Power Co.

 

 

 

 

—— v. Central N. J. Telep. Co.....
—— v. Central Union Teleg. Co....
— v. City of Bayonne...........
—— v. City of Helena............
—— v. City of Hiawatha....... a4
—— v. City of Milwaukee.........
—— v. City of Newark............
Ve nr hee essing oe ed Ra

 

 

2 City of Spokane...........
v. City of St. Louis..........

v. City of Waseca.........20
v. Consumers’ Power Co......

a

v. Crisfield Ice Mfg. Co.......

Ixxili

212 Pa. St. 105s03 sewece wees ves 563
153 Mass. 129.........4.4. » 233
36 Utah 483...... 832, 843, a6. 873
TON. J. L. 855........ ‘737, 761, 800
253 TL. 346..161, 162, 168, 294, 356
491

16 Wash. 610...............6. 469
37 Mont. 60............. 86, 87, 108
249: TN: 260 estes ec ieinG sa agenees 152
23 Idaho 314..... 650, 746, 765, 785
795, 796, 933, 934

33 Tex. Civ. App. 416. .689, 768, 770
83

10 Quebec Superior Ct. 209..... 506
108 Va. 810.......... 650, 746, 747
JIN. ¥. Supp. 817... 6. cereus 754
218 Pa. St. 575. .602, 603, 677, 762
141 Mich. 575....627, 661, 692, 787
225 Pa. St. 390............ 677, 762
156 N. Car. 485........... 711, 897
178 Mo. 555.......... 225, 228, 248
43 N. J.'L. 381........ 88, 110, 131
57 Oh. St. 429. vce cae ce ee 255
TON. Jie. Lis 898i: 5 sae cassia Ov oes 539
56 N. J. L. 416............ 561, 562
93 S. Car. 447..... BAe Bia Ried wee 247
245 Mo. 499............00 008, 538
43 Mont. 118........... 48, 59, 71
172 Ind. 619.............0.... 363
42 Wash 632...92, 98, 99, 109, 116
113, 114, 117, 118

53 N. J. L. 341. c.ce cece eau 21, 24
5 Ohio C. D. 311...... 323, 356, 366
BO Neale: Mas LO Vie neice dace ays.one 371, 374
34 Mont. 67...... 295, 357, 358, 900
53 Kan. 477. .....0.00000ee 230, 231
132, Wiis. 615 os sees cease se ei acas 492.
49 N. J. L. 344. 1 354, 356, 379:
B4.N. J. Law 102.............. 390:
30 Mont. 338.....358, 359, 360, 367
368, 371

111 Wis. 23. .304, 307, 332, 359, 360
492, 493, 494

V4 Wis. 508. ... 00... 393
24 Wash. 538..... ‘291, 325, 357, 364
145 Mo. 551..336, 379, 382, 474, 475
B05, 506

122 Minn, ene 59, 62, 70
119 Minn. 225........59, 61, 62, 65
i 68, 70, 74 899
118 “Md. 521...... 704, 705, 736, 803
lxxiv

TasLe oF CASES.

(References are to pages.)

ae v. Cumberland Telep. & Teleg.

. East Orange Tp............
. Elizabeth
Flad

eee ee we ree ewww ene
Pm w meee rer m er eerene
er ee

Holt

Jones

 

. Kenosha Elec. Ry. Co.......

King County Superior Court.
. Light & Devel. Co. of St.
— v. Mayor, etc., Jersey City....
—— v. McCallister ...............
Ws MOREE. «cos sieiiasainiee aware viens
—— v. Milwaukee Independent

Weleps COs sca gaaweavsnaleaivasene aren
— v. Murphy

— vy —_

pene

tc
3
Sc
2
an

—— v. Nebraska Telep. Co........
New Orleans Railway &

BASU COs sajecvsisie auccesd Biaysroseney onedyerexs
Ve NOPAEKOR oo cecceeic visce tee se ane
— v. Northwestern Telep. Exch.

Ng

— Vv.

 

v. Superior Court of Klecki-
tat County
v. Superior Court for Snohom-
ish. County sc scaw sud oeieesaierase
v. Superior Ct. of Thurston

en eae eee eee

 

 

 

ie)

oO
<8

ne

Tease

 

Tomassi
Towers
. Water, Light & Transit Co..
Weber
West End L. & P. Co......
Western Union Teleg. Co...
. White River Power Co..
Wilder 4. sisacess.cceaws
State Line Telep. Co. v. Ellison.....
State, Sharkey v. Lake Roland Elev.
Ry. Co.
St. Clair v. Edison Elec. L. Co......
Stehmeyer v. Charleston...........
Steindorff v. St. Paul Gaslight Co..
Steinman v. Edison Elec. Illum. Co..
Stephens v. Pacific Elec. Ry. Co..
Stephens, etc., Transp. Co. v. Western
Union Teleg. CO iiiwsereanicts siarerdare ces

52 La. Ann. 1411........-000-5 359
114 Tenn. 194......... 11318, 320, 321
61 N. J. L. 202... cee caeeeeeee 436
5ON. J. L. 184. .... cee eee eee 204
23 Mo. App. 185......+-2++--4- 333
124 La. 535..... 0.00 c ce enes 476, 490
233 Mo. 383.......+.0e0e-- 228, 330
130 Mo. App. 138..........-.-- 432
132. Wis. V8] siaces sence eas 194, 209
ST Wi: T2isscd cosine ea 490, 531
OS MAD. C isese di cispacd wood ete eon ees 204
141 Mo. App. 299........ 59, 62, 72
145 Wis. 337........... 54, 357, 477
35 Wash. 303.......... 91, 105, 106
246 Mo. 618. .317, 318, 319, 320, 378
5T Ne Je Lis 298 e253 00g wn ons ee 387
7 Pen. (Del.) 301.............. 538
126 Mo. App. 524............-. 538
133 Wis. 588.............. 332, 378
134 Mo. 548. .333, 336, 498, 500, 506
130 Mo. 10..43, 474, 479, 481, 485
486, 498, 900
127 Towa: 194sccasceicss oowws as 361
DG Veh VE 5. Gesdsolavaedd in iacerai tne 15
16 Wash. 472)... cee necnsanes 538
107 Minn. 390................. 170
27 Monts, B94 oeinedewnesmskawens 170
50 Wash 13................ 90, 104
52 Wash. 196........ 91, 92, 93, 118
70 Wash. 486........ 91, 93, 98, 117
71 Wash. 84............ 87, 98, 117
42 Wash. 660.................. 90
36 Wash. 607......... 326, 379, 390
55 Oh. St. 61...............06. 47
15 Ne ds Le T89. eee cece eee 33
71 Conn. 657..............005. 508
(Mo.) 135 8. W. 826...53, 345, 488
88 Kan. 175. .298, 299, 300, 354, 359
246 Mo. 653.......... 318, 319, 351
96 Minn. 13............... 154, 155
39 Wash. 648........... 83, 90, 117
200 MO se) D0 oo sicice waist cnactceusneis es 229, 248
121 N. Y. App. Div. 499........ 362
84 Md. 168 ios serge geass aie eee 575
38 Pa. Super Ct. 228.......... 512
53 S. Car. 259................ 254
92 Minn. 496......... 767, 771, 776
43 Pa. Super. Ct. 77........ , 66
16 Cal. App. 512.............. 848
8 Ben. (U. S.) 502........ 281, 283
TaBLE oF CASES.

(References are to pages.)

Stern v. Westchester Elec. Ry. Co...
Stevens v. United Gas & Elec. Co...
Steverman v. Boston Elevated Ry.

St. Louis v. Bay State St. Ry. Co..
—— v. Western Union Teleg. Co...
St. Louis, City of, v. Bell Telep. Co. .
—— v. Laclede Gas L. Co.........

                     

St. Louis & C. RB. Co. v. Postal Teleg.
Cable Coy aw ic saeves sme sces aos

St. Louis, ete., Ry. Co. v. Batesville,
ete., Telep. Cor... 0... eee eee eee

v. Cape Girardeau Bell Telep.

 

Co.
St. Louis & San Francisco R. Co. v.
Southwestern Telep. & Teleg. Co..
St. Michael’s Protestant Episcopal

Church vy. Forty-second St., etc.,
Ry CO es. ee asuetndnesiasueum ema stann bores
Stockton Gas & Elec. Co. v. San
Joaquin County .............6.65

Stone v. Schenectady Railway Co...
Storti, In Te: <ses.0 64 sags 4 pea ee as
Stowers v. Postal Teleg. Cable Co...
St. Paul, City of, v. Freedy........
St. Paul, ete, R. Co. v. Western

Union Teleg. Co. ................
St. Paul Realty & Assets Co. v. Tri-

State Telep. & Teleg. Co.........
Strack v. Missouri, etc., Telep. Co..
Streator Independent Telep. & Teleg.

Co. v. Interstate Telep. & Teleg. Co.
Strohmeyer v. Consumers’ Elec. Co.
Strong v. Western Union Teleg. Co..
Stuhr v. Wright County Telep. Co..
Submarine Teleg. Co. v. Dickson....
Suburban Elec. Co. v. Nugent......
Suburban Elec. L. Co. v. Town of

Hempstead ........... cece eens
Suburban L. & P. Co. v. Aldermen of

City of Boston................4.
Sullivan v. Boston & A. K. Co......
—— v. Brooklyn Heights Ry. Co...

— v. Narragansett Electric Light-
ING) CO. fe sca evarolars.o: teesiene ae eargand ie aoe
Summit Tp., Inhabitants of, v. New
York & N. J. Telep.
Sunset Telep. & Teleg. Co. v. City of
MOdfOrd i oicsa cea ceiese ware baie heat
—— v. City of Passadena
— v. City of Pomona
Susquehanna Transmission Co. v. St.
Clair .

lxxv
99 N. Y. App. Div. 491........ 569
Wty His: VOD oe Se aces ce aed ics 890
205 Mass. 508....563, 565, 568, 569
125 Ky. 672, 9 Am. Electl Cas.
JUST pads tueea mead sane o5 395
216 Mass. 255.:........... 579, 916
148 U.S. 92..161, 163, 164, 168, 272
96 Mo. 628. ...-.. 0... cece ee eee 494
100) Ms. Die aass sty dina eeele to 8 334
149 U. S. 465...........00008, 161
173 Ill. 508. .123, 124, 125, 126, 127
131, 136, 137, 138, 139
80 Ark, 499 cscs cokes ees 540
184 Mo. 406..............000. 453
121 Fed. 276...... 85, 116, 124, 129
26 Misc. (N. Y.) 601.......... 562
148 Cal. 8186 csccnicetaiw nase avin 146
99 N. Y. App. Div. 44......... 184
178 Mass. 549..........020000- 33
68 Miss. 559 ..........05- 398, 416
86 Minn. 350............. 0000 342
118 Fed. 497...........-...05- 455
122 Minn, 424................. 433
216 Mo. 601...... 673, 704, 708, 738
142 Ill. App. 183.............. 32
LY] La. 506. a 4tenses canes vteces 379
18 Idaho 409............... 20, 110
119 Minn. 508................ 734
15 C. B. (N. 8.) (Hng.) 759.. 284
58 N. J. Law 658.......... 725, 933
38 App. Div. 355.............. 179
153 Mass. 200................. 369
156 Mass. 376............. 691, 777
117 N. Y. App. Div. 784... .579, 585
916
(R. L.) 73 Atl. 306........ 663, 741
57 N. J. Eq. 123. .332, 367, 492, 493
VIS: Bed. (202). sciys ea sowie e dane s 172
161 Cal. 265......... 23, 26, 27, 171
164 Fed. 561.......... 275, 358, 359
118 Md. 667 cicscccncv ated cesses 465

17 O. L. R. (Canada) 556. .647, cat
39
JOY Paes 267 ed siccstg caidas 746, 923
lxxvi Taste oF Casus.

(References are to pages.)

Swann v. City of Murray........... 146 Ky. 148..........se0e- 231, 233
Swanton, Village of, v. Town of High-

Bale. views seas doracvaewatacsces 81 Vt. 152, 69 Atl. 667.144, 233, oe
Swarts v. Narragansett Elec. L. Co.. 26 R. I. 388...........6---00-- 180
Sweeney v. Edison Elec. Illum. Co. of

Brooklyn: ssccesdewnnesiewsiea aemene 158 N. Y. App. Div. 449...728, ann
Sweezo v. Cheboygan Ilec. L. & P.

COs Ayia entra Otc deeln gen aneasets 166 Mich. 25............4. 879, 894
Sykes v. Village of Portland........ 177 Mich. 290....631, 654, 655, 671

736, 742, 7438, 744, 745, 750
Synder v. Mutual Telep. Co........ 1385 Towa 215.......cseeee eee 930
Syracuse Lake Shore & Northern Co.
Ni Carrier: ic cea cns secieieesseass 149 N. Y. App. Div. 411....99, 109
0, 113, 123
T.
Tackett v. Henderson Bros. Co...... 12 Cal. App. 658. .603, 699, 705, 707

736, 809, 823
Tacoma, City of, v. Nisqually Power

 

COs ae eaeeasees eeeiem aan aReane 57 Wash. 420....81, 90, 98, 99, 105
129, 130, 133, 335
Taggart v. Newport St. Ry. Co...... 16 R. I. 668.......... 560, 894, 900
Talbot v. Hudson...............005 16 Gray (Mass.) 417.......... 94
Tanner v. N. Y., N. H. & H.R. Co.. 180 Mass. 572................. 866
v. Town of Auburn........... 37 Wash. 38.......... 208, 211, 215
Tarlucki v. West Jersey & 8.R.Co.. 82N.J.L.183................ 581
Taxation of Pennsylvania Telep. Co,

Matter Of ss coc see tcicans sens anes 48 Node Wg. Qlisscscavssnweeos 169
Taylor v. Public Service Corporation

of New Jersey ..............006. 75 N. J. Eq. 371. .370, 371, 405, 407
—— v. White ......... cece eee (Tex. Civ. App.) 156 8. W. 349. 835

862
Taylor, Borough of, v. Postal Teleg.

Cable: Cos. iscsssca ger nea ean nee s 16 Pa. Super. Ct. 344...... 164, 165
Taylor Borough v. eee COs eae 202 Pa. St. 583.02. 00c20ses 162, 165
Tedford v. Los Angeles Elec. Co... 134 Cal. (6 i2% wewwrs einee ies 856, 859
Telegraph Co. v. Wilt.............. 1 Phila. (Pa.) 270............ 541
Temple v. McComb City Elec. L. &

EP CO, aichoshbe tees tes lugeraeliscushintnn banaci 89 Miss. 1............ 603, 767, 773

Temple Elec. L. Co. v. Halliburton. . (Tex. Civ. App.) 136 8. W. 584. 647
650, 703, 743, 744, 747, 754, 826

930
Templeton’s Adm’r. v. Lynchburg

Tract: & Li. COsscentaceynakes nee TIO) Vain Bb Sicciticite ieasceons ener. we 806
Tennessee Telep. Co. v. City of Frank-

BODE 5. 56:5 Mineusieg nares chen ae ee 141 Ky. 586... ........... 0000. 305
Tennis Co. v. Davis.............65. 46 Ind. App. 436.............. 865
Terrace Water Co. v. San Antonio L.

BUR Coy ag iinare s wivtichednindee ee ocr 1 Cal. App. 511.......... 7, 184, 185
Terre Haute Elec. L. & P. Co. v. Citi-

zens’ Elec. L. & P. Co............-. (Ind.) 6 Am. Electl. Cas. 198.. 519
Terre Haute, etc, R. Co. v. South

BOM rccnnsee snus cutest iusuens Seed ecaatune 146 Ind. 239...........0.0000s 490
Terrell v. City of Washington...... 158 N. Car. 281. .630, 634, 722, 832

; 836, 854, 882
Territory v. De Wolfe.............. 13 Okl. 464........0....., 326, 388
TaBLeE oF CASES.

(References are to pages.)

Tewksbury v. Metropolitan St. Ry.
COs ae we aerenigescde gb seus kee's
Texarkana, City of, v. Southwestern
Teleg. & Telep. ee
Texarkana Gas & Elec. L. Oo. v. Orr.
Texarkana Telep. Co. v. Pemberton.

Texas, ete., R. Co. v. Postal Teleg. Ca-
ble Co.
Texas Teleg. & Telep. Co. v. Scott..

 

v. Thompson
Texas Tract. Co. v. George..........
Thomas v. City of Somerset........
—— v. Reed
—— v. Western Union Teleg. Co..

~——— v. Wheeling Elec. Co...........

Thomas Adm’r v. Mayville Gas Co...
Thompson v. Alameda County Super-
visors ..
v. Cumberland Telep. & Teleg.
Co...
v. New Orleans & C. R. Co..
Thompson v. San Francisco Gas ‘&
Elec. Co.
v. Tilton Elec. L. & P. Co.....
v. San Francisco Gas. & Elec.
Co...
Thompson Co. v. Pennebaker........
Thomson-Houston Elec. L. Co. v. City
of Newton

ee ee

 

 

 

 

v. Western Elec. Co...........
Thornburg v. City & EH. G. R. Co...
a v. U. S. Ilum. Co...........
‘Tipton, City of, v. Racobs..........
Tissot v. Great Southern Telep. &

Teleg. Co.
Titusville L. & P. Co. v. City of Ti-

PUBVING so soneiice ee tise ermal aie
Todd v. City of Crete..............
Toledo v. Western Union Teleg. Co..
Toledo, City of, v. Home Telep. Co...
Toledo Rys. & L. Co. v. Rippon......

 

 

 

Tolle v. City of New Braunfels.....
Tolleman v. Sheboygan L. P. & Ry.

Noronta & Niapum, Power Go. v.
Town of North Toronto...........
Towaliga Falls Power Co. v. Sims..

Townsend v. Norfolk Ry. & L. Co..

Townsend Gas & Elec. Co. v. City of
Port Townsend

Trammell y. Columbus B. Co...... é

153 Mo. App. 500..............
48 Tex. Civ. App. 16...354, 367,
59 Ark. 215........... :706, 736,

86 Ark. 329..597, 651, 830, 831,
840, 855, 881,

52 S. W. 108.............. 137,
(Tex. Civ. App.) 127 S. W. 587.
681,

(Civ. App.) 130 8. W. 705. 755,
(Tex. Civ. App.) 149 S. W. 438.

30 Ky. Law Rep. 131. .587, 766,
29 S. D. 85...... 624, 703, 707,
100 Mass. 156......... 739, 743,
54 W. Va. 395... .599, 768, 769,
775, 810, 812, 813,

108 Ky. 224........... 587, 621,
VLE Gall. 553: wiesiseraaeie s ecawteitaiere’s
138 Ky. 109...... 685, 692, 694,
108 Tae 52s wie i.e eacee se aes 839,
18 Cal. App. 30............ 74,
88 Atl 216........... 686, 693,
20 Cal. App. 142......... 73, 77
AES Bed: 849.0. 3 sa jsps ass Ge ero
42 Fed. 723..228, 229, 231, 239,
65: Fed. 615), cswieawsinae cane cece
65 W. Va. 379........ 678, 771,
51 N. Y. Super. Ct. 280........
67 How Pr. 73........ 426, 427,
47 Ind. App. 681..............
39 La. Ann. 996....... 432, 433,
196 Paw Sts Sy easy ae ewsag 239,
79 Neb. 671........... 228, 459,
107 Fed. 10.3505 22004 cess 275,
72. Oh; Sti 60s% gccssscaesans ae
28 Oh. Cir. Ct. Rep. 561... .677,
(Tex. Civ. App.) 154 8. W. 345.
148 Wis. 197...... Mase dees
24 Ont. L. R. (Canada) 537....
6 Ga. App. 749....86, 102, 637,
641,

105 Va. 22........000. 551, 638,
19 Wash. 407............. 196,
9 Ga. App. 98....689, 699, 745,
750, 751,

Ixxvii

388
824
839
888

138
614
711
796
889
790
743
799
771
908
622

394
696
856

75
728

79
49

247
249

774
407
428
815

434

326
630
485
376
747
748
105
120

574

361
638
644
639

213
748
787
Ixxviii

TABLE oF CASES.

(References are to pages.)

oe City of, v. Trenton St. Ry.
Trenton Pass. Ry. Co. v. Cooper..
Tri-City Ry. Co. v. Killeen.........
Tri-State Telep. & Teleg. Co. v. City
of Thief River Falls.............
Tri-State Telep. & Teleg. Co. v. Cos-
TEAL oar 26s gas oa raepaln evaevvioge aihcadyarae atic
Trotter v. St. Louis, etc., Ry. Co.....
Trout v. Laclede Gas Light Co......

Trout v. Philadelphia Elec. Co......
Trouton v. New Omaha Thomson-

Houston Elec. L. Co.............
Tuolomne Water P. Co. v. Frederick

Turner v. Southern Power Co.......
Turton v. Powelton Elec. Co.........

Tuttle v. Brush Elec. Illum. Co.....
v. Jefferson Power & Imp. Co.
Tweed v. Hudson River Telep. Co...
Twin Village Water Co. v. Damaris-
cotta Gas Light Co...............
Twist v. City of Rochester..........

Twombly v. Consol. Elec. L. Co......

 

Uggla v. West End R. Co...........
Union Elec. Telep. & Teleg. Co. v.
Applequist

Union Elec. L. & P. Co. v. City of St.
Louis...
Union Pac. R. Co. v. Colorado Postal
Teleg. Cable Co..................
Union L. H. & P. Co. v. Arnston....
Ve Dakeman e3csis, yeas

v. Young’s Adm’r ............
Union Trust Co. of New York v.
Atchison, etc., R. Co..............
United Elec. Co. v. East Pittsburg. .
v. City of Bayonne............
v. City of Newark............
United Elec. Co. of N. J. v. Mutual
Ben. Elec. L. & P. Co...........-.
United Electric L. Co. v. East Pitts-
burgh Borough
United Elec. L. ee P. Co. v. State..
United Lines Tel. Co. v. Grant......
United Railways & Electric Co. v.
Corbin ..
United States v. La Compagnie Fran-
caise des Cables Telegraphiques. ..
United States v. Union Pac. R. Co...

 

 

 

 

72 N. J. L. 317......---66-
60 N. J. L. 219.......-.-.-
92 Ill. App. 57.........---
183 Fed. 854..@...... 352,
19 N. Dak. 771....... 135,
122 Mo. App. 405..........
151 Mo. App. 207... .703,
782, 783, 812,
236 Pa. St. 506.........--.
TU Neb: 820 1 22004 nvesise oe
13 Cal. App. 498... .82, 85,
122,
154 N. Car. 131...........-
185 Pa. St. 406...650, 705,
50 N. Y. Super. Ct. 464.....
31 Okla: "T10 v.06 ces sve cae
130 N. Y. App. Div. 231....
98 Me. 325.........--.005.
37 App. Div. 307. .632, 633
98 Me. 353............ 848,
160 Mass. 351............
104 Tl. App. 517..........
(Mo.) 161 S. W. 1166......
30 Colo. 133..............
157 Fed. 540...... 610, 660,
156 Ky. 33....4, 585, 588
747, 912,
141 Ky. 805...............
8 N. Mex. 327......... 269,
57 Pitts. L. Jour. 353. 339,
73 N. J. Ly, 410. ose waves
77 N. J. L. 104............
(N. J.) 81 Atl. 754........
230 Pa. St. 65........ 336,
100 Md. 634...............
137 Ni Xe Taeeassrenaewests
109 Md. 442........... 599,
17 Bed. 495 ius coisa eas wa
160 Us Ss Lescssacex..c 274,

916
817

394

416
914
767
818
717

692
115
134
911
757
810
405
102
833

54
738
805
850

916

411
416

483

108
821
604
932
858

448
391
320
388

388
346
927
503
922

287
456
TaBLe or Caszs. Ixxix
(References are to pages.)
United States Electric Lighting Co. v.

SUM VaM 6 ose ede es eas ae pees 22 App. D. C. 115...... ... 711, 821
U. S. Illum. Co. v. Grant.......... 55 Hun (N. Y.) 222........... 499
—— Vv. Hess ..... ccc cece ceeecuene 3.N. Y¥. Supp. 777............. 499
Utica, City of, v. Utica Telep. Co... 24N. ¥. App. Div. 361. .290, 295, 492
Utica & Mohawk V@ley Ry. Co., Mat-

ter of, v. Weaver............0065 (N. Y. Sup. Ct.) 6 St. Ry. Rep.

VOD MOCO: svoieie see secre dea Ses arn 123
Uvalde Elec. L. Co. v. Parsons...... (Tex. Civ. App.) 138 8S. W. 163. 640
644
V.
Valparaiso Lighting Co. v. Tyler. . 177 Ind. 278.......... 592, 597, 756
Van Alstine v. Standard Light, Heat

& Power Co... wscecesgewececcasinas 128 App. Div. 58........... 842, 862
Vanderburg v. Gas Co............. 126 Mo. App. 600............. 72
Van Duzer v. Commonwealth Telep.

Oe sar tassah Guanes citer Ges Do ausheleciveres tone ese 236 “Pais 538 cise sc esssisie dean. wees 850

Van Siclen v. Jamaica Elec. L. Co.. 45 N. Y. App. Div. 1...380, 398, 432

436

Van Trebra v. Laclede Gas Light Co.. 209 Mo. 648.......... 767, 782, 909
Vermillion, City of, v. Northwestern

Telep. Exch. Co.............0.005 189 Fed. 289......322, 333, 340, 364
Vestry of St. Mary v. London Co... (1899) 1 Ch. (Eng.) 474....... 507
Vicars v. Cumberland Telep. & Teleg.

COs stents die Ferd aitinw suet aa ws UKs 52 La. Ann. 2153.............. 887
Vicksburg Ry. & L. Co. v. Miles.... 88 Misc. 204................0- 929
W.

Wabash, ete., R. Co. v. Locke....... 112 Ind. 404.................. 461
Wabashka Elec. Co. v. City of Wy-

TOTO: sep t7e 4 hascace Yoana 0a sa operant aw a8 60 Neb. 199...... 189, 219, 474, 482
Wade v. Borough of Oakmount...... 165 Pa. 479..............0000, 2U9
Wadsworth v. City of Concord.... . 133 N. Car. 587.......... 207, 212
Wadsworth Land Co. v. Piedmont

Tract. CO. ..sa essa weet cevieres ees 162 N. Car. 314......... 98, 99, 100
Wagner v. City of Portland........ 40 Oreg. 389...... 632, 860, "865, 887
Wagner v. Brooklyn Heights R. Co... 69 N. Y. App. Div. 349. 595, 699, 767

781
Wagner v. Peoples’ Ry. Co.......... 7 Pen. (Del.) 393..... 599, 673, 679
7, 708, 800

Wahle, Phillips Co. v. Fifty-ninth

St.Madison Ave. Co..........,.. 153 N. Y. App. Div. 17...... 30, 31

Wakefield v. Village of Theresa..... 125 N. Y. App. Div. 38....240, 304
309, 324, 351, 379
Wales v. Pac. Elec. Motor Co....... 180 Cal. 621.6 ocieseeane ees 627, 774
Walker v. Shasta Power Co.:....... 160 Fed. 856. .82, 86, 87, 97, 98, 102
8, 120

Walker v. Southern Bell Telep. &

Ole CO. sisse siscaeeaus byacd spacer oacwnne 92 S. Car. 188......... 586, 686, 768
Walla Walla v. Walla Walla Water

COs cg. Farce, arsed sas Pauses aa oben eure 172 UB) Viecccsee sc anades cen’ 240
Waller v. Leavenworth L. & H. oe 9 Kan. App. 301............... 607
Walsh v. N. Y. & Q. Co. Ry. Co.. 80 N. Y. App. Div. 316... .832, 837

851, 852, 854, 88u
lxxx

TaBLE OF Cases.

(References are to pages.)

Walsh v. Pittsburg Ry. Co.........
Walter v. Baltimore Electric Co.....

Walters v. Consol. Elec. L. Co.......
Walters v. Denver Consol. Elec. L.
Co...
Walther v. Am. Dist. Teleg. Co..
Waniorek v. United Railroads of ‘San
Francisco...
Ward v. Atlantic & Pac. Teleg. Co..
Warren v. City Elec. Ry. Co.......

Washington, etc., Ry. Co. v. Taylor. .
Washington Water Power Co. v.
Waters...

 

v. Waters
Water, Light & Gas Co. v. on of
Hutchinson... :
Watson v. City of Morehead........
Watts v. Southern Bell Telep. &
Teleg. Co.
Weaver v.
Telep. Co.
ANicbstes v. Richmond Light & R. Co.

Dawson County Mut.

—— v. Susquehanna Pole Line Co..
Wehner v. Lagerfelt...............

Weir v. Haverford Electric Light Co.
Weld v. Gas & Electric Com’rs......

Wells v. Northeastern Telep. Co.....
Wellston, City of, v. Morgan........
Wendler v. Red Wing Gas & Electric

vekher v. Metropolitan St. Ry. Co...
West Conshohocken, Borough of, v.
Conshohocken Elec. L. & Power Co.
West Jersey R. Co. v. Camden, etc.,
Ry. Co.
West Kentucky Coal Co. v. Kuyken-
dall’s Adm’r.
West Kentucky Telep. Co. v. Pharis.

Western & A. R. Co. v. Western
Union Teleg. Co. ...........4.02.

Western N. Y. & Penn. Traction Co.
v. Stillman
Western Union Teleg. Co. v. Als-
bama Board of Assessment........
—— v. American Union ues Co...
—— v. Ann Arbor R. Co.. :

a Me

 

—— v. Atlantic & P. Teleg. Co..
v. Atlantic & Pace. Teleg. Co..
v. Atlantic R. Co............,

re,

221 Pa. St. 463........ each etaseacs 687
109 Md. 513. .585, 598, 605, 606, 736
906, 907, 908

12 Colo. App. 145...... 765, 824, 825
17 Colo. App. 192. .595, 765, 769, 775
ll Misc. (N. V.) 7l.ce..eee eee 740
17 Cal. App. 121...... 565, 568, 914
TL Ni Xs Bles oea eee sss 673, 674, 721
141 Mich. 298..8, 655, 677, 699, 701
702, 894, 924

109) Vian TOT oisie cas auawe 6 ¥ ue be 836, 848
19 Idaho 595. .85, 86, 87, 92, 95, 102
8, 119

186 Wed: 5720 ss s08 22.4 93, 94, 119
207 U.S. 385.325, 326, 327, 328, 380
(Ky.) 125 8. W. 724...... 349, 394
100 Va. 45........ 668, 716, 717, 801
82 Neb. 696....... 733, 742, 743, 798
158 N. Y. App. Div. 210... .726, 732
924

112 Md. 416. .82, 86, 97, 98, 99, 100
104, 122, 123

27 Tex. Civ. App. 520. .594, 669, 705
709

221 Pa. St. 611........ 602, 792, 806
197 Mass. 556....54, 55, 59, 60, 313
477, 478

101 Me. 371. .585, 614, 676, 682, 897
59 Oh. St. 147............. 212, 214
92 Minn. 122.................. 858
(Iowa) 142 N. Y. 1024......... 426
188 Mo. App. 1...832, 856, 862, 863
29 Pa. Super Ct. 7............ 149
og Ny dy Bg STA canes 426, 428
151 Ky. 384..............000.. 883
25 Ky. Law Rep. 1838. .636, 704, 707
739

1388 Ga. 420...... 125, 126, 127, 128
136, 137, 453, 523

143 N. Y. App. Div. 717... .544, 547
182 Ui. SL 412g owners canes 158, 159
65 Ga. 160............ 274, 448 449
90 Hed. (B19 os occu casos dw eed dee 454
178 U.S. 239.020.000.000... 272, 278
5 Ohio Dec. 407............... 441
5 Nev. 102... .265, 267, 270, 271, 278
91 U. S. 28 3. SARIS BS $8 ssraatie a nent Oa 456
LH TILL TI ET

Le Poe EE rE eeu ELD CL

mento County

ITTT

TABLE oF CASES.

(References are to pages.)

Western Union Teleg. Co. v. Attor-
ney-General of Massachusetts. .

v. Baltimore & O. Teleg. Co..

v. Borough of New Hope......
Vo Bullard 6.02 see ec eemines ae ae
v. Burlington, etc., Ry Co......
v. Champian Elec. L. Co.......
v. Chicago, ete, R. Co.........
v. City of Charleston.........
vy. City of Fremont...........
v. City of New York..........

v. City of Omaha.............
v. City of Philadelphia........
v. City of Richmond..........

v. City of Toledo.............
. City of Visalia............

4

. Com. of Pennsylvania......
Dodge County........+.....

Guernsey, etc., ae Co..
Harris ...... stu

sAxsadanSA
Q
fat
-
EB
ct
e

Inman, etc., eit
JAMES 12... cece eee

Lakin
TOV A 926 sistas: edennace tere wide eves
Los Angeles... esicaion
Los Angeles County... Ashe ideas
MeMullen. ..... 4
New Brunswick Ry. ( “Co.
Be EOP ssn Seat
Pendleton .... bites vs
Pennsylvania Bi Cdacsvsiin

ee

 

 

i ee ae ry

SAASANASSSAAAS

Polhemus
. Satterfield
TOILED seg wong. sateen ees
. South, etc., R. Co..

v. State, Nelson ee er
v. State of Tennessee.........
v. Superior Court. of Sacra-

aias8

—— v. Syracuse Elec. L. & P. Co..
v. Taggart 20... cece eee eee

Ixxxi

125 U. 8. 530, 548..... 155, 157, 169
19 Fed. 660........... 269, 274, 448
VBE WS BUD ie wei Hak dawson de 168
OF NG 212 aiiccea vee face ok Git 443, 444
VD Bede Dies ccuelsas ernie ee aye 274, 448
9 Ohio 8. & C. P. Dee. 541..... 535
86: Tl: 24652 sc08 ss twrosedns aoe 449
56. Bed. 419.65 cs seee ea jones 159
39 Neb. 692............... 158, 160
88 Fed. 552...... 269, 491, 493, 497

500,, 502, 504
73 Neb. 527... .... cece scenes 154
22 W.N. C. (Pa.) 39.......... 168
178 Fed. 310..... 161, 162, 168, 270

272, 491, 492, 493

494, 500, 501
103 Fed. 746.............. 316, 318
149 Cal. 744...... 155, 156, 491, 493

862, 864, 874
128 Us Ss B9e. cc ceneeesvens 158, 159
80 Neb. 18.60.26: 00 veens eee 155
21 C. ©. A. 246....... 703, 704, 739
2 Colo. 141.......... Segennae 739, 743
LUA. Gai. BOL asec ses sie eos hee 746, 750
46 Mo. App. 120...... 534, 535, 536
6 Ga. App. 260... .683, 704, 705, 739
29 Ky. Law Rep. 523......868, 882
160 Cal. 106...... 155, 156, 265, 269

303, 354, 358, 359

43 Fed. 85........ poe 281, 282, 283
162 U. S. 650.. .. .265, 491, 494
53 Wash. 326.......... 155, 270, 492
47 Ind. 552. Pir 927
76 Hed. 178 ica sew cue eee as el ‘534, 536
160 Cal. 124.005 sccm nk een es oxae ss 155
58 N. J. Law 155. .856, 862, 863, 873
N. Bruns. Eq. Caa, 338... 274, 448
VST WetS: AVG cece isseiso ieee anne 164, 165
122 U. S&S. 347........4 265, 266, 494
129 Fed. 849.......... 449, 450, 454
120: Feds 9816 icjacs os oe aces ore 269, 454
123. Fed. 33.. .. 128, 450, 454
195 U. S. 594... “112, 124, 156, 267

269, 272, 454
178 Fed. 904......272, 416, 468, 469
19 Kan. 517............4.. 451, 452
34 Til. App. 386............... 432
64 Oh. St. 106. 435
(Ala. ), 62 So. 788... 2 Gti 1124, 125, 126
82 Md. 293....... 705; 738, 906, 908
9 Baxt. (Tenn.) 509........... 28
15 Cal. App. 679........... 270, 271
178 Ni Vir S25. sds ceasutn ee 535
141 Ind. 281. 154
163 U. 8.1. 154, 155, 158.
105 U. 8S. 460. inasarece 158, 265, 266, 267
64 Fed. 287.. 659, 738, 753, 931
52 0. C. A. 168 ccaes neu 0881, 852
V14. Fed, 2820 scons ned aw nese 853
Ixxxil

TABLE oF CASES.

(References are to pages.)

Western Union Teleg. Co. v. Trapp.
= Vo TWeOd. oi. os sane emntee cess
—— v. Village of Wakefield.......
—— v. Williams .................
ve Wright oes. c.ecrs wane bees
Venous sore of, v. Montreal L.,

 

Wetherby’s Adm’r v. Twin State Gas
& Electric Co. ..............005.
Wettengel v. Allegheny Co. Light Co.
Whaley v. Citizens’ Nat. Bank......
bas aie v. Northern Ohio Traction
Os 5S Pant serand Saati a, evhgucla aeeouneesh aay
— vy. South Orange & M. Traction
COs as ne Shas Sines os dipkeor oa aged oh
Whereland Elec. Co. v. Burmeister. .
White v. Reservation Elec. Co.......

 

v. Thomasville L. & P. Co.....
Whitten v. Nevada P., L. & W. Co..
Whitworth v. Shreveport Belt Ry. Co.
Wichita, City of, v. Missouri, etc.,
RESP: COs, waned apiece es deur see
v. Old Colony T. Co...........
Wichita Elec. Co. v. Hinkley.......
Wichita R. & Light Co. v. Cummings
a v. Cundbertund Telep. & Teleg.
Obes ees HEY seanaticaucuatsctis adudusuts Gara
Wilbert v. | Sheboygan S. P. & R. Co..
Wilhite v. City of Huntsville.......

 

Wilkesbarre Elec. L. Co. v. Wilkes-
barre L. H. & P. Co.............
Wilkins v. Water & L. Co. of Ne-
braska; Clty sis sssicacaswaes wands
Willey v. Boston Elec. L. Co.......
William H. Armstrong Co. v. Lieber
Williams v. Anniston Elec. & Gas.
C05 ev a.2 yet e ek Papee ed degures oie wanes

 

 

v. Citizen’s Ry. Co.
v. City of Fulton.............
v. Louisiana Elec. L. & P. Co...
v. New York & Queens County

. Co.
v. North Wisconsin Lumber Co.

— v. Northern Texas Traction Co.
—— v. Old Colony St. Ry. Co......
—— v. Park
Williamson v. St. Louis Transit Co..
Willis v. Erie es & Telep. Co..
—— v. Plymouth & C. Telep. Exch.
OO causa ay Sse peas pues BS ea a Gai
Wilmington ‘City Ry. Co. v. Wilming-
ton & B. S. Ry. Co..... eer re

186 Fed. 114.ci5.scncss mee eee 154
(Tex. Civ. AEE )..138 S. W.
DUD io. asec able b.9 a: persia Senet 868, 884
69 Neb. 972. saotaadinanté nara 158, 159, 160
86 Va. 184..........-- 398, 416, 452
185 Fed. 250.....+...eeeeeeees 155
44 Can. Sup. Ct. 364........... 29
83 Vt. 189....595, 611, 687, 768, aS
223 Pa. St. 79......0ceeceeeee 514
28 Pa. Super. Ct. 531.........- 643
27 Ohio Cir. Ct. 517....... 911, 912
TON. J. L. 725... 0... cece eens 574
122 Minn. 110..............--- 178
75 Wash. 139..... 586, 594, 609, |
151 N. Car. 356........---- 830, 865
132. Fed. 782..........--eeeeee 910
119) oa, 868s «sais. cieeas wratte ve 825
70 Kan. 441. .20, 21, 24, 25, 358, 360
132 Fed. 641...... 367, 373, 491, 493
(Tex. Civ. App.) 131 s. W. 192. 489
72 Kan: 6943 .606.4se¢08 e852 ee 576
137 Ky. 299........... 832, 834, 865
129 Wis. 1....... 598, 599, 656, 662
‘167 Mo. App. 155...... 585, 601, 630

677, 699, 702, 708
4 Kulp (Pa.) 47...........005 326

92 Neb. 513. .704, 706, 709, 758, 763
767, 785, 802, 858

168 Mass. 40.................. 839
(Ind. App.) 103 N. BE. 19...... 182
164 Ala. 84...... 829, 830, 859, 905
200 Feds 21 )iss wie ssc vas aac 864
TBO Und Tas oce Soa de esmeacavss 35 541, 543
164 S. W. 247............. 774, 776
43 La. Ann. 295........ 720, 721, 734
97 N. Y. App. Div. 133.567, 570, 914
124 Wis. 328..... 832, 833, 842, 848
849, 861, 887

(Lex. Civ. App.) 107 S. W. 125. 19
193 Mass. 305................. 301
(2 Ne Hs B08 b goat a6 niue'es 11, 12, 15
202 Mos 345)..s:08 ¢ eawieesa es 568, 569
37 Minn. 347.................. 417
75 N. H. 453.............. 856, 866
8 Del. Ch. 468............... 557
TABLE oF CASES.

(References are to pages.)

Wilson v. Great Southern Telep. &
Peleg COs, vanes gis See verses ea wae
Winegarner v. Edison L. & P. Co....

Wingrove v. Public Service Commis-
BION gars aiegacoasehs oagsmcee alec
Winkleman v. Kansas City Elec. L.
CO) 5.555) SS eg ss ages eases ce waw

Winnipeg Elec. Ry. Co. v. City of
WANT POS aj iors ereravaue dhs ece. ng asanonnd
Winter v. New York & Jersey Telep.
CO, seiovsedss end. ea a aheldiers « alelorers har asace
Wirth v. Postal Teleg.-Cable Co.....
Wisconsin Telep. Co. v. City of Mil-
WHUKCG Sard ei pid cen crtraneretel a anes
— v. City of Oshkosh............
—— v. Hau Claire St. R. Co.......

 

v. Kreuger ...c0¢esseae.s esas
Wisconsin Tract. ete., Co. v. City of

Menasha... is: 6 4 cise ceeawede ss ane
Wissler v. Yadkin River P. Co......
Withee v. Somerset Traction Co.....
Witmer v. Buffalo, etc., Elec. L. & P.

COs. isis ie eee ad aera de Grantee ae wads

Wittleder v. Citizens’ Elec. INum. Co.
of Brooklyn ..........:-.eseeeee

Woelflen v. Lewiston-Clarkson Co...
Wofford & Rathbone v. Buckel P. &
Irrigation Co. ...........-...6.-
Wolf v. Cincinnati Edison Elec. Co..
Wolfe v. Erie =e & Telep. Co..
Wolpers v. N. Y. & Queens eles: L.
& Py CO. wc cissewan sees os eaea es

Wood v. Diamond Elec. Co.........
v. Wilmington City Ry. Co....

 

Woods v. People............e00000%
Woodward v. City of Taunton......
Wright v. Glen Telep. Co...........
v. Glen Telep. Co.............

 

—— v. Port Hope Elec. Co.........

Wray v. Mott........ccecceee eres
Wyandotte Elec. L. Co. v. City of

Wyandotte... 1... eee eee eee es
Wyant v. Central Telep. Co.........
Wynnewood, City of, v. Cox........

Yadkin River Power Co. v. Whitney

Power Cos ¢suviinca sii veaved ues
$V. Wissler ie. ciceics noe nance nee 8
Yates v. Brush Elec. L. & P. Co.....

lxxxiii

41 La. Ann. 1041.......... » 155
83 Kan. 67..545, 548, 766, 38° 894
895

(W. Va.) 81 S. E. 734....... 8, 479
110 Mo. App. 184. .604, 704, 767, 769
770, 774

4D. L. R. (Canada) 116...... 802
BIN. J. L. 88.........-000- 116, 130
7 Oh. Civ. Ct. R. 290.......... 441
126 Wis. Lisescscasees 171, 172, 492
62 Wis. 32...... 21, 24, 25, 171, 492
U Wis.) 3 Am. Electl. Cas. 383. 525
526, 528

115 Wis. UDO sesieiaiaecaeed pecans 111, 437
(Wis.) 145 N. W. 251.......... 227
158 N. Car. 465........ 86, 102, 122
98: Me. 61icsicccssiweeceaen 846, 875
112 N. Y. App. Div. 698....181, 820
919

47 N. Y. App. Div. 410... .593, 686
768, 780, 932

49 Wash. 405................. 879
35 Tex. Civ. App. 531.......... 184
6 Ohio Dec. 159.............0. 644
33 Fed. 320..........000005 668, 716
91 N. Y. App. Div. 424...... 737, 793
902, 906

185 Pa. St. 529............ 671, 804
5 Pen. (Del.) 369...... 579, 592, 595
616, 916

229) TT 298). cine siseaunie awsome 3-< 7
203) Mass. 63 si 05 cebu eae mies oe 817

48 Mise. (N. Y.) 192..335, 345,

Y.

112 N. Y. App. Div. 745. ...332)
13 O. W. R. (Canada) 210. .647,

748, 768,
83 N. J. L. 110........ 24, 114,
124 Mich. 43... .4, 303, 323, 352,
123 Mich. 51.......... 417, 431,
81 Okla. 563.......... 919, 920,
150 N. Car. 31........ 104, 118
160 N. Car. 269............ 02,

363
334
337
648
843
431

364
898
931

, 119

122
730
lxxxiv TaBLE oF CaszEs,

(References are to pages.)

 

 

Yazoo City v. Birchett............ 89 Miss. 700..........--20-0ee
Yeager v. Edison Elec. Co.......-.. 242 Pa. 101........... 602, 774,

Ve DOMING,. oy sce e esgic s F ewee 19. Oh. St. 121... iscsccees 466,
Yearsley v. Sunset Telep. & Teleg. Co. 110 Cal. 236............6.----
Yocum v. Hotel St. George Co....... 18 Abb. N. C. 340.......... 629,
Yoe v. Savannah River Power Co... 89S. Car. 396.......2-.00-005-
York Telep. Co. v. Keesey.......... 5 Pa. Dist. Rep. 366...... 20, 24,
Young v. Inhabitants of Yarmouth.. 9 Gray (Mass.) 386...........

v. Town of Gravenhurst....... 24 Ont. L. R. 467...... 630, 631,
Younie v. Blackfoot Light & Water

CO} ie Sav mens eaters Kee es Cee 15 Idaho, 56...... 602, 610, 714,
Zanesville, City of, v. Zanesville

Teleg. & Telep. Co............... 64; Oh. (St. Ole ceegarss sense eale
Zanziger v. Wayne Hlec. L. Co....... 6 Pa. Dist. Rep. 577...........
Zehren v. Milwaukee Elec. Ry. & L.

COo a ea) 40s eGo see Se REE eee 99 Wis, 83: ssc eseaes sees wee
Zentner v. Oshkosh Gaslight Co.... 132 Wis. 447..... 814, 863, 869,
Ziehm v. United Elec. L. & P. Co. of

Baltimore: ise. 2s sieaec on ae 24 stem 104 Md. 48..766, 782, 801, 802,

813,
Zimmerer v. Stuart..............4. 88 Neb: 6805.0 -sacevcswesss 32,

Zimmerman v. American Telep. &
ele pie (Ob cies v-acessanssaps eee bsce eke are teue 71S. Car, 528............0005

375
472

428
888
919

812
931
331
THE LAW OF ELECTRICITY

 

CHAPTER I.
INTRODUCTORY.

SEcTION .1. Electricity.

2. —— Nature of.

3. —— As Property.

4, ——As a Subject of Larceny.
. Electric Companies; in General.
—— As Quasi-Public Corporations.
—— As Manufacturers.
Street Railway Companies.
Telegraph and Telephone Companies; in General.
Contrasted.
— “Telephone” as “Telegraph.”
. Appliances,
. ——— As Real or Personal Property.
. Use of Electricity for Effecting Death of Criminals.
. Electrical Terms Defined.

 

SESHEB edn ae

Sec. 1. Electricity.

The attempt to define a legal term has been spoken of
as a ‘‘perylous chose.’’? With especial force does this
observation apply to an attempt to formulate either a
scientific or a legal definition of ‘‘ electricity.’’ No defini-
tion has been generally accepted by the scientific world,
and, in the absence of one scientifically accredited, no court
has attempted to frame one for legal purposes.? Had it
been found necessary, no doubt a definition would have

1. Thayer, Preliminary Treatise, to what it really is. It is seen
189. through the results accomplished by

2. “But little is known of electric- it, and, although it has come to fill
ity. According to the definition of one of the greatest needs in the
earlier lexicographers, it is an ‘ex- economies of modern life, it remains
ceedingly subtle agency that pervades as much of a-mystery as ever.” Ken-
all space. A consideration of the tucky Elec. Co. v. Buechel, 146 Ky.
definitions given it by the more re- 660, 143 S. W. 58, 38 L. R. A. (N.S.)
cent lexicographers leaves the mind 907.
in the same nebulous condition as

{1]
2 Law or HEectriciry.

been framed which would be satisfactory to scientists and
judges. But the electrician, in the pursuit of his pro-
fession, has not required that the term ‘‘ electricity ’’ be
defined. In the same way, judges have been able to deter-
mine the legal questions presented in electrical cases with-
out laying down a definition of the term. The term ‘‘ elec-
tricity ’’ conveys to the scientist, to the judicial officer, or
to the layman, the idea of a certain natural force. As thus
conceived, and with no attempt at a formal definition, the
term ‘‘ electricity,’’ is used in this book.

Sec. 2. Electricity, Nature of.

Though cautious in presenting a definition of ‘‘ elec-
tricity,’’ no hesitancy has been evinced in theorizing as to
the nature of such force.

Scientifically speaking, the true nature of electricity is
as yet not well understood? It was thought by Benjamin
Franklin to be a single fluid, while later philosophers con-
sidered it to be composed of two fluids (one positive and
one negative), which were contained in neutral bodies in
equal amounts. Both fluid theories are now discarded, and
the general opinion of the present-day scientists is that
electricity is ether in motion or is the result of a state of
strain or other manifestation therein.‘

8. “ The true nature of electricity is
as yet not well understood; but it is
probable that it is not, as was for-
merly assumed, of the nature of a
fluid — either a single fluid, as was
supposed by Franklin, or two fluids
(positive and negative), as was sup-
posed by Symmer.” Century Diction-
ary, Electricity.

4. “The action of electricity led
many experimenters who lived long
after Gilbert to the belief that it was
a fluid which was not perceptible to
their senses. Our own great phi-
losopher and statesman, Benjamin
Franklin, assumed it to be a fluid,
and bodies which exhibited electrical

manifestations were thought by him
to contain either more or less than
& normal amount of the fluid. A
Frenchman named Dufay and an Eng-
glishman named Symmer considered
electricity to be composed of two
fluids which were contained in
neutral bodies in equal amounts.
When by any means this equality was
disturbed in a body, electrical mani-
festations occurred. These theories,
and a large number similar to them
that were promulgated, are now dis-
carded in the light of later scientific
knowledge. But the conception of
the fluid theory is very ‘useful in
giving a clear understanding of some
InTRODUCTORY. 3

Judicial Nature.— Fortunately, courts are not called upon
to determine whether the phenomenom of electricity is
the result of ether in motion or whether it is a fluid entity.
The problem of the judiciary is to classify it properly, that
is, to give it its proper place among the substances and
forces used by man. In this undertaking the courts have
no difficulty. So dangerous a force as electricity must
legally be considered in the same class as high explosives
and other treacherous and destructive agents. It is-recog-
nized as a silent, insidious, powerful and dangerous
agency, the power and manifestations of which are fully

comprehended only by experts.®

of the phenomena of electricity. It
is now generally accepted that the
phenomena to which we give the
name electricity result from a state
of strain or other manifestation in
the ether.” Jackson, Electricity and

Magnetism, p. 2.
“We have still before us the

question — What is electricity? In
the light of what has gone before,
this question, unqualified, now pre-
sents no difficulty to us. The answer
ie simplicity, it is:—

A. There is no such distinct entity.
If the question is qualified a little,
and put in a slightly different form,
it is possible to answer it more
explicitly.

Q. What is the cause of the effects
that are known as electrical? We
may answer —

A, All the effects which are known
as electrical, are directly caused by
explicit motion of the smallest single
bodies of which we have any direct
or inferential knowledge.” Verschoyle,
Electricity, What is? p. 163.

“What shall we therefore answer
to the question, What is Electricity?
Must we reply, Ignoramus ignorabt-
mus —(we are ignorant, and we shall
remain ignorant)? We have already

It might be improper to

strong grounds for believing that we
live in a medium which conveys to-
and-fro or periodic movements to us
from the sun, and that these move-
ments are electro-magnetic, and that
all the transformations of light and
heat, and indeed the phenomena of
life, are due to the electrical energy
which comes to us across the vacuum
which exists between us and the sun
—a vacuum which is pervaded by
the ether, and which is a fit medium
for the transmission of the electro-
magnetic waves.” Trowbridge, What
is Electricity? p. 308.

5. “Electricity is to be classed
with gunpowder, dynamite, and other
treacherous and destructive agents.”
Warren v. City Elec. Ry. Co., 141
Mich. 298, 4 St. Ry. Rep. 487, 104
N. W. 613, 9 Am. Electl. Cas. 527,
12 Det. Leg. N. 415.

As to the degree of care to be
used by one having a dangerous cur-
rent of electricity under his control,
see §§ 400-406.

6, Alabama.— “Electricity is an
illusive, in a degree uncontrollable,
and a dangerous, element.” Birming-
ham Ry. L. & P. Co. v. Canfield,
(Ala.) 59 So. 217.

Colorado.— “It is a subtle, im-
4 Law or ELectriciry.

say that it is an unknown force, but it is a mysterious power
in that its exact nature is not known.’ Though its exact

ponderable, death dealing element or
fluid. Denver Tramway Co. v. Reid,
4 Colo. App. 53, 4 Am. Electl. Cas.
332, 35 Pac. 269.

Florida See Jacksonville Elec. L.
Co. v. Sloan, 52 Fla. 257, 9 Am.
Elect]. Cas. 891, 42 So. 516.

Illinois.— “ Electricity is a subtle
and powerful agent.” Commonwealth
Hlectric Company v. Melville, 210 Ill.
40, 9 Am. Electl. Cas. 95, 70 .N. E.
1052.

Indiana— “ Courts of all jurisdic-
tions recognize the mysterious and
‘subtle character and extreme danger
of the agency here involved, and the
importance of and necessity for some
knowledge of it on the part of those
who are required to expose them-
‘selves to its dangers.” Lyons v. City
of New Albany, (Ind. App.) 103
N. HE, 20. “Electricity is an agent
of the greatest danger, and.of a secret
deadly character.” Cumberland Telep.
& Teleg. Co. v. Kranz, 48 Ind. App.
67, 95 N. E. 371.

Kentucky.— “ Electricity is a power-
ful and deadly agency. It cannot be
seen and is as silent as it is deadly.”
Union Light, Heat & P. Co. v. Lake-
man, 156 Ky. 33, 160 8. W. 723.
“Electricity is a dangerous and
deadly thing. It is a substance that
gives no warning of its presence.”
Paducah Light & P. ‘Co. v. Park-
man’s Adm’r, 156 Ky. 197, 160 8. W.
931. “Electricity is the most power-
ful and dangerous element known to
science. It cannot be seen, and it is
as silent as it is deadly.” Overall v.
Louisville Electric Light Co., 20 Ky.
Law Rep. 759, 7 Am. Electl. Cas. 521,
A7 8. W. 442.

Minnesota.—Electricity is a “silent,
deadly, and instantaneous force.”
Musolf v. Duluth Edison Elec. Co.,

108 Minn. 369, 122 N. W. 499, 24
L. R. A. (N. 8.) 451.

Missouri— “ Electricity is, perhaps,
the most insidious, as well as the
most destructive, of the natural forces
of which we are cognizant, and have
availed ourselves in the interest of
the civilization of this age. It is
insidious because it only manifests
itself in the exercise of its destruc-
tive force. It is hidden from all the
senses which constitute human ap-
prehension until it strikes, and then
its blow is so deadly that in many
jurisdictions it has been selected ‘by
law as the surest and quickest, and
therefore the most painless, imstru-
ment available for the destruction of
human life in case of judicial execu-
tions.” Campbell v. United Rys. Co.
of St. Louis, 243 Mo. 141, 8 St. Ry.
Rep. 626, 147 S, W. 788. “Electricity
is one of the most dangerous agen-
cies ever discovered ‘by human sci-
ence.” Geissmann v. Missouri Edison
Elec. Co., 173 Mo. 654, 8 Am. Electl.
Cas. 569, 73 S. W. 654.

North Carolina—The defendant
company was engaged in the business
of manufacturing, producing, leasing
and selling light made from the use
of electricity, which is the most
deadly and dangerous power recog-
nized as a necessary agency in de-
veloping our civilization and promot-
ing our comfort and business affairs.
It differs from all other dangerous
utilities. Its association is with the
most inoffensive and harmless piece
‘of mechanism — if wire can be classi-
fied as such—in common use. In
adhering to the wires, it gives no
warning or knowledge of its deadly
presence. Vision cannot detect it.
It is without color, motion, or ‘body.
Latently, and without sound, it
INTRODUCTORY. 5

nature is unknown, it is not so as to its qualities and

manifestations.®

Many of these are so well known that

courts take judicial notice thereof.°

Ignorance of Scientific Nature Recognized by Courts.—
The fact that the exact nature of electricity is scientifically
unknown is recognized by the courts.*° ‘Thus, in one case,"

it was said:

exists, and, being. odorless, the only
means of its discovery lies in the
sense of feeling, communicated
through the touch, which, as soon
as done, becomes its victim. Mitchell
v. Raleigh Elec. Co., 129 N. C. 166, 7
Am. Elect]. Cas. 644, 39 S. E, 801,
55 L. R. A. 398, 85 Am, St. Rep. 735.

Wisconsin.— “ The electric force is
the most powerful and dangerous
agency of nature, and, even. when re-
strained or controlled by the most
perfect machinery and appliances, its

high-tension’ currents: are extremely:
dangerous in many directions.” State.

ex rel. Wisconsin Telep. Co. v.
Janesville St. R. Co., 87 Wis. 72, 4
Am. Electl. Cas. 289, 57 N. W. 970,
22 L. R. A. 759, 41 Am. St. Rep. 73;
Carroll v. Grand Ronde Elec. Co.,
47 Oreg. 424, 4 St. Ry. Rep. 908, 9
Am. Elect]. Cas. 642, 84 Pac. 389,
6 L. R. A. (N. 8.) 290.

7. “Electricity is a mysterious
power, but in many of its. common
manifestations’ is not, and has not
been for many years, an unknown
force.” Johnston v. New Omaha
Thomson-Houston Elec. L. Co., 114
Neb. 772, 113 N. W. 526.

8. Divisibility recognized by courts.
— “The nature of electrical power is
such that it can be indefinitely sub-
divided and readily transmitted to
great distances for use by any num-
ber of. people for purposes now
recognized and innumerable others
which the future will certainly dis-
close”? Minnesota Canal & Power

‘Cicero was asked, ‘ What is life?’

He

Co. v. Koochiching Co., 97 Minn. 429,
9 Am, Electl. Cas. 708, 728,.107 N. W.
405,5 L. R. A. (N. S.) 638.

9. §§ 583, et seq.

10. “The nature, characteristics,
and apparent vagaries of electricity
by no means are perfectly under-
stood in the science of the present
day.” ‘Brown v. Consolidated Light,
Power & Ice Co., (Mo. App.) 109
S. W. 1032.

What it. is, is simply a matter of
speculation, for no one has ever
seen it. It has been called a fluid,
a form of radiation, an induced con-
dition, and perhaps many other
things, each of which is as far from
expressing a true comprehension of
its constitution as the others, All
we know of it is that experts in the
science have found certain phenomena
following certain conditions, and
have applied them to many useful
purposes in the arts and industries;
but our knowledge of the subject is
still so limited that we must rely
on these experts for information as
to the conditions which mean life or
death to those who come in contact
with them. Campbell v. United Rys.
Co. of St. Louis, 243 Mo. 141, 8 St.
Ry. Rep. 626, 147 S. W. 788.

11. Louisville Bagging Mfg. Co. v.
Central Passenger Ry. Co., (Ky.) 3
Am. Electl. Cas. 236; affd, 95 Ky.
50, 4 Am. Electl. Cas. 202, 23 S. W.
592, 15 Ky. Law Rep. 417, 44 Am.
St. Rep. 203.
6 Law or E.ectriciry.

answered, ‘Animus ignis vel spirttus nescio.? And so of
electricity. It is as mysterious as the mind that tries in
vain to comprehend it. It is impossible that we should
know anything of it beyond the phenomena which it ex-
hibits. Its physical character, its essence, its constitution
and absolute nature can never be known to man. Whether
it.is an impulse, a tendency, a power, energy or force—
whatever it is—all that man can know of it is the physical
fact that under certain conditions by certain complicated
material processes, which his inventive genius has devised
for developing into active agency this impalpable, gigantic
energy of nature which fills the universe and is so essential
to its magnificent harmony, it will produce certain results
and develop certain powers. Without knowing its essence,
man has learned, by cunning mechanism, how to direct its
wonderful energy. It is of a kin, no doubt, to all the mem-
bers of the family of physical mysteries with which we can
never form acquaintance, and of which we know nothing
beyond their phenomena. The wind, the influence of plan-
etary bodies upon the tides, gravitation and magnetism,
the forces of repulsion and attraction, are its contempo-
raries in the physics of the material universe. That these
invisible agencies of nature are in continuous and tre-
mendous operation we can not doubt; but what they are,
or what are the causes and purposes of their operation,
we can never know, any more than we can understand the
principles upon which the invisible Ruler drives the won-
drous machinery of His universal government across the
ocean of time. Felix qui potuit rerum cognoscere causas.’’

Sec. 3. Electricity as Property.

Electricity, being invisible to the senses, cannot be
handled in the same manner as potatoes, furniture or other
articles of personal property. From its imperceptibility
to the senses, it might be claimed that it was not property
within the meaning of that term as used in jurisprudence.
On the other hand, it is continuously bought, sold, meas-
ured, and delivered as efficiently as wheat or any other
commodity. In spite of its invisibility, electricity is con-
InTRODUCTORY. 7

sidered in law as personal property” subject to ownership,
sale and disposal as inanimate objects." It has a substance
which may be measured.* And one, having the ownership
and possession of an electric wire, may properly be said
to have possession of the electricity with which the wire
is charged.”®

As a Supply.— It has been held that electricity furnished
to a mine is a ‘‘ supply ’’ as that term is used in a statute
giving a lien on mines to any person furnishing ‘‘ supplies ’’
for the working or development of such.*®

Sec. 4. Electricity as a Subject of Larceny.

Inasmuch as electricity is property which may be owned,
used, and controlled, no reason is apparent why it cannot
be subject of larceny. Gas, which is but slightly, if any,
more tangible than electricity, has been held to be the
subject of larceny.” Likewise, it has been thought that
the unlawful appropriation of telephone service may be

larceny.*®

12, Terrace Water Co. v. San An-
tonio L. & P. Co. 1 Cal. App. 511,
9 Am. Electl. Cas. 505, 82 Pac. 562;
Fickeisen v. Wheeling Electrical Co.,
67 W. Va. 335, 67 S. E. 788, 27 L. R.
A. (N. S.) 893.

13. Hill v. Pacific Gas & Elec. Co.,
22 Cal. App. 788, 136 Pac. 492; Fick-
eisen v. Wheeling Electl. Co., 67
W. Va. 335, 67 S. E. 788, 27 L. R. A.
(N. S.) 893, wherein it was said:
“Wherein does the sale of this elec-
tricity differ from a sale of other
commodities or things? It is per-
sonal property, capable of sale.”

14. Fickeisen v. Wheeling Elec.
Co., 67 W. Va, 335, 67 S. E. 788, 27
L, R. A. (N. S.) 893.

15. Fickeisen v. Wheeling Elec.
Co., 67 W. Va. 335, 67 S. E. 788, 27
L. R. A. (N. S.) 893.

16. Grants Pass Banking & T. Co.
v. Enterprise Mining Co., 58 Oreg.
174, 113 Pac. 859, 34 L. R. A. (N.S.)

395, wherein it was said: “ Mines
which a few years ago were almost
worthless have, by the employment
of electricity, become very valuable,
affording profitable employment to ~
laborers and yielding rich returns to
the owners. Electricity is capable of
propelling machinery and of illumi-
nating mine and mill by continuous
operation, and as this modern agent
is consumed by its use, so far as
susceptible of discernment, and sup-
plies a very urgent need tending to
the proper working and development
of a mine, it is believed that such
force is a supply within the scope of
that term and for the use of which a
lien may fairly be implied from the
statute.” :

17. Woods v. People, 222 Ill. 293,
78 N. E. 607, 6 Ann. Cas. 736.

18. Law Notes, January, 1914, page
183.
8 Law oF ELECTRICITY.

Sec, 5. Electric Companies; in General.

An electric company may be defined as a corporation
lawfully engaged in the business of generating, or other-
wise procuring, electricity and disposing of the same for
profit. In comparing this definition with the contents of
this book, it will be noticed that many subjects foreign to
electrical companies are herein discussed, but the scope of
this work follows the manifestations of the electrical force,
not the entity owning or utilizing such force. By some
authors, all companies constantly using electrical current
in their business seem to be classified as ‘‘ electrical com-
panies.’? For example, telephone, telegraph, and street
railway corporations are thus treated. The definition given
above is not intended to and clearly does not include these.
To include such companies, the definition would necessarily
have to be expanded so as to cover such as merely utilize
electrical currents. A moment’s reflection shows that the
use of a force or substance by a corporate body does not
ipso facto provide its classification. Many manufacturing
enterprises continuously use electricity as a motive power
to the same relative extent as a street railway without any
accusation of being ‘‘ electric companies.”’

However this may be, within the confines of this book,
the term ‘‘ electric company ’’ does not mean any company
other than one commercially securing and disposing of
electrical current. When a street railway, a telegraph or
a telephone company is intended, the customary terms are
used.

A mining, or other corporation, which generates elec-
tricity for its own use is not an electric company; but,
where it also furnished electricity to nearby inhabitants
at a uniform rate, it may be classed as an electric company
as to such business.” That part of its business is subject
to regulation in the same way as the business of a company
engaged exclusively in furnishing electricity to the public.

19. Wingrove v. Public Service Commission, (W. Va.) 81 S. E. 734.
IntrRopuctory. 9.

Sec. 6. Electric Companies as Quasi-public Corporations.

An electric company duly empowered to transact busi-
ness as such is a quasi-public corporation.” But this public
character is possessed only by those companies which fur-
nish their currents to the public generally, or possibly to
another public service corporation,” and, in any case, its
character is but quasi-public.” From its public nature,
great rights as well as grave responsibilities naturally fol-
low. The public nature of its occupation, within certain
limitations, requires it to supply electric current to the
public without discrimination,” renders it subject to state
and municipal regulation, and makes possible the exercise
by it of the sovereign right of eminent domain.”

Sec. 7. Electric Companies as Manufacturers.

Much contrariety of opinion has arisen as to whether an
electric company is a ‘‘ manufacturing ’’ company, as that
term is used in various statutes imposing liabilities upon
or granting privileges to ‘‘ manufacturing ’”’ corporations.
On the one hand, the courts consider the complicated
machinery used in the generation and transmission of elec-
tricity, the power plant necessary to run this machinery,

20. Florida.— City of Gainesville v.
Gainesville Gas & Elec. P. Co., 65
Fla, 404, 62 So. 919.

Ilinois.— Snell v. Clinton Elec. L.,
H. & P. Co., 196 Ill. 626, 8 Am.
Electl. Cas. 879, 63 N. E., 1082, 58
L, R. A. 284, 89 Am. St. Rep. 341;
Capital Elec. Co. v. Hauswald, 78
Ill. App. 359.

New Hampshire.— American Loan
& Trust Co. v. General Elec. Co., 71
N. H. 192, 8 Am. Electl. Cas. 117,
51 Atl. 660; Rockingham County
Light & Power Co. v. Hobbs, 72 N. H.
531, 9 Am. Electl. Cas. 102, 58 Atl.
46, 66 L. R. A. 581; McMillan v.
Noyes, 75 N. H. 258, 72 Atl. 759.

New York.— Armour Packing Co.
v. Edison Elec. Illum. Co., 115 N. Y.

App. Div. 51, 9 Am. Electl. Cas. 855,
100 N. Y. Supp. 605; Floyd-Jones v.
United Electric Light Co., 55 Mise..
529, 106 N. Y. Supp. 648.

Texas.— Nacogdoches L. & P. Co.
v. Thomas & Richardson, (Civ. App.)
138 S. W. 1080.

21. See Brown v. Gerald, 100 Me.
351, 9 Am. Electl. Cas, 605, 61 Atl.
785, 70 L. R. A. 472, 109 Am. St.
Rep. 526.

22. Only quasi public— The public
character of an electric company is
only quasi. Southern Electrical Sup-
ply Co. v. Rolla Elec. L. & P. Co.,
75 Mo. App. 622.

23. §§ 36-56.

24, §§ 323-341.

25. Chapter IV.
10 Law or E.ecrriciry.

and the labor involved in the process; and, comparing in
a general way the apparatus used for producing electric
current with the mechanical equipment used in making con-
cededly manufacturing products, conclude, from the simi-
larity of the labor and mechanical means involved, that the
legislative body, referring to ‘‘ manufacturing ’’ corpora-
tions, intended to include ‘‘ electrical’? companies.” Thus,
it was said by the Court of Appeals of New York: ‘‘ The
business in which the corporation is engaged renders it
necessary, in the first place, to invest a large amount of |
capital in a plant which may appropriately enough be called
a factory. ‘Then it must purchase and consume a vast
amount of coal to produce steam, and to furnish power for
the operation of machinery. Then it supplies and operates
a complicated system of machinery, such as boilers, engines,
dynamos, shafting, belting and such other things as are
commonly used in manufacturing establishments, and then,
by means of wire, cables and lamps, it lights streets and
private houses by electricity for a compensation. But the
electricity or electric currents that produce this result can-
not properly be said to be the free gift of nature, gathered
from the air or the clouds. It is the product of capital and
labor and in this respect cannot be distinguished from
ordinary manufacturing operations. According to the com-
mon understanding the electricity or thing which produced
the results from which the corporation derives its income,
is generated or produced by the application of power to
machinery, and thus, by means of a process wholly arti-
ficial, the relator is enabled to sell the product of its opera-
tions to its customers. Passing by the refinements of

26. United States— Matter of
Charles Town L. & P. Co., 183 Fed.
160.

Colorado.— Lamborn v. Bell, 18
Colo. 346, 4 Am, Electl. Cas. 573, 32
Pac. 989.

Indiana.— See also, Burke v. Mead,
159 Ind. 252, 64 N. E. 880.

New Hampshire— McMullan  v.
Noyes, 75 N. H. 258, 72 Atl. 759.

New Jersey.— Bates Machine Co.
v. Trenton, ete. R. Co., 70 N. J. L.
684, 58 Atl. 935; In re Consolidated
Elec. Storage Co., 26 Atl. 983.

New York.— People ex rel. Brush
Elec. Mfg. Co. v. Wemple, 129 N. Y.
543, 4 Am. Electl. Cas. 563, 29 N. E.
808, 42 N. Y. St. Rep. 272.
IntTRopUCTORY. 11

scientific discussion as to the nature of electricity, it would
seem to be common sense to hold that a corporation that
does all this is, in every just sense of the term, a manu-

facturing corporation.’’ *’

On the other hand, the courts sometimes delve more
scientifically (not necessarily more reasonably) into the
nature of electricity; and, taking the view that the
generation thereof is merely collecting or gathering in
usable form a force which theretofore existed, hold that
the process is not ‘‘ manufacturing.’’** Thus, it has been

27. People ex rel. Brush Elec. Mfg.
Co. v. Wemple, 129 N. Y. 543, 4 Am.
Elect]. Cas. 563, 29 N. E. 808, 42 St.
Rep. 272.

28. Hagerla v. Mississippi River
Power Co., 202 Fed. 776; Williams
v. Park, 72 N. H. 305, 56 Atl. 463,
64 L. R. A. 33; People ex rel, Edison
Elec. L. Co. v. Campbell, 88 Hun
(N. Y.) 527, 6 Am. Elect]. Cas. 653,
34 N. Y. Supp. 711; Commonwealth
v. Edison Elec. L. Co., 145 Pa. St.
131, 22 Atl. 841, 845; Commonwealth
v. Northern Elec. L. & P. Co., 145
Pa, St. 105, 22 Atl. 839. “ Electricity
is a force of nature; but, so far as
I know, or am informed, no one is
able to take materials and by com-
bining them and operating on them,
producing chemical changes or other-
wise, produce therefrom electricity.
We are able to gather it, store it
temporarily, measure it, apply it by
mechanical means, cause it to run
in currents, and by interfering with
such currents cause great heat and
light, and exert mighty force in mov-
ing machinery and railroad trains,
ete. But, so far as known, we can-
not manufacture it. If by means of
exciters, generators, so called, etc.,
operating by steam engines heated by
coal or wood, we get electricity, we
obtain the same result when we oper-
ate all these by water power or any

other power. We do not transform
anything used in generating elec-
tricity into electricity. The water
turns the wheels, but passes on with-
out diminution or change. Do we
gather it from the air or from the
earth? If so, we simply separate a
force of nature, an existing material,
it may be, from other material things
with which it is mixed, or by which
it is surrounded, and then confine,
store, measure, and use it. We do
not manufacture it. So far as
known, we do not change its form in
any way. Its shape, form, constitu-
ent elements, abiding places, are un-
known. We know some of the things
it will do, its manifestations. We
generate, but do we manufacture,
electricity? Gathering electricity from
earth or air is like mining, but not
mining. In mining coal, or lead, or
gold, or silver, we find these things
in the earth, surrounded or mixed
with many other things. We sep-
arate the coal or metal from its sur-
roundings by digging, picking, by the
application of water or mechanical
means, and so gain control of the
unmixed coal or metal; but we do
not manufacture it. Within the au-
thorities the generating of electricity
is not manufacturing.” Matter of
Hudson River Elec. Power Co., 173
Fed. 934; affirmed, 183 Fed. 701, 106
12 Law oF HveEctTRICITY.

said: ‘‘‘ Manufacturing,’ then, in the present statute, is
used in the sense of working materials into a fabric or
structure for use, as, for example, cotton into cloth, iron
into tools, wood into carriages, ete. This is the ordinary
meaning of the word, and, independently of the light
thrown upon it by the history of the statute, would be
regarded as the meaning which the legislature attached to
it. The question then resolves itself into this: Whether
the collection and distribution of electricity, for the pur-
poses of light and power, are manufacturing within this
sense of the word? Machinery and manual labor are
required in the process, but this fact alone does not bring
it within the meaning of the word. The product of the
machinery and labor must be a fabric or structure made
from materials of some kind.’’

In the former case, the court accurately concludes that
the legislature’s knowledge of electrical processes is super-
ficial, so that the generation of electricity seems similar
to manufacturing enterprises. In the later case, scientific
knowledge is imputed to the members of the law-making
body. The intent of the legislature in enacting the par-
ticular statute under consideration is the real objective
sought,*° and no general rule can be framed which will
materially assist one in solving the problem. Each statute
is to be considered by itself, in the light of its history and
the circumstances surrounding its enactment, the policy of
the state relative to acts of that particular character,
together with the language of other statutes of the state
and other words of the same statute.

Lexicology.— It is clear that the term ‘‘ manufacture ”’
originally meant ‘‘ hand made.’’ But, with the advance

c. Cc. A. 139, 33 L. R. A. (N. S.) Illum. Co. v. Kochersperger, 175 Ill.

454, 26, 21 N. E. 719.

“Purely manufacturing purposes, 29. Williams v. Park, 72 N. H. 305,
— An electric company is not organ- 56 Atl. 463, 64 L. R. A. 33.
ized for ‘purely manufacturing pur- 30. “The question, however, is not

poses,” as that phrase is used in a one of scientific terminology but
statute providing for local assess- rather of the sense in which an or-
ment of corporations. Evanston Elec. dinary term was used by the legisla-

ture in framing an enactment.” Bates
INTRODUCTORY. 13

of mechanical equipment, its meaning has been vastly ex-
panded, until it has come to mean anything made by human
art or skill.* Its meaning, as given by the lexicographers,™
though not to be thrust aside without its due consideration,
is not controlling on the question. Indeed, it is a-question
of doubt whether the definitions so given of the term do
or do not include the process of generating electricity. To
illustrate, in one ease in Pennsylvania, the court seemed
to think that the lexicographical meaning of the term would
require a holding that an electrical company was a manu-
facturmg company within the meaning of a statute exempt-
ing such from taxation, but held that the dictionary .
defmitions were not binding and decided to the contrary.
Diametrically opposed to this view, in New York, the Court
of Appeals, in one ease,** in construing a statute of the same
general character, thought that the dictionaries afforded

Machine Co. v. Trenton, etc., R. Co.,
70 N. J. L. 684, 58 Atl. 935.

31. “That the word ‘ manufac-
ture’ is no longer limited to some-
thing that is made by hand is not
more obvious than that, by the very
necessities of the case, it must con-
tinue to travel farther and farther
from its first meaning in keeping with
the growth and progress of the thing
for which it continues to stand; so
that to make by machinery, or by
chemical reaction, or by any other de-
vice known to art has already en-
tively superseded the original notion
of hand fabrication. While its orig-
imal meaning lasted, however, it nec-
essarily involved ‘the idea of tangibil-
ity, but with the eljmination of the
manual element from the essential
meaning of the word, there was no
longer the slightest justification for
the retention of this notion of tangi-
bility as a restriction upon its broad-
ening usefulness, and, as ‘a fact, it
has been entirely dropped from cur-
rent use when applied to such proc-
esses as the manufacture of oxygen,

or of carbonic acid or of nitrous
oxide, or of illuminating gas, or of
‘a host of other products totally lack-
ing in tangibility.” Bates Machine
Co. v. Trenton, etc., R. Co. 70 N. J.
L. 684, 686, 58 Atl. 935.

32. Manufacture (as a verb).—“ To
make or fabricate, as anything for
use, especially in considerable quan-
tities or numbers, or by the aid of
many hands or of machinery; work
materials into the form of; as, to
manufacture cloth, pottery, or hard-
ware; to manufacture clothing, boots
and shoes, or cigars.”— Century Dic-
‘tionary.

“To make or fabricate from raw
materials, ‘by hand, ‘by art, or ma-
chinery, and work into forms con-
‘venient for use; as, to manufacture
cloth, mails, or glass.” — Webster.

33. Commonwealth v. Northern
Elec. ‘L. & P. Co., 145 Pa. St. 105, 22
Atl. 839.

84. People ex rel. Brush Elec. Mfg.
Co. v. Wemple, 129 N. Y. 543, 4 Am.
Electl. Cas. 563, 29 N. E. 808, 42 N.
Y. St. Rep. 272.
14 Law or ELecrricity.

no justification for holding that an electric company was a
‘‘manufacturing company,’’ but, nevertheless, so decided.
But it is not meant to infer that the courts always decide
contrary to their construction of the dictionary. The dic-
tionary has been followed.

Bankruptcy Act.— Whether an electrical company could
be thrust into bankruptcy under section 4 of the Bank-
ruptcy Act, authorizing involuntary proceedings against
certain corporations ‘‘ engaged principally in manufactur-
ing,’? was a question which prior to 1910 was vital, but
which has now become academic by reason of an amend-
ment of the act.**° The word “ principally ’’ created a situ-
ation different from that existing in the construction of
other statutes, and it was held that, whether or not an
electric company was a manufacturer, it was not engaged
‘* principally in manufacturing ’’ within the act.*’

Tax Exemption Statutes. In its desire to encourage the
establishment of manufacturing enterprises, the legisla-
tures of many states have exempted ‘‘ manufacturing ’’
companies from certain forms of taxation. It is apparent
that the intention of such statutes is to secure industries
which may locate in one place as well as another, and hence
they naturally would not apply to a business, such as the
electrical, which has no reasonable choice, under ordinary
circumstances, of locating except where it sells its product.

85. Beggs v. Edison Elec. Illum. Co.,
96 Ala. 295, 3 Am. Electl. Cas. 504,
11 So. 381.

86. By amendment in 1910, any
“moneyed, business or commercial
corporation,” [with certain desig-
nated exceptions not including elec-
trical companies] may be proceeded
against by involuntary petition. See
Collier on Bankruptcy, § 4.

37. Matter of Hudson River Power
Transmission Co., 183 Fed. 701, 106 C.
C. A. 139, 33 L. R. A. (N. 8S.) 454;
affirming 173 Fed. 934.

Contrary Decision.— See Matter of
Charles Town L. & P. Co., 183 Fed.

160, holding that an electric com-
pany is a “trading” company as that
term is used in the Bankruptcy Act.

38. “It would be impossible to
enumerate all the manufacturing in-
dustries that may have been intended,
but it is evident that they were such
as manufacture articles that are to
be made, handled, sold, etc. and
would necessitate the employments of
labor and capital that would benefit
the community at large. They were
intended to be such as might go else-
where, not such as must locate in
Frederick.” Frederick Elec. L. & P.
Co. v. Mayor, ete., of Frederick City,
InTRODUCTORY. 15

Moreover, public policy demands of all persons or corpora-
tions that they proportionately assist in sustaining the
burdens of government. For this reason, exemptions from
taxation should be strictly construed, and where it is doubt-
ful whether one is entitled to the exemption, the doubt
should be resolved against him. It being a matter of doubt
in the construction of any kind of statute whether an elec-
tric company is a ‘‘ manufacturing ’’ company, it follows
that a corporation engaged in generating and disposing of
electric currents should not be deemed a ‘‘ manufacturer ’’

as that term is used in tax exemption statutes.*
is the holding of the courts in several states.*°

84 Md. 599, 6 Am. Electl. Cas. 644,
36 Atl. 362, 36 L. R. A. 130.

39. “It must, we think, at least be
conceded by the appellant that there
is a reasonable doubt as to whether it
was intended to be exempted. In
Mayor, etc., of Baltimore v. Grand
Lodge of Ancient Free & Accepted
Masons, 60 Md. 280, the general prin-
ciple of law applicable to a case of
this kind is there concisely stated:
‘The right of taxation is never pre-
sumed to be relinquished, and, before
any party can rightfully claim an
exemption from the common burden,
it is incumbent upon that party to
show affirmatively that the exemption
claimed is authorized by law. If
there be a real doubt upon the sub-
ject, that doubt must be resolved in
favor of the State, and it is only
where the exemption is shown to be
granted in terms clear and unequiv-
ocal that the right of exemption can
be maintained.” Frederick Elec. L.
& P. Co. v. Mayor, ete., of Frederick
City, 84 Md. 599, 6 Am. Electl. Cas.
644, 36 Atl. 362, 36 L. R. A. 130,

“Tn attempting to answer the ques-
tion, it must be borne in mind that
the policy of the state requires the
taxation of property as a general rule.
‘Every member of the community has

And such
In New

a right to be protected by it in the
enjoyment of his life, liberty and
property. He is, therefore, bound to
contribute his share in the expense of
such protection, and to yield his per-
sonal service when necessary, or an
equivalent.’ Bill of Rights, art. 12;
Const., art. 5. It will never be as-
sumed that the government intended
to release any part of the property
entitled to its protection from the
burden incident to such protection,
and it is the duty of those who as-
sert that claim to show it in language
which can admit of no other conclu-
sion; and where doubt arises as to the
meaning of the language used which
it is claimed confers the exemption, it
will be construed most strongly
against those who maintain the ex-
emption.” Williams v. Park, 72 N.
H. 305, 56 Atl. 463, 64 L. R. A. 33.

40. State v. New Orleans Railway
& Light Co, 116 La. 144, 9 Am.
Electl. Cas. 630, 40 So. 597; Fred-
erick Elec. L. & P. Co. v. Mayor, etc.,
of Frederick City, 84 Md. 599, 6 Am.
Elect]. Cas. 644, 36 Atl. 362, 36 L. R.
A. 130; Williams v. Park, 72 N. H.
305, 56 Atl. 463, 64 L. R. A. 33; Com-
monwealth v. Northern Elec. L. & P.
Co., 145 Pa. St. 105, 22 Atl 839;
Commonwealth v. Edison Elec. L. Co.,
16 Law oF HLecrricirty.

York* and Kentucky* contrary conclusions have been
reached. In each of these states the court seems to have
been largely mfluenced by its earlier decision in holding
that a gas company was a ‘‘ manufacturing ’’ company.”

Remedial Statutes The liberal construction which is
accorded to remedial statutes clearly authorizes the courts
to include an electric company among those described in
such statutes as ‘‘ manufacturing’’ companies. For ex-
ample, a law giving a mechanic’s lien upon machinery of
a ‘‘ manufacturing ’’ company is justly construed to per-
mit such a lien upon the property of a company generating

145 Pa. St. 131, 22 Atl. 841, 845;
Commonwealth v. Brush Elec. L. Co.,
145 Pa. St. 147, 22 Atl. 844.

Doubt in Pennsylvania.—The rea-
soning of the Pennylvania cases above
cited has, in part, been disapproved.
Com. v. Keystone Elec. L, & H. & P.
Co., 193 Pa. St. 245, 44 Atl. 326;
reversing, 4 Lack. Leg. N. 353, 2
Dauph. Co. Rep. 1. See also, South-
ern Elec, L. & P. Co. v. City of Phila-
delphia, 191 Pa. St. 170, 43 Atl.
123.

41. People ex rel. Brush Elec. Mfg.
Co., 129 N. ¥. 543, 4 Am. Electl. Cas.
563, 29 N. E. 808, 42 St. Rep. 272.
See also, People ex rel. Edison Elec.
‘L. Co. v. Campbell, 88 Hun (N. Y.),
527, 6 Am. Electl. Cas. 653, 34 N. Y.
Supp. 711. 4

When electric company not a man-
ufacturer in New York.— A _ corpo-
ration which owns and leases patents
relating to electricity, and derives its
principal revenuue from royalties and
sale of patents which are used by
other corporations in which it is a
stockholder and owner of bonds is-
sued by it, and which itself runs no
wires and furnishes no electric light,
is not a manufacturing corporation,
so as to exempt it from taxation
upon its capital stock. People ex rel.
Edison Elec. L. Co. v. Campbell, 88

Hun 530, 6 Am. Electl. Cas. 656, 34
N. Y. Supp. 713.

42. Kentucky Electric Company ‘v.
‘Buechel, 146 Ky. 660, 143 S. W. 58,
38 L. R. A. (N. 8.) 907.

Exemption of appliances.— Though
‘the power plant was exempted as
a “manufacturing” establishment,
the companies appliances, such as
poles, wires, etc., being used in the
transmission and not in the manu-
facturing of the current, are not
entitled to the exemption. Kentucky
Electric Co. v. Buechel, 146 Ky. 660,
143 S. W. 58, 38 L. R. A. (N. 8.) 907.

43 “When we attempt to establish
the proposition that the gas which
lights one room is a manufactured
product, and the electricity which
lights another is not, we are obliged
to rely more upon the definition of
terms and the distinctions of scien-
tists than the actual practical proc-
esses and operations by means of
which results, in all respects or at
least substantially the same, are pro-
duced.” People ex rel. Brush Elec.
Mfg. Co. v. Wemple, 129 N. Y. 543,
29 N. E. 808, 4 Am. Electl. Cas. 563,
42. N. Y. St. Rep. 272.

““ This court has twice held that
@ company engaged in the manu-
facture of artificial gas was a manu-
facturing concern. It is possible
IntRopucToRY. . 17
electricity.** The same principle is involved in ‘‘ Employ-
ers’ Liability ’’ acts, in the construction of which, in order
to provide a more generous rule in behalf of injured serv-
ants, liberality in favor of employees prevails. No reason
is apparent for imposing a less degree of accountability to
workmen of an electric company than is imposed upon
strictly manufacturing companies, and, in the absence of
express words denoting a discrimination in favor of elec-
tric companies, none should be inferred. Hence it is not
surprising to find that an electric plant is a ‘‘ manufactur-
ing establishment ’’ as such phrase is used in an employers’
liability act.*°

Condemnation Statutes— An electric company devotes
its property to a public use so that legislative bodies may
constitutionally invest it with the power of eminent do-
main.** An electric company, being entitled to exercise the
right of eminent domain whenever the legislature so wills,
and such power being essential to the building and develop-
ment of its system, the courts seem anxious to construe
condemnation statutes so that such companies will have
the required authority. In the absence of a statute specific-
ally granting to electric companies the right of condemna-
tion, such power may be held to be granted by acts giving
it to ‘‘ mills ”’ or ‘‘ manufacturing ’’ companies.**7 On the

that some distinction may be drawn
between the making of artificial gas
from coal by means of machinery,
and the conversion of the heat units
or latent electricity in coal and
water into electricity, whereby the
one may be termed manufactured and
the other not. But we are unable ta
draw so fine a distinction.” Ken-
tucky Elec. Co. v. Buechel, 146 Ky.
660, 143 S. W. 58, 38 L. R. A. (N. 8.)
907.

44. Bates Machine Co. v. Trenton,
70 N. J. L. 684, 58 Atl. 935, wherein
it was said: “Where * * * the
word is employed solely as descrip-
tive of machinery and used in a
remedial statute, there is nothing to

2

prevent, and nothing should prevent,
the court from giving to the term
‘manufacture’ the broadest meaning
that it has acquired in the language
of eommon people in speaking gen-
erally of mechanical enterprises. Es-
pecially is this so when such reme-
dial legislation concerns the relation
of debtor and creditor with respect
to mechanism, which, by a combina-
tion of labor and capital, produces
a result that is to the common mind,
in this respect, indistinguishable from
ordinary manufaeturing operations.”

45. Angola Ry. & Power Co. v.
Butz, 52 Ind. App. 420, 98 N. E. 818.

46. § 70.

47. McMillan v. Noyes, 75 N. H.
18 ; Law or ELEcrricity.

other hand, where a statute confers the right of eminent
domain upon certain corporations, except ‘‘ manufactv'1r-
ing ’’ corporations, an electric company, in order that it
may have the privilege of condemnation, will be helcl
not to be a ‘‘ manufacturing’’ company within such an)
exception.*®

Corporate Consolidation.— Electric companies have bee?
held to be ‘‘manufacturing’’ corporations within thes
meaning of a statute permitting the consolidation of such
corporations.”

Corporate Reorganization.— Under a statute authorizing
the reorganization of manufacturing companies by the pur-
chasers of their rights and franchises upon a sheriff’s sale,
it has been held that reorganization may be had by the
purchasers of the rights and franchises of an electric
company.”

Contracts.— In passing from the construction of statutes
to that of written instruments, no reason is obvious why
a different — or even an absolutely consistent — rule should
apply. The object of the judiciary is merely to discover
so far as possible the intent of their fellow-men:—in the
case of statutes, that of the members of the legislature, in
the case of contracts, that of the contracting parties. In
the case of a building covenant, restrictive as to ‘‘ manu-
facturing ’’ enterprises, it is reasonable to infer that the
intention is to avoid the obnoxious results of large mechan-
ical equipment, which in the case of an electric company
may be a nuisance,” and that the parties had no thought
of the possible distinction’ between ‘‘ generating’’ and
‘‘ manufacturing.’? Hence a power house will be held a
violation of such a covenant.”

258, 72 Atl. 759; Lucas v. Ashland
L. Mill & P. Co., 92 Neb. 550, 138
N. W. 761; Lamborn v. Bell, 18 Colo.
346, 4 Am. Elect]. Cas. 573, 32 Pace.
989.

48. Hagerla v. Mississippi
Power Co., 202 Fed. 776.

49. Beggs v. Edison Elec.

River

Tilum.

Co., 96 Ala. 295, 3 Am. Electl. Cas.
504, 11 So. 381.

50. Commonwealth v. Keystone
Elee. L., H. & P. Co., 193 Pa. St.
245, 44 Atl, 326,

51. § 429.

52. Scrymser v. Seabright Elee. L.
Co., 74 N. J. Eq. 587, 70 Atl, 977.
InTRODUCTORY. 19

Sec. 8. Street Railway Companies.

Street railroads have been defined as ‘‘ railroads con-
structed upon streets or highways for the purpose of facil-
itating the use thereof in the transportation of persons
and property.’’* Though commonly using electricity as a
motive power, they are not ‘ electric’’ companies as that
term is used in this work. Their use, however, of high ten-
sion currents requires their consideration ;— at least so far
as litigation ensues from their wires and electric current.
Some companies have procured charters which authorize
them to engage in the street railway business and also to
furnish light, heat, and power to individuals and other
corporations. A mixed corporation of this class, for the
purpose of constructing and operating its line of railroad,
is a street railway corporation; but, for the purpose of
manufacturing and selling electric current and constructing
lines of poles and wires to supply its customers therewith,
is an electric company.** It is none the less a street rail-
way company because it has authority to furnish electric
energy to the public; by furnishing electricity to others,
it may also become an electric company.”

In some cases street railway companies use a force other
than electricity as a motive power. In such event, no
electrical question arises which comes within the scope of
this work. In other cases, even where electric current is
used for motive purposes, many street railway questions
arise which are not associated with electricity. It is not
intended that this work shall include a discussion of col-
lateral street railway questions merely because electricity
may be used as a motive power for street cars. For a
thorough discussion of the law relative to street railways,
one should refer to the works upon that branch of law,
such as Nellis on Street Railways.

53. Nellis, Street Railways, (2nd 55. F. W. Cook Investment Co. v.
ed.), § 1. Evansville Terminal Ry., 175 Ind.
54, Williams v. Northern Texas 3, 93 N. E. 279.
Traction Co., (Tex. Civ. App.) 107 56. §§ 385-389.
S. W. 125.

H
20 Law or ELectrsiciry.

Sec. 9. Telegraph and Telephone Companies; in General.

Telegraph and telephone companies are public service
corporations” and are sometimes classified as common
carriers.® Being quasi-public corporations, they must
act without discrimination; are subject to state and
municipal regulation; and, as a recompense for such lia-
bilities, may be granted the right of eminent domain.”
While the legislature has power to authorize a telegraph or
telephone company to do an electric lighting business, the
exercise of such power is an extraordinary event; and
generally such companies are not to be considered electric
companies.” But, like street railway and many other com-
panies, they have rights and liabilities, analogous to those
of electric companies, a discussion of which will materially
enhance the value of this work.

A railroad company operating a telegraph line for its pri-
vate use, and not for profit, is not a telegraph company.*

Sec. 10. Telegraph and Telephone Companies Contrasted.

Telegraph and telephone companies are both public serv-
ice corporations engaged in the transmission of intelli-
gence. They both use poles and wires with electricity as
a medium of transmission.” But beyond this, it is difficult

57. Primrose v. Western Union
Teleg. Co., 154 U. 8S. 1, 5 Am. Electl.
Cas. 809, 14 S. Ct. 1098, 38 L. ed.
883; Strong v. Western Union Teleg.
Co., 18 Idaho 409, 109 Pac. 910;
Hockett v. State, 105 Ind. 250, 2
Am. Electl. Cas. 1, 5 N. E. 178, 55
Am. Rep. 201, 11 Am. & Eng. Corp.
Cas. 577; York Telep. Co. v. Keesey,
5 Pa. Dist. Rep. 366, 6 Am. Electl.
Cas. 107; City of Wichita v. Mis-
souri, etc., Telep. Co., 70 Kan. 441,
78 Pac. 886,

58. See note in 8 Am. Electl. Cas.

873.
59. § 337.
60. §§ 74, 75.

61. See Brown v. Maryland Telep.

& Teleg. Co. of Baltimore, 101 Md.
574, 9 Am. Electl. Cas. 609, 61 AtL
338.

62. Alt v. State, 88 Neb. 259, 129
N. W. 432, 35 L. R. A. (N. S.) 1212.

63. Adams v. Louisville, ete., Ry.
Co. (Miss.) 13 So. 932.

64. § 9.

65. Judicial views of similarity —
“They are both services of a public
nature which would permit the legis-
lation to confer the power to con-
demn for each use. They are both
destined to convey intelligence be-
tween distant places. So far as the
owner over whose land their tracks
or routes lie, they each are operated
with the same appliances. Polesand
InTRODUCTORY. 21

to find points of similarity. The two methods of communi-
cation are not confused or considered alike by persons with
no legal training; and, were it not for a number of deci-
sions holding that the telephone is a form of the telegraph,*
it would not be thought necessary to point out their dis-

similarity.

Etymology.— From an etymological point of view, there
is a decided difference in the meaning of the two terms:
telephone conveying the idea of the transmission of sound
to a distance; and telegraph, the conveyance of writing.

wires, placed alike, impose exactly
the same servitude upon the land.
With the change in the apparatus at
the termini, telegraphy becomes tele-
phony.” State v. Central N. J. Tel.
Co., 3 Am. Electl. Cas. 546, 53 N. J.
L. 341, 21 Atl. 460.

“Tn these days there ought to be
no one to question the statement that
a telephone is simply an improved
telegraph. The former was formerly
called the speaking telegraph. The
instruments used at the terminals
are different, but the poles, wires, the
insulators, and the generation of the
electric current are all the same.”
Northwestern Telep. Exch. Co. v. Chi-
cago, etc., R. Co., 76 Minn. 334, 79
N. W. 315.

“Of course there is a distinction
between the two classes of business,
but in almost every respect they are
very similar, if not identical. Each
of them must erect its poles or posts,
and upon the tops of them attach its
lines of wire from point to point.
Each must almost necessarily enter
upon, along, or across public roads,
highways, streams, bodies of water,
and upon the lands of individuals,
for the purposes mentioned. In these
respects they seem to be identical.
One may require more lines of wire
than the other, but we are not aware
of any other distinction outside of

their offices or places of operation,
distinguishable to the naked eye.”
Wisconsin Telep. Co. v. Oshkosh, 62
Wis. 32, 1 Am. Elect]. Cas. 687, 21
N. W. 828.

“Telegraphic companies and tele-
phone companies are both public
utilities used for the transmission of
intelligence between distant places.
The use of poles and wires, with elec-
tricity as the medium of transmis-
sion, is the same in both. To change
one to the other is only to change
the apparatus at the termini. Sub-
stantially the same public function is
being executed in substantially the
same way by corporations employing
either means of communication.
There is really ‘no difference in char-
acter between telegraph companies
and telephone companies. The same
language employed, to extend rights
to a telegraph company, with only
the change of name, may be used to
confer rights upon telephone com-
panies. Because of this similarity
in construction and use the courts of
many of the states have held gen-
eral legislative enactments extending
rights to telegraph companies to in-
clude alike, and apply as well to, tele-
phone companies.” City of Wichita
v. Missouri, etc., Telep. Co., 70 Kan.
441, 78 Pac. 886.

66. § 11.
22 Law or Huecrriciry.

Ktymologically speaking, there is a sharper distinction
between the words than is warranted by their meaning as
given by lexicographers.”

Equipment.— The poles, wires, and electrical apparatus
are practically the same in telephony as in telegraphy.
The receiving and transmitting appliances, are, however,
entirely dissimilar, while a telegraph system has no office
analogous to the modern ‘ central.’’

Number of Wires and Poles.— In the telegraph business,
in a city or village of average size, but one office is main-
tained with but one set of wires and poles running through
the municipality.®

Directness in Communication.— When using the tele-
phone, one talks directly with the person desired. In com-
parison with this direct method, the procedure of sending
and receiving a telegram indicates a vital difference in the
methods of communication.

Local Business.— The telephone may be used for long

communication, but its greatest development has been along
the lines of local communication, while the telegraph is

67, Telegraph.— “An apparatus for
transmitting intelligible messages to
a distance. * * * In its later and
more restricted sense, the name is
applied to some form of apparatus
employing electricity and transmit-
ting more than mere calls or sig-
nals.” Century Dictionary.

Telephone.— “An instrument or ap-
paratus for the transmission of
sound to a distant point. The word
is generally restricted to devices for
the transmission of articulate speech
by the agency of electricity.” Cen-
tury Dictionary.

68. “A telegraph system does not
require so many wires, poles, and
fixtures as does a telephone system.
In a city like Nashville a telegraph
would require but one or two lines
and rights of way for purposes of
entrance and exit. It would have

but few stations, from which mes-
sages would be delivered to the
various parts of the city by messen-
gers. A telephone system, however,
to be effective, requires not only
rights of way to enter and leave the
city, but also to occupy all its streets
and alleys, and to enter its business
houses, residences, and other places,
thus making it necessary to use many
poles and wires and other fixtures,
in order to do the business expected
of it. It must therefore, necessarily,
make use of the streets and alleys
generally of the city, and incumber
them with a network of wires and
poles and fixtures, to a much greater
extent than a telegraph system would
do.” Home Teleg. Co. v. City of
Nashville, 118 Tenn. 1, 101 S. W. 770,
11 Ann. Cas. 824,
InTRODUCTORY. 23

used exclusively for sending messages to persons in other
cities or villages.

Skilled Operators.— A telephone, with the assistance of
the central office can be operated by any one,— even a child.
On the other hand, no one except a skilled operator can
send and interpret the telegraphic sounds.”

Sec. 11. Telegraph and Telephone Companies; ‘‘ Tele-
phone’’ as ‘‘ Telegraph.’

In the early history of the telephone, the distinction
between the telephone and the telegraph was less marked
than at the present time. At the time of the invention of:
the telephone, the telegraph had been in practical operation
for a number of years, and consequently, in many states,
statutes had been enacted providing for the organization
of telegraph companies and giving such companies priv-
ileges or imposing liabilities upon them. With the advent
of the telephone and the absence of statutory provisions
relative to the latter invention, the courts found it advisable
to extend the meaning of ‘‘ telegraph ’’ so as to include
‘‘telephone.’’ The great similarity between the motive
power, and the use of poles and wires, easily overcame the
vital differences which existed in the operations, in the
names and in the transmitting and receiving instruments.

69. “A telegraph line does no
purely local business, but simply runs
through a town or city, having
therein one or more offices where
messages are received and transmit-
ted by trained operators. The result
is that its use of public streets for
the purposes of its poles and wires
is limited to its main through line,
and such branches as are essential
to connect with its various offices,
which are necessarily very few in
number. While the telephone is also
used for long distance communica-
tion, its most common use is for
communication among the people of
a particular city or town.’ Sunset

Telep. & Teleg. Co. v. City of Pasa-
dena, 161 Cal. 265, 276, 118 Pac. 796.

70. “ Skilled experts, only, can
operate the,telegraph; but any child
may operate, or assist in operating,
the telephone. Only the employees
of the telegraph can manipulate its
instruments and understand its sig-
nals; but all the patrons and the
publie generally co-operate with the
employees of the telephone in its use.
The telephone transmits the human
voice. The telegraph does not.”
Home Teleg. Co. v. City of Nashville,
118 Tenn. 1, 101 S. W. 770, 11 Ann.
Cas. 824.
24 Law or ELecraricity.

Thus, in the construction of statutes enacted before the
invention of the telephone or when such invention was in
its infancy, it has generally been held, both in England and
in this country, that the telephone is a ‘‘ telegraph ’’ within

the meaning of such statutes.”

Among the statutes so

construed have been those granting the right of eminent
domain,” the right to use public streets and _ high-

71. United States— Cumberland
Teleg. & Telep. Co. v. United Ry. Co.,
42 Fed. 273, 3 Am. Electl. Cas. 408,
12 L. R. A. 544. Compare Richmond
v. Southern Bell Telep. Co., 174 U. 8.
761, 7 Am. Elect]. Cas. 788, 19 S. Ct.
778, 43 L. ed. 1162.

California— Davis v. Pacific Telep.
& Teleg. Co., 127 Cal. 312, 59 Pac.
698.

Iowa.— Iowa Union Telep. Co. v.
Board of Equalization, 67 Iowa 250,
1 Am. Electl. Cas. 799, 25 N. W. 155;
Franklin v. Northwestern Telep. Co.,
69 Iowa 97, 2 Am. Electl. Cas. 439,
28 N. W. 461.

Kansas.— City of Wichita v. Mis-
souri, etc., Telep. Co., 70 Kan. 441,
78 Pac. 886.

Maryland.— Chesapeake & Potomac
Telep. Co. v. Baltimore & Ohio Teleg.
Co., 66. Md. 399, 7 Atl. 809, 2 Am.
Electl, Cas. 416, 59 Am. Rep. 167;
Chesapeake & P. Telep. Co. v. Balti-
more, 89 Md. 689, 7 Am. Electl. Cas.
135, 43 Atl 784, 44 Atl. 1033.

Minnesota.— Northwestern Telep.
Exch. Co. v. Chicago, ete., Ry. Co.,
76 Minn. 334, 79 N. W. 315.

New Jersey Wray v. Mott, 83
N. J. L. 110, 83 Atl. 866; State v.
Central N. J. Telep. Co., 53 N. J. L.
341, 3 Am. Electl. Cas, 546, 21 Atl.
460.

New York—Eels v. American
Telep. & Teleg. Co., 143 N. Y. 133,
5 Am. Elect]. Cas. 92, 38 N. E. 202.

Pennsylvania. Peoples Telep. &
Teleg. Co. v. President, etc. Turn-
pike Road, 199 Pa. St. 411, 49 Atl.

284; Central Penn. Telep. & Supply
Co. v. Wilkesbarre & West Side Ry.
Co., 11 Pa. Co. Ct. 417, 4 Am. Electl.
Cas. 260; York Telep. Co. v. Keesey,
5 Pa. Dist. Rep. 366, 6 Am. Electl.
Cas. 107; Commonwealth v. Pennsyl-
vania Telep. Co., 18 Phila. (Pa.)
588, 1 Am. Electl. Cas. 863, 42 Leg.
Int. 180; Bell Telep. Co. v. Com., 17
W. N.C. (Pa.) 505, 2 Am. Electl.
Cas. 407.

Texas.— San Antonio, etc., Ry. Co.
v. Southwestern, etc., Telep. Co., 93
Tex. 313, 55 S. W. 117, 49 L. RB. A.
459, 77 Am. St. Rep. 884; City of
Brownwood v. Brown Teleg. & Telep.
Co., 157 S. W. 1163; Southwestern
Teleg. & Telep. Co. v. Gulf, ete., Ry.
Co., 52 S. W. 106; San Antonio, etc.,
Ry. Co. v. Southwestern Teleg. &
Telep. Co., 56 S. W. 201; Gulf, etc.,
Ry. Co. v. Southwestern, etc., Telep.
Co., 25 Tex. Civ. App. 488, 61 8S. W.
406; Bishop v. Riddle, 51 Tex. Civ.
App. 317, 113 8. W. 151; City of
Brownwood v. Brown Teleg. & Telep.
Co., (Tex. Civ. App.) 152 S. W. 709.

Wisconsin.— Wisconsin Telep. Co.
v. City of Oshkosh, 62 Wis. 32, 1
Am. Electl. Cas. 687, 21 N. W. 828.

England.—Attorney-General v. Edi-
son Telep. Co. of London, L. R. 6
Q. B. D. 244, 2 Am. Electl. Cas. 440,
43 L. T. 687, 50 L. J. Q. B. 440.

72, State v. Central N. J. Telep.
Co., 53 N. J. L. 341, 3 Am. Electl.
Cas. 546, 21 Atl. 460; York Telep.
Co. v. Keesey, 5 Pa. Dist. Rep. 366,
6 Am. Elect. Cas. 107; San Antonio,
etc, Ry. Co. v. Southwestern, etc.,
InTRODUCTORY. 25

ways; those relative to the incorporation, or taxation
of,” or discrimination’ by such companies; or relative to
the venue of actions against telegraph companies.” Like-
wise penal statutes, in spite of the strict construction gen-
erally accorded such, have been so interpreted.”* As the
decisions hold that the telephone is but a different form of
the telegraph, it is not material that the statute in ques-
tion was enacted long before the telephone was invented.”

The doctrine that the ‘‘ telephone ’’ is a form of the ‘‘ tele-
graph ’’ received a decided check** when the United States
Supreme Court held® that telephone companies are not

-Telep. Co., 93 Tex. 313, 55 8. W. 117,
49 L. R. A. 459, 77 Am. St. Rep. 884;
San Antonio, etc., Ry. Co. v. South-
western Teleg. & Telep. Co., (Tex.
Civ. App.) 56 S. W. 201; South-
western Teleg. & Telep. Co. v. Gulf,
etc., Ry. Co., (Tex. Civ. App.) 52
S. W. 106; Gulf, ete., Ry. v. South-
western, etc., Telep. Co., 25 Tex. Civ.
App. 488, 61 S. W. 406.

73. City of Wichita v. Missouri,
etc., Telep. Co., 70 Kan. 441, 78 Pac.
886; Eels v. American Teleg. & Telep.
Co., 143 N. Y¥. 133, 5 Am. Electl. Cas.
92, 38 N. E. 202; Peoples Telep. &
Teleg. Co. v. President, etc., Turn-
pike Road, 199 Pa. St. 411, 49 Atl.
284; Central Penn. Telep. & Supply
Co. v. Wilkesbarre & West Side Ry.
Co., 11 Pa. Co. Ct, 417, 4 Am. Elect.
Cas. 260; City of Brownwood v.
Brown Teleg. & Telep. Co., (Tex.) 157
S. W. 1163; Bishop v. Riddle, 51
Tex. Civ. App. 317, 113 S. W. 151;
City of Brownwood v. Brown Teleg.
& Telep. Co., (Tex. Civ. App.) 152
S. W. 709.

74, Hudson River Telep. Co. v.
Watervliet Turnpike Co., 135 N. Y.
393, 4 Am. Electl. Cas. 275, 32 N. E.
148, 17 L. R. A. 674, 31 Am. St. Rep.
838; Central Penn. Telep. & Supply
Co. v. Wilkesbarre & West Side Ry.
Co., 11 Pa. Co. Ct. 417, 4 Am. Electl.

Cas. 260; Wisconsin Telep. Co. v.
City of Oshkosh, 62 Wis. 32, 1 Am.
Elect]. Cas. 687, 21 N. W. 828.

75. Iowa Union Telep. Co. v. Board
of Equalization, 67 Iowa 250, 1 Am.
Electl. Cas. 799, 25 N. W. 155; Com-
monwealth v. Pennsylvania Telep.
Co., 18 Phila. (Pa.) 588, 1 Am.
Electl. Cas. 863, 42 Leg. Int. 180.

76. Chesapeake, etc., Telep. Co. v.
Baltimore, ete, Teleg. Co., 66 Md.
99, 2 Am. Electl. Cas. 416, 7 Atl. 809,
59 Am. Rep. 167:

77. Franklin v. Northwestern Telep.
Co., 69 Iowa 97, 2 Am. Electl. Cas.
439, 28 N. W. 461.

78. Davis v. Pacific Telep. & Teleg.
Co., 127 Cal. 312, 59 Pac. 698.

79. Hudson River Telep. Co. v.
Watervliet Turnpike Co., 135 N. Y.
393, 4 Am. Elect]. Cas. 275, 32 N. E.
148, 17 L. R. A. 674, 31 Am. St. Rep.
838; Attorney-General v. The Edison
Telep. Co. of London, L. R. 6 Q. B. D.
(Eng.) 244, 2 Am. Elect]. Cas. 440,
43 L. T. 687, 50 L. J. Q. B. 440.

80. See Pennsylvania Telep. Co, v.
Hoover, 24 Pa. Super. Ct. 96.

81. Richmond v. Southern Bell
Telep. Co., 174 U. S. 761, 7 Am.
Electl. Cas. 788, 19 S. Ct. 778, 43
L.. ed. 1162; affirming 85 Fed. 19, 28
C. C. A. 659.
26 Law or ELECTRICITY.

‘‘telegraph companies ’’ within the meaning of the Post
Roads Act. This decision was based on the essential
difference between the two modes of communication, and
on the fact that the telephone had not been invented in 1866
when the Post Roads Act was passed.** Since the decision
of the Supreme Court, it has several times been decided
that the telephone is not a ‘‘ telegraph ’’ as that term was
intended in certain statutes.** Thus, it has been held that
a telephone company is not entitled to maintain its line
along a highway under a statute granting such a right to
telegraph companies. Likewise, it has been decided that
a statute authorizing telegraph companies to exercise the.
right of eminent domain does not confer such power upon

82. Post Roads Act.— As to the
nature and effect of the Post Roads
Act, see §§ 176-186.

83. “The question is, not what

Congress might have done in 1866,.

nor what it may or ought now to do,
but what was in its mind when
enacting the statute in question.
Nothing was then distinctly known
of any device by which articulate
‘speech could be electrically trans-
mitted or received between different
points, more or less distinct from
each other, nor of companies organ-
ized for transmitting messages in
that mode. Bell’s invention was not
made public until 1876. Of the dif-
ferent modes now employed to electri-
cally transmit messages between dis-
tinct points, Congress in 1866 knew
only of the invention then and now
popularly called the telegraph.
When, therefore, the Act of 1866
speaks of telegraph companies, it
could have meant only such com-
panies as employed the means then
used or embraced by existing inven-
tions for the purpose of transmitting
messages merely by sounds of instru-
ments and by signs or writings.”

Richmond v. Southern Bell Telep.
Co., supra.

“Tt is not the function of the judi-
ciary, because the discoveries after
the Act of 1866, to broaden the pro-
visions of that act so that it will
include corporations or companies
that were not, and could not have
been at that time, within the con-
templation of Congress.” Richmond
v. Southern Bell Telep. Co. supra.

84. Sunset Telep. & Teleg. Co. v.
City of Pasadena, 161 Cal. 265, 118
Pac. 796; Alabama, ete., Ry. Co. v.
Cumberland Telep. & Teleg. Co., 88
Miss, 438, 41 So. 258; Home Teleg.
Co. v. City Council of Nashville, 118
Tenn. 1, 101 S. W. 770, 11 Ann. Cas.
824,

The Supreme Court of the United
States will follow the highest court
of a state in construing a “ tele-
graph” statute as not including
“telephone” companies. City of
Pamona v. Sunset Telep. & Teleg. Co.,
224 U.S. 330, 32 S. Ct. 477, 56 L. Ed.
788; reversing 172 Fed. 829, 97 C.
C. A. 251.

85. Sunset Telep. & Teleg. Co. v.
City of Pasadena, 161 Cal. 265, 118
Pac. 796.
INTRODUCTORY. 27

telephone companies." These decisions were reached
whether the particular law was enacted before® or after®
the invention of the telephone; and regardless also of the
circumstance that the court had contrarily decided with
reference to other statutes of the same jurisdiction.”

Conclusion.— While the weight of authority, numerically
speaking, requires courts to hold that ‘‘ telephone ’’ com-
panies are ‘‘ telegraph’’ companies, at least as to early
statutes, it must be noted that very high authorities have
concluded to the contrary. It seems clear, however, that a
twentieth century statute referring to telegraph companies
and making no mention of telephone companies should be
construed not to include the latter. Several reasons for.a
change of view on the question are apparent. In the first
place, the evolution of the telephone has proceeded along
lines dissimilar to the growth of the telegraph, so that, as
indicated in the preceding’ section, the present difference
between the two systems is very large and is steadily
increasing. Secondly, the forty years which have elapsed
since the invention of the telephone have given every oppor-
tunity to the law-makers to include telephone companies in
statutes relating to telegraph companies, were it their inten-
tion that they be included; and it may now be argued with
great force that the omission of ‘‘ telephone ’’ from stat-
utes pertaining to the ‘‘ telegraph ’’ was intentional. In
other words, the maxim expressio unius est exclusio alterius
applies.

Sec. 12. Appliances.

A treatise on the subject of electricity would be incomplete
if it did not give considerable attention to the appliances
intimately associated with the electric current. Of these
appliances the most important, from a legal point of view,

86, Alabama, etc., Ry. Co. v. Cum- 88. Alabama, etc., Ry. Co. v. Cum-
berland Telep. & Teleg. Co., 88 Miss. berland Telep. & Teleg. Co., 88 Miss.
438, 41 So. 258. 438, 41 So. 258.

87. Sunset Telep. & Teleg. Co. v. 89. Sunset Telep. & Teleg. Co. v.

City of Pasadena, 161 Cal. 265, 118 City of Pasadena, 161 Cal. 265, 118
Pac. 796. Pac. 796.
28 Law oF Hukcrriciry.

are the wires conducting the current and the poles sup-
porting the wires. Other appliances, however, will receive
attention proportional to their importance.

Sec. 13. Appliances as Real or Personal Property.

Not a little difficulty has been experienced by the courts.
in determining whether electric appliances are real or
personal property. The numerous decisions on the subject
cannot be entirely reconciled. The difference in the conclu-
sions reached may be partially explained by the perma-
nency with which the appliance was annexed to the freehold
in the particular case; greater permanency existing in some
cases than in others. The variation in particular statutes
sought to be construed may also help to account for deci-
sions apparently contradictory. No general rule can be
promulgated which will be of material assistance and yet
be said to be supported by the weight of authority.

Taxation.— Telegraph lines have been held to be real
property for the purposes of taxation,®® but the reason-
ing of the principal American authority supporting this
rule is not persuasive. The decision was based on the
analogy between the character of telegraph lines and
rolling stock and assumed that rolling stock was realty;
when, in. fact, though there are conflicting decisions,
the weight of authority seems to hold that rolling stock
is personal property. Under other tax statutes, how-
ever, it has been held that poles and wires for the trans-

90. Western Union Teleg. Co. v.
State of Tennessee, 9 Baxt. (Tenn.)
509; Electric Teleg. Co. v. Overseers
of the Poor of Salford, 24 L. J. N. 8.
Mag. Cas. 146, Allen’s Teleg. Cas.
27; Lancashire Telep. Co. v. Over-
seers of the Poor of Manchester, 52
L. T. 793; Bell Telep. Co. v. Ascot,
Quebec Rep. (16 C. S.) 436.

“We treat the telegraph line as
partaking of the nature of realty,
in analogy to the now settled doc-
trine that railroads and rolling stock

necessary to their use running alone
on their tracks are so treated. We
are aware that this is not strictly
within the definitions of realty as
found in the ancient common law,
but those definitions were formed in
a ruder age than this, and must be
accommodated to the advance of the
age by sound analogies as demanded
by the exigencies of our diversified
development.” Western Union Teleg.
Co. v. State, 9 Baxt. (Tenn) 509, 1
Am. Electl. Cas. 326, 40 Am. Rep. 99.
INTRODUCTORY. 29

mission of electric currents are not real estate.** And the
same conclusion has been reached as to dynamos,®” switch
boards,** electric lamps,** and telephone conduits. Especi-
ally should switches, wires, conduits, meters, and such
equipment be considered personalty when they are not
located on the company’s lands, but on private property of
its customer or of other persons.* The engine, dynamos,
and other heavy and cumbersome machinery in the power
houses are usually so permanently affixed to the realty of
an electric company that they should be considered real

estate for taxation as well as all other purposes.”

91. Shelbyville Water Co. v. People
ex rel. Craddick, 140 Ill. 545, 4 Am.
Elect]. Cas. 559, 30 N. E. 678; New-
port Illum. Co. v. Tax Assessors, 19
R. I. 632, 6 Am. Electl. Cas. 659,
36 Atl. 426, 36 L. R. A. 266. See also,
Town of Westmount v. Montreal L.,
H. & P. Co., 44 Can. Sup. Ct. 364.

Electric light wires, lamps, and
poles, connected with the machinery
at the works of the company, are
personal property for the purposes
of taxation. Shelbyville Water Co.
v. People ex rel. Craddick, 140 Ill.
545, 4 Am. Electl. Cas. 559, 30 N. E.
678. 4

92. Newport Illum. Co. v. Tax As-
sessors, 19 R. I. 632, 6 Am. Electl.
Cas. 659, 36 Atl. 266, 36 L. R. A. 266.

93. Newport Illum. Co. v. Tax As-
sessors, 19 R. I. 632, 6 Am. Electl.
Cas. 659, 36 Atl. 266, 36 L. R. A, 266.

94, Shelbyville Water Co. v. People
ex rel. Craddick, 140 Ill. 545, 4 Am.
Electl. Cas. 559, 30 N. E. 678.

95. City of Portland v. New Eng-
land Telep. & Teleg. Co., 103 Me.
240, 68 Atl. 1040, wherein it was
said: “It has been seen that by
virtue of the rules and regulations
of the municipal officers under which
these iron and earthenware tubes
were laid under the surface of the
streets of Portland, the city reserved

And

full right and authority to revoke
or change the location of them when-
ever it might be deemed necessary or
proper, and the defendant company
would be compelled to remove such
conduits ‘whenever ordered to do so
by the Board of mayor and alder-
men.’ Wherever the location might
be made, it was subject to revocation
and change at the order of the mu-
nicipal officers. The quality of per-
manency in the annexation did not
exist. The conduits were obviously
not designed to make the land more
useful. They were not laid for the
benefit of the freehold. There is
nothing in the nature of the pipes,
the mode and purpose of annexation
or the relation of the parties to each
other, to warrant the inference that
the defendant company intended to
relinquish its ownership of the pipes
or that the owner of the soil ex-
pected to acquire title to them by
such annexation. They did not be-
come a constituent part of the free-
hold”

96. People v. Feitner, 45 Misc.
(N. Y.) 12, 9 Am. Elect]. Cas. 173,
90 N. Y. Supp. 826; affirmed, 99
N. Y. App. Div. 274, 90 N. Y. Supp.
904; affirmed without opinion, 181
N. Y. 549, 74 N. E. 1124.

97. People v. Wells, 135 N. Y. App.
30 Law or ELecrriciry.

this is so, though the power plant is built on leased land,”
or though the title to such machinery has not passed to the
electric company.”

Between Debtor and Creditor.— The courts are inclined
to construe statutes so as to afford an honest creditor a
remedy against the property of his debtor. Thus, as
between such debtor and creditor, poles, wires, insulators
and such appliances will be considered personal property
so as to permit a judgment creditor to seize and sell the
same under execution.* And, reaching the same beneficial,
but somewhat inconsistent, conclusion, it will be held that
electric appliances partake of the nature of realty to the
extent that they may be subject to a mechanic’s lien.?, Thus
a lien against an electric company has been allowed to a
creditor for wires,’ for poles,* and for labor upon the

Div. 644, 119 N. Y. Supp. 1057; af-
firmed without opinion, 198 N. Y.
607, 92 N. E, 1097; Herkimer Coun-
ty L. & P. Co. v. Johnson, 37 N. Y.
App. Div. 257, 55 N. Y. Supp. 924.

$8. Herkimer County L. & P. Co.
v. Johnson, 37 N. Y. App. Div. 257,
55 N. Y. Supp. 924.

99. People v. Wells, 135 N. Y. App.
Div. 644, 119 N. Y. Supp. 1057; af-
firmed without opinion, 198 N. Y.
607, 92 N. E. 1097.

1. Readfield Telep. & Teleg. Co. v.
Cyr, 95 Me. 287, 7 Am. Elect]. Cas.
820, 49 Atl. 1047.

The interest of a corporation in an
electric plant erected for the use of
a city under a contract which has
been declared void in a suit by tax-
payers of a city for an accounting as
to the moneys received thereunder,
is not exempt from sale on execution
issued upon the decree obtained in
such suit, on the ground that such
plant is devoted to public use.
Campbell v. Western Elec. Co., 113
Mich. 333, 71 N. W. 644, 4 Det. Leg.
N. 305.

2. Kansas.— Badger Lumber Co. v.

Marion ‘Water Supply, 48 Kan. 182,
4 Am. Electl. Cas. 551, 29 Pac. 476,
30 Pac. 117, 15 L. R. A. 652, 30 Am.
St. Rep. 301, 306.
Missouri.—Southern Electrical Sup-
ply Co. v. Rolla Elec. L. & P. Co., 75

Mo. App. 622.

New Jersey.— Hughes v. Lambert-
ville, ete., P. Co., 53 N. J. Eq. 435,
5 Am. Elect]. Cas. 626, 32 Atl. 69.

New York.— Wahle, ‘Phillips Co. v.
Fifty-ninth St.-Madison Ave. Co., 153

N. Y. App. Div. 17, 138 N. Y.
Supp. 13.
Oregon.— Forbes v. Williamantic

F. Elec. Co., 19 Oreg. 61, 3 Am.
Elect]. Cas. 527, 23 Pac. 670, 20 Am.
St. Rep. 793.

Rhode Island.—Scannevin & Potter
v. Consolidated Mineral Water Co.,
25 R. I. 318, 8 Am. Electl. Cas, 922,
55 Atl. 754.

8. Southern Electrical Supply Co.
v. Rolla Elec. L. & P. Co., 75 Mo.
App. 622; Hughes v. Lambertville,
ete., P. Co., 53 N. J. Eq. 435, 5 Am.
Elect]. Cas. 626, 32 Atl. 69.

4. Badger Lumber Co. v. Marion
Water Supply, 48 Kan. 182, 4 Am.
IntRopuctory. 31

same.’ By way of analogy, it has been held that such liens
may properly be had for work and material in the instal-
lation of interior wiring and lighting fixtures.° These
decisions are not in all cases necessarily to be construed as
holding that electric appliances are real property or that
they become such upon annexation to real estate. A statute
may give a lien on certain property and may call the lien
‘‘mechanie’s’’ lien, without classifying the property as
real or personal property.

Contracts.— Electric appliances, it is evident, occupy a
position midway between real and personal property. In
the absence of a stipulation to the contrary, a mortgage of
an electric plant with its machinery and appurtenances
covers the line of poles and wires connected with the plant.’
And the same is true as to a telegraph line along the right
of way of a railroad; a mortgage of the railroad covers the
telegraph wires.* But such lines, not being clearly either
realty or personalty, may, as between contracting parties,
be deemed either. In other words, such parties may bind

Elect]. Cas. 551, 29 Pac. 476, 30
Pac. 117, 15 L. R. A. 652, 30 Am. St.
Rep. 301, 306.

As a structure Poles set in the
ground, connected together by wire
in the usual way for the transmis-
sion of electricity for the purpose of
light and power, constitute a struc-
ture, within the meaning of section
3669, Hill’s Code, and a lien for labor
performed on such a structure at-
taches. Forbes v. Williamantic F.
Elec, Co., 19 Oreg. 61, 3 Am. Electl.
Cas. 527, 20 Am. St. Rep. 793, 23
Pac. 670.

5. Forbes v. Williamantic F. Elec.
Co., 19 Oreg. 61, 3 Am. Elect]. Cas.
527, 20 Am. St. Rep. 793, 23 Pac.
670.

6. California Portland Cement Co.
v. Wentworth Hotel Co., 16 Cal. App.
692, 118 Pac. 103, rehearing denied,
16 Cal. App. 692, 118 Pac. 113;
Wahle, Phillips Co. v. Fifty-ninth

St.-Madison Ave. Co., 153 N. Y. App.
Div. 17, 138 N. Y. Supp. 13; Scan-
nevin & Potter v. Consolidated Min-
eral Water Co., 25 R. I. 318, 8 Am.
Elect]. Cas. 922, 55 Atl. 754. Contra,
Caldwell v. Glazier, 138 N. Y. App.
Div. 826, 123 N. Y. Supp. 622.

Electrical fixtures and distributing
wires when made fixtures become the
property of the owner of the building
in which they are placed and may be
the subject of a mechanic’s lien.
Rowen v. Alladio, 51 Oreg. 121, 93
Pac, 929.

7. Fechet v. Drake, 2 Ariz. 239, 2
Am. Elect]. Cas. 331, 12 Pac. 694.
See also, Monmouth County Electric
Co. v. Central R. Co. of New Jersey,
(N. J. Eq.) 54 Atl. 140; Dreisbach v.
Ross, 195 Pa. St. 278, 45 Atl. 722.

8. New York, etc., Ry. Co. v. West-
ern Union Teleg. Co., 36 Hun (N. Y.)
205, 1 Am. Electl. Cas. 753.
32 Law or Eecrriciry..

themselves to consider them in either category.® Thus it
has been held that parties may agree that telegraph wires
shall retain their personal character as against an existing
mortgage upon the premises over which they are strung.”®
The owner of a line of telephone wires, where the system
is not appurtenant to any real estate owned by him, may,
by his continual recognition of the property as personalty,
attach such character to it so as to determine the course of
its descent upon his death. The right of one company to
string its wires upon the poles and cross-arms of another
has been held to be an interest in real estate in the nature
of an easement.”

Trespass quare clausum fregit— The remedy in an action
to recover damages for the malicious cutting and conver-
sion of telegraph poles, wires, and insulators, is trespass
quare clausum fregit. Such an action is local in its char-
acter and cannot, in the absence of statute expressly con-
ferring jurisdiction, be maintained in the courts of one
state, if the telegraph line was located in another juris-
diction.**

Sec. 14. Useof Electricity for Effecting Death of Criminals.

Neither the Constitution of the United States nor those
of the several states, so far as the question has been adjudi-
cated, preclude a state law-making body from using elec-
tricity as ameans of putting criminals to death. Within the
meaning of constitutional provisions, the electrocution of
criminals for serious offenses is not a cruel or unusual

9. Boston Safe Deposit, ete, Co. v. Teleg. Co. v. Interstate Telep. &

Bankers’ etc., Teleg. Co., 36 Fed. 288,
2 Am. Elect]. Cas. 882; Zimmerer v.
Stuart, 88 Neb. 530, 130 N. W. 300.

10. Boston Safe Deposit & T. Co.
v. Bankers & Merchants Teleg. Co.,
36 Fed. 288, 2 Am. Electl. Cas. 882.

11. Zimmerer v. Stuart, 88 Neb.
530, 130 N. W. 300.

12. Streator Independent Telep. &

Teleg. Co., 142 Ill. App. 183.

13. American Union Teleg. Co. v.
Middletown, 80 N. Y. 408.

An electric hoist used in mining,
with the superstructure and engine
house surrounding it, are fixtures.
Arnold v. Goldfield Third Chance
Min. Co., 32 Nev. 447, 109 Pac. 718.
IntTRODUCTORY. 33

punishment.** Nor can a statute fixing such means in lieu
of other methods for the infliction of death be considered
an ea post facto law, though it applies to crimes committed
before the enactment of the statute.’

14. Matter of Kemmler, 136 U. 8.
436, 3 Am. Electl. Cas. 842, 10 8. Ct.
930, 34 L. Ed. 519; In re Storti, 178
Mass. 549, 7 Am. Electl: Cas. 817, 60
N. E, 210, 52 L. R. A. 520; People
ex rel. Kemmler v. Durston, 119 N.
Y. 569, 3 Am. Electl. Cas. 834, 24
N. E. 6; State v. Tomassi, 75 N. J.
L. 739, 69 Atl, 214. “ Punishment
by death, in a general sense, is cruel;
but, as it is authorized and justified
by a law, adopted by the people as a
means to the end of the better secu-
rity of society, it is not cruel within
the sense and meaning of the Con-
stitution. The infliction of the death
penalty through a new agency, is, of
course, unusual; but‘as death is in-
tended as the immediate sequence of
the mechanical operation prescribed,
it is not unusual in the sense that
some certainly prolonged or torturous
procedure would be understood to be.
In my judgment, we should assume
that the enactment of the legislature
was based upon some investigation of
facts, and where the declared purpose
and end of the law are the infliction
of death upon the offender, we may
not say, upon a groundwork of pos-
sibilities and guess work, that it is,
in any sense, an unconstitutional act,
because a new mode is adopted to
bring about the death.” People v.
Kemmler, 119 N. Y. 580, 24 N. E. 9.
“Taking all the preliminaries most
favorable: for the prisoner, we are
clearly of opinion that the constitu-
tion is not contravened by the act,
and we render our opinion at once
that we may avoid delaying the
course of the law and raising false
hopes in his mind. The answer to

3

the whole argument which has been
presented is that there is but a single
punishment, death. It is not con-
tended that if this is true the stat-
ute is invalid, but it is said that it
is not true, and that you cannot sep-

arate the means from the end in

considering what the punishment is,
any more when the means is a cur-
rent of electricity than when it is a
slow fire. We should have thought
that the distinction was plain. In
the latter case the means is adopted
not solely for the purpose of accom-
plishing the end of death but for the
purpose of causing other pain to the
person concerned.

The so-called means is also an end
of the same kind as the death itself,
or in other words is intended to be
a part of the punishment. But when,
as here, the means adopted are chosen
with just the contrary intent, and
are devised for the purpose of reach-
ing the end proposed as swiftly and
painlessly as possible, we are of
opinion that they are not forbidden
by the constitution, although they
should be discoveries of recent aci-
ence, and never should have been
heard of before. Not only is the
prohibition addressed to what in a
proper sense may be called the pun-
ishment, but, further, the word ‘un-
usual’ must be construed with the
word ‘cruel,’ and cannot be taken so
broadly as to prohibit every humane
improvement not previously known
in Massachusetts.” In re Storti, 178
Mass. 549, 7 Am. Elect]. Cas. 817,
60 N. E. 210, 52 L. R. A. 520.

15. Alberty v. State, (Okla. Cr.)
140 Pac. 1025.
34 Law oF ELEcrriciry.

Sec. 15. Electrical Terms Defined.

Without converting this book into a dictionary of elec-
trical terms, it would be impossible to give definitions of all
the technical words used in the electrical business. A few,
however, which are constantly recurring, may be of some
assistance, especially as to definitions judicially approved.

Ampere.— The unit of volume in the C. G. S. system is
the ‘‘ ampere,’’ and is one-tenth unit of such system.** It
is the current which flows through a conductor whose resist-
ance is one ohm, and between the two ends of which the
unit difference of potentials, one volt, is maintained.” The
federal government, in accord with the International Hlec-
trical Congress of 1893, has promulgated the following
definition:* ‘‘ The unit of current shall be what is known
as the international ampere, which is one-tenth of the unit
of current of the centimeter-gram-second system of electro-
magnetic units, and is the practical equivalent of the
unvarying current, which, when passed through a solution
of nitrate of silver in water in accordance with standard
specifications, deposits silver at the rate of one thousand
one hundred and eighteen millionths of a gram per second.’’

Batteries.— ‘‘ The apparatus by means of which the elec-
tric current which conveys messages is generated is known
as a ‘battery.’ Batteries are primary and secondary. A
‘ primary battery ’ is defined as one in which chemical action
takes place directly to produce the electromotive force,
while in a ‘secondary battery’ the electromotive force is
produced by the chemical action set up after a current of
electricity has been passed through the cell for some time.
Secondary batteries are commonly called ‘ storage bat-
teries.’ In all forms, however, the electromotive force is
generated by chemical action, taking place between two dis-
similar bodies called the ‘ elements,’ which are surrounded
by a liquid called the ‘ electrolyte.’’

16. Peoria Waterworks Co. v. 18. Act July 12, 1894, ¢. 131, subd.
Peoria Ry Co., 181 Fed. 1001. 2; 28 Stat. at L. 101.
17. Century Dictionary. 19. Matter of Charles Town L. &

P. Co., 183 Fed, 160,
In TRODUCTORY. 35

C. G. S. System.— The centimeter-gram-second system is
a system universally adopted for fixing electrical units.
‘“‘This system was adopted with reference to length,
expressed by, the centimeter of thirty-nine one-hundredths
inches, mass expressed by the gram, weighing about fifteen
and one-half grams avoirdupois, and time, expressed by the
second. Thus the unit of force is that which, when acting
on a body weighing one gram, will accelerate that body one
centimeter in one second. All electrical measurements are
based solely on this force unit, and the electrical units of
force, resistance and volume have been defined by Congress
with reference to the C. G. 8. system.’”°

The congressional definitions,” follow the definitions of
the International Electrical Congress of 1893.

Coulomb.— An electrical term of less common use than
many others but whose value has been definitely fixed by
Congress is the coulomb.

The congressional act, in fixing the value of the unity of
quantity, states: ‘‘ The unity of quantity shall be what is
known as the international coulomb, which is the quantity
of electricity transferred by a current of one international
ampere in one second.’’”

Dynamo.—A dynamo may be defined as a machine for
generating or converting mechanical energy into electric-
ity. The following definition is also sustained by judicial

authority: ‘‘A mechanism which is used to generate elec- ‘' '

tromotive force by moving a closed circuit in a magnetic
field is called a dynamo.”

Electrolysis—A definition for electrolysis will be found
in the chapter devoted to that subject.”°

An electrolyte is a ‘‘ compound which is decomposable, or
is subjected to decomposition by an electric current.”

20. Peoria Waterworks Co. v. Pe- Western Elec. Co., 65 Fed. 615; An-

oria St. Ry. Co., 181 Fed. 1001. gola Ry. & Power Co. v. Butz, (Ind.
21. See Act July 12, 1894, c. 131, App.) 98 N. E. 818.

28 Stat. at. L. 101. 24. Matter of Charles Town L. &
22. Act July 12, 1894, c. 131, subd. PP. Co., 183 Fed. 160.

4, 28 Stat. at. L. 101, 25. § 377.

23. Thomson-Houston Elec. Co. v. 26. Century Dictionary.
36 Law oF HLEctTRICITY.

Farad.— The farad is defined in the act of congress,” as:
‘¢ The unit of capacity shall be what is known as the inter-
national farad, which is the capacity of a condenser charged
to a potential of one international volt by one international

coulomb of electricity.’’

In practice the microfarad, the millionth of a farad, is

more conveniently employed.

The latter is the capacity of

about three miles of ocean cable.

‘Fuses are thin hair-like wires of low fusibility which
immediately melt and prevent any excess current of elec-
tricity from being carried over the telephone wires and

into the house.’’?®

Generator.—‘‘A mechanism which is used to generate
electromotive force by moving a closed circuit in a magnetic
field is called a ‘ dynamo’ or ‘ generator.’ ’’

27. Act July 12, 1894, e¢.
subd. 5, 28 Stat. at. L. 101.

28. Dow v. Sunset Telep. & Teleg.
Co., 157 Cal. 182, 106 Pac. 587.

“A fuse consists of a piece of me-
tallic alloy, similar in nature to soft
solder, one or more inches in length,
connected at each end with a small
circular piece of copper. These pieces
of copper are called the “ terminals,”
and they are so cut that they can
easily be slipped under the thumb
screws and clamped in place. The
fuse and thumb-screws are held in
what is called the “fuse-box.” A
wire leading from one thumb screw
up through the roof of the car to
the trolley wire conducts the elec-
tricity from the trolley wire to the
box. From the other thumb screw
there is a wire leading to the mo-
tors. When the two screws are con-
nected by the fuse there is a direct
path for the electricity from the trol-
ley wire to the motors. The pur-
pose in using the fuse is to protect
the wiring and the motors from an
excessive current of electricity. It

131,

is constructed to withstand some-
thing less than the maximum cur-
rent which the wires and motors are
capable of carrying. When the cur-
rent of electricity exceeds the maxi-
mum strength of the fuse, the me-
tallic alloy melts with more or less
of a report and flame, and, the elec-
trical path between the trolley wire
and motors being thereby broken, the
wire and motor are saved from pos-
sible harm. As the safety-valve in a
locomotive engine allows the escape
of steam when the pressure is too
strong for safety or for the ordinary
operation of the engine, so in electric
cars the fuse is used to prevent the
electrical mechanism from injury
which might otherwise arise from the
variations in the electrical current,
which are practically unavoidable in
the operation of the trolley cars.”
Cassady v. Old Colony St. Ry. Co.,
184 Mass. 156, 8 Am. Electl. Cas.
815, 1 St. Ry. Rep. 330, 68 N. E. 10,
63 L. R. A. 285,

29. Matter of Charles Town L. &
P. Co., 183 Fed. 160.
IntTRopuCcTORY. 37

Ground.—‘ By a ‘ ground’ is meant the interruption of
the current by the crossing of wires or the breaking and
falling of a telephone wire to the earth, or against some
surface that acts as a conductor of electricity, and inter-
rupts its continued flow along its proper wire.’’ *°

Henry.—‘‘ The unit of induction shall be the Henry,
which is the induction in a circuit when the electro-motive
force induced in this circuit is one international volt while
the inducing current varies at the rate of one ampere per
second.’’ **

Joule.— ‘‘ The unit of work shall be the Joule, which is
equal to ten million units of work in the centimeter-gram-
second system, and which is practically equivalent to the:
energy expended in one second by an international ampere
in an international ohm.’’

Lineman.—A lineman has been defined as ‘‘ one employed
in duties relating to the line of a railroad, telegraph, or
telephone; one who attends to keeping the parts of the line,
as the rails, posts, wires, etc., in proper condition.’’ *

Ohm.—In the C. G. S. system, the ‘‘ ohm’? is the unit
or resistance, and is 1,000,000,000 units of such system.**
The congressional statute in reference to the unit of re-
sistance is: ‘‘The unit of resistance shall be what is
known as the international ohm, which is substantially equal
to one thousand million units of resistance, of the centi-
meter-gram-second system of electro-magnetic units, and
is represented by the resistance offered to an unvarying
electric current by a column of mercury at the temperature
of melting ice fourteen and four thousand five hundred and
twenty-one ten-thousandths grams in mass, of a constant
cross-sectional area, and of the length of one hundred and
six and three-tenths centimeters.’’*

30. Dow v. Sunset Telep, & Teleg. 33. Century Dictionary.

Co., 157 Cal. 182, 106 Pac. 587. 34. Peoria Waterworks Co. v. Pe-
31. Act July 12, 1894, c.. 131, subd. oria Ry. Co., 181 Fed. 1001.

8, 28 Stat. at L. 101. 35. Act July 12, 1894, c.. 131, subd.

82. Act July 12, 1894, c. 131, subd. 1, 28 Stat. at. L. 101.
6, 28 Stat. at L. 101.
38 Law oF ELECTRICITY.

Transformer.—‘‘ The alternate-current transformer,
which is the one most extensively used in electricity, is an
apparatus similar to an induction-coil, consisting of two
coils of insulated wire wound on an iron core for the pur-
pose of furnishing, by means of a current of small quantity
and high potential in one circuit, a current of large quantity
and low potential in another circuit. One of the coils,
called the primary, of comparatively high resistance and
large number of turns, is included in the low potential cur-
rent. The mechanical transformer consists of a motor
driven by a high potential current, combined with a dynamo
driven by this motor, and furnishing a current of potential
and quantity adapted to the circumstances where it is to
be used. This form is applicable to direct as well as alter-
nating currents.’’*

Trouble Shooter.— A ‘‘ trouble shooter ’’ in the employ
of a telephone company is a person whose duty it was ‘‘ to
discover and repair minor difficulties attending the tele-
phone service, defective telephones, fallen wires, weakness
of batteries, and grounding of wires.’’*”

Volt.— The ‘‘ volt ’’ is the unit of pressure in the C. G. S.
system and ‘‘ is that electrical force which, when steadily
applied to a wire or other conductor having a resistance
of 1,000,000,000 units of the C. G. S. system, will produce
a current of one-tenth of a unit per second of that sys-
tem.’’** Congressionally defined, the unit of electro-motive
force is: ‘‘ The unit of electro-motive force shall be what
is known as the international volt, which is the electro-
motive force that, steadily applied to a conductor whose
resistance is one international ohm, will produce a current
of an international ampere, and is practically equivalent
to one thousand fourteen hundred and thirty-fourths of the
electro-motive force between the poles or electrodes of the
voltaic cell known as Clark’s cell, at a temperature of

86. Century Dictionary. 38. Peoria Waterworks Co. v. Pe-
37. Dow v. Sunset Telep. & Teleg. oria Ry. Co., 181 Fed. 1001.
Co., 157 Cal. 182, 106 Pac. 587. :
INTRODUCTORY. 39

fifteen degrees centigrade, and prepared in the manner
described in the standard specifications.’’ *

Watt.— The ‘‘ watt’’ is the unit of power and equals
10,000,000 units of power in the 'C. G. S. system, or one
ampere times one volt.*° One horse power is equal to 746
watts. The ‘‘ watt’’ has also received the attention of the
congressional law makers. ‘‘ The unit of power shall be
the Watt, which is equal to ten million units of power in
the centimeter-gram-second system, and which is prac-
tically equivalent to the work done at the rate of one Joule
per second.’’ *

39. Act July 12, 1894, c. 131, subd. 41. Act July 12, 1894, c. 131, subd.
3, 28 Stat. at. L. 101. 7, 28 Stat. at. L. 101.

40. Peoria Waterworks Co. v. Pe-
oria Ry. Co., 181 Fed. 1001. ;
40 Law or EXLEcTRICITY.

CHAPTER II.
POWERS AND DUTIES OF ELECTRIC COMPANIES.

SEcTIon 16. Incorporation.
17. Powers; in General.
18. Power to Supply Current; in General.

 

 

19. Gas Company.

20. —— Street Railway Company.

21. Telegraph and Telephone Companies.
22. ——-Corporations Dealing in Appliances.

23. Territorial Limitations.

24, Operation of Street Railway.

25. Furnishing Light by Gas.

26. Manufacture or Installation of Electrical Appliances.
27. Use of Water Power to Generate Electricity.
28. Rates.

29. Minimum Charge.

30. Restriction of Competition.

31. Consolidation.

32. Purchase of Stock of Rival Company.
33. Mortgage of Property.

34, Franchises.

35. Eminent Domain.

 

 

 

Sec. 16. Incorporation.

All franchises emanate, either directly or indirectly, from
the sovereign power.’ The franchise of being an electric
corporation, as distinguished from the franchise to use
streets and highways,’ is a legislative grant, though the
method of securing such franchise is now usually pre-
seribed by general laws which obviate the necessity of
special legislative action for the organization of each par-
ticular company. If the procedure for incorporation is
substantially followed, the company becomes a de facto
corporation entitled to exercise powers as an electric com-
pany until the state attacks its authority.* A private per-
son or a competing electrical company cannot question its
right to exercise the powers generally enjoyed by electric
companies.* And it has been held that this is so, where
the objection goes, not to mere detail of practice in organ-

1. § 244, 4. Sioux Falls L. & P. Oo. vy,

2. § 192, et seq. Coughran, 27 8. Dak. 443, 131 N. W.

8. Sioux Falls L. & P. Co. v. 504, holding that an electric com-

Coughran, 27 S. Dak. 443, 131 N. W. pany may exercise the right of emi-
504, nent domain though the affidavit to
Powers anp Dutizs or Execrric Compantss. 41

ization, but.to a matter vital to its existence.’ Nor can the
irregularity of its incorporation be challenged by the
municipal corporation which grants it a franchise to use

the municipal streets.°

Sec. 17. Powers; in General.

In general, an electric corporation has such powers as
are given to it expressly or by necessary implication, but

has no others.’

A municipal corporation, when duly authorized to build
and operate a municipal lighting plant,’ unless otherwise

the articles of incorporation was not.
a compliance with the statute. The
Court said: “We are of the opinion
that defendant cannot raise this
question in this proceeding, as the
same would be a, collateral attack
upon the power of said. corporation.
There having been issued. to such
corporation a certificate of authority
under such articles. of irieorporation,
and it clearly appearing by such
articles that it was a corporation of
a class authorized to be organized
under said chapter 107 of the Laws
of 1903 and the law of 1909 amenda-
tory thereof, such corporation is, at
the very least, a de facto corporation
possessed of the powers given by such
law of 1903, and it remains with the
state alone to question its rights and
powers as such corporation.”

5. Geneva-Seneca Elec. Co. v. Eco-
nomic Power & Constr. Co., 136 N. Y.
App. Div. 219, 120 N. Y. Supp. 926.
“The proposition is presented as to
whether a corporation authorized by
its charter to supply a municipality
with electric lighting and power and
not, having an exclusive franchise,
may question. the attempted. exercise
of such. power by another corporation
or individual, whether or not such

corporation. is. legally constituted. and.

whether or not, such individual is au-
thorized by law to conduct such busi-
ness. We conclude that the whole

trend of authority is to the effect
that such: plaintiff cannot, in, an ac-
tion brought to obtain an injunction,
question the authority of the compet-
ing corporation or the right of the
individual in the premises. If such
were not the law, then: every eorpora-
tion could raise the question as to the
legality of its competing neighbor, A
street railway company, having a
franchise which covered the principal
streets in a city could insist that a
corporation which purposed to estab-
lish a street surface railroad in cer-
tain streets not. occupied by the for-
mer corporation could. be. enjoined
from such construction upon the
ground, alleged by the former cor-
poration. that it (the latter) was not
organized under and in pursuance of
the provisions of the law.” Geneva-
Seneca Elec. Co. v. Economie Power
& Constr. Co:, 136 N. Y. App. Div.
219, 120 N. Y. Supp. 926.

6G Old Colony T. C. v. City of
Wichita, 123 Fed. 762; modified, 132.
Fed. 641, 66 ©. C. A. 19; Wyandotte
Elee. L. Co. v. City of Wyandotte,
124 Mich. 43, 7 Am, Hilectl. Cas. 43,
82 N. W. 821, 7 Det. Leg. N. 111.

7. Brush Elec. Co. v. Jones Bros.
Elec. Ca., 10: Ohio Dec. 767, 3 Am.
Electl. Cag. 516, 23 Wkly. Law Bul.
329.

8. §§ 146-172.
42 Law oF EILEcTRICITY.

empowered or restrained by statute, in the operation of
such plant, has the same rights and is subject to the same
general duties as an individual or corporation engaged in
the electrical business.’

Erection of Refuse Destructor.— An electric company, in
the absence of express authority, has no power to erect a
destructor for the consumption of refuse; the erection and
use of a refuse destructor is not ancillary to the supply
of electricity and is ultra vires.’”°

Sec. 18. Power to Supply Current; in General.

An electric company is empowered to generate, transmit,
and furnish electricity to others. If such power is not
expressly granted, by necessary implication, it is vested in
the company upon incorporation. ‘The supply of heat and
power by electric companies is so common that a grant to
engage in the ‘‘ electric ’’ or in the ‘‘ electric light ’’ busi-
ness will generally be construed to include authority to
furnish heat and power. Where a corporation is given a
franchise to use city streets for a ‘‘ general electric light
business,’’ and the city acquiesces in the extension of its
system for the distribution of current for heat and power
by using current for power purposes and collecting taxes
imposed on receipts from heat and power service, the city
will be estopped to deny the power of the electric company
to furnish heat and power.”

Sec. 19. Power to Supply Current; Gas Company.

It has frequently happened that corporations have been
chartered with permission to engage in the lighting busi-
ness with gas or electricity, or both.” But a gas corpora-
tion, not expressly authorized so to do, has no right to

9, State v. City of Waseca, 122 11. Old Colony T. Co. v. City’ of
Minn. 348, 142 N. W. 319. Omaha, 230 U. S. 100, 33 S. Ct. 967.
10. Attorney-General v. Ponty- 12. Under the provisions of the
pridd Urban Council (1906), 2 Ch. Corporation Act of 1890 (§ 60 chap.
(Eng.) 257, 75 L. J. Ch. 578, 95 L. T. 566, Laws of 1890) authorizing the
224, 70 J. P. 394, 4 L. G. R. 791, 22 ~— formation of corporations “ for manu-
T. L, R. 576. facturing and supplying gas for
lighting * * * or for manufac-
Powers anp Duties or Execrric Compantzs. 43

furnish light by electricity.* The authority to furnish
light by electricity need not necessarily use the term ‘‘ elec-
tric.’? Thus, a provision in the charter of a light company
authorizing it to furnish any city with gas, ‘‘ or other
light,’’ upon such terms as may be agreed upon by the par-
ties, is sufficient to empower it to contract with and furnish
a city with electric lights.‘ When, however, the rights
granted to the company are exclusive for a given locality,
the grant will be construed strictly against the company;
and thus an apparently contrary conclusion was reached in
a decision of the Supreme Court of Pennsylvania,’* wherein
it was held that a statute relative to ‘‘ companies for the
manufacture of gas, or the supply of light or heat to the
public by any other means,’’ did not embrace electric
lighting.

Sec. 20. Power to Supply Current; Street Railway Com-

pany.
A street railway company is not an “‘ electric company ’’*
and, if not expressly granted authority, it has no right to

turing electricity for producing light,
heat or power,” a corporation is not
limited to one of the purposes stated,
but both may be combined in the
same certificate. People ex rel. Mu-
nicipal Gas Co. v. Rice, 138 N. Y.
151, 33 N. E. 846.

Amendment of certificate— A gas
company, organized under the act of
1848 (chap. 37, Laws of 1848) and
which under the acts of 1879 (chap.
512, Laws of 1879) and 1882 (chap.
73, Laws of 1882), was authorized to
use electricity for heating purposes,
was entitled to amend its certificate
so as to enable it to manufacture
and use electricity for producing
light, heat and power, under the pro-
visions of the “Stock Corporation
Law,” of 1892 (§ 32, chap. 688, Laws
of 1892) authorizing any stock cor-
poration theretofore organized to
amend its certificate and extend or
alter its business and powers, 80 as
to include any purpose or powers

which at the time of such extension
might properly be included in the
certificate for the formation of a
corporation of the same general char-
acter under any general law. People,
ex rel. Municipal Gas Co. v. Rice, 138
N. Y. 151, 33 N. E. 846.

13. Appeal of Scranton Elec. L. &
H. Co., 122 Pa. St. 154, 3 Am. Electl.
Cas. 499, 15 Atl. 446, 1 L. R. A. 285,
9 Am. St. Rep. 79. See also, State
ex rel. Laclede Gaslight Co. v. Mur-
phy, 130 Mo. 10, 5 Am. Electl. Cas.
71, 31 S. W. 594, 31 L. R. A. 798,
affirmed, 170 U. 8S. 78, 18 S. Ct. 505,
42 L. ed. 955.

14. Newport v. Newport Light Co.,
89 Ky. 454, 1 S. W. 394; appeal dis-
missed, 151 U. S. 527.

15. Appeal of Scranton Elec. L. &
H. Co., 122 Pa. St. 154, 3 Am. Electl.
Cas. 499, 15 Atl. 446, 1 L. R. A. 285,
9 Am. St. Rep. 79.

16. § 8.
44 Law or Eectriciry.

furnish electric light, heat, or power to the public.* But
a street railway company, by implication, has the power to
light its. cars, and it may, if it wishes, select electricity as
the mode of lighting. Not only may it light its own cars
with electric lamps, but it may properly use its current to
light the streets through which its cars run."® Moreover,
the municipality through which its cars run. may compel
it to light such streets with electric lights; and, if the
company generates no current of its own, it may be com-
pelled to procure electricity from an electric light company
for that purpose.”

Sec. 21. Power to Supply Current; Telegraph and Tele-
phone Companies.
A telegraph or a telephone company, not being an electric
company,” in the absence of specific authority,’ will not
be permitted to engage in electric lighting.

Sec. 22. Power to Supply Current; Corporations Dealing
in Appliances.

The business of manufacturing, buying, selling, installing,
or otherwise dealing in, electrical apparatus and appliances
is distinct from the business of dealing in the electric cur-
rent. A company dealing in such apparatus is not an elec-
trical company and may not, without express authority,
generate and dispose of electrical currents to the public

17. A permit from a city to a
street railway company to string elec-
tric wires along a street does not
give it the right to use such wires
to distribute power to private con-
sumers. Chicago Gen. St. Ry. Co. v.
Ellicott, 88 Fed. 941.

18. Selectmen of Wellesley v. Bos-
ton & W. St. Ry. Co., 188 Mass. 250,
4 St. Ry. Rep. 462, 74 N. E. 355.

19. Selectmen of Wellesley v. Bos-
ton & W. St. Ry. Co., 188 Mass, 250,
4 St. Ry. Rep.. 462, 74 N. E. 355.

20. Cincinnati, H: & D. R. Co. v.
Village of Bowling Greene, 57. Oh. St..
336, 49 N. BE, 121, 41 L. R. A. 422.

21. § 9.

22. See Brown v. Maryland Telep.
& Teleg. Co., 101 Md. 574, 9 Am.
Elect]. Cas. 609, 61 Atl. 338, wherein
it. was held that a corporation which
was incorporated under a statute pro-
viding for the formation of corpora-
tions for “ constructing, owning or
operating telegraph or telephone lines
and for the transaction of any busi-
ness in which electricity over or
through wires may be applied to. any
useful purpose,” having obtained con-
sent of the city, had the right to con-
duct, an electric lighting business in
the city of Baltimore.
Powers anp Durtirs or Exectric ComPaniss. AD

for light, heat, or power.** ‘Conversely, an electrical com-
pany is not generally authorized to deal in or install such
apparatus.”

Sec. 23. Territorial Limitations.

Generally speaking, an electric company may be incor-
porated to serve one or more territorial subdivisions of
the country.” But a company duly authorized to furnish
electric light, heat, and power to persons residing within
a designated territory is limited to such district. The
expression of a locality is deemed inferentially an exclusion
of the right to serve other places. Thus, in one case,” an
electric company authorized to supply energy within cer-
tain areas, being unable to procure sufficient current, was
permitted to erect generating works in another district,
but it was held that it had no power to furnish electricity
to a railway company in the district where its works were
located. By consolidation with another such company, an
electric company may acquire the right to serve an addi-
tional area,’ but it has been held that the power to supply
an adjoining district cannot be acquired by a mere contract
with a company authorized to do business in such adjoining
territory.”

24. § 26.
25. Townships.— An electric com-

23. Corporation formed, one “for
purpose of manufacturing, buying

and selling and dealing in telegraph
and electrical supplies, appliances and
apparatus, and all things incident
thereto; also the making of models
and experimental work, and general
light manufacturing, and all things
incident thereto;”— the other “ for
the purpose of manufacturing, opera-
ting, selling or renting dynamos, mo-
tors and other electrical appliances
for furnishing lights and power, and
for other purposes,”’— held to have
no right to carry on the business of
electrical illumination. Brush Elec.
L. Co. v. Jones Bros. Elee. Co., 10
Ohio Dec. 767, 3 Am. Electl. Cas.
516, 23 Wkly. Law Bul. 329.

pany may be incorporated for a town-
ship. Brown v. Radnor Tp. Elec. L
Co., 208 Pa. St. 453, 9 Am. Electl
Cas. 305, 57 Atl. 904.

26. Attorney-General v. Metropoli-
tan Elec. Supply Co. (1905), 1 Ch.
(England) 757, 74 L. J. Ch. 384, 92
L. T. 544, 53 W. R. 418, 69 J. P.
167, 3 L. G. R. 625, 21 T. L. R. 355.

27. § 31.

28. City of Chicago v. Mutual E.
L. & P. Co., 55 Ill. App. 429, 5 Am.
Elect]. Cas. 29, wherein it was said.
“Possessing this grant, and operat-
ing under it, the Hyde Park Com-
pany, by contract with another cor-
poration possessing a like grant and
46 Law oF ELectriciry.

‘* Adjoining Towns.’’ — Where an electric company was ‘
authorized to furnish electric energy in the city of Water-
ville and ‘‘ adjoining towns,’’ it was held that it could
supply current in the town of Oakland, which adjoins
Waterville, although by another section of its charter it
was given the right to extend its line through Waterville
and several other specified towns not including Oakland.”
And where an electric company was organized to supply
electric energy to a certain named village and ‘‘ other cities,
villages and towns ’’ in the state, it was held that it had
sufficient authority to extend its line at least into an adjoin-
ing town in the same county as that in which the designated
village was located.*°

Action for Abuse of Power.— An action against an elec-
tric.lighting company for abuse of its charter powers in
transmitting electricity to a district which it has no author-
ity to supply, is in the state, not in the municipality which
it is authorized to serve.*

Telegraph and telephone companies are likewise limited
as to the area in which their lines shall be extended. Where
a corporation is organized for telegraph or telephone pur-
poses in certain named counties within the state of incorpo-

privilege within another and differ-
ent territory, connects its wires at

Such is a most palpable evasion of
the limitations and is a flagrant ex-

the line where the territories of the
two corporations meet, with the wires
of the other corporation, and pro-
ceeds to transmit electricity over the
wires of that corporation into terri-
tory within which it has no power to
operate, with the same effect and for
the same purposes that it operates
within its own territory.

In every essential the doing of that
is the same as if it had strung its
own wires within that foreign terri-
tory and had transmitted electricity
over them for the lighting and heat-
ing of, and furnishing power for, that
territory.

cess of the due exercise of its powers.
Public policy, as well as the con-
tractual obligations between the com-
pany and the city, are most seri-
ously violated by such methods. The
limits of franchises granted by mu-
nicipalities should not be extended
by doubtful implication.”
29. Oakland Elec, Co. v. Union Gas
& Elec. Co., 107 Me. 279, 78 Atl. 288.
30. Metropolitan Trust Co. y.
Dolgeville Elec. L. & P. Co., 35 Misc.
(N. Y.) 467, 71 N.Y. Supp. 1035.
31. City of Passaic v. Public Serv-

ice Corp. of N. J., 75-N. J. Eq. 379,
73 Atl. 122.
Powers anp Duties or Exectric Companiss. 47

ration, it has no power to continue its lines into other
counties or into another state.®

Sec. 24. Operation of Street Railway.

As a street railway company is not permitted to supply
its current to the public generally,®* it is reasonable to con-
clude, in the absence of a special statute governing the
question, that an electric company cannot operate a street
railway.**

Sec. 25. Furnishing Light by Gas.

Ordinarily a gas company has no authority to operate
an electric plant for service to the public,®* and, on the other
hand, an electric company, as a general proposition, cannot
operate a gas plant for supplying its customers with
illuminating gas.**

Sec. 26. Manufacture or Installation of Electrical Appli-
ances.

A corporation organized for installing or dealing in elec-

trical appliances, as has been said,*” cannot ordinarily

32. Southwestern Tel. Co. v. Kan-
sas City, etc., Ry. Co., 108 La. 691,
32 So. 958.

33. § 20.

34, Amendment of charter— To
change by amendment, a company in-
corporated under articles which
specify that it is organized “ for the
purpose of forming and organizing
a manufacturing company under the
laws of the state of Ohio, to engage
in the business of manufacturing gas,
electricity, and furnishing gas for
light, heat and power, and for such
and other purposes as may be used by
the citizens and corporations in
Steubenville, Jefferson County, Ohio,
and its vicinity,” to a gas, electric
and traction company, with power
“to acquire, own, operate, lease and
maintain a street railway in the city
of Steubenville, Ohio, to be operated

by electricity or other motive power,
for the conveyance of passengers,
freight, express and mail matter,”
over a described route, and extending
to such other points, within or with-
out, or partly within and partly with-
out that city, as may hereafter be
selected, would change, substantially,
the original purpose for which the
company was organized, and is not
authorized by the statutes of the
State. State v. Steubenville Gas &
Electric Co. v. Taylor, 55 Oh. St. 61,
44 N. E, 513, 35 Ohio L. Jour. 384,
28 Chic. Leg. News 362.

35. § 19.

36. Covington Gas Light Co. v.
Covington, 22 Ky. Law Rep. 796, 58
S. W. 805, holding that a contract
by an electric company to purchase
a gas plant is not enforceable.

37. § 22.
48 Law or Evectrictry.

engage in the occupation of furnishing to the public light,
heat, and power by means of electricity. By way of analogy,
the acts of an electric company in dealing or trading in or
installing electrical apparatus are, unless expressly per-
mitted, ultra vires.* ‘The latter occupation is not deemed
an incidental power of an electric company.*°

Sec. 27. Use of Water Power to Generate Electricity.
Subject to the principles of the law of water-courses,*
a person, through whose premises a non-navigable stream
flows, may utilize such stream to generate electricity. In
some jurisdictions there are no riparian rights as against
a valid appropriation of water. Where such an appropria-
tion has been made for beneficial uses by another, a power
company cannot impound the waters higher up and pipe
them away to generate electricity. A valid appropriation
for the generation of electric energy may, however, be

made.”

38. Burke v. Mead, 159 Ind. 252,
64 N. E. 880; Attorney-General v.
Leicester Corp. (1910), 2 Ch. (Eng.)
359; Attorney-General v. Sheffield
Corp., 106 L. T. (Eng.) 367, 76 J. P.
185, 28 T. L. R. 266, 10 L. G. R. 301,
56 8. J. 326.

See also, State ex rel. Deevey v.
Butte Elec. & P. Co., 43 Mont. 118,
115 Pac, 44,

89. Burke v. Mead, 159 Ind. 252,
64 N. E. 880.

The general power of an electrical
corporation to do “all such acts and
things as were necessary and _ inci-
dental to such supply,” is limited to
the generation and delivery of the
current, and does not authorize the
corporation to supply electrical fit-
tings and apparatus for the use of
customers. Attorney-General v. Lei-
cester Corp., (1910) 2 Ch. (Eng.)
359.

A municipal ordinance requiring
an electric company to furnish in-
candescent lights to its customers

After an appropriation is made for a purpose

free of charge is void. Matter of
Goodrich, 160 Cal. 410, 117 Pac.
451, Ann. Cas. (1913A) 56. But an
electric company may be bound by
a@ provision in its franchise to fur-
nish such lights free. Marion Elec.
L. & Ice Co. v. Rochester, 149 Ky.
810, 149 S. W. 977.

As to the governmental regulation

‘of electric companies in general, see

§§ 323-337.

40. Condemnation of land having
undeveloped water power.—In con-
demning land under a drainage stat-
ute, profits which might in the future
be derived from water power to be
developed are too remote to be con-
sidered, where no immediate inten-
tion to make such development is
shown. Maynard v. Memaha Valley
Drainage Dist. No. 2, (Neb.) 143
N. W. 927.

41. Cascade Town Co. v. Empire
Water & P. Co., 181 Fed. 1011.

42. Cascade Town Co. v. Empire
Water & P. Co., 181 Fed. 1011.
Powers anp Duties or Huecrric Companiss. 49

authorized by statute, the water so appropriated may be
used for any ‘‘ beneficial use;’’ and the development and
maintenance of an electric light plant is generally consid-
ered a ‘‘ beneficial use.’’** A municipality may lease to—
private parties the use of water flowing through its water
system to enable them to generate electricity, where such
lease does not impair the usefulness of the water or of the
system for the purposes for which it was obtained by the
municipality.**

Sec. 28. Rates.

Electric companies, being public service corporations,**
are not free to charge such prices for their currents as they
wish. In the first place, a condition of the franchise which
it procured from the municipality in which it is operating,
may bind it to charge not more than certain prices for
service.*® Secondly, the state within which it is doing
business, or some commission or department of the state
government may compel the company to furnish cur-
rent at certain rates if such rates are not confisca-
tory.*7 Thirdly, the municipal corporation served by it,
though the franchise contains no condition as to the rate
to be charged for electricity, may, if delegated the power
by the legislature, regulate its rates within certain limita-
tions.*® Fourthly, if its rates are controlled or regulated
in no other way, it is forbidden, by reason of its public
character, to exact discriminatory* or unreasonable rates.

In the absence of regulation in any of the modes men-
tioned, the company may fix its own rates, and such rates
are binding if they are not unreasonable or discriminatory.”

43. Thompson v. Pennebaker, 173 50. Gould v. Edison Elec. [Jum.
Fed. 849, 97 C. C. A. 591. Co. of N. Y., 29 Mise. (N. Y.) 241,

44. Pike’s Peak Power Co. v. City 60 N. Y. Supp. 559. “Tt will be
of Colorado Springs, 105 Fed. 1, 44 observed that the Legislature has

C. C. A. 333. not undertaken to regulate the price
45. § 6. at which such light shall be supplied,
46. § 236. nor to limit or define what compen-
47. §§ 325, 326, 334. sation the corporation may exact for
48. § 330. the service rendered by it. In that
49. §§ 36 et seq. regard it is under no legal restraint,

4
50 Law oF Eecrricity.

The law does not compel or wish an electric company to do
business at a loss, and a rate sufficient to enable the com-
pany to pay a fair dividend upon the investment is gen-
erally considered reasonable." The element of ‘‘ reason-
ableness ’’ runs through the entire course of rate regulation
and price fixing. Though a maximum rate is fixed by the
government, the company is still bound to charge no more
than a ‘‘ reasonable ’’ rate.*?

Express Contract with Consumer.—In the absence of a
statute or municipal ordinance fixing the rate, the company
is bound by a valid contract with its customer whereby it
agrees to furnish current at a definite rate.* The company

except that its charges must be rea-
sonable and uniform. Whether in
a given case they are so or not is a
proper subject for inquiry and deter-
mination by the court, in view of the
quasi-public nature of the business
and the duty towards the public im-
posed by law upon the corporation.
Lough v. Outerbridge, 143 N. Y. 271,
277. The statute recognizes the
right to charge for light consumed,
the cost and expense of laying wires
and a rental for wire and apparatus
(Transportations Corporations Law,
art. 6, §§ 66, 68); but it does not
assume to say what may or may not
be reserved for either, nor does it
require the amount charged to be
separated into items with respect to
its constituent elements. The law
does not contemplate that the de-
fendant shall do business at a loss.
It is expected that it will, and it is
entitled to, make a reasonable profit
upon its venture, and the sole ques-
tion in such a case as this is
whether the charge made is wnrea-
sonable, considering all that the
defendant is required to do to meet
each customer’s demand.” Gould v.
Edison Elec. Illum. Co. of N. Y., 29
Mise. (N. Y.) 241, 60 N. Y. S. 559.

Authority to fix rates— The
manager of an electric light company
generally has authority to fix the
rates which shall be charged for
furnishing current by a special con-
tract. Even if the manager has no
authority to fix such rates, the com-
pany may ratify his acts by ac-
cepting from the consumer from
month to month the sums specified
in the contract. Lewisville Light &
Water Co. v. Lester, (Ark.) 160
S. W. 861.

51. “A corporation engaged in fur-
nishing an electric current is en-
titled, like other quasi-public corpo-
rations, to earn a fair income upon
its investment; it has a right to fix
its rates upon the cost of the produc-
tion, taking into account not only
the cost of coal, labor, ete., but the
investment which is necessary to
carry on the enterprise.’ Graver v.
Edison Elec. Ilum. Co. of Brooklyn,
126 N. Y. App. Div. 371, 110 N. Y.
Supp. 603.

52. Horner v. Oxford Water &
Elec. Co., 153 N. Car. 535, 69 S. E.
607.

53. Lewisville Light & Water Co.
v. Lester (Ark.), 160 S. W. 861.

As to Contracts with a consumer,
see §§ 112-124,
Powers anp Duties or ELectrRIc CoMPANIEs. 51

cannot afterward claim that the rate is too low and recover
the difference between the customary rate and the contract
price.

Meter or Flat Rate.— Unless restrained by governmental
regulation or otherwise, an electric company: may fix its
rates according to a “‘flat’’ rate or install meters and
charge its consumers per kilowatt of electrical energy
used.** It may adopt either system, but must so adjust
its rate that the amount the consumer is required to pay for
his service is not unreasonable.

Sec. 29. Rates; Minimum Charge.

The practice of installing a meter in the consumer’s
building and charging per kilowatt of energy consumed,
with the proviso that the gross amount of the consumer’s
bill for a definite period, such as a month, shall be at least
a fixed amount, is not unreasonable. Therefore, in the
absence of statute or binding regulation prohibiting a rate
of that nature, a patron may be compelled by the company
to pay such minimum charge though the amount of current
used does not warrant such a charge when computed by the
kilowatt.

Readiness of Company as Ground for Sustaining Mini-
mum Charge.—In one case,” the court, giving its reasons
why a minimum charge of an electric company should be
sustained, said: ‘‘ How, then, can it be said that a fixed
charge not based upon actual consumption is of itself im-
proper or unreasonable? ‘The customer does not bind him-
self to use any particular amount of light, so that the return
to the company, based on actual consumption, would rest
entirely upon his volition, and it would, therefore, depend
upon him whether the service he has required the corpora-
tion to be in constant and immediate readiness to render

54. Horner v. Oxford Water & Co. of N. Y., 29 Mise. (N. Y.) 241,
Elec. Co., 153 N. Car. 535, 69 S. E. 60 N. Y. Supp. 559.

607. See also, § 42. 56. Gould v. Edison Elec. Ilum.

55. Gould v. Edison Elec. Illum. Co. of N. Y., 29 Mise (N. Y.) 241.
60 N. Y. Supp. 559.
52 Law oF ELeEctriciry.

is profitable or unprofitable to the latter. But this constant
condition of readiness is a necessary and unavoidable obli-
gation which must be sustained in order to meet instanta-
neously the demand for light which the consumer is entitled
to have at any moment that he wishes it. It thus forms
a part of the service to be rendered, and is an item properly
to be considered when the reasonableness of the charges
exacted by the company is called in question.’’

The intention to prohibit the fixing of a minimum rate
should be expressed and not left to inference. Thus, it has
been held that a statute providing that all persons furnish-
ing electricity to the general public shall furnish meters
upon demand without charge, shall supply printed tables
to their patrons semi-annually, showing the price charged
per thousand units, shall base their charges upon the read-
ing of said meters, that the charges shall be made as per
the printed tables furnished the patrons, and that bills or
statements rendered patrons shall show the number of
units charged for, does not attempt to regulate charges
further than to require publicity and uniformity, and does
not prevent the fixing of a minimum charge per month.”

57. Little Rock Ry. & Electric Co.
v. Newman, 91 Ark. 89, 120 S. W.
824, wherein it was said: “A close
analysis of the statute does not dis-
cover any attempt to regulate
charges further than to require pub-
licity and uniformity. The manifest
design of the act is to provide means
whereby the consumer may be in-
formed as to the exact charge for
service, and to require uniformity of
charges against all customers using
like quantities of the commodity.
Nowhere does this statute attempt
to say that persons using different
quantities of the commodity in a
given time must be charged the same
price per thousand units, nor that
a minimum charge per month for
service may not be imposed. The
Legislature did not intend to compel
the company to put in a meter and

hold itself in readiness to serve those
who use none of the commodity to
be supplied, and the language of the
act does not warrant the construc-
tion that the fixing of a minimum
charge was to be forbidden. If that
had been intended, it could have been
clearly expressed. So, it matters
not whether it be termed a “ readi-
ness to serve charge,” or a “ mini-
mum rate charge,” it amounts to the
same thing and is not forbidden by
the language of the statute. The fact
that the charge for meters is ex-
pressly forbidden negatives, under
the maxim expressio unius est ea-
clusio alterius, any intention +o
forbid any other charge uniformly
made against all patrons using the
same quantity of the commodity. A
regulation of the charges for such
service should be just to the com-
Powers anp Duties or ExLEectric Companiss. 53

A condition in an electric company’s franchise has, how-
ever, received a construction apparently inconsistent with
the foregoing case. In a Missouri case,** it appeared that
an electric company accepted a municipal franchise with
the condition that the rates charged should be determined
every five years by arbitration and that the prevailing
average current rates for like services in that section of
the state should be the rates adopted at the end of each
period of five years, and it further appeared that the arbi-
trators fixed the rate at a definite sum per kilowatt without
any mention of charging a minimum sum; and it was held
that the company had no right to impose a minimum charge
upon its consumers though electric companies in the other
cities in that section of the state were allowed to charge
a minimum sum.

Sec. 30. Restriction of Competition.

Inasmuch as electric companies are quasi-public corpo-
rations whose rates for the supply of electrical energy are
subject to state and municipal control, the restriction of
competition between two or more of such companies is not
viewed with the alarm which attends a monopolistic ar-
rangement between corporations whose charges are not
subject to governmental revision. <A private corporation
engaged in the selling of wheat or other commodity has
the right to charge such price as it sees fit for its com-
modity, but an electric company is bound to furnish current
to all persons without discrimination,” and its price for
such current, within reasonable limitations, may be fixed

pany as well as to all its patrons,
so as to allow compensation to the
former and reasonable, uniform rates
to the latter, according to the amount
of the commodity consumed. One
elass of patrons should not be fa-
vored at the expense of another. And
we do not hold that a regulation of
charges, based exclusively on the
number of units of the commodity
consumed, and confined to a fixed

charge for each given number of
units consumed, would not be sus-
tained if found to be just to the com-
pany and all its patrons. The Legis-
lature has not, we think, attempted
to do that.”

58. State ex rel. Jacobs v. Water
Light & Transit Co., (Mo.) 155 8S. W.
826.

59. §§ 325, 326, 330, 334.

60. §§ 36-56.
54 Law or HEctTRICcITY. ;

by the state or by the municipal authorities. As a result,
no combination or consolidation of electric companies can
maintain oppressive rates for any considerable period.
Indeed, it may be argued that, when the control of the rate
is within the power of the public, a lower rate may be pro-
cured from the combination of companies than could be
enforced against separate companies in the same field.
In at least one jurisdiction, the danger from but a single
lighting corporation in a district are so little feared that
the legislature has prohibited’ the incorporation of more
than one for such territory.” And this restraint is so
drastic that, where an electric company is duly incorporated
to engage in the lighting business in such district, though
such company is not actually doing business, a gas company
cannot be organized for such district without express
authority of the legislature. And in another jurisdiction
of advanced legislation, it is provided that, when one elec-
tric company is permitted to operate within the limits of
a municipality, another may not be granted a franchise by
such municipality without first securing from a commission
of public utilities a declaration, after a public hearing of
all parties concerned, that public convenience and necessity
require the second electric company. But the policy of
these jurisdictions is not a fair criterion of the policy of
American states in general. In another state, it has been
held that a lease by one electric company of a portion of
its property to a rival company, where the lessor agrees not
to dispose of the property retained by it or to engage in
61. “Our statutes are founded on ence to some kinds of public service,
the assumption that, to have two or and under some conditions, it is
more competing companies running thought by many that regulation by
lines of gas pipe and conduits for the state is better than competition.”
electric wires through the same street Weld v. Gas & Electric Com’rs, 197
would often greatly increase the Mass. 556, 84 N. E. 101.
necessary cost of furnishing light, as 62. Crawford Elec. Co. v. Knox

well as cause great inconvenience to County Power Co., (Me.) 86 Atl.
the public and to individuals from 119.

the necessary digging up of the 63. Twin Village Water Co. vy.
streets from time to time, and the Damariscotta Gas Light Co., 98 Me.
interference with pavements, street 325, 56 Atl. 1112.

railway tracks, water pipes and 64. State v. Kenosha Elec. Ry. Co.
other structures. * * * In refer- 145 Wis. 337, 129 N. W. 600. ;
Powers anp Duties oF ELEcTRIC CoMPANIEs. 55

the business itself for the term of the lease, is against public
policy and void.

Division of New Territory.— An agreement between two
electric companies operating within the same municipality,
whereby they divide a newly developed district so that
within such district their lines are not in competition, would
be obnoxious in those jurisdictions whose policy demands
the active competition of rival electric companies. But
in a state with a more liberal policy toward the restriction
of competition, such an arrangement will be sustained,
except possibly under peculiar circumstances where the
public interest will be adversely affected.

Sec. 31. Restriction of Competition; Consolidation.

The power of two electric companies to consolidate
depends upon the policy, as evinced by its statutes, of the
jurisdiction where such corporations are organized and
transacting their business.” Electric companies may be
considered ‘‘ manufacturing ’’ companies within the mean-
ing of a statute permitting such to consolidate ;* but, owing
to the difference of opinion as to whether electric corpora-
tions are ‘‘ manufacturing ’’ companies,” other courts may
reach a different conclusion to the effect that electric com-
panies cannot consolidate under such a statute.

Sec. 32. Restriction of Competition; Purchase of Stock of
Rival Company.

The right of one corporation to own stock of another is
generally granted by statute. Such statutes may be con-
strued to permit an electric company to purchase the stock
of its rival.”? The entire question, however, being one of

65. Keene Syndicate v. Wichita Co., 96 Ala. 295, 3 Am. Electl. Cas.
Gas, Electric Light & Power Co., 69 504, 11 So. 381.
Kan. 284, 9 Am. Electl. Cas. 120, 76 69. § 7.

Pac. 834.

66. Weld v. Gas & Electric Com’rs,
197 Mass. 556, 84 N. E. 101.

67. See People ex rel. Municipal
Gas Co. v. Rice, 1388 N. Y. 151, 33
N. E. 846.

68. Beggs v. Edison Elec. Ilum.

70. Henry L. Doherty & Co. v. Rice,
186 Fed. 204; Phelan v. Edison Elec.
Tlum. Co., 24 Misc. (N. Y.) 109, 53
N. Y. Supp. 305; Potts v. City of
Philadelphia, 195 Pa. St. 619, 46
Atl. 195.
56 Law or E.ectricrry.

statutory construction, a different result may be reached
in other jurisdictions when their particular statutes are

under consideration.

Sec. 33. Mortgage of Property.

An electric company is generally invested with the same
power to mortgage its property and franchises as have

other corporations.”

The power to mortgage, in the case

of such corporations, means the power to execute a trust

mortgage to secure its bonds.”

An electric company’s

mortgage may, by express language, be made to cover after-

acquired property.”

71, American Loan & T. Co. v. Gen-
eral Electric Co., 71 N. H. 192, 8 Am.
Electl. Cas. 117, 51 Atl. 660; Metro-
politan Trust Co. v. Dolgeville Elec.
L. & P. Co., 35 Mise. (N. Y.) 467,
71 N. Y. Supp. 1055.

The right to sell or pledge property
is one of the principal rights pertain-
ing to ownership, and one that is
generally essential to enable the
owner to use the property in busi-
ness successfully. The policy adopted
by the State, so far as electric light
corporations are concerned, allows
this right to remain unimpaired, and
secures the assurance that corpora-
tions will fulfill their public duties
by providing for a regulation of their
use of the property. It regards
mortgages of the property and fran-
chises of such corporations, made to
secure debts incurred in their au-
thorized business, as contracts or con-
veyances “necessary and proper for
the transaction of their authorized
business,” as well as necessary and
proper for the fulfilment of their
obligations to the public. American
Loan & Trust Co. v. General Elec.
Co., 71 N. H. 192, 8 Am. Electl. Cas.
117, 51 Atl. 660.

72. Metropolitan Trust Co. v.
Dolgeville Elec. L. & P. Co., 35 Mise.
(N. ¥.) 467, 71 N. Y. Supp. 1055.

In some jurisdictions, a corporate

73. Metropolitan Trust Co. v. Dolge-
ville Elec. L. & P. Co., 35 Mise. (N. Y.)
467, 71 N. Y. Supp. 1055, wherein
it was said: “ Without recourse to
any extended reasoning, it seems to
me that the statutes under which the

‘defendant was incorporated give suffi-

cient power to enable it to mortgage
after-acquired property, and in the
construction of such statute substan-
tially the same reasoning must pre-
vail in favor of recognizing the neces-
sity of such powers in the case of
one corporation as in the case of the
other. The mortgage in question, as
must generally happen in such a case,
was executed to secure bonds running
for a long period of time, and liable
to be scattered in the hands of many
holders. It probably was executed,
and said bonds issued (and in most
cases a similar course would be fol-
lowed) for the purpose of securing
money with which to build and equip
a plant. Every corporation of the
same class as that to which defendant
belongs, will, at least if it is success-
ful and prosperous and thrifty, desire
from time to time to extend its plant,
purchase more modern machinery and
replace old and worn out construction
with new construction. It becomes
practically a matter of public neces-
sity that if bonds such as those in-
Powers anp Dutizs or Exectric ComMpaNIEs. 57

mortgage cannot be given without the consent of two-thirds
of the stockholders of the corporation.”*

Foreclosure Sale— Where a mortgage covering the fran-
chises and other property, real and personal, of a quasi-
public corporation, such as a railroad, canal, water, gas,
telegraph, or telephone company, is foreclosed, the sale
should be of the property as an entirety and without right
of redemption, notwithstanding statutes giving a right of
redemption from foreclosure sales of mortgaged real estate.
This rule is based on the public character of the corpora-
tion and on the character of the property mortgaged.”

Preferential Claims.— It has been held that the doctrine
of preferential claims applies to electric companies.” In
North Carolina it has been held that an electric dynamo
or other like machinery, perfect in itself and capable of
being used in one place as well as another, is not such
‘‘ material ’’ as, when furnished to a corporation, will give
to the seller a priority over mortgage bonds of the cor-
poration.”

Sec. 34. Franchises.

The powers and duties of an electric company which per-
tain to its franchise are discussed in other places.”

volved in this action are to be avail- 75. Clearwater Co. State Bank v.

able and merchantable in the public
market, they must be secured through
the lien of a mortgage upon such ex-
tensions and new property. No other
course is practicable, if the security
and standing of the bonds is to be
maintained. If this course is not al-
lowed, the more prosperous and more
progressive a corporation issuing the
bonds becomes, the less valuable the
security of the latter through inter-
change of old property for new.”

74, Phelan v. Edison Elec. Ilum.
Co., 24 Mise. (N. Y.) 109, 53 N. Y.
Supp. 305.

Bagley Telep. Co., 116 Minn. 4, 133
N. W. 91, 36 L. R. A. (N. S.) 1132,
Ann. Cas. (1913 A.) 622.

76. Illinois T. & S. Bank v. Ot-
tumwa Elec. R. Co., 89 Fed. 235,

Power House— An advance for
building a power house has been sus-
tained as a preferential claim. IIli-
nois T. & S. Bank v. Ottumwa Elec.
R. Co., 89 Fed. 235.

77. General Elec. Co. v. Morgan-
ton E. L. & P. Co., 122 N. Car. 599,
30 S. E. 314.

78. §§ 173-267.
58 Law or Euexcrriciry.

Sec. 35. Eminent Domain.

The power to condemn the lands of other persons or cor-
porations for the purpose of generating electricity or con-
ducting the same along public highways or across private
property, which is a power that is invested in electric com-
panies by reason of their public character, is discussed in
another chapter.”

79. §§ 57-92.
To Furnisa Current Wirnout Discrimination. 59

«

CHAPTER III.
DUTY TO FURNISH CURRENT WITHOUT DISCRIMINATION.

SEcTION 36. In General.

37. Municipality Owning Electric Plant.
38. Discontinuance of Business.
39. What Constitutes Discrimination; in General.

 

 

 

 

40. Difference in Rate.

41. —— Experimental Contracts.

42. Contract and Meter Classes of Patrons.

43. Discount to Customer Furnishing Lamps.

44, Procurement of Right of Way to Customer’s Premises.
45. ——— Furnishing Transformers.

46. Excuses for Supplying Current; in General.

 

47.
48.

 

 

 

 

 

 

Violation of Company’s Rules.
Defective Interior Wiring.
49. —— Absence of Contract.

50. Non-payment of Rates.
51. Waiver of Excuse.
52. Remedies; Mandamus.
53. Injunction.
54, Damages for Failure to Serve.
55. —— Recovery of Difference Charged and Customary Rates.
56. Penalty for Failure to Furnish Current.
Sec. 36. In General.

A duty of furnishing, without ‘discrimination and at rea-
sonable rates, electrical energy to all members of the public
within the scope of its service, is imposed upon every elec-

tric company.”

1, Illinois— Snell v. Clinton Elec.
L., H. & P. Co., 196 Ill. 626, 8 Am.
Electl. Co. 879, 63 N. E. 1082, 58
L. R. A. 284, 89 Am. St. Rep. 341.

Massachusetts.— Weld v. Gas &
Electric Light Com’rs, 197 Mass. 556,
84 N. E. 101.

Minnesota.— State v. City of Wa-
seca, 122 Minn. 348, 142 N. W. 319,
46 L. R. A. (N. 8.) 437; State ex rel.
Mason v. Consumers’ Power Co., 119
Minn. 225, 187 N. W. 1104, 41 L. R.
A. (N. 8.) 1181.

This obligation is one which every public

Missouri.— State ex rel. Shewalter
v. Jones, 141 Mo. App. 299, 125 S. W.
1169.

Montana.— State ex rel. Deeney v.
Butte Elec. & P. Co., 43 Mont. 118,
115 Pac. 44.

New Hampshire.— Rockingham
County Light & Power Co. v. Hobbs,
72 N. H. 531, 9 Am. Electl. Cas.
102, 58 Atl. 46, 66 L. R. A. 581.

New York Armour Packing Co.
v. Edison Elec. Illum. Co., 115 N. Y.
App. Div. 51, 9 Am. Electl. Cas. 855,
60 Law or Evecrriciry.

service corporation takes upon itself when it is incorpo-
rated as an electric company to furnish current to the pub-
lic? It is to be observed that the obligation of the com-
pany, though stated in the terms of one general rule,
is three-fold. (1) The company must furnish service.
(2) It must make no discrimination between its customers.
(3) Its rates must be reasonable. The first and second
duties are discussed in this chapter, but the duty with refer-
ence to its rates is elsewhere discussed.° .

Charter Need not Define Duty.— It is not necessary that
the duty of an electric company to furnish electricity to the
public be specifically stated in its charter or articles of

incorporation.*

100 N. Y. Supp. 605; Gould v. Edi-
son Elec. Illum. Co. of N. Y., 29
Mise. 241, 60 N. Y. Supp. 559.

Ohio.— Cincinnati, etc., R. Co. v.
Bowling Green, 57 Oh. St. 336, 49
N. E, 141, 41 L. R. A. 422.

Pennsylvania— Mereur v. Media
Elec. L., Heat & P. Co., 19 Pa. Super.
Ct. 519. :

Texas.— Nacogdoches L. & P. Co.
v. Thomas & Richardson, (Civ. App.)
138 S. W. 1080.

“ The implied condition of the grant
of all corporate franchises of even
quasi-public nature is that they shall
be exercised without individual dis-
crimination in behalf of those who
desire the benefits of their corporate
existence.” Mercur v. Media Elec.
L., Heat & P. Co., 19 Pa. Super. Ct.
519.

“The respondent [an electric com-
pany] is a corporation, organized to
exercise a public franchise of impor-
tance to the community in which it
conducts its business. It is its duty
to exercise this franchise for the
benefit of the public, with a reason-
able regard for the rights of indi-
viduals who desire to be served,
and without discrimination between

The duty is one which arises by operation

them.” Weld v. Gas & Electric Light
Com’rs, 197 Mass. 556, 84 N. E. 101.

2. “Appellant [an electric com-
pany] is a quasi-public corporation,
and by virtue of its charter is charged
with the performance of certain du- -
ties to the public which it can be
compelled by the courts to perform.
This is a part of the burden it took
upon itself when it procured a fran-
chise authorizing it to exercise the
privileges and granting to it the
power usual to such corporation. It
cannot, like a private individual or
a purely private corporation, refuse
to perform these duties.” Nacog-
doches L. & P. Co. v. Thomas &
Richardson, (Tex. Civ. App.) 138
8. W. 1080.

3. §§ 28, 29.
_ 4 “Its articles of association do
not, in terms, impose this obligation
[furnishing electricity to the public]
upon it. They are, however, entirely
consistent with the existence of the
obligation. When the interpretation
is considered which the plaintiff has
given to the agreement by its acts in
locating lines of wire in the public
highways, and in procuring and at-
tempting to exercise the right of emi-
To FurnisH Current WitHovut Discrimination. 61

of law from the nature of the company; not from written
articles incorporating the company.

Maximum Rates Fixed by Ordinance.— Even where the
maximum rates which electric companies can charge for
their current has been fixed by governmental regulation,
the company must be guilty of no discrimination as to its
customers similarly situated, and its charges must be rea-
sonable and under some circumstances may be made the
subject of judicial scrutiny and control.’

Connecting Wires.—If it is the usual custom of the elec-
tric company to connect the interior wiring of an appli-
cant’s building with the company’s system, it cannot refuse
to do so in a particular case. In a proceeding to compel
such a company to furnish electricity to an applicant, it is
presumed that such is the usual custom of the company,
where the building is within the zone of the company’s
service.®

Sec. 37. Municipality Owning Electric Plant.

A municipal corporation, entering upon the municipal
ownership of an electric light plant for service to its citi-
zeus as well as for street lighting, becomes bound, to the
same extent as an electric company, to furnish electrical
current to its inhabitants without discrimination and for

nent domain, it is apparent that the is made by an individual for service

plaintiff intended by its articles of
association to take upon itself the
obligations of a quasi-public corpo-
ration in respect to the sale of elec-
tricity and electric energy.” Rock-
ingham County Light & Power Co. v.
Hobbs, 72 N. H. 531, 9 Am. Electl.
Cas. 102, 58 Atl. 46, 66 L. R. A, 581.
5. Horner v. Oxford Water & Elec.
Co., 153 N. Car. 535, 69 8S. E. 607.
6. State ex rel. Mason v. Consum-
ers’ Power Co., 119 Minn. 225, 137
N. W. 1104, 41 L. R. A. (N. 8.)
1181. “It is a matter of common
knowledge that when an application

from such a company, such as for
water, gas, electric light or power,
or telephone service, certain things
have to be done in order to connect
the applicant’s premises with the
company’s system, and we think that
it is equally well known that the
company, and not the applicant, usu-
ally attends to such matters, except
in so far as they may be controlled
by special rules and regulations ap-
plicable to the particular service.”
State ex rel. Mason v. Consumers’
Power ‘Co., 119 Minn. 225, 137 N. W.
1104, 41 L. R. A. (N. S.) 1181.
62 Law oF ELrctriciry.

reasonable rates.? Thus, in one case,® the court said:
‘¢ Necessarily most public utilities are monopolies. Whether
owned and conducted by municipalities, or by public service
corporations, they deal in the prime necessities of urban
life, and must be and are subject to the control of the courts,
to the end that all classes of people may enjoy proper
service, without discrimination or individual oppression.
The law recognizes no distinction between municipal gov-
ernments and public service corporations in the service of
the public. Municipal ownership imposes the duty on the
city to give reasonably good service, to treat all classes of
citizens alike, and to impose only such rules and regulations
as are reasonable and just.’

Zone of Service.—Where an electric company has entered
into a district, to the inhabitants of which it has authority
to supply current,’ it must not unreasonably discriminate
between such inhabitants, but must furnish service to all
similarly situated? The right of a resident of an estab-
lished service zone to electricity is not affected by a pro-
vision in the ordinance granting the company’s franchise
that the city should not require the company to make exten-
sions to its line, except upon certain conditions.”

Sec. 38. Discontinuance of Business.

The duty of furnishing current extends not only to the
individual, but to the service of the public in general. In
other words, unless permitted by the legislature, a public

7. State v. City of Waseca, 122
Minn. 348, 142 N. W. 319, 46 L. R.
A. (N. 8.) 437; State ex rel. She-
walter v. Jones, 141 Mo. App. 299,
125 S. W. 1169. “The city has
undertaken to furnish a public util-
ity. It is to be governed in its du-
ties and obligations, and in its rights
and privileges, by the same rules as
apply to private persons or corpora-
tions doing the same class of service.”
State v. City of Waseca, 122 Minn.

348, 142 N. W. 319, 46 L. R. A,
(N. 8.) 437.

8. State ex rel. Shewalter v. Jones,
141 Mo. App. 299, 125 S. W. 1169.

9. See § 23.

10. State ex rel. Mason v. Con-
sumers’ Power Co., 119 Minn. 225,
137 N. W. 1104, 41 L. R. A. (N. S.)
1181.

11. State ex rel. Mason v. Con-
sumers’ Power Co., 119 Minn. 225,
137 N. W. 1104, 41 L. B. A. (N. S.)
1181.
To Furnish Current WitHovut Discrimination. 63

service corporation such as an electric company cannot dis-
continue its business.” As was said in the only reported
case upon this proposition:** ‘‘ As the gas and electric com-
pany had received and accepted from the state a corporate
charter authorizing it to engage in the business of manu-
facturing, generating, and selling electric current for light-
ing and power purposes to the municipality and its inhab-
itants, and had, by and with permission of the city, con-
structed its plant, using the streets of the city for its poles
and wire by means of which the public service of furnish-
ing electric current to the city and its inhabitants for light-
ing and power purposes was performed, for which the com-
pany was entitled under the Constitution and laws of this
state to receive a reasonable compensation in return for
the service rendered, the company assumed the duty im-
posed by implication of law to render a reasonably adequate
service during the time its rights and duty may lawfully
continue, and such duty may be enforced where no adequate
excuse for non-performance is appropriately shown.”’

Burdensome Municipal Ordinances No Excuse for Dis-
continuance.— The fact that the municipal corporation in
which the electric company is doing its business has passed
ordinances which the company considers confiscatory and
unduly burdensome, furnishes no reason why the company
should discontinue its business.* If the ordinances are
valid, it is the duty of the company to comply with their
terms and, at the same time, continue its business. If, on
the other hand, they are invalid, the company has a remedy
to be relieved therefrom. But whether valid or not, the

12. City of Gainesville v. Gaines-
ville Gas & Elec. P. Co., (Fla.) 62
So. 919, 46 L. R. A. (N. S.) 1119.

Telephone company.— Citizens of
a city may sue to compel a telephone
company to exercise its franchise by
operating its plant; the franchise
being granted by the city for the
citizens’ benefit and in consideration
of the service to be furnished them,
and the remedy at law in behalf of

of contract being inadequate.

the citizens for the company’s breach
Cum-
berland Telep. & Teleg. Co. v. City of
Hickman, 129 Ky. 220, 33 Ky. Law
Rep. 730, 11 3. W. 311.

18. City of Gainesville v. Gaines-
ville Gas & Elec. P. Co., (Fla.) 62
So. 919, 46 L. R. A. (N. 8S.) 1119.

14. City of Gainesville v. Gaines-
ville Gas & Elec. P. Co., (Fla.) 62
So. 919, 46 L. R. A. (N. S.) 1119.
64 Law or ELecrriciry.

company must continue to furnish electrical energy to the
public.

Remedy.— The remedy to compel the electric company to
continue its business may be an injunction to restrain the
discontinuance.® The municipality in which the company
is operating is a proper party plaintiff to enforce the duty
of the electric company.”

Pleading.— Where it appears that the company is actu-
ally enjoying franchises and has undertaken to render
public service, it is not essential that the particular terms
and limitations under which the service is being rendered
should be alleged in proceedings to enforce a continuance
of the public service actually engaged in, if there is nothing

15. “The defense undertaken to be
shown when the injunction was dis-
solved is in substance that the ordi-
nances passed by the city regulating
the company’s service and compensa-
tion are in effect confiscatory and un-
duly arbitrary, and burdensome to
the company. This is not a sufficient
reason for a discontinuance of the
public service. While it is the duty
of the company to observe all lawful
municipal regulations, the company
has a right to receive a reasonable
compensation for the public service
it renders to the city and its inhabit-
ants, and to the equal protection of
the laws in every department of the
government. If the regulations im-
posed by the city are in law and in
fact illegal for any reason, the com-
pany has its complete and adequate
remedy by appropriate proceedings;
but the company, being engaged in
rendering a public service, must con-
tinue to do so in a reasonably ade-
quate manner until relieved of its
duty by: due process of law. Illegal
municipal regulations are not bind-
ing; but persons and corporations
cannot be permitted to arbitrarily
assume to remedy an alleged wrong

by refusing to render a public service
voluntarily undertaken. The service
to the public must be performed, and
the law will, upon proper proceed-
ings, enforce the right to reasonable
compensation for service rendered.
An ordinary action at law would not
afford an adequate remedy to the
public. Under the liberal rules of!
procedure recognized in this state, the
company may, by cross bill or other
appropriate steps, secure a determi-
nation and enforcement of its right
to reasonable compensation and to
equal protection of the laws.” City
of Gainesville v. Gainesville Gas &
Elec. P. Co., (Fla.) 62 So. 919, 46
L. R. A. (N. 8S.) 1119.

16. City of Gainesville v. Gaines-
ville Gas & Elec, P. Co., (Fla.) 62
So. 919, 46 L. R. A. (N. 8.) 1119.

17. “The municipality is a proper
party in proceedings to require the
public service company to continue
the performance of its public service
in a reasonably adequate manner for
the benefit of the city and its inhabit-
ants.” City of Gainesville v. Gaines-
ville Gas & Elec. P. Co. (Fla.) 62
So. 919, 46 L. R. A. (N. S.) 1119.
To Furnise Current WitHout Discrimination. 65

to indicate that the rights of the company have expired
or have been lawfully surrendered or forfeited, inferences
of a continuing right and duty being fairly deducible from
the proceedings."*

Sec. 39. What Constitutes Discrimination; in General.

An electric company is not allowed to discriminate
between its customers,’® but it is obvious that not every
difference in the treatment of customers amounts to an
unlawful discrimination.» What is required, is that the
treatment of all customers similarly situated shall be uni-
form.” Itis unnecessary, as well as practically impossible,
to extend this uniformity to customers dissimilarly situated.

Sec. 40. What Constitutes Discrimination; Difference in
Rate.

The mere fact that one customer has received the same
or a greater amount of electricity for a less sum of money
does not per se establish a discrimination.” To show a
discrimination based on a difference in the rate charged,
similarity in all material respects must be shown in the
circumstances and conditions of the two services,” or the
differences existing between the two services must be shown
to be disproportionate to difference between the two rates.”
A difference in rate may be justified by a difference in the

18. City of Gainesville v. Gaines- v. Edison Elec. Ilum. Co., 43 Pa.

ville Gas & Elec. P. Co., (Fla.) 62 Super. Ct. 77.

So. 919, 46 L. R. A. (N. S.) 1119. 22. Graver v. Edison Electric Illu-
19. § 36. minating Co. of Brooklyn, 126 N. Y.
20. Snell v. Clinton Elec. L., H. & App. Div. 371, 110 N. Y. Supp. 603;

P. Co., 196 Ill. 626, 8 Am. Elect]. Mercur v. Media Elec. L., Heat & P.

Cas. 879, 63 N. E. 1082, 58 L. R. A. Co., 19 Pa. Super. Ct. 519; Steinman

284, 89 Am. St. Rep. 341. v. Edison Elec. Illum. Co., 43 Pa.
21. State ex rel. Mason v. Con- Super. Ct. 77.

sumers’ Power Co., 119 Minn. 225, 23. Graver v. Edison Electric TIllu-

137 N. W. 1104, 41 L. R. A. (N. S.}  =minating Co. of Brooklyn, 126 N. Y.

1181; Gould v. Edison Elec. Illum. App. Div. 371, 110 N. Y. Supp. 603.

Co. of New York, 29 Misc. (N. Y.) 24. Graver v. Edison Elec. Illumi-

241, 60 N. Y. Supp. 559; Steinman nating Co. of Brooklyn, 126 N. Y.

App. Div. 371, 110 N. Y. Supp. 603.
5
66 Law or ELEcrricity.

amount of current used,?* number of lights,” the time of
day electricity is furnished,” distance from the main or
feed line,”* access to the property served,” or in the appli-
ances or other lights furnished in connection with the
service.*° A higher rate per kilowatt hour may be charged
a customer who does not agree to take any specified amount
of current than is charged one who guarantees to use a cer-
tain amount of energy and to pay for the same whether
used or not.** And a lower rate may properly be allowed
to a customer who consumes a certain amount and pledges
himself to deal exclusively with the company for a stated
period than to a customer who consumes a less amount
without binding himself to take the current for any par-
ticular period.” If a company has one rate for electricity
furnished for lighting and a lower rate for current supplied
for power purposes, if it permits a customer supplied with
the power current to transform the current into a current
suitable for lighting and the customer pays therefor only
the power rate, a discrimination may exist.**

Sec. 41. What Constitutes Discrimination; Experimental
Contracts.

An electric company has the right to make experimental

contracts in order to reach a basis for future charges, even

though a better rate for a limited period is thus given to

25. Graver v. Edison Electric Illu- Minimum rates— As to minimum

minating Co., 126 N. Y. App. Div.
371, 110 N. Y. Supp. 603.

26. Mercur v. Media Elec. L., Heat
& P. Co., 19 Pa. Super. Ct. 519.

27. Graver v. Edison Electric Ilu-
minating Co., 126 N. Y. App. Div.
371, 110 N. Y. Supp. 603.

28. Mercur v. Media Elec. L., Heat
& P. Co., 19 Pa. Super. Ct. 519.

29. Mercur v. Media Elec. L., Heat
& P. Co., 19 Pa. Super. Ct. 519.

30. Halpern v. New York Edison
Co., 61 Mise. (N. Y.) 288, 113 N. Y.
Supp. 790.

31. Graver v. Edison Electric
INum. Co. of Brooklyn, 126 N. Y.
App. Div. 371, 110 N. Y. Supp. 603.

charges, see § 29.

82. Steinman v. Edison Elec. Illum.
Co., 43 Pa. Super. Ct. 77.

83. Alpena Elec. L. Co. v. Kline,
(Mich.) 146 N. W. 652, wherein it
was said: “To permit one user to
take the current at its power voltage
and transform a portion of it to the
lighting voltage, and use it for light-
ing, paying for the whole at the
power rate, would be to permit a
discrimination against all other users
of the power for lighting, because
the rate charged for the current when
used for lighting is considerably
higher than that charged when it is
used for power.”
To FurnisH Current WirHout Discrimination. 67

a few customers than is given to others.* Unlawful dis-
crimination is not conclusively shown by such experiments.

Sec. 42. What Constitutes Discrimination; Contract and
Meter Classes of Patrons.

An electric company, unless prohibited by ordinance or
express provision of law, may install a meter and charge
its customer per kilowatt for electricity actually used, or
it may make a contract with such customer to furnish elec-
tricity at a fixed charge per month. Unless forbidden by
statute or ordinance, it may furnish one class of service
and refuse to furnish the other.*® On the other hand, it
may give the customer the choice of whether he will take
current on the meter system or upon a ‘‘ flat’’ rate. It is
not an unlawful discrimination for the electric company to
give either of such classes of service as the customer may
elect, though a difference in the cost of current may result.
And where a patron has once chosen to become a member
of either class, or has been permitted by the company to
change from one system to the other, he cannot complain
because the company will not thereafter change his service
to the other class.** All that the law requires of the com-
pany in this respect is that uniform treatment be given to
the different persons in the same class.

84. Graver v. Edison Electric Illu-
minating Co. of Brooklyn, 126 N. Y.
App. Div. 371, 110 N. Y. Supp. 603.

“A corporation engaged in furnish-
ing an electric current is entitled,

though this should result in giving
for a limited time a better rate to
a few customers than was given to
others receiving substantially the
same amount of current. To hold

like other quasi-public corporations,
to earn a fair income upon its invest-
ments; it has a right to fix its rates
upon the cost of the production, tak-
ing into account not only the cost of
coal, labor, etc., but the investment
which is necessary to carry on the
enterprise and, acting in good faith,
it has a right to make experimental
sontracts for the purpose of reaching
a basis for future charges, even

otherwise would be to stand in the
way of the best development of the
business and the fairest service to
the public generally.” Graver v. Edi-
son Electric Illuminating Co. of
Brooklyn, 126 N. Y. App. Div. 371,
110 N. Y. Supp. 603.

35. Horner v. Oxford Water & Gas
Co., 153 N. Car. 535, 69 8. E. 607.

36. Mercur v. Media Elec. L., Heat
& P. Co., 19 Pa. Super. Ct. 519.
68 Law or Ewecrriciry.

Sec. 43. What Constitutes Discrimination; Discount to
Customer Furnishing Lamps.

Where an electric company has been furnishing lamps
to its customers free of charge, it may properly make a
discount, proportionate to the cost of the lamps, to such
customers as will furnish their own lamps. But as to two
of such customers similarly situated, the discount should
not be greater in one case than in another. However, an
electric lighting company furnishing lamps and keeping
them in repair without extra charge, by making an agree-
ment to allow certain customers ten per cent. in considera-
tion of their furnishing and keeping in repair their own
lamps, where the business of such customers is such that
the company cannot properly control their lamps, or the
lamps are worn out, destroyed and injured by the use of
other current than that furnished by the company, or the
.breakage or loss of lamps is far greater than in the case of
ordinary customers, does not thereby become liable to make
a like discount to a customer who voluntarily furnishes and
keeps in order his own lamps but whose business is not
such as to produce the extraordinary cost of lamp renewal
which occurs in the business of the customers to whom such
discount is made; and its refusal to make such discount to
such consumer is not unreasonable nor in contravention
of law.*”

Sec. 44. What Constitutes Discrimination; Procurement
of Right of Way to Customer’s Premises.

It is an unreasonable discrimination for an electric light
company to require an applicant for service to procure for
it a right of way to his premises, when such condition is not
imposed upon other applicants and patrons.

87. Halpern v. New York Edison
Co., 61 Mise. (N. Y.) 288, 113 N. Y.

of the wholesale rate by a reduction
of apparent consumption caused by

Supp. 790, in which case the court,
in reaching its conclusion, considered
the question that the plaintiffs, with
whom a contract at wholesale rates
had been made, fell into the retail
class of consumers and lost the benefit

their filching the company’s current
for several months.

38. State ex rel. Mason v. Con-
sumers’ Power Co., 119 Minn. 225,

137 N. W. 1104, 41 L. R. A. (N. 8.)
1181.
To Furniso Current Wituout Discrimination. 69

Sec. 45. What Constitutes Discrimination; Furnishing
Transformers.

An electric company has no right to compel one applicant
for service to pay for a transformer when it does not com-
pel such payment from its applicants in general. It cannot
furnish the transformer free when it does the interior wir-
ing for the proposed customer, but charge therefor when
the wiring is done by a third party.*® In case, however, the
applicant for service demands a particular class of service
which requires a transformer, at an expense which is sub-
stantial and which is not entailed in furnishing power to
others, it is not unlawful to require the customer to pay
for the transformer.*®

Sec. 46. Excuses for Supplying Current; in General.

Though it must not discriminate as to persons similarly
situated, it is clear that circumstances may arise which
will excuse an electric company from furnishing current to
a particular person or corporation. For example, it would
be a violation of the constitutional rights of an electric com-
pany to. be compelled to furnish current to a person under
circumstances which render payment therefor unlikely.*
Likewise, it would be dangerous to society to compel an
electric company to send a current of electricity into a
building with no opportunity of investigating the safety of
the interior wiring or appliances.” This, however, does
not imply that the company has the power to dictate the
appliances or machinery which shall be run by the current
it furnishes. ‘To illustrate, the company cannot say that
it will not furnish energy to a particular kind of electric
motor installed by its customer.** If additional expense

39. Snell v. Clinton Elec. L., H. & 43. State v. City of Waseca, 122
P. Co., 196 Ill. 626, 8 Am. Electl. Minn. 348, 142 N. W. 319, 46 L. R.
Cas. 879, 63 N. E. 1082, 58 L. R. A. A. (N. 8.) 437. “The city is obliged
284, 89 Am. St. Rep. 341. to furnish power to all applicants

40. State v. City of Waseca, 122 who shall pay its proper and reason-
Minn. 348, 142 N. W. 319, 46 L. R. able charges therefor. It cannot ar-
A. (N. 8.) 437. bitrarily dictate to consumers what

41. § 50. appliances they shall use, nor direct
42. § 48. what selection -they shall make as
70 Law or Evecrricity.

is entailed by the company in adapting, by transformers
or otherwise, the current to the requirements of the cus-
tomer’s equipment, it may properly be charged against the
customer, but the electric company cannot refuse to furnish
the current after adaptation, in the absence of any other
excuse. **

Burden of Establishing Defense—In a proceeding to
compel an electric company to supply electricity to an
applicant, the burden is upon the company to establish a
defense predicated upon its inability, through physical,
legal, financial, or other obstacles, to furnish the service
demanded.**

Sec. 47. Excuses for Supplying Current; Violation of Com-
pany’s Rules.

In the management of an electric plant, as in the manage-
ment of any enterprise of importance, it is necessary to
promulgate rules and regulations for its operation. Such
rules and regulations may pertain to the supplying of elec-

burden thereof. Any other rule

between appliances in common prac-
tical use.” State v. City of Waseca,
122 Minn. 348, 142 N. W. 319, 46
L. R. A. (N. S.) 437.

44. State v. City of Waseca, 122
Minn. 348, 142 N. W. 319, 46 L. R.
A. (N. S.) 437, wherein it was said:
“Tt does not follow that the city
must bear the expense of conforming
its appliances to those of relator. A
single customer cannot dictate the
sort of system the city shall install.
The city officers must determine in
the exercise of their own best judg-
ment the sort of system best adapted
to the needs of the greatest number
of consumers. If, then, a particular
consumer desires service which the
city can supply only by the installa-
tion of transformers at an expense
which is substantial, and which is
not entailed in furnishing power to
others, the consumer who occasions
such special expense should bear the

would operate as a discrimination in
his favor. * * * As to the method
of adjustment of such expense, a
city has a large discretion. * *

It may no doubt do so, in its dis-
cretion, by a first charge as an in-
stallation charge, or by a rental, or
by an increased rate. We cannot
upon this record determine what
method should be adopted in this
cease This is a matter for the water
and light board of the city to regu-
late, and its regulation is binding,
if fair and reasonable and free from
discrimination, either in favor of or
against the applicant. If the board
has not yet fixed rates or charges
adapted to this class of service, it is
its duty to do so.”

45. State ex rel. Mason v. Con-
sumers’ Power Co., 119 Minn. 225,
137 N. W. 1104, 41 L. R. A. (N. S.)
1181.
To Furnisno Current WitHout Discrimination. 71

tricity to consumers; and, where a valid rule provides that
in case of a violation thereof the company will not supply
current to the customer violating the rule, the company
may rightfully refuse to furnish service to such person.“
But in order to render the violation of the rule a sufficient
reason why current should not be furnished, it is essential
that the rule be a valid one. In order to be valid, it must
be a reasonable rule, for corporations cannot enforce rules
which are unreasonable. A rule that service of current
may be discontinued upon non-payment therefor is a rea-
sonable regulation ;*" but a rule for discontinuance of serv-
ice upon the failure of the consumer to pay for some other
commodity in which it is not shown to have had authority
to deal, cannot be sustained.** And it has been held that
a rule prohibiting persons from using other kinds of lights
is unreasonable as tending to create a monopoly.

Penalty on Reinstatement after Cutting Off Current.—
A rule that an electric company, after cutting off the cur-
rent on account of the customer’s failure to pay his bill
within the time required, will not turn the current on again
without the payment of a penalty of a small sum, such as
fifty cents, would seem to be a reasonable regulation. Such
a sum, no doubt, is no more than the actual expense which
is sustained by an electric company in such a case; and it

46, State ex rel. Deeney v. Butte
Elec. & P. Co., 43 Mont. 118, 115
Pac. 44.

47. State ex rel. Deeney v. Butte
Elec. & P. Co. 43 Mont. 118, 115
Pac. 44. See also, § 50.

48. State ex rel. Deeney v. Butte
Elec. & P. Co., 43 Mont. 118, 115 Pac.
44,

49. Nacogdoches L. & P. Co. Vv.
Thomas & Richardson, (Tex. Civ.
App.) 138 S. W. 1080, wherein the
court explained its view as follows:
“ But appellant had another rule that
persons using its lights must use no
other kind of lights, and claims that
appellee had violated this rule by

putting in the system of gas lighting
which it desired to use in connection
with the electric system. The effect
of such a rule, if enforced, can easily
be seen. The tendency would be to
drive one or the other of the systems
out of business, and to give the one
remaining a monopoly of the busi-
ness. If appellant had the right to
impose this condition as to the use
of gas, it would have equally the
right to impose it as to the use of
kerosene lamps or candles, and thus
compel all of its customers to use its
lights alone, or do without its service
entirely. Such a rule or regulation
is on its face unreasonable and could
not be enforced.”
72 Law oF ELEctricity.

seems a fair proposition to charge the expense to the party
causing the same. Such considerations, however, were un-
availing to the company in the only reported case dis-
cussing this point, and it was held that such a rule is
as the court said, ‘‘ unjust, discriminatory, and therefore
oppressive.’’

Sec. 48. Excuses for Supplying Current; Defective Interior

Where the interior wiring in the building which the appli-
cant seeks to have lighted by electricity is done by someone
other than the electric company, the company, before send-
ing its current in the building, should have an opportunity
to inspect the wiring. If it finds that the wiring is so
defective that injuries, either to person or property, will
result therefrom, it may properly refuse to furnish current
for such building. And, though the original wiring was
proper, if it becomes unsafe by reason of connections made
therewith by the occupants, the company may lawfully
discontinue the service and refuse to resume the same until

the dangers are obviated.™

50. State ex rel. Shewalter v. Jones,
141 Mo. App. 299, 125 S. W. 1169.

“That part of the regulative ordi-
nances which authorized the city to
discontinue the service of a delin-
quent customer is reasonable; for,
obviously, neither the city nor a pri-
vate corporation could run business
successfully without some such regu-
lation. Vanderburg v. Gas Co., 126
Mo. App. 600, 105 S. W. 17. But,
when the delinquent customer pays
the amount due on his bills at the
time the service was shut off, he is
entitled to have the service restored,
without the imposition of any penal-
ties. Even on the theory that the
penalty is so called, and is nothing
more than w reasonable charge to
cover the expense of shutting off and
turning on the light, the right to en-
force it cannot be recognized. The

expense of turning on and off the
current enters into the monthly rates
charged for the service. This is made
certain by the fact that no charge, as
such, is made to patrons for such
service. If a man should change his
residence in the city, his light would
be turned off at his old abode and
turned on at the new without extra
charge. To force relator to pay
such extra charge would be to compel
her to pay again for what she al-
ready has paid, and this not only
would be discriminative, but .would
accord the city the right to use its
monopoly as an instrument of extor-
tion.” State ex rel. Shewalter v.
Jones, 141 Mo. App. 299, 125 S. W.
1169.

51. Benson v. American Illum. Co.,

102 N. Y. Supp. 206, 9 Am. Electl.
Cas. 961.
To Furniso Current WitHout Discrimination. 73

Sec. 49. Excuses for Supplying Current; Absence of Con-
tract.

In this country, as a general proposition, it is not
required that a contract be made before the applicant is
entitled to be furnished with current. The company and
the applicant may not be able to agree upon the terms of a
written contract for the electric energy furnished, but, as
long as the customer pays for the current used according
to reasonable rates of the company, and complies with the
reasonable requirements of the company, he is entitled to
current within reasonable limitations.

In England, however, as to certain electrical companies
this is not so. Under section 19 of the Electric Lighting
Act of 1882, no person within the area supplied with electric
current by an electric lighting company is entitled to a
supply of current by the company until he has entered into
a contract with the company for that purpose.” Upon a
change in the occupation of the premises, the new occupant
is not entitled to electricity for lighting until he makes a
contract with the company. Thus where a receiver is.
appointed for the property and such receiver enters into
possession thereof, the company is not required to continue
the current into the building.”

Sec. 50. Excuses for Supplying Current; Non-Payment of
Rates.

The primary purpose of the electric company is the
return from its customers for the electricity furnished.
They must duly make payments for the electricity they
have received, and, in case of default, the company may
discontinue the service.* The questions relative to rates

52. Husey v. London Elec. Supply 54. Minneapolis Gen. Elec. Co. v.
Corp, (1902) 1 Ch. 411, 71 L. J. City of Minneapolis, 194 Fed. 215;
Ch. 313, 86 L. T. 166, 50 W. R. 420, Thompson v. San Francisco Gas &
18 1. L. R. 296. Elec. Co., 20 Cal. App. 142, 128 Pac.

“58. Husey v. London Elec. Supply 347; Marion Elec. L. & Ice Co. v.
Corp., (1902) 1 Ch. 411, 71 L. J. Rochester, 149 Ky. 810, 149 S. W.
Ch. 313, 86 L. T. 166, 50 W. R. 420, 977.

18 T. L. R. 296.
74 Law or ELectriciry.

in general, their regulation by state and municipalities,”
and the validity of rules of the company relative thereto”
are discussed in other places in this work.

Sec. 51. Excuses for Supplying Current; Waiver of
Excuse.

Where an applicant for power makes a demand that the
company furnish the same, and the company makes no
objection to the form of the demand or gives no reason why
the current should not be furnished but presents to the
applicant a proposed written contract containing conditions
which it is not entitled to insist upon, the company thereby
waives any objection to the applicant’s demand and also
waives any matters and things it would have been entitled
to under the law applicable to such proposed contract.”

Sec. 52. Remedies; Mandamus.

Where a public service corporation refuses, without
reasonable cause, to fulfill its duty to the public in the
furnishing of service, it may be compelled to do so by
writ of mandamus.” ‘The mandate of such a writ, in ordi-
nary cases, should merely require the company to furnish
service to the applicant, without specifying the details or
manner in which the duty shall be performed.”

Sec. 53. Remedies; Injunction.

Though mandamus is a proper remedy™ to compel an
electric company to furnish current to an applicant, in a
case where a consumer is receiving current but the company
is threatening to discontinue such service, the customer
may find an appropriate remedy by way of injunction to
restrain the discontinuance of the supply. This remedy

55. §§ 28, 29. Rea v. Kansas City Long Dist. Telep.
56. §§ 325, 330, 334. Co., 87 Kan. 665, 125 Pac. 27.
57. § 47. 60. State ex rel. Mason vy. Con-

58. Thompson v. San Francisco
Gas & Elec. Co., 18 Cal. App. 30, 21
Pac. 937.

59. State ex rel. Mason v. Con-
sumers Power Co., 119 Minn. 225, 137
N. W. 1104, 41 L. R. A. (N.S.) 1181;

sumers Power Co., 119 Minn. 225,
137 N. W. 1104, 41 L. R. A. (NL 8.)
1181.

61. § 52.
62. Riverside, ete., Ry. Co. v. City
of Riverside, 118 Fed. 736.
To FurnisH Current WitHovut Discrimination. 75

is especially applicable where the company threatens to dis-
continue its business generally.®

Federal Question Involved.— Where a city has been fur-
nishing electricity to a street railway company under a
contract for such supply, an action by such street railway
company to enjoin the city from carrying into effect a
municipal ordinance providing for the discontinuance of
such service is an action for the protection of the plaintiff’s
constitutional rights, of which a federal court has juris-
diction.**

Sec. 54. Remedies; Damages for Failure to Serve.

Where an electric company refuses with no reasonable
excuse to give service to an applicant upon demand there-
for, he has a right of action against the company for the
damages he has sustained by reason of loss of the current.®
Such a cause of action is independent of his right of action
under statutory authority to recover a penalty ® for the
failure of the company to furnish the required service.
Where the company has contracted to furnish current to an
applicant and the contract is not illegal for any reason, the
company is liable for its failure to comply with its contract,
though the applicant is not one who is entitled to require
a supply by the company.”

Sec. 55. Remedies; Recovery of Difference between
Charged and Customary Rates.

An electric company is not entitled to retain the fruits of
its unlawful discrimination between its customers. If a

63. City of Gainesville v. Gaines-
ville Gas & Elec. P. Co., (Fla.) 62
So. 919, 46 L, R. A. (N. 8.) 1119.
See also, § 38.

64. Riverside, etc., Ry. Co. v. City
of Riverside, 118 Fed. 736.

65. Gardner v. Springfield Gas &
Elec. Co., 154 Mo. App. 666, 135 8S. W.
1023; Thompson v. San Francisco
Gas & Elec. Co., 18 Cal. App. 30, 121
Pac. 937.

66. See § 56.

67. Thompson v. San Francisco
Gas & Elec. Co., 18 Cal. App. 30, 121
Pac. 937; Morris v. Loughborough
Corp., (1908) 1K. B. 205, 77 L. J. K.
B. 91, 99 L. T. 269, 71 J. P. 521, 6
L. G. R. 55.

68. Morris v. Loughborough
Corp., (1908) 1 K.B. 205, 77 L.J.K.
B. 91, 99 L. T. 269, 71 J. P. 521, 6
L. G. R. 55.
76 Law oF Eectricity.

customer has been charged and has paid a sum for electric
current which is more than the customary or lawful rate to
persons similarly situated, he has a cause of action against
the company to recover the difference between what he has
actually paid and the amount the company should have
required.” It is no answer: to such an action to say that
the payments were made pursuant to a special contract
between parties fixing the rate in the particular case.”
Nor, where the payments were made without knowledge of
the unlawful discrimination, is the recovery barred upon
the theory that the payments were voluntary; payments
without knowledge of the illegal discrimination may be
deemed made under a mistake of fact, and hence are not
such payments as are in law considered ‘‘ voluntary.’’ The
contrary is true as to payments made under no mistake of
fact.”

Action by Company.— Where, however, the customer has
been under-charged for his current, there can be said to be
no mistake of fact upon the part of the electric company.
If the company allows a discrimination in favor of a cus-
tomer, it cannot afterwards recover the difference between

69. Armour Packing Co. v. Edi-
son Elec. Illum. Co., 115 N. Y. App.
Div. 51, 9 Am. Electl. Cas. 855, 100
N. Y. Supp. 605.

70. Armour Packing Co. v. Edi-
son Elec. Illum. Co., 115 N. Y. App.
Div. 51, 9 Am. Elect]. Cas. 855, 100
N. Y. Supp. 605; Armour & Co. v.
Edison Electric Illuminating Co., 115
N. Y. App. Div. 57, 9 Am. Electl.
Cas. 861, 100 N. Y. Supp. 609.

Accord and satisfaction— When a
plaintiff sues to recover sums paid to
defendant electric lighting company

under a contract which unjustly dis-.

criminates against the plaintiff by
requiring higher rates than those
given to other customers, it is no
defense to allege that such payments
were made under a specifie contract,
and that prior to the action the
plaintiff settled and adjusted all ac-

counts with the defendant and paid
the same in full. Such allegation
does not set out an accord and satis-
faction or a release of the plaintiff,
for it fails to allege that an adjust-
ment was made as to matters alleged
in the complaint which is founded on
an unjust discrimination, the pay-
ments alleged being merely a part
of the plaintiff's cause of action.
Armour & Co. v. Edison Electric I-
luminating Co., 115 N. Y. App. Div.
57, 9 Am. Electl. Cas. 861, 100 N. Y.
Supp. 609.

71. Armour Packing Co. v. Edi-
son Elec. Illum. Co., 115 N. Y. App.
Div. 51, 9 Am. Elect]. Cas. 855, 100
N. Y. Supp. 605.

72, Payne v. Witherbee, Sherman
& Co., 200 N. Y, 572, 93 N. E. 954;
modifying 182 N. Y, App. Div. 579,
117 N. Y. Supp. 15.
To Furniss Current WitHout Discrimination. 77

the price paid and the customary rate for the service
supplied.”

Sec. 56. Remedies; Penalty for Failure to Furnish Current.

In some jurisdictions it is provided by statute that in
case an applicant makes a formal demand upon an electric
light company for electric service and the company fails to
supply the same within a certain number of days, the appli-
cant may recover of the company certain sums as a penalty
for its failure to furnish the current. Though an electric
company unjustly refusing to furnish electricity to an
applicant is not a favorite of the law, penalties also are
looked upon with disfavor,* and such statutes are not
extended beyond their ordinary significance in order to
afford relief to the applicant.

Statute Is Independent of Actual Damages.— The cause
of action based on such penal statutes is independent of any
other remedy which the applicant may have. Thus, even
in those jurisdictions where such statutes have been
enacted, an applicant who is refused service by an electric
company may maintain an action to recover the actual
damages sustained by him.” In an action brought under
the penal statute, it is not necessary for the plaintiff to
show that he has sustained any actual damage by reason of
the failure to procure electricity. He may recover the
penalty though no pecuniary damages have been suffered.”

Distance of Building from Supply Wire.— The burden of
the company, as imposed by such penal statutes, is gener-
ally limited to the furnishing of electricity to buildings
within a certain distance of its supply wires. It is no reply
to an answer setting out the absence of such supply wire to

78. Lewisville Light & Water Co. P. Co., 24 Mise. (N. Y.) 671, 53

v. Lester, (Ark.) 160 S. W. 861. N. Y. Supp. 810; affirming 23 Misc.
74. Thompson v. San Francisco 512, 51 N. Y. Supp. 872.

Gas & Elec. Co. 20 Cal. App. 142, 75. § 54.

128 Pac. 347; Reiser v. Edison Elec. 76. Reiser v. Edison Elec. Illum.

Illum. Co. of Brooklyn, 76 Mise. Co. of Brooklyn, 76 Mise. (N. Y.)
(N. ¥.) 563, 1837 N. Y. Supp. 145; 563, 137 N. Y. Supp. 145.
Andrews v. North River Elec. L. &
78 Law or ELscrriciry.

say that the electric company has authority to and should
have extended a wire in that territory.” The fact that
there is not a wire carrying a current suitable for the pur-
poses of the applicant within such statutory distance from
his building is a conclusive answer to a claim for the statu-
tory penalty.” In other words, the penalty accrues only
when there actually is a wire carrying a suitable current
within the statutory distance.

Written Application to Company a Prerequisite Before
a cause of action for the penalty can accrue, it is necessary
that the company receive some notice of the requirements
of the applicant. Thus the statutes generally provide for
a written demand by the applicant upon the company for
the service he wishes.” The requirements of the statute as
to the contents and service of such a demand must be at
least substantially complied with. The request for current
should state the quantity of light or power which the appli-
cant wishes.*° Where an applicant in his demand does not
state the quantity of light or power which he wants but
merely requests in general language the company to furnish
him with electric light and power, and the company there-
upon asks him in writing how much electricity he wants, it is
his duty to answer and make his demand more specific; and,
if he fails to reply, he cannot recover the statutory penalty
of the company.** Where, however, the company has for-
merly conducted electricity into the building, an application
reading, ‘‘ I desire you to restore the connection and furnish
the current as heretofore on the same terms and under the
same conditions as heretofore,’’ may be considered suffi-
ciently definite.*

77. Moore v. Champlain Elec. Co.,
88 N. Y. App. Div. 289, 85 N. Y.
Supp. 37.

78. Moore v. Champlain Elec. Co.,
88 N. Y. App. Div. 289, 85 N. Y.
Supp. 37.

79. Reiser v. Edison Elec. Illum.
Co. of Brooklyn, 76 Mise. (N. Y.)
563, 137 N. Y. Supp. 145.

80. Andrews v. North River Elec.
L. & P. C., 23 Mise. (N. Y.) 512, 51
N. Y. 872; affirmed, 24 Mise. 671,
671, 53 N. Y¥. Supp. 810.

81. Andrews v. North River Elec.
L. & P. Co., 23 Mise. (N. Y.) 512, 51
N. Y. Supp. 872; affirmed, 24 Misc.
671, 53 N. Y. Supp. 810.

82. Moffat v. N. Y. Edison Co.,
116 N. Y. Supp. 683.
To Furnish Current WirHovut Discrimination. 79

Prepayment of Sums Due Company.— The statute pro-
viding for such a penalty generally requires the payment
by the applicant of all money due by him. Where the stat-
ute so provides, the complaint in an action for the penalty
must allege the payment by the plaintiff of all sums due
the company. And this is true without regard to the ques-
tion whether or not the electric company under the statutes
is obliged upon the demand to make its service connection,
install a meter, and commence the supply of electricity
without prepayment for. the expense of making the connec-
tion or the charge for the electricity to be supplied.

Penalties Accruing After Commencement of Action.— In
an action for the penalties prescribed by the class of stat-
utes now under consideration, unless the statute provides
to the contrary, no recovery can be had for penalties accru-
ing after the commencement of the action.®*

83. Thompson v. San Francisco until the statute’ is violated. At

Gas & Elec. Co. 20 Cal. App. 142,
128 Pac. 347.

84. Reiser v. Edison Elec. Ilum.
Co. of Brooklyn, 76 Misc. (N. Y.)
563, 137 N. Y. Supp. 145, wherein it
was said: “If an action for damage
ean be found in which plaintiff has
sued for one injury inflicted prior
to the commencement of the action
and has been allowed to recover in
addition for other injuries inflicted
after the commencement of the ac-
tion, then an analogy to plaintiff’s
claim will be found in an action for
damages. In this kind of an action
the cause of action does not arise

the commencement of an action
for a penalty the same as any
other action, the cause of section
must be complete. In an action for
damages where recovery is had for
damages accruing after the com-
mencement of the action the ,wrong-
ful act which gives the right of ac-
tion is complete before the action
igs begun but its consequences con-
tinue and it is for these consequences
damages are allowed. In this action
each day’s default is complete in it-
self and the consequences of default
do not add to or detract from the
cause of action.”
80 Law or Evectriciry.

CHAPTER IV.
EMINENT DOMAIN.

SEcTION 57. Eminent Domain is a Sovereign Power.
58. Constitutional Limitations.
59. Legislative Questions.
60. Discretion of Company.
61. Furnishing Electricity as a Public Use; in General.

 

62. —— Lighting of Municipal Streets.

63. —— Operation of Railroad.

64. —— Delivery of Current to Other Electric Companies.
65. ——Not Necessary That Every Inhabitant Be Benefited.
66. Service to Inhabitants of Another State.

67. ——Combination of Private and Public Uses.

68. Right to Condemn is Strictly Construed.
69. Corporations Entitled to Exercise; Statutory Delegation of
Power is Required.

 

 

 

 

70. —— Electric Companies.

71, —— Municipal Corporations.

72. Foreign Corporations.

73. Street Railway Companies.

74. Telegraph Companies.

75. Telephone Companies.

76. Lessees of Public Service Corporations.

 

77. Prerequisites to Exercise of Power.

 

 

 

78. Municipal Franchise.
79. Contracts for Furnishing Service.
80. Municipal Regulation.

81. Necessity of Taking.

82. Property Condemnable; Water Power.

83. Location for Power Plant.

84. Transmission Line.

85. —— Railroad Right of Way.

86. Rights of Owners Abutting Highway.

87. Property of Other Quasi-Public Corporations.
88. Petition or Complaint.

89. Damages; in General.

 

 

 

 

 

90. ——- Telegraph or Telephone Line along Highway.
91. Telegraph or Telephone Line along Railroad Right of Way.
92, —— Entry on Lands before Payment.

Sec. 57. Eminent Domain Is a Sovereign Power.
The right of eminent domain is a right which inheres in
the sovereign power of every state or country. Every
1, Jones v. North Georgia Elee. Co., 97 Minn. 429, 9 Am. Electl. Cas.
Co, 125 Ga. 618, 54 S, E. 85, 6 708, 107 N. W. 405,5 L. R. A. (N.S.)

L. R. A. (N. 8S.) 122; Minnesota 638.
Canal & Power Co. v. Koochiching
Eminent Domain. 81

citizen holds his property subject to the condition that the
state may, in proper proceedings, just compensation being
first paid or secured, take it for public uses.? The state
itself has the power to condemn lands for the generation of
electricity to be supplied to the public on equal terms.* But
this power is generally delegated to electric companies.‘

Sec. 58. Constitutional Limitations,

The constitution of every American state prohibits the
taking of private property except for ‘‘ public uses;’’ and
permits it, even in such cases, only:on payment of the value
thereof. Thus, before a person or corporation can take
the property of another without his consent, it is necessary
to satisfy the constitutional requirements and show that

2. Minnesota Canal & Power Co.
v. Koochiching Co., 97 Minn. 429,
9 Am. Electl. Cas. 708, 107 N. W.
405, 5 L. R. A. (N. 8S.) 638. “ The
right to take the private property
of a citizen against his will is justi-
fiable only on the grounds of high
public policy and on the theory that,
in the last analysis, all property is
held subject to the public use when
necessary for the general benefit. It
can be exercised only within the
strict terms of the grant and subject
to the constitutional restrictions. A
corporation which asserts the right,
under a delegation of power from the
State, to take private property
against the will of the owner, must
show affirmatively that it has been
granted the power for the specific
purpose, and that it proposes to use
the property, when it has been ac-
quired, for the public use and not
for private benefit. . Minnesota
Canal & Power Co., v. Koochiching
Co., 97 Minn. 429, 9 Am. Electl. Cas.
708, 107 N. W. 405, 5 L. R. A.
(N. S.) 638.

8. Long Sault Development Co. v.
Kennedy, 158 N. Y¥. App. Div. 398,
143 N. Y. Supp. 454.

6

4. § 69.

5. Nolan v. Central Georgia Power
Co., 134 Ga. 201, 67 S. E. 656; Rock-
ingham County Light & Power Co.
v. Hobbs, 72 N. H. 531, 9 Am. Electl.
Cas. 102, 58 Atl. 46, 66 L. R. A.
581; Deerfield River Co. v. Wilming-
ton Power & Paper Co., 83 Vt. 548,
77 Atl. 862; Doty v. Village of John-
son, (Vt.) 77 Atl. 866; City of Ta-
coma v. Nisqually Power Co., 57
Wash. 420, 107 Pac. 199.

“The Constitution provides that
private property shall not be taken,
destroyed or damaged for public use,
without just compensation therefor,
first paid or secured. The inevitable
inference from this prohibition is
that private property shall not under
any circumstances be taken for pri-
vate use without the consent of the
owner. Even the sovereign power of
the State cannot take private prop-
erty for public use without first mak-
ing full and adequate compensation
therefor.’ Minnesota Canal & Power
Co. v. Koochiching Co., 97 Minn. 429,
9 Am. Elect]. Cas. 708, 107 N. W.
405,5 L. R. A. (N. S.) 638.
82 Law oF ELECTRICITY.

the vse proposed to be made thereof is a ‘‘ public’’ use.®
Whether the purpose of one seeking to acquire rights by
condemnation is ‘‘ public’? within the meaning of such
constitutional provisions, is a question of law for the court.
In other words, the legislature cannot make a private use
a public use by declaring it to be such; the nature of the
use is a judicial question.’ But in some instances where it
is doubtful whether the use is public or private, the legisla-
tive determination of the question has received some con-
sideration.* The power of taking property for a public use
is lodged in the state; and is not, in the absence of appro-
priate constitutional provisions, vested in a public corpora-
tion merely by its due organization as such. Having satis-
fied the court of the public nature of the use to which it

6. Northern L. & P. Co. v. Stocker,
13 Cal. App. 404, 109 Pac. 896;
McMillan v. Noyes, 75 N. H. 258, 72
Atl. 759.

7%. United States.—Walker v. Shasta
Power Co., 160 Fed. 856, 87 C. C. A.
660.

California—Tuolomne Water P.
Co. v. Frederick, 13 Cal. App. 498,
110 Pac. 134.

Georgia.— Nolan v. Central Georgia
Power Co., 134 Ga. 201, 67 S. E. 656.

Maryland.— Webster v. Susque-
hanna Pole Line Co., 112 Md. 416,
76 Atl. 254, 21 Ann. Cas. 357.

Minnesota— Minnesota Canal &
Power Co. v. Koochiching Co., 97
Minn. 429, 9 Am. Electl. Cas. 708,
107 N. W. 405, 5 L. R. A. (N. S.)
638.

New Hampshire. — Rockingham
County Light & Power Co. v. Hobbs,
72 N. H. 531, 9 Am. Electl. Cas. 102,
58 Atl. 46, 66 L. R. A. 581; McMillan
v. Noyes, 75 N. H. 258, 72 Atl. 759.

West Virginia.— Pittsburg Hydro-
Electric Co. v. Liston, 70 W. Va. 83,
73 8. E. 86, 40 L. R. A. (N. S.) 602.

“Whether a certain use is public
or private is a judicial, and not a
legislative question. * * * The

legislature cannot by its mere fiat
make uw private use a public one. It
follows that a statute which attempts
to authorize the condemnation of
private property for other than a
public use is void without reference
to any legislature declaration as to
the nature of the use.” Minnesota
Canal & Power Co. v. Koochiching
Co., 97 Minn. 429, 9 Am. Elect]. Cas.
708, 107 N. W. 405, 5 L. R. A. (N.S.)
638.

8. Tuolomne Water P. Co. v. Fred-
erick, 13 Cal. App. 498, 110 Pa. 134;
“The Legislature cannot by its en-
actments make that a public use
which is essentially a private use,
and the question whether the use is
public in its nature is a judicial
question to be determined by the
courts. But it is the general rule
that, where it is uncertain and doubt-
ful whether the use to which the
property is proposed to be devoted is
of a public or private character, the
legislative determination of the ques-
tion is of persuasive force, and the
courts will not undertake to disturb
the same.” Walker v. Shasta Power
Co., 160 Fed. 856, 87 C. C. A. 660.
Eminent Doman. 83

proposes to put the land desired, it is necessary for the
applicant, where the power is sought by one other than the
sovereignty, to show that the legislature has delegated to
him the power of condemning land for such purposes.®
Moreover, provision must be made so that the owner of the
lands sought will receive due compensation therefor. In
some jurisdictions, the constitution requires payment
before the taking of lands; but in others the constitutional
provisions are satisfied if payment is assured.t° Corpora-
tions, however, which are but quasi-public in their nature
should generally be required to pay the damages before
they are permitted to appropriate the property of another.”
But, where the constitution permits the deferring of actual
payment until after possession is taken, the propriety of
doing so is a legislative question.” In all cases procedure
must be authorized for the determination of the amount of
the damages.

Federal Constitution— Under the Fourteenth Amend-
ment to the Constitution of United States, private prop-
erty cannot be taken without the owner’s consent for the
private uses of another. A state, even by a constitutional
provision, cannot authorize the taking of private property
for private purposes.*

9. § 69.

10. § 92.

11. “The gulf between govern-
mental corporations and commercial
companies is nowhere wider than at
the question of eminent domain, and
the gulf is not bridged by the court’s
clothing the latter with a public char-
acter to enable them to exercise the
right of eminent domain.

“The text writers agree that these
private companies ought to be re-
quired to pay before they appropri-
ate.’ Dusenbury v. Mutual Teleg.
Co., 11 Abb. N. C. (N. Y.) 440, 1
Am. Elect]. Cas. 448, 64 How. Pr.
206.

12. Matter of Niagara L. & O. P.

Co., 111 N. Y. App. Div. 686, 9 Am.
Electl. Cas. 931, 97 N. Y. Supp. 853.

18. “In all cases wherein the
power of eminent domain is sought
to be exercised the principal question
for determination is: What is a
public use? This is necessarily so,
because private property without the
owner’s consent cannot be taken for
the private use of another without
violating the Fourteenth Amendment
to the Constitution of the United
States.” Helena Power Transmission
Co. v. Spratt, 35 Mont. 108, 88 Pac.
773.

14. State v. White River Power
Co., 39 Wash. 648, 9 Am. Electl. Cas.
605, 82 Pac. 150, 2 L. R. A. (N. S.)
842.
84. Law oF HILEcTRICITY.

Sec. 59. Legislative Questions.

While the question whether a particular use of lands is
public or private is for the court,’® other questions pertain-
ing to the exercise of the right of eminent domain are for
the legislature to determine. Thus, the necessity of taking
property in general for a public use is usually considered
a question for legislative determination,** though the neces-
sity for condemning a particular parcel of land may be a
question resting largely in the discretion of the corporation
itself.17. Whether there is such a demand for electricity as
to warrant the extension of the power of eminent domain
to electric companies is a legislative, not a judicial, ques-
tion."* The expediency or propriety of extending the right
of eminent domain to any particular subject, such as the
supplying of electricity, is for the determination of the
legislature, and the courts have nothing to do therewith.”
The instrumentalities to be used,”° and the extent to which
the right shall be delegated,” are problems for the law mak-
ing body. Whether a municipality shall be permitted to
condemn property beyond its municipal limits, rests upon
the decision of the legislature.”

Sec. 60. Discretion of Company.

The question whether the taking of certain property by a
corporation under the power of eminent domain is neces-

15. § 58.

16. Miller v. Town of Pulaski, 109

Va. 137, 63 S. E. 880, 22 L. R. A.
(N. 8.) 552; Savannah, etce., R. Co.
v. Postal Teleg. Cable Co., 115 Ga.
554, 8 Am. Elect]. Cas. 278, 42 8. E.
1.
17. §§ 60, 81.
18. Brown v. Gerald, 100 Me. 351,
61 Atl. 785, 70 L. R. A. 742, 109
Am. St. Rep. 526; Rutland Ry., L.
& P. Co. v. Clarendon Power Co.,
86 Vt. 45, 83 Atl. 332; Pittsburg
Hydro-Elec. Co. v. Liston, 70 W. Va.
83, 75 S. E. 86, 40 L. R. A. (N. S.)
602.

19. Lucas v. Ashland L., Mill & P.
Co., 92 Neb. 550, 138 N. W. 761;
Miller v. Town of Pulaski, 109 Va.
137, 63 S. E. 880, 22 L. R. A. (N. 8.)
552; Pittsburg Hydro-Elec. Co. v.
Liston, 70 W. Va. 83, 73 S. E. 86, 40
L. R. A. (N. 8S.) 602.

20. Miller v. Town of Pulaski, 109
Va. 137, 63 S. E. 880, 22 L. R. A.
(N. S.) 552.

21. Miller v. Town of Pulaski, 109
Va. 137, 63 S. E. 880, 22 L. RB. A.
(N. S.) 552.

22. Miller v. Town of Pulaski, 109
Va. 137, 63 S. E. 880, 22 L. R. A.
(N. S.) 552.
Eminent Domain. 85

sary for its purposes is generally a question for the corpo-
ration itself,?* whose discretion in the matter, however, is
subject to review by the court in case of abuse thereof.”
To illustrate, where a telegraph or telephone company is
authorized to condemn an easement for its poles and wires
along a railroad track, it is not material that it could pro-
cure a right of way along a public highway or over private
property; the location of its lines is to a certain extent
within its own discretion.” Likewise an electric company,
in running a transmission line from it power plant to its
patrons, has a limited discretion as to the route and the
lands the line will pass over.” It may be that the court,
under its power of review, would interfere if the condemn-
ing company were actuated by malicious motives or if the
taking of the particular property would entail a great loss

which could easily be avoided.

23. Tuolomne Water P. Co. v.
Frederick, 13 Cal. App. 498, 110 Pac.
134; Washington Water Power Co.
v. Waters, 19 Idaho 595, 115 Pac.
682.

“The judgment of the company
seeking to condemn would be ordi-
narily safer and more reliable than
would be the judgment of any court.
The court is to judge, as a matter
of law in the first place, as to
whether the use for which the con-
demnation is sought is a public use
within the contemplation of the Con-
stitution or the statute. After that
question is determined by the court,
the question of the extent of the en-
terprise and necessity for the taking
should be in a large measure left to
the judgment and discretion of the
‘public agency seeking to make the
condemnation.” Washington Water
Power Co. v. Waters, 19 Idaho 595,
115 Pae. 682,

24. Washington Water Power Co.
v. Waters, 19 Idaho 595, 115 Pace.
682.

25. St. Louis & San Francisco R.

Co. v. Southwestern Telep. & Teleg.
Co., 121 Fed. 276, 8 Am. Electl. Cas.
282, 58 C. C. A. 198; American Telep.
& Teleg. Co. v. St. Louis, etc., Ry.
Co., 202 Mo. 656, 101 S. W. 576; Ft.
Worth, etc., Ry. Co. v. Southwestern
Teleg. & Telep. Co., 96 Tex. 160, 71
S. W. 270, 60 L. R. A. 145; Postal
Teleg. Cable ۩o. v. Oregon Short
Line R. Co., 23 Utah 474, 7 Am.
Elect. Cas. 417, 8 Am. Electl. Cas.
281, 65 Pac. 735, 90 Am. St. Rep. 705.

26. Tuolomne Water P. Co. v.
Frederick, 13 Cal. App. 498, 110 Pac.
134, wherein the court approved the
following quotation from an earlier
California case: “The selection of
a particular route is. committed in
the first instance to the person in
charge of the use, and unless there
is something to show an abuse of
discretion, the propriety of his se-
lection ought not to be questioned;
for certainly it must be presumed
that the state or its agent has made
the best choice for the public, and
if this occasions peculiar and unnec-
essary damage to the owners of the
86

Law or ELecrriciry.

Sec. 61. Furnishing Electricity as a Public Use; in General.

The use of lands for the purpose of generating, trans-
mitting, and furnishing electric energy to the public in
general, is a ‘‘ public use ’’ which authorizes the legislature
to confer upon a person or corporation the right to take by
condemnation proceedings the property of another for such
purposes.” The expectation of the company that it will
make a profit on the enterprise does not change the nature

property affected, the proof of such
damage should come from them. And
we think that when an attempt is
made to show that the location made
is unnecessarily injurious the proof
ought to be clear and convincing; for
otherwise no location could ever be
made. If the first selection made on
behalf of the public could be set
aside on slight or doubtful proof, a
second selection would be set aside
in the same manner, and so ad in-
finitum. The improvement could
never be secured, because whatever
location was proposed it could be de-
feated by showing another just as
good.”

27. United States— Hagerla_ v.
Mississippi River Power Co., 202 Fed.
776; Walker v. Shasta Power Co.,
160 Fed. 856, 87 C. C. A. 660; Shasta
Power Co. v. Walker, 149 Fed. 568,
9 Am. Electl. Cas. 930; affirmed,
Walker v. Shasta Pcwer Co., 160 Fed.
856, 87 C. C. A. 660.

Alabama.— Alabama Interstate
Power Co. v. Mt. Vernon—Woodberry,

- ete., Co., 65 So. 287.

Georgia.— Nolan v. Central Georgia
Power Co., 134 Ga. 201, 67 S. E.
656; Jones v. North Georgia Elec.
Co., 125 Ga. 618, 54 S. E. 85, 6
L. R. A. (N. 8S.) 122; Towaliga Falls
Power Co. v. Sims, 6 Ga. App. 749,
65 S. E. 844.

Idaho.— Washington Water Power
Co. v. Waters, 19 Idaho 595, 115 Pac.
682.

Maryland.— Webster v. Susque-

hanna Pole Line Co., 112 Md. 416,
76 Atl. 254, 21 Ann. Cas. 357.

Minnesota.— Minnesota Canal &
Power Co. v. Koochiching Co. 97
Minn. 429, 9 Am.. Electl. Cas. 708,
107 N. W. 405, 5 L. R. A. (N. 8.)
638.

Missouri. — Southwest Missouri
Light Co. v. Scheurich, 174 Mo. 235,
73 5S. W. 496.

Montana.— Spratt v. Helena Power
Transmission Co., 37 Mont. 60, 94
Pac. 631; Helena Power Transmission
Co. v. Spratt, 35 Mont. 108, 88 Pac.
773.

Nebraska— Lucas v. Ashland L.,
Mill & P. Co., 92 Neb. 550, 188 N. W.
761.

New Hampshire. — McMillan v.
Noyes, 75 N. H. 258, 72 Atl. 759;
Rockingham County Light & Power
Co. v. Hobbs, 72 N. H. 531, 9 Am.
Electl. Cas. 102, 58 Atl. 46, 66 L. R.
A. 581.

New York.— Long Sault Develop-
ment Co. v. Kennedy, 158 N. Y. App.
Div. 398, 143 N. Y. Supp. 454; Mat-
ter of Niagara L. & O. P. Co., 111
N. Y. App. Div. 686, 9 Am. Elect].
Cas. 931, 97 N. Y. Supp. 853.

North Carolina.— Wissler v. Yad-
kin River P. Co., 158 N. Car. 465, 74
S. E. 460, —

Oklahoma— Tuttle v. Jefferson
Power & Imp. Co., 31 Okla. 710, 122
Pac. 1102.

South Carolina.—McMeekin v. Cen-
tral Carolina Power Co., 80 S. Car.
512, 61 S. E. 1020.
Eminent Domain. 87

of its business from quasi-public to private.” Corpora-
tions, such as railroad, water, gas, canal, telegraph, tele-
phone, and other public service corporations, are all organ-

Tennessee.— Great Falls Power
Co. v. Webb, 123 Tenn. 584, 133 S. W.
1105.

Vermont.— Rutland Ry., L. & P.
Co. v. Clarendon Power Co., 86 Vt.
45, 83 Atl. 332.

Virginia— Miller v. Town of Pu-
laski, 109 Va. 137, 63 S. E. 880, 22
L. R. A. (N. 8.) 558.

West Virginia— Pittsburg Hydro-
Elec. Co. v. Liston, 70 W. Va. 83, 73
S. E. 86, 40 L. R. A. (N. S.) 602.

Wisconsin. Matter of Southern
Wisconsin Power Co., 140 Wis. 245,
122 N. W. 801.

Washington— State v. Superior
Court for Snohomist County, 71
Wash. 84, 127 Pac. 591.

“The generation of electrical cur-
rent by means of water power is one
of the most useful, beneficial, and
necessary purposes known to-day in
the business, commercial, and, we
may add, the home life of the state.
Electrical current and electrical en-
ergy is used in almost every home in
our cities, towns, and villages, and
is employed in practically every bus-
iness house and every manufacturing
industry in the state. It has come
to be a necessity.” Washington
Water Power Co. v. Waters, 19 idaho
595, 115 Pac. 682.

“Tt has been generally held by the
courts that the generation of elec-
tric power for distribution and sale
to the public on equal terms is a
public enterprise, and that water
used for that purpose is devoted to a
public use.” Walker v. Shasta
Power Co., 160 Fed. 856, 87 C. C. A.
660.

“The knowledge recently acquired
concerning electricity has made it
possible to divide power into any de-
sired portions, and to freely trans-

mit the same to almost any point for
use. This has created a demand for
power, which, though not so uni-
versal as the demand for water, is
nevertheless a public character. Like
water, electricity exists in nature in
some form or state, and becomes use-
ful as an agency of man’s industry
only when collected and controlled.
It requires a large capital to collect,
store, and distribute it for general
use. The cost depends largely upon
the location of the power plant. A
water power or a location upon tide
water reduces the cost materially. It
may happen that the business can-
not be inaugurated without the aid
of the power of eminent domain for
the acquisition of necessary land or
rights in land. All these considera-
tions tend to show that the use of
land for collecting, storing, and dis-
tributing electricity, for the purposes
of supplying power and heat to all
who may desire it, is a public use.”
Rockingham County Light & Power
Co. v. Hobbs, 72 N. H. 531, 9 Am.
Electl. Cas. 102, 58 Atl. 46, 66 L. R.
A. 581.

Power purposes— “Our holding,
then, is that, in the absence of char-
ter limitations, a corporation which
engages in the business of generat-
ing and distributing electric energy
for general sale for power purposes
devotes its property to a public
purpose as much as if it limited its
business to the sale of current for
lighting purposes. Such business is
affected with a public interest, both
as regards the law of regulation and
the law of eminent domain.” Rut-
land Ry. L. & P. Co. v. Clarendon
Power Co., 86 Vt. 45, 83 Atl. 332.

28. Spratt v. Helena Power Trans-
mission Co., 37 Mont. 60, 94 Pac. 631.
88 Law or E.ecrricrry.

ized for the profit of the promoters and stockholders; and
all may be allowed to exercise the right of eminent domain.

It is of no importance that the constitutional provision
authorizing condemnation for public uses was adopted
prior to the use of electricity by the public for light.” The
term ‘‘ public use ’’ is flexible so as to include such uses as
arise from time to time through invention and discovery.

Conservation of Water Power by State The use of a
water power by the state for the generation of power is a
public use, entitling it to condemn the same.*°

Power Lost by Vagueness in Describing Persons to be
Benefited.— While the furnishing of electricity to the public
in general is a public purpose, the furnishing of current for
use by a few individuals with no right in the general public
to avail itself thereof, is a private use for which condemna-
tion cannot be authorized. It is essential that there be no
vagueness about the use to which the applicant proposes to
put the lands desired to be condemned. ‘Thus, in one case,”
a corporation was chartered for the ‘‘ manufacture and

“The end to be accomplished must
always be the true and ultimate test;
and it is quite immaterial that the
title and control of the property
taken are vested in a private person
or corporation, whose actuating mo-
tive is private gain.” Deerfield River
Co. v. Wilmington Power & Paper
Co., 83 Vt. 548, 77 Atl. 862.

29. State ex rel. Trenton, etc,
Turnpike Co. v. American, etc., News
Co., 43 N. J. L. 381, 1 Am. Electl.
Cas. 343.

30. Long Sault Development Co. v.
Kennedy, 158 N. Y. App. Div. 398,
143 N. Y. Supp. 454, wherein the
court said: “We see no reason why
the furnishing by the State of electric
power generated by the State waters
to the public upon equal terms would
not be properly a public use, es-
pecially as the cases seem to hold
that this same business if engaged

in by a private corporation would
be a public one. Available water
power sites in any State must al-
ways be limited in number and will
probably increase in value with the
progressive exhaustion of near-by
coal deposits. The navigable waters
of the State are primarily owned by
the public, and if the State in fur-
therance of a policy of conservation
decides to retain or regain all its
rights therein and ultimately to use
such waters for power generation
such a policy seems to us clearly pub-
lic in its nature, so that the right
of eminent domain may be invoked.”

31. Fallsburg Power & Mfg. Co. v.
Alexander, 101 Va. 98, 43 S. E. 194,
wherein the court said: “The dif-
ficulty with the charter is that the
purpose for which the property is
authorized to be taken by the right
of eminent domain in this instance
Eminent Doman. 89

generation of water power, light, and heat, to be utilized,
transmitted and distributed to any place or places for the
company’s use, or for the use of any other individuals or
corporations,’’ and it was held that the interest of the
public in the purposes of the corporation was so vague and
uncertain that the legislature could not authorize it to
condemn lands of others for the location of its plant. This
decision, which is sound in view of the discretion which was
lodged in the company as to the disposition of its elec-
tricity, was followed by another decision of the same court
which is difficult to reconcile with the decisions of other
jurisdictions. In this case,** an act. which authorized a town
to condemn land for the purpose of supplying the inhabit-
ants thereof ‘‘ or other persons, companies or corpora-
tions ’’ with electric lights or power was held to be for a
private purpose as to ‘‘ other persons, companies or cor-
porations;’’ and, as the private use could not be separated

does not clearly appear to be for
a public use or a public purpose. On
the contrary, the grounds of public
benefit upon which the taking is pro-
posed are vague, and the use which
the public is to have of the property,
or the manner in which the public
is to be benefited by the use of it
by the company, is by no means fixed
and definite. Not only is the public
benefit to spring from the use to
which the company proposes to de-
vote the property vague, indefinite,
and uncertain, but, under the plain
language of the charter, the public
use of the property or any use of it
by the public may be gainsaid or de-
nied or withdrawn by the company
at its will, since it is authorized to
use, not only a part, but the entire
product of the work or works it pro-
poses to establish, for its own use
or benefit. In such a case the pri-
vate benefit too clearly dominates the
public interest to find constitutional
authority for the exercise of the
power of eminent domain, and is the
equivalent of taking of private prop-

erty for a private use, against the
will of the owner, which can not
be done in any case.”

32. Miller v. Town of Pulaski, 109
Va. 137, 63 S. E. 880, 22 L. RB. A.
(N. 8.) 552, wherein the court ex-
plained it views as follows: “It
[the act] confers the power upon the
town to acquire the property rights
in controversy here, not only for the
purpose of supplying the inhabitants
of the town, but ‘other persons, com-
panies, or corporations,’ with elec-
tric lights or power. Now, if the
grant of power had been to the town
of Pulaski to condemn property for
the sole purpose of furnishing power
to persons, cqmpanies or corpora-
tions, other than the inhabitants of
the town itself, it clearly would not
have been a ‘public use, and would
come within the condemnation of
Fallsburg. etc. Co. v. Alexander,
supra; and the situation is not bet-
tered by reason of the fact that the
grant of power to condemn for the
illegal purpose is coupled with the
grant of power for a lawful purpose.”
90 Law oF HILECTRICITY.

from the public, it was held that the town could not exer-
cise the right of eminent domain. In many states, the
courts, if confronted with the situation involved in this lat-
ter Virginia case, would have thought that the public use
could be separated from the private, and held that the town
was entitled to condemn in aid of the public purpose.*

Contrary View in Some States as to Power. It seems
difficult to distinguish between the furnishing of electricity
for lighting and the furnishing of the same commodity for
power purposes, and to say that, if furnished for electric
lighting, the use is a public one, but if furnished for power
purposes, the use is private. Yet such distinction is actu-
ally drawn in the states of Washington,** and Maine.” In
the Maine decision, it appeared that the electric company
had erected a large plant and had a contract to deliver its
entire product of electricity to a manufacturing establish-
ment several miles away; that between its power plant and
the buildings of the manufacturing company there were but
one or two customers who would use current; and the court,
going behind the public pretensions of the electric company,
concluded that the purpose for which it sought to condemn
a right of way for a transmission line from its plant to the
manufacturing company’s plant was for the private pur-
pose of furnishing power to this single manufactory.
While the Washington decisions flatly support the doctrine
that furnishing power for commercial purposes is a private
use though any member of the public can avail itself of the
power, the facts involved in the Maine case are peculiar
and the decision is not necessarily to receive so broad a
construction.*

$3. § 67.

84. State v. White River Power
Co., 39 Wash. 648, 9 Am. Elect]. Cas.
605, 82 Pac. 150, 2 L. R. A. (N. S.)
842; State v. Superior Ct. of Thurs-
ton County, 42 Wash. 660, 85 Pac.
666; State v. Superior Court of
King County, 50 Wash. 13, 96 Pac.
519; City of Tacoma v. Nisqually

Power Co., 57 Wash. 420, 107 Pac.
199.

35. Brown v. Gerald, 100 Me. 351,
9 Am. Electl. Cas. 605, 61 Atl. 785,
70 L. R. A. 472, 109 Am. St. Rep.
526.

36. The followng extract from the
opinion in Brown y. Gerald, supra,
shows good grounds for its decision
Eminent Domain. 91

Sec. 62. Furnishing Electricity as a Public Use; Lighting

of Municipal Streets.

The use of property for the lighting of the streets and
highways of a municipality is unquestionably a public use
for which condemnation of private property may be had.*"
Thus, an electric company having contracts for the lighting
of the streets of towns and villages may acquire lands by
condemnation to enable it to increase its power in order

to furnish more electricity under such contracts.®*

in that case: “ But when we con-
sider this particular case, we cannot
doubt. We start with a dam and
station erected, and electrical appar-
atus installed, all at a cost of $80,-
000, with one electric light customer
for twelve lights secured, with one
at the Winslow end of the line who
‘suggests’ that he may take lights,
with no other takers of light, actual
or prospective, between plaintiff’s

land and the Winslow line, two miles,

with no knowledge otherwise of any-
one along the line who wants or will
take light or power, but on the other
hand with a contract to deliver the
entire electrical power product of the
dam to a manufacturing company
for its own purposes for ten years, at
a gross rental of about $20,000 a
year. Under these conditions the
company starts to locate its line of
poles and wires. Metaphorically
speaking, and practically so, in fact,
it goes straight as an arrow to the
point of delivery to the manufac-
turing company. When it reaches
the plaintifi’s land, it has seemingly
gone beyond the area of possible elec-
tric lighting. Whatever reasons
there may have been for taking other
lands before that, we must now in-
quire for what was the intended
taking of the plaintiff’s land? Can
a reasonable man doubt? We think
not. Everything in the case shows
that the plaintiff’s land was being
taken to enable the company to de-

Con-

liver electrical power to the Holl-
ingsworth & Whitney Company, ac-
cording to contract. A purpose to
use the line for electric lighting was
wanting. It is not discoverable.”

87. Matter of East Canada Creek
Elec. L. & P. Co., 49 Mise. (N. Y.)
565, 9 Am. Electl. Cas. 605, 99 N. Y.
Supp. 109; Deerfield River Co. v.
Wilmington Power & Paper Co., 83
Vt. 548, 77 Atl. 862; State v. King
County Superior Court, 35 Wash.
303, 77 Pac. 382; State ex rel. Domi-
nick v. Superior Court of King
County, 52 Wash. 196, 100 Pac. 317,
21 L. R. A. (N. S.) 448; State v.
Superior Court of Kleckitat County,
70 Wash. 486, 127 Pac. 104.

A power and water company may
condemn property for the public pur-
poses of municipal lighting and of
electric railways, notwithstanding it
seeks to avail itself of a statute
granting it the right to use for pri-
vate purposes electricity generated for
public purposes if at any time there
should be a surplus of power not
needed for public purposes; since it
may anticipate future as well as
present public needs, where it acts
in good faith and seeks no excessive
or unreasonable appropriation. State
v. Superior Court of Kleckitat
County, 70 Wash. 486, 127 Pac. 104.

88. Matter of East Canada Creek
Elec. L. & P. Co., 49 Mise. (N. Y.)
565, 9 Am. Elect]. Cas. 605, 99 N.Y.
Supp. 109.
92 Law or ELectricrry.

demnation in aid of street lighting may be delegated to an
electric company or to the municipality itself.”

Sec. 63. Furnishing Electricity as a Public Use; Operation
of Railroad.

The use of lands by an electric railway company for the
development of a water power and the generation and
transmission of electricity would seem, upon principle, to
be clearly a public use.*® But the public nature of the use
is not so clear where the land is sought by an individual
or corporation that is not operating a railway but intends
to furnish electric power to a railway company for that
purpose. In either case, however, the furnishing of the
electric current should be held to be a public, as distin-
guished from a private, enterprise.** As was said in one
case: ‘If in the end the property is devoted to a public
use, the mere agency or instrumentality through which that

result is accomplished is a matter of no concern.’’

39. §§ 70, 71.

40. Rockingham County Light &
Power Co. v. Hobbs, 72 N. H. 531,
9 Am. Elect]. Cas. 102, 58 Atl. 46,
66 L. R. A. 581; Eddleman v. Union
Co. Traction & Power Co., 217 Ill.
409, 4 St. Ry. Rep. 194, 75 N. E.
510; State ex rel. Harlan v. Cen-
tralia-Chehalis Elec. R. & Power
Co., 42 Wash. 632, 4 St. Ry. Rep.
1064, 86 Pac. 344.

Contrary decision as to lands
for steam power plant—=In Mat-
ter of Rhode Island Suburban Ry.
Co., 22 R. 1. 457, 48 Atl 591, 52
L. R. A. 879, wherein it appeared
that a street railway company sought
to condemn a tract of land for its
‘power plant which it proposed to use
for the generation of electricity by
steam power, it was held that the
use was not such a public one that
the company could exercise the right
of eminent domain. The decision
was, in part, placed upon the con-
sideration that the company could

In the

locate such plant at any point and
hence there was no necessity for re-
sort to condemnation proceedings. A
distinction which is, perhaps, sound
may be drawn between a plant for
the generation of electricity by steam
and generation by a power plant. In
the latter case, the company has prac-
tically no choice as to the location
of the power house. If water powers
were aS common as tracts of land
upon which steam plants can be
built, a different result might be
reached as to condemnation therefor.

41. Washington Water Power v.
Waters, 19 Idaho 595, 115 Pac. 682;
People v. Transit Development Co.,
131 N. Y. App. Div. 174, 115 N. Y.
Supp. 297; State ex rel. Dominick
v. Superior Court of King County,
52 Wash. 196, 100 Pac, 317, 21 L. R.
A. (N. 8.) 448.

42. State ex rel. Dominick v. Su-
perior Court of King ‘County, 52
Wash. 196, 100 Pac. 317, 21 L. R. A.
(N. S.) 448.
Eminent Domarn. 93

state of Washington, though it is there held that the fur-
nishing of power for commercial purposes is a private pur-
pose,** condemnation of private lands is permitted where
the electric company desires to appropriate the property
in order that electricity may be furnished to a street rail-
way company.** In Vermont, however, the supplying of
electricity for the operation of a railroad is not a public
enterprise, where the generating company is not bound to
furnish current to the railroad or to give equal advantages
to all members of the public.*

Sec. 64. Furnishing Electricity as a Public Use; Delivery
of Current to Other Electric Companies.

If the use of property to furnish electricity to a railway
is a public use—and such seems to be the case**—by
analogy, the use of lands to generate electricity and trans-
mit the same to another electric company which serves the
public is of a public rather than of a private nature. In
both cases the service of the public is by an intervening
agency, but the electric energy is ultimately consumed in
a public occupation. It may be doubted whether the deci-
sions will be followed generally in other jurisdictions, but
it has been held that the furnishing of electricity by one
electrical company to another which then supplies the cur-
rent to the public in general is a public enterprise.*’

43. § 61.

44, State ex rel. Dominick v. Su-
perior Court of King County, 52
Wash. 196, 100 Pac. 317, 21 L. R. A.
(N. S.) 448; State v. Superior Court
of Kleckitat County, 70 Wash. 486,
127 Pac. 104.

45. Under a statute authorizing
one who desires to erect or continue
a mill or factory on his land to
construct a dam to obtain water
therefor, and to secure the right to
overflow the lands of others, if com-
missioners appointed for such pur-
pose, or the court itself, shall find
“that the flowing of the land as pro-
posed will be a public benefit,” a

person who desires to erect such dam
to procure power to generate elec-
tricity for the operation of a rail-
road, cannot invoke the power of em-
inent domain, since while the rail-
road must serve the public, there is
nothing to compel such person to fur-
nish electricity to the railroad, or to
give equal advantages to all. Avery
v. Vermont Elec. Co., 75 Vt. 235, 8
Am. Elect]. Cas. 171, 54 Atl. 179,
59 L. R. A. 817, 98 Am. St. Rep. 818.

46. § 63.

47. Washington Water Power Co.
v. Waters, 186 Fed. 572; State ex rel.
Dominick v. Superior Court of King
County, 52 Wash. 196, 100 Pac. 317,
94. Law or ELeEctricity.

Sec. 65. Furnishing Electricity as a Public Use; not Neces-
sary that Every Inhabitant be Benefited.

To constitute a public use of lands, it is not necessary
that every inhabitant of a community be benefited by the
use which is proposed to be made thereof. Stating the
doctrine more specifically, in the case of an electric com-
pany seeking to condemn lands for the purpose of generat-
ing and transmitting electricity to the inhabitants of a
locality, it is not necessary for a constitutional delegation
of the power of eminent domain to such company, that every
person therein should actually use or be benefited by the

electric current.”

21 L. R. A. (N.S.) 448. “The fur-
ther question is raised that the
plaintiff is not « public service cor-
poration, the point being that it does
not render a service directly to the
public, but in the main furnishes
power and electricity for distribution
to the consumer by other persons and
corporations. I do not deem it es-
sential to an understanding of the
ruling that the facts be here stated,
or that the principle of law be dis-
cussed at length. The objection is I
think not well taken.” Washington
Water Power Co. v. Waters, 186 Fed.
572.

48. “It has never been deemed es-
sential that the entire community, or
any considerable portion of it, should
directly enjoy or participate in an
improvement or enterprise in order
to constitute a public use within the
true meaning of these words, as used
in the Constitution. Such an inter-
pretation would greatly narrow and
cripple the authority of the Legisla-
ture, so as to deprive it of the power
of exerting a material and beneficial
influence on the welfare and pros-
perity of the state. In a broad and
comprehensive view, such as has been
heretofore taken of the construction
of this clause of the Declaration of

It is sufficient if each member of the

Rights, everything which tends to
enlarge the resources, increase the
industrial energies and promote
the productive power of any con-
siderable number of the inhabit-
ants of a section of the state, or
which leads to the growth of towns
and creation of new sources for the
employment of private capital and
labor, indirectly contributes to the
general welfare and to the prosperity
of the whole community. It is on
this principle that many of the
statutes of this commonwealth by
which private property has hereto-
fore been taken and appropriated to
w supposed public use are founded.
Such legislation has the sanction of
precedents, coeval with the origin
and adoption of the Constitution, and
the principle has been so often recog-
nized and approved as legitimate and
constitutional that it has become in-
corporated into our jurisprudence.”
Talbot v. Hudson, 16 Gray (Mass.)
417; quoted with approval in Me-
Meekin v. Central Carolina Power
Co., 80 S. Car. 512, 61 S. E. 1020.
49. McMeekin v. Central Carolina
Power Co., 80 S. Car. 512, 61S. EL
1020; Deerfield River Co. v. Wil-
mington Power & Paper Co., 83 Vt.
548, 77 Atl. 862; Miller v. Town of
Eminent Doman. 95

community has an equal right to a portion of the current
in common with every other member.*? That some of the
residents refuse to avail themselves of the current affords
no reason why the company should not condemn necessary
lands for its public purposes.”

Sec. 66. Furnishing Electricity as a Public Use; Service
to Inhabitants of Another State.

A use of lands, otherwise public in nature, may afford
an electric company the right of eminent domain though,
as a secondary or incidental result-of the use, non-residents
as well as residents will be benefited. Thus, in one case,”
condemnation was permitted for a power plant to supply
electricity for an interstate railroad. In discussing the
effect of the benefit to the citizens of the neighboring state,
the court said: ‘‘ In this connection, it is worthy of obser-
vation that some of the public services which may be ren-
dered by corporations vested by the state with the power
of eminent domain involve alike the citizens and industries
of neighboring states. For example, in this case, it appears
that the appellant is furnishing power for an electric rail-
road company that is operating between Coeur d’Alene city

Pulaski, 109 Va. 137, 63 S. E. 880, 22
L. R. A. (N.S.) 552; Pittsburg Hydro-
Elec. Co. v. Liston, 70 W. Va. 83, 73
8S. E. 86, 40 L. R. A. (N.S.) 602.

50. Pittsburg Hydro-Elec. Co. v.
Liston, 70 W. Va. 83, 73 S. E. 86,
40 L. R. A. (N. 8S.) 602.

“Tt is not necessary that all the
people of a community should take
a portion of the electric current in
order to constitute the use of a pub-
lie one. It is sufficient if each mem-
ber of the community has an equal
right to a portion of it on equal
terms with every other member. That
some of the residents of a city do not
use gas for lighting or heating, or
that some elect not to have their
houses supplied with water from the
public reservoir, or that some refuse

to avail themselves of the general
convenience afforded by the telephone,
affords no reason for holding tele-
phone, gas, water and electric power
and light companies not to be public-
service corporations. All the resi-
dents of the city have the right to
these conveniences, on the same terms
with those citizens who do enjoy
them, and that is sufficient to deter-
mine the service to be a public and
not a private use.” Pittsburg Hydro-
Elec. Co. v. Liston, 70 W. Va. 83, 73
S. E. 86, 40 L. R. A. (N. S.) 602.

51. Pittsburg Hydro-Elec. Co. v.
Liston, 70 W. Va. 83, 73 S. E. 86, 40
L. R. A. (N. S.) 602.

52. Washington Water Power v.
Waters, 19 Idaho 595, 115 Pac. 682.
96 Law oF ELEcTRICITY.

in this state and Spokane, in the state of Washington. It
would be difficult, and indeed unreasonable, to say that the
energy generated by the water power of this state should
only be used in operating cars to and from the state line,
and that, in order to propel them thence to Spokane and
back to the state line, the company must secure its power
in some other way and from some other source. It would
be equally as necessary for the citizen to get from the state
line to Spokane, if he had business in Spokane, as it would
be for him to get from Coeur d’Alene to the state line, and
the walking would probably be equally as distasteful. This
demonstrates the correctness of the proposition above
stated that the test must be, Is the use a public use within
this state, and does it serve the interests of the people of
this state? If it does so, the fact that incidentally or in
connection therewith likewise serves the interests of a
neighboring state and the people of such state will not
render it any the less a public use, or the service any the
less a public service, subject to the regulation and control
of the state. If, after the company shall have procured
ground, rights of way for transmission lines, and reservoirs
for storage purposes, and inaugurated its system, it should
use its electrical energy in another state or sell it to the
citizens of another state for use therein, and decline to
supply any of the demands of the citizens and industries
of this state, then there would be occasion for complaint,
and in a proper case the courts, in the exercise of the con-
stitutional power reserved to the state to ‘regulate and
control ’ the agencies on which the right of eminent domain
is conferred, would command, and, if necessary, reach out
and compel, those agencies to direct the exercise of these
public uses to the service of the state and its citizens and
industries.”’

Sec. 67. Furnishing Electricity as a Public Use; Combina-
tion of Private and Public Uses.
While it is clear that the right of eminent domain may be
granted for public uses and that it cannot be granted where
the use of the land sought is for purely private purposes,
Eminent Domain. 97

difficulty arises where the corporation seeking to acquire
property by condemnation has, under its charter, authority
to dispose of electricity for both public or private pur-
poses. It seems fairly clear that the mere fact that the
corporation has power to dispose of current for private
purposes should not restrict its right of eminent domain
for the public purposes authorized by its charter. That
is to say, a corporation should be permitted to condemn
lands for the public purposes mentioned in its charter
where it does not seek to engage in the private purposes,
or where the land sought is not to be used for such private

53. United States— Walker  v.
Shasta Power Co., 160 Fed. 856, 87
C. C. A. 660.

Georgia.— Nolan v. Central Power
Co., 184 Ga. 201, 67 S. E. 656.

Maryland.— Webster v. Susque-
hanna Pole Line Co., 112 Md. 416;
76 Atl. 254, 21 Ann. Cas. 357.

Minnesota.— Minnesota Canal &
Power Co. v. Koochiching Co., 97
Minn. 429, 107 N. W. 405, 5 L. R. A.
(N. S.) 638, 9 Am. Elect]. Cas. 708.

South Carolina.— McMeekin v. Cen-
tral Carolina Power Co., 80 S. Car.
512, 61 S. E. 1020.

Tennessee Great Falls Power
Co. v. Webb, 123 Tenn. 584, 133 S.
W. 1105.

Vermont.— ‘Deerfield River Co. v.
Wilmington Power & Paper Co., 83
Vt. 548, 77 Atl. 862.

“The question whether the exer-
cise of the right of eminent domain
is to be denied or withheld is not to
be tested solely by the description
of the objects and purposes set forth
in the articles of incorporation. It
may be governed by evidence aliunde
showing the actual purpose in view.”
Walker v. Shasta Power Co., 160 Fed.
856, 87 C. C. A. 660.

The authorities are convincing to
the effect that the mere possession of
incidental charter powers to engage

7

in private enterprises will not be held
to deprive a corporation of the right
of eminent domain given it to ef-
fectuate its public purposes, in a par-
ticular case where it is seeking to ex-
ercise this right for the promotion of
the public uses which it is author-
ized to undertake. Great Falls Power
Co. v. Webb, 123 Tenn. 584, 133 S. W.
1105.

“We find no case which holds that
the bare fact that a corporation has
in enumerating its functions ex-
pressed a purpose of engaging in a
private enterprise as well as serving
a public use shall deprive it of the
right to exercise eminent domain for
the public use. Not only is there no
authority for such a proposition, but
there is no reason for it. Why should
the fact that the defendant in error
here was incorporated under articles
giving it the power to serve a private
use be an obstacle to its condemna-
tion of property necessary, and which
it proposes and proves shall be used
exclusively for.a public service? The
fact that it has such power imposes
no greater or additional burden or
servitude upon the property which it
seeks and proposes to take for the
public use only.” Walker v. Shasta
Power Co., 160 Fed. 856, 87 C. C. A.
660.
98 Law oF ELECTRICITY.

purposes.* But this statement of the doctrine implies the
possibility of separating the company’s public purposes
from those of a private nature. Where such a separation
is not sought or is deemed impossible, the electric company

should not be permitted to condemn lands.

, 54. United States— Walker  v.
Shasta Power Co., 160 Fed. 856, 87
C. C. A. 660.

Maine.— Brown v. Gerald, 100 Me.
351, 9 Am. Electl. Cas. 605, 61 Atl.
785, 70 L. R. A. 472, 109 Am. St.
Rep. 526.

North Carolina——Wadsworth Land
Co. v. Piedmont Tract. Co. 162 N.
Car. 314, 78 S. E. 297.

Tennessee.— Great Falls Power
Co. v. Webb, 123 Tenn. 584, 133 S. W.
1105.

Vermont.— Deerfield River Co.
v. Wilmington Power & Paper Co.,
83 Vt. 548, 77 Atl. 862.

Washington.— State ex rel. Har-
lan v. Centralia—Chehalis Elec. R. &
Power Co., 42 Wash. 632, 4 St. Ry.
Rep. 1064, 86 Pac. 344; City of Ta-
coma v. Nisqually Power OCo., 57
Wash. 420, 107 Pac. 199; State v.
Superior Court for Kleckitat County,
70 Wash. 486, 127 Pac. 104; State
v. Superior Court of Snohomist Coun-
ty, 71 Wash. 84, 127 Pac. 591.

“We do not find it necessary to de-
termine here whether all the purposes
expressed in petitioner’s charter are
public or not. In passing upon any
particular condemnation suit, the
court does not look so much into the
character of the charter of a corpora-
tion, and to its general powers, as to
the pleadings and proof in the case
before it. The court is concerned to
know whether the property sought
to be appropriated is to be devoted
to the use of the public. The fact
that a corporation may have inci-
dental charter powers to conduct
some private enterprise does not de-

Where the

prive it of the right of eminent do-
main conferred upon it to facilitate
the execution of its public functions
and duties.

The question here is not whether
this corporation has the power, un-
der its charter, to engage in a pri-
vate business, but whether the cor-
poration is seeking to acquire the land
in question for a public or private
end.” Great Falls Power Co. v. Webb,
123 Tenn. 584, 133 S. W. 1105.

55. State ex rel. Harlan v. Cen-
tralia+Chehalis Elec. R. & Power Co.,
42 Wash. 632, 4 St. Ry Rep. 1064, 86
Pac. 344; State v. Superior Court of
Snohomist County, 71 Wash. 84, 127
Pace. 591.

56. Webster v. Susquehanna Pole
Line Co., 112 Md. 416, 76 Atl. 254,
21 Ann. ‘Cas. 357; Miller v. Town of
Pulaski, 109 Va. 137, 63 S. E. 880,
22 L. R. A. (N. 8.) 552; City of Ta-
coma v. Nisqually Power Co., 57
Wash. 420, 107 Pac. 199. “A pro-
ceeding to condemn land under the
power of eminent domain cannot be
maintained unless the use to which
the property is to be devoted is ex-
clusively a public use. The mere fact
that the corporation has charter au-
thority to condemn land for both cor-
porate and private uses will not pre-
vent the corporation from exercising
the power for the promotion of the
public use only. * * * But,
where a proceeding is instituted in
which it is sought to exercise the
power to condemn property for both
public and private uses indiscrimi-
nately,— that is, where the purposes
stated in the petition are part public
Eminent Doman. 99

court is unable to detach the private use of the land desired
from the public use which might be condemned, the con-
stitutional provision comes into full force and forbids the
taking., When, however, the court deems the uses capable
of detachment, it will, at the request of the company seek-
ing the use of the lands for public purposes, permit the
condemnation thereof for the public uses, and will leave
for later consideration the rights of the parties if the com-

pany uses the lands for private uses.”

and part private the right to pro-
ceed must be denied.” Minnesota
Canal & Power Co. v. Koochiching
Co., 97 Minn. 429, 9 Am. Electl. Cas.
708, 107 N. W. 405, 5 L. R. A.
(N. 8.) 638.

57. Georgia— Jones ov. North
Georgia Elec. Co., 125 Ga. 618, 54
8. E. 85, 6 L. R. A. (N. 8.) 122;
Nolan v. Central Power Co., 134 Ga.
201, 67 S. E. 656.

Maryland.— Webster v. Susque-
hanna Pole Line Co., 112 Md. 416,
76 Atl. 254, 21 Ann. Cas. 357.

New Hampshire— McMillan  v.
Noyes, 75 N. H. 258, 72 Atl. 759.

New York.— Syracuse Lake Shore
& Northern Co. v. Carrier, 149 N. Y.
App. Div. 411, 8 St. Ry. Rep. 92, 134
N. Y. Supp. 791.

North Carolina.— Wadsworth ‘Land
Co. v. Piedmont Tract. Co. 162 N.
Car. 314, 78 S. E. 297.

Tennessee.— Great Falls Power Co.
v. Webb, 123 Tenn. 584, 133 S, W.
1105.

Washington.— State ex rel. Harlan
v. Centralia-Chehalis Elec. R. &
Power Co., 42 Wash. 632, 4 St. Ry.
Rep. 1064, 86 Pac. 344; City of Ta-
coma v. Nisqually Power Co., 57
Wash. 420, 107 Pac. 199.

Subsequent remedies.—‘“ Looking to
the petition, we find it stated that
the corporation desires this land in
connection with its works for the pro-
duction of power “to generate elec-

This seems to com-

tricity for the use and benefit of the
public;” the petition then going on
to name some communities to which
it proposes to supply current.

Now, we have just held that the
purposes of the corporation so ex-
pressed in the petition are a public
use. So far as this record discloses,
petitioner is seeking the land for no
other purposes than those stated. We
cannot presume it to be acting in bad
faith. If, after acquiring lands un-
der condemnation proceedings. for a
public use, it should devote them en-
tirely to private ends, and disregard
its duties to the public, the reme-
dies of the public and of the defend-
ant are abundant and effective.”
Great Falls Power Co. v. Webb, 123
Tenn, 584, 133 S. W. 1105.

Reversion to land owner.—“ In any
such case, where the use in fee had
been condemned as authorized by the
statute, there are not wanting au-
thorities of high character holding
that this should be treated as a
qualified fee simple determinable
when the public use ceases, and that
the land would revert if the com-
pany ceased to use it for the purposes
for which it was taken, or upon for-
feiture of the company’s charter. 1
Lewis on Eminent Domain, § 278;
People v. White, 11 Barb. (N. Y.)
28; Hooker v. Utica Turnpike Co., 12
Wend. (N. ¥.) 371; Raleigh R. R. v.
Davis, 19 N. C. 467. But that ques-
100 Law or Exzcrricrry.

pel the company after the procurement of the lands to use
them solely for public purposes. If no attempt is made by
the corporation to separate the public from the private
purposes, but it boldly comes into court asking condemna-
tion for both, it can have no relief.

Sec. 68. Right to Condemn is Strictly Construed.

An act giving the right of eminent domain to an indi-
vidual or a corporation must be strictly construed;* and,
unless the power is conferred expressly or by necessary
implication, it is not conferred at all.° If there is any
reasonable doubt whether the company is entitled to con-
demn the land sought to be acquired, the doubt is resolved
in favor of the landowner." For example, where a statute
gives the power of eminent domain to an electric company
*‘ owning or controlling’’ a water power, a corporation
which has only a part interest in a water power cannot con-
demn the interest of his co-tenants.* Likewise, where a
corporation is empowered by its charter to ‘‘ acquire such

tion does not properly arise in this
case, and we are not to be under-
stood as deciding it, or attempting
to decide it, in advance of its pres-
entation.” Webster v. Susquehanna
Pole Line Co., 112 Md. 416, 76 Atl.
254, 21 Ann. Cas. 357.

Remedy by quo warranto for un-
authorized use—If, having con-
demned the lands for public uses, the
electric company uses the same for
private purposes, such private use
may be terminated by writ of quo
~warranto. Wadsworth Land Co. v.
Piedmont Tract. Co., 162 N. Car. 314,
78 S. E. 297.

Trespass as remedy.— An electric
company which uses for a private
purpose lands which have been taken
for public use is guilty of a trespass.
Jones v. North Georgia Elec. Co., 125
Ga, 618, 54 8S. E. 85, 6 L. R. A.
(N. 8.) 122.

58. Minnesota Canal & Power Co.

v. Koochiching Co., 97 Minn. 429,
107 N. W. 405, 5 L. R. A. (N. S.)
638, 9 Am. Electl. Cas. 708.

59. F. W. Cook Inv. Co. v. Evans-
ville Terminal Ry., 175 Ind. 3, 95
N. E. 279; Oconee Elec. L. & P. Co. v.
Carter, 111 Ga. 106, 36 S. E. 457;
Claremont Ry. & Lighting Co. v. Put-
ney, 73 N. H. 431, 62 Atl. 727; Eppley
v. Bryson City, 157 N. Car. 487, 73
8. E. 197; Central Union Telep. Co.
v. Village of Columbus Grove, 28 Oh.
Cir. Ct. R. 131.

60. Oconee Elec. L. & P. Co. v. Car-
ter, 111 Ga. 106, 36 S. E. 457.

61. Minnesota Canal & Power Co.
v. Koochiching Co., 97 Minn. 429, 9
Am. Elect]. Cas. 708, 107 N. W. 405,
5. L. R. A. (N. S.) 638.

62. Oconee Elec. L. & P. Co. v. Car-
ter, 111 Ga. 106, 36 S. E. 457.

63. Claremont Ry. & Lighting Co.
v. Putney, 73 N. H. 431, 62 Atl. 727.

64. § 57.
Eminent Domain. nOL
real and personal property as may be necessary or con-
venient in the prosecution of its business,’’ it has not, by
such provision, the right to acquire lands by condemnation."

Sec. 69. Corporations Entitled to Exercise; Statutory Del-
egation of Power is Required.

The right of eminent domain is, in the first instance,
vested in the sovereign power.“ Sovereignty may retain
this power exclusively within its own grasp, or it may dele-
gate such right to municipalities or to public service cor-
porations.® Not every public service corporation has the
power to condemn the property of others for its public
uses ;°° the public character of the company, alone, does not
authorize condemnation proceedings.” Some delegation of
the sovereign power is required, either by the Constitution
of the state or by constitutional legislation.** Not only is
it essential that statutory authority to condemn be dele-

65. “The sovereign may exercise
this power directly, as when land is
taken for a fort, or a public build-
ing, or it may delegate it to indi-
viduals or private corporations which
are engaged in enterprises of a pub-
lic nature. When thus delegated the
power is always clearly defined and
subject to definite restrictions as to
the manner in which, and the pur-
poses for which, it may be exer-
cised.” Minnesota Canal & Power
Co. v. Koochiching Co., 97 Minn. 429,
9 Am. Electl. Cas. 708, 107 N. W.
405,5 L. R. A. (N.S.) 688.

66. “It is not every corporation
whose occupation is that of serving
the public that is entitled to con-
demn and take or damage private
property for its use. Many corpora-
tions whose sole revenues are derived
in serving the public have no right
of eminent domain.” Southwest Mis-
souri Light Co. v. Scheurich, 174 Mo.
235, 73 S. W. 496.

67. “The right of eminent domain
does not come merely from the char-

acter of the business, but arises only
in legislative grant, and is to be ex-
-ercised only in the manner prescribed
by law.” Southwest Missouri Light
Co. v. Scheurich, 174 Mo. 235, 73
S. W. 496.

68. Georgia.— Oconee Elec, L. & P.
Co. v. Carter, 111 Ga. 106, 36 S. E.
457.

Indiana.— F. W. Cook Inv. Co. v.
Evansville Terminal Ry., 175 Ind. 3,
95 N. E. 279; Illyes v. White River
L. & P. Co., 175 Ind. 118, 93 N. E.
670.

Minnesota.— Minnesota Canal &
Power Co. v. Koochiching Co., 97
Minn. 429, 9 Am. Electl. Cas. 708,
107 N. W. 405, 5 L. R. A. (N. 8S.)
638.

New Hampshire—Claremont Ry.
& Lighting Co. v. Putney, 73 N. H.
431, 62 Atl. 727.

North Carolina. Eppley v. Bryson
City, 157 N. Car. 487, 73 S. E. 197.

Ohio.— Central Union Telep. Co. v.
Village of Columbus Grove, 28 Oh.
Cir. Ct. R. 131.
102 Law or HLectricrry.

gated to an electric company, but this delegation must be
done in a constitutional manner. Thus, the statute pro-
viding for the proceedings to determine the compensation
to be paid by the company seeking the property must afford
the party proceeded against ‘‘ due process of law.’’* As
statutes purporting to grant the right of eminent domain
are strictly construed in favor of the landowner,” the dele-
gation of the right to condemn must be expressly shown;
the power cannot be established by mere inferences.

Sec. 70. Corporations Entitled to Exercise; Electric Com-
panies.

While it may be that some electric companies are organ-
ized for purely private purposes and are not entitled to
condemn property,” such is not the usual nature of electric
companies. Ordinarily an electric company is incorporated
for furnishing electrical energy to the public, which is a
public purpose,” and it may, therefore, be authorized by
the legislature to exercise the right of eminent domain.”

69. Savannah, etc., R. Co. v. Postal
Teleg. Cable Co., 115 Ga. 554, 8 Am.
Electl. Cas. 278, 42 S, E. 1.

70. § 68.

71. § 61.

72. § 61.

73. United States— Walker v.
Shasta Power Co., 160 Fed. 856, 87
Cc. C. A. 660.

California— Northern L. & P. Co.
v. Stocker, 13 Cal. App. 404, 109
Pac. 896.

Georgia.—Towaliga Falls Power Co.
v. Sims, 6 Ga. App. 749, 65 S. E. 844.

Idaho.— Washington Water Power
Co. v. Waters, 19 Idaho, 595, 115
Pac. 682.

Indiana.— Illyes v. White River L.
& P. Co., 175 Ind. 118, 93 N. E. 670.

New Hampshire— Rockingham
County Light & P. Co. v. Hobbs, 72
N. H. 531, 9 Am. Elect]. Cas. 102, 58
Atl. 46, 66 L. R. A. 581.

North Carolina— Yadkin River
Power Co. v. Wissler, 160 N. Car. 269,

76 S. E. 267, 43 L. R. A. (N. S.)
483; Wissler v. Yadkin River P. Co.,
158 N. Car. 465, 465, 74 N. E. 460.

Oklahoma.— Tuttle v. Jefferson
Power & Imp. Co., 31 Okla. 710, 122
Pace. 1102.

Pennsylvania. Brown v. Radnor
Tp. Elec. L. Co., 208 Pa. St. 453, 9
Am. Elect]. Cas. 305, 57 Atl. 904.

South Carolina— Southern Powe1
Co. v. Walker, 89 S. Car. 84, 71 S. E,
356; McMeekin v. Central Carolina
Power Co., 80 S. Car. 512, 61 S. E,
1020; Ingleside Mfg. Co. v. Charles-
ton L. & Water Co., 76 8. C. 95, 56
S. E. 664.

South Dakota.— Sioux Falls L. &
P. Co. v. Coughran, 27 S. Dak. 443,
131 N. W. 504.

Tennessee.—Great Falls Power Co.
v. Webb, 123 Tenn. 584, 133 S. W.
1105,

West Virginia — Pittsburg Hydro.
Elee. Co. v. Liston, 70 W. Va. 83,
73 S. E. 86, 40 L. R, A. (N. 8S.) 602.
Eminent Domain. 103
By legislative authority, it may be empowered to condemn
a right of way for a telephone line which it intends to use
as incidental to the discharge of its duties in the operation
of its transmission line.”

Quasi-public Nature not Expressly Stated in Articles of
Incorporation. Where the purpose of a corporation is to
furnish electric current to the public, it is not necessary,
in order that the legislature may give it the power of con-
demnation, that its character as a public service corpora-
tion be stated in express language in the articles of asso-
ciation.”* Such articles need not state that the corporation
is willing to serve the public at reasonable rates without
discrimination, or that it submits itself to the regulation
and control of the sovereign power and its agencies.” The
duty to serve the public,” and the power of governmental
regulation,”* attach themselves to the corporation by reason:
of its public nature.

A private corporation, which is engaged in generating
electricity for private purposes and, hence, is not entitled
to exercise the right of eminent domain, cannot become a

in the public highways, and in pro-
curing and attempting to exercise

74, Joliff v. Muncie Elec. L. Co.,
(Ind.) 105 N. E, 234.

75. Great Falls Power Co. v. Webb,
123 Tenn. 584, 133 S, W. 1105. “If
the plaintiff is under obligation to
supply electricity or electric energy
at reasonable rates, and without dis-
crimination, to all corporations, pub-
lie, quasi-public, and private, and to
all persons desiring it, who are lo-
cated within reasonable distances of
the plaintiff’s lines, so far as the
extent and capacity of its works will
permit, it appears to have all the
characteristics of a quasi-public cor-
poration. Its articles of association
do not in terms impose this’ obliga-
tion upon it. They are, however, en-
tirely consistent with the existence
of the obligation. When the inter-
pretation is considered which the
plaintiff has given to the agreement
by its acts in locating lines of wires

the right of eminent domain, it is
apparent that the plaintiff intended
by its articles of association to take
upon itself the obligations of a quasi-
public corporation in respect to the
sale of electricity and electric energy.
The delegation of the power of emi-
nent domain to a corporation is not
always accompanied with an express
imposition of the obligation to serve
the public reasonably and equitably.”
Rockingham County L. & P. Co. v.
Hobbs, 72 N. H. 531, 9 Am. Electl.
Cas. 102, 58 Atl. 46, 66 L. R. A. 581.

76. Rockingham County Light &
Power Co. v. Hobbs, 72 N. H. 531,
9 Am. Electl. Cas. 102, 58 Atl. 46,
66 L. R, A. 581.

77. §§ 36 et seq.

78. §§ 323 et seq.
104. Law oF ELEctricrry.

public corporation and acquire the right to condemn prop-
erty, by an offer to serve the public and to submit to govern-
mental regulation.”

Withdrawal of Power from Company.— The power of an
electric company to obtain by condemnation the use of cer-
tain properties, though originally granted to the company,
may, if constitutional provisions permit, be withdrawn by
the legislature at any time. Thus, in one case,” it appeared
that the charter of an electric company wishing to condemn
a water power for the generation of electricity provided
for the exercise by it of the right of eminent domain, but
that after the granting of such charter a general statute
had been passed which prohibited the condemnation of
water powers by electric companies, and it was held that,
in view of a provision of the Constitution permitting the
alteration or repeal of corporate charters, such electric
company did not have the power to condemn water powers.
There is, however, respectable authority holding that,
where a foreign corporation obtains the right of eminent
domain and expends money on the project to which the
exercise of the power is essential, it has a contract right
to exercise it which is protected by the Constitution of the
United States, and the right may not be impaired unless
the corporate powers are subject to alteration or repeal.

Not Necessary that Company Generate Its Own Elec-
tricity — To exercise the right of eminent domain, it is not
necessary that an electric company furnishing current to
the public in general have a generating plant of its own.
Electricity is property and may be the subject of sale and
delivery. An electric company may purchase its current
from another company and the use of property for a trans-
mission line in order to get the current to its customers
is a public use for which condemnation may be authorized.

79. Brown v. Gerald, 100 Me. 351, 61 81, Hagerla v. (Mississippi River
Atl. 785, 70 L. R. A. 472, 109 Am. St. Power Co., 202 Fed. 776.
Rep. 526; State v. Superior Court of 82. § 3.
King County, 50 Wash. 13, 96 Pac. 519. 83. Webster v. Susquehanna Pole
80. Yadkin River Power Co. v. Line Co., 112 Md, 416, 76 Atl. 254,
Whitney Power Co., 150 N. Car. 31, 21 Amn. Cas. 357.
63 S. E. 188.
Hwinent Domain. 105

Sec. 71. Corporations Entitled to Exercise; Municipal
Corporations.

The right to condemn property may be delegated to
purely public, as well as quasi-public, corporations. Toa
municipal corporation, such as a city, village, or town, may
be delegated the right of eminent domain in aid of the
establishment of its municipal electric plant, where the cur-
rent is used for public purposes.** Indeed, the power may
be broader than in the case of a quasi-public corporation.
In the case of the latter, it should not be authorized to con-
demn the property of another electric company;* but, in
view of the greater public benefit to be secured, it is not
unreasonable to permit the condemnation by a municipal
corporation of the property of an electric company furnish-
ing current to such municipality and its inhabitants.* As
in the case of corporations of a more private character,
the municipality, before exercising the right of eminent
domain, must have a constitutional delegation of such
power from the law-making body of the state.*7 Not only
must a constitutional delegation of authority be had, but
the acts of the municipality in establishing an electric plant

84, Eppley v. Bryson City, 157
N. C. 487, 73 S. E. 197; Miller v.
Town of Pulaski, 109 Va. 137, 63
S. E. 880, 22 L. R. A. (N. S.) 552;
City of Tacoma v. Nisqually Power
Co., 57 Wash. 420, 107 Pac. 199;
State v. King County Superior Court,
35 Wash. 303, 77 Pac. 382.

An ordinance condemning the land,
providing for a proceeding in the
superior court to appropriate it, and
authorizing the corporation counsel
to conduct the proceedings, is sufli-
cient to confer authority upon the
city to maintain the action. ‘State
v. King County Superior Ct., 35
Wash. 303, 77 Pac. 382.

The city of Seattle is authorized
to exercise the right of eminent do-
main for the purposes of an electric
light plant, under Bal. Code, § 739,
subd. 6, authorizing cities of the first

class to appropriate property for cor-
porate purposes, and subd. 15, au-
thorizing it to erect and maintain
plants for furnishing lights to the
city or its inhabitants. State v.
King County Superior Court, 35
Wash. 303, 77 Pac. 382.

85. § 87.

86. City of Tacoma v. Nisqually
Power Co., 57 Wash. 420, 107 Pac.
199.

87. § 69.

A statute authorizing cities to
condemn land for the construction
of water mains, supply reservoirs or
standpipes does not empower such
cities to condemn land for a lighting
plant or for the flooding of lands in
maintaining waterworks. Tolle v.
City of New Braunfels, (Tex. Civ.
App.) 154 8. W. 345.
106 Law or ELEcTRIcITY.
must be within its power. Not every municipal corporation
is empowered to furnish electric current to its inhabitants.

Condemnation of Lands Beyond Municipal Boundary.—
The legislature, unless special constitutional provisions
affect its power, may authorize a municipality to condemn
land outside of its municipal boundaries for the establish-
ment of a power plant or for other necessary purposes.”
On the other hand, the legislature, if it wishes, may with-
hold such authority. Where, however, the municipality is
given the general right to condemn necessary lands for the
establishment of an electric lighting plant, in the absence
of any restriction as to the location of such a plant, the
municipality may exercise the power of condemnation to
acquire lands outside of its limits for its power plant and
the transmission lines to its boundary.”

Practice not Prescribed by Statute.— It is not necessary
that the statute granting the right of eminent domain to a
municipality should prescribe the procedure to be followed
in the proceedings to condemn; if the right is granted, it
may be exercised pursuant to the condemnation practice
provided for corporations in general.”

Sec. 72. Corporations Entitled to Exercise; Foreign Cor-
porations.

Whether a corporation organized under the laws of
another jurisdiction, but having authority to do business
outside of the state of its creation, will be permitted to
exercise the right of eminent domain, depends upon the
statutes of the state where it seeks to exercise the right.”

88. §§ 146 et seq.

89. Miller v. Town of Pulaski, 109
Va. 137, 63 S. HE. 880, 22 L. R. A.
(N. S.) 552. “We have no doubt
that the power may be granted to a
municipal corporation, to be exer-
cised within or without its territorial
limits, and that the power and duty
to furnish light is a public use. Mil-
ler v. Town of Pulaski, 109 Va. 137,

63 S. E. 880, 22 L. R. A. (N. S.)
552.

90. State v. King County Superior
Court, 35 Wash. 303, 77 Pac. 382.

91. Eppley v. Bryson. City, 157
N. Car. 487, 73 8. E. 197.

92. Ultra vires.— Where a corpo-
ration is established under the law
of another state for the purpose of
constructing and maintaining tele-
Eminent Domain, 107
The laws of a state may forbid foreign corporations from
| exercising the right, and, at the same time, permit domestic
corporations of the same character to condemn lands of
others." On the other hand, a foreign corporation may be
permitted to condemn lands, though such corporation does
not have the right to do so in the jurisdiction of its birth.
In some jurisdictions foreign electric companies are given,
in so far as the power of eminent domain is concerned,
rights equal to those of domestic electric companies.» To
sum the matter up, the entire question depends upon the
constitution and statutes of the state where the property
in question is located. The doctrine of interstate comity

has no application.”

graph and telephone lines in certain
named counties in that state, such
corporation is without authority to
extend its operations beyond the lim-
its of the counties designated, and
does not come within the meaning of
Act 124 of 1880 of laws of Louisiana,
giving foreign corporations the right
of eminent domain in certain cases.
Southwestern Tel. Co. v. Kansas City,
etc., Ry. Co., 108 La. 691, 32 So. 958.

93. Duke v. Postal Teleg. Cable
Co., 71 S. Car. 95, 50 S. E. 675.

94. Hagerla v. Mississippi River
Power Co., 202 Fed. 776; Southern
Power Co. v. Walker, 89 S. Car. 84,
71 S. E. 356, wherein it was said:
“It will thus be seen that section
1790 of the Code of Laws shows that
the petitioner was subject to the
laws of South Carolina in like man-
ner as corporations chartered under
the laws of this state. And the act
of 1904 not only confers upon elec-
tric lighting and power companies
incorporated under the laws of this
state the privileges. therein men-
tioned, but also upon those com-
panies incorporated under the laws

of any state, which have complied.

with the laws of this state, regulat-
ing foreign corporations, by which
they become domestic corporations.

To authorize a foreign corporation

The petition alleges, and it is not
denied, that the petitioner became a
domestic corporation under the laws
of this state regulating foreign cor-
porations. As it is clearly the in-
tention of the act of 1904 to confer
upon electric lighting and power com-
panies, whether incorporated under
the laws of this state, or domesti-
cated under its laws, the right to
resort to condemnation proceedings.

95. Northwestern Elec. Co. v. Zim-
merman, (Oreg.) 135 Pac. 330;
Pittsburg Hydro-Elec. Co. v. Liston,
70 W. Va. 83, 73 S. E. 86, 40 L. R.A,
(N. S.) 602. ‘i

96. Interstate comity will not be
extended to cases wherein foreign
corporations doing business in this
state seek to assume and exercise
the attributes of sovereignty as
against the private rights of the
citizens of this state; and in the
absence of statutory provisions ex-
pressly conferring the right of emi-
nent domain on such foreign corpo-
rations, there is no inherent power
vested in a telephone company to
condemn private property for purely
local purposes, and not as a part of
any interstate system. Central Union
Telep. Co. v. Village of Columbus
Grove, 28 Oh. Cir. Ct. R. 131.
108 Law or ELEctRICITY.

to exercise the right of eminent domain, as in the case of
a domestic corporation, it is essential that the company
have such right delegated to it by the legislature of the
state of the locus in quo.” In other words, when a foreign
corporation seeks to condemn property, it must be able to
point out the domestic statute under which it derives
authority to maintain the proceeding.”

Domestic Company Subordinate to Foreign— In those
jurisdictions where a foreign corporation is not allowed to
exercise the right of eminent domain, such a corporation
may, in some cases, organize a domestic corporation in
order to enable it to procure lands by condemnation.” The
claim that such a company is a mere dummy is one which
cannot be asserted by the landowner, but only by the state
itself.*

Sec. 73. Corporations Entitled to Exercise; Street Railway

Companies.

It has been said that, because they do not need it, the
power of eminent domain is not usually granted to street

railway companies.”

97. Helena Power Transmission Co.
v. Spratt, 35 Mont. 108, 88 Pac. 773.
See also, Spratt v. Helena Power
Transmission Co., 37 Mont. 60, 94
Pac. 631.

98. Central Union Telep. Co. v.
Village of Columbus Grove, 28 Oh.
Cir. Ct. R. 131.

99. Postal Teleg. Cable Co. of Idaho
v. Oregon Short Line Co., 104 Fed.
623; affirmed 111 Fed. 842, 49 C. C. A.
663; Union Pac. R. Co. v. Colorado
Postal Teleg. Cable Co., 30 Colo. 133,
8 Am. Electl. Cas. 275, 69 Pac. 564,
97 Am. St. Rep. 106; Alabama, etc.,
Ry. Co. v. Cumberland Telep. & Teleg.
Co., 88 Miss. 438, 41 So. 258; Postal
Teleg. Cable Co. v. Oregon 8S. L. R.
Co., 23 Utah 474, 8 Am. Electl. Cas.
281, 65 Pac. 735, 90 Am. St. Rep.
705.

However this may be, street railway

The fact that a domestic telegraph
company, duly incorporated under
the laws of Idaho, was organized as
an auxiliary of, and subordinate to,
a corporation of another state, which
owned a majority of its stock, does
not affect its de facto corporate ex-
istence or deprive it of its right to
maintain proceedings for the con-
demnation of the right of way of a
railroad company under the laws of
Idaho. Oregon Short Line R. Co. v.
Postal Teleg. Cable Co., 111 Fed.
842, 8 Am. Electl. Cas. 267.

1. Alabama, etc., Ry. Co. v. Cum-
berland Telep. & Teleg. Co., 88 Miss.
438, 41 So. 258.

2. “Street railway companies are
not generally endowed with the right
of eminent domain because they do not
need it. They are modern local con-
Eminent Doman. 109
companies are quasi-public corporations engaged in a pub-
lic service, and the power of eminent domain may be dele-
gated to them by the legislature. The motive power of
such companies is not generally material on the question
whether it can exercise the right of condemnation, though
in a particular case, the motive power may have a bearing
on the question of the necessity of the condemnation. To
illustrate, a street railway company cannot condemn an
electric power site where it intends to use no motive power
other than steam or horses. A statute which authorizes
an exercise of the right in behalf of ‘‘ steam and horse rail-
roads ’’ may be construed to give a right to electric rail-
roads though they were unknown at the time of the enact-
ment of the statute.* The right of a street railway com-
pany to condemn the lands of others is strictly construed in
favor of the landowner,’ but where the right is expressly
given, a street railway company, propelling its cars by elec-
tricity, may be authorized to condemn a water power for
the generation of its current,® or an easement for its trans-
mission line.” And a right of way for the conduction of

veniences, the location and construc-
tion of which are subject to the will
of the people they are intended to
serve. This will is expressed through
the local authorities. Such com-
panies cannot force themselves into
neighborhoods where they are not
wanted.” Nellis on Street Railways
(2nd Ed.), § 96.

8. F. W. Cook Inv. Co. v. Evans-
ville Terminal Ry., 175 Ind. 3, 93
N. E. 279; Mull v. Indianapolis, etc.,
Traction Co., 169 Ind. 214, 6 St. Ry.
Rep. 192, 81 N. E. 657; Syracuse
Lake Shore & Northern Co. v. Car-
rier, 149 N. Y. App. Div. 411, 8 St.
Ry. Rep. 92, 134 N. Y. Supp. 791.

4. Ogden City Ry. Co. v. Ogden
City, 7 Utah 207, 3 Am. Electl. Cas.
321, 26 Pac, 288.

5. § 68.

A statute which empowers street
tailways to take by eminent domain
such land as may be necessary for

the purposes of installing and main-
taining power plants does not au-
thorize the condemnation of land and
water privileges for the purpose of
diverting streams and _ procuring
power with which to operate plants
located on other land owned by such
corporation. Claremont Ry. & Light-
ing Co. v. Putney, 73 N. H. 431, 62
Atl. 727.

6. State ex rel. Harlan v. Cen-
tralia—Chehalis Elec. Ry. & Power
Co., 42 Wash. 632, 4 St. Ry. Rep.
1064, 86 Pac. 344.

%. Mull v. Indianapolis & C. Trac-
tion Co., 169 Ind. 214, 6 St. Ry. Rep.
192, 81 N. E. 657; Syracuse Lake
Shore & Northern Co. v. Carrier, 149
N. Y. App. Div. 411, 8 St. Ry. Rep.
92, 134 N. Y. Supp. 791.

Transmission line—— As to the con-
demnation of a right of way for a
transmission line, see § 84.
110 Law or Exxcrriciry.

its currents is not limited to the road upon which it runs
its cars; if there is good reason for running the line else-
where, property some distance from the highway may prop-
erly be condemned.? Condemnation of land for a car barn,’
or a power plant,*° may also be permitted.

Sec. 74. Corporations Entitled to Exercise; Telegraph
Companies.

The use of lands for the construction and maintenance
of a telegraph line is a public use; and, if the power is
delegated to it by the law-making assembly, a telegraph
company may exercise the right of eminent domain." The
courts take judicial notice of the fact that the telegraph is
a public improvement and that, therefore, companies oper-
ating the same may be invested with the power of eminent

domain.”

8. Mull v. Indianapolis & C Trac-
tion Co., 169 Ind. 214, 6 ‘St. Ry. Rep.
192, 81 N. E. 657; Syracuse, Lake
Shore & Northern Co. v. Carrier, 149
N. Y. App. Div. 411, 8 St. Ry. Rep.
92, 134 N. Y. Supp. 791.

9. Eddleman v. Union Co. Traction
& Power Co., 217 Ill. 409, 4 St. Ry.
Rep. 194, 75 N. E. 510.

10. Eddleman v. Union Co. Trac-
tion & Power Co., 217 Ill. 409, 4 St.
Ry. Rep. 194, 75 N. E. 510; State
ex rel. Harlan v. Centralia-Chehalis
Elec. Ry. & Power Co., 42 Wash. 632,
4 St. Ry. Rep. 1064, 86 Pac. 344.
Contra, Matter of Rhode Island Sub-
urban Ry. Co., 22 R. I. 457, 48 Atl.
591.

Power plant.— As to condemnation
of a location for a power plant, see
§ 83.

11, United States.— Postal Teleg.
Cable Co. v. Oregon Short Line R.
Co., 114 Fed. 787, 8 Am. Electl. Cas.
282.

Alabama.— Mobile, ete., R. Co. v.
Postal Teleg. Cable Co., 120 Ala. 21,
24 So. 408; New Orleans, etc., R. Co.

v. Southern & Atl. Teleg. Co., 53
Ala, 211, 1 Am. Electl. Cas. 190.

Idaho.— Strong v. Western Union
Teleg. Co., 18 Idaho 409, 109 Pac.
910.

Illinois.— Postal Teleg. Cable Co.
v. Eaton, 170 Ill. 513, 49 N. E. 365,
39 L. R. A. 722, 62 Am. St. Rep. 390.

New Jersey— Coles v. Midland
Telep. & Teleg. Co., 67 N. J. L. 490,
51 Atl, 448,

Tennessee.— Mobile, etc. R. Co. v.
Postal Teleg. Cable Co., 101 Tenn. 62,
46 S. W. 571, 41 L. BR. A. 403.

Utah.— Postal Teleg. Cable Co. v.
Oregon 8. L. R. Co., 23 Utah 474, 7
Am, Electl. Cas. 417, 65 Pac. 735,
90 Am. St. Rep. 705.

Turnpike.— ‘The use of a turnpike
for telegraph purposes is a public
use, to which the law of eminent
domain applies. State ex rel. Tren-
ton, ete, Turnpike Co, v. American,
etc., News Co., 43 N. J. L. 381, 1 Am.
Electl. Cas, 343,

12. Mobile, ete., R. Co. v. Postal

Teleg. Cable Co., 120 Ala. 21, 24 So.
408,
Eminent Domarn. 111

'

Telegraph and Telephone Companies.— Likewise, com-
panies organized for both telegraph and telephone purposes
may be and generally are given the right of condemnation."

Sec. 75. Corporations Entitled to Exercise; Telephone
Companies.

The use of lands for transmitting intelligence by means
of telephone wires is similar to the use for telegraph pur-
poses in that both are public uses. A. telephone company
may, therefore, be given the right of eminent domain."*
Delegation of the right by the legislature being a prerequi-
site to its exercise, it may be that in particular jurisdictions
such companies do not have the authority to condemn

lands.*®

13. Coles v. Midland Telep. &
Teleg. Co., 67 N. J. L. 490, 51 Atl.
448; affirmed without opinion, 68
N. J. L. 413, 53 Atl. 1125; American
Telephone & Teleg. Co. v. St. Louis,
ete, Ry. Co., 202 Mo. 656, 101 8. W.
576.

14, Illinois— Village of London
Mills v. White, 208 Ill. 289, 70 N. E.
313.

Maine.— Canadian Pac. Ry. Co. v.
Moosehead Telep. Co., 106 Me. 363,

76 Atl, 885, 29 L. R. A. (N. S&S.)
703, 20 Ann. Cas. 721.
Minnesota.— Northwestern Telep.

Exch. v. Chicago, ete., Ry. Co., 76
Minn. 334, 79 N. W. 315.

Mississippi Cumberland Telep. &
Teleg. Co. ‘v. Yazoo, ete., R. Co., 90
Miss, 686, 44 So. 166.

New York— New Union Telep. Co.
v. Marsh, 96 N. Y. App. Div. 122, 89
N. Y. Supp. 79.

South Carolina— South Carolina,
etc. R. Co. v. American Telep. &
Teleg. Co., 65 S. Car. 459, 8 Am.
Elect]. Cas. 280, 43 S. E. 970.

Tennessee Doty v. American
Telep. & Teleg. Co., 123 Tenn. 329,

Such authority may sometimes be found in a stat-

130 S. W. 1053, Ann. Cas. (1912 C.)
167.

Texas.— San Antonio, ete., Ry. Co.
v. Southwestern, etc., Telep. Co., 93
Tex. 313, 55 S. W. 117, 49 L. BR. A.
459, 77 Am. St. Rep. 884.

Wisconsin.— Wisconsin Telep. Co.
v. Kreuger, 115 Wis. 150, 90 N. W.
458. ;

“New line.””— A direct telephone
line between two cities, along a route
not previously occupied by the com-
pany, is a “new line” within the
meaning of a statutory provision em-
powering telephone companies to ex-
ercise the right of eminent domain
for the purpose of constructing new
lines, although the company had an
indirect line between the same cities.
Cumberland Telep. & Teleg. Co. v.
Yazoo, etc., R. Co., 90 Miss. 686, 44
So. 166.

15. Pennsylvania Telep. Co. v.
Hoover, 209 Pa. 555, 58 Atl. 922.

Prior to 1906, telephone companies
in the state of Mississippi did not
have the right of eminent domain.
Alabama, ete., Ry. Co. v. Cumberland
Telep. & Teleg. Co., 88 ‘Miss. 438, 41
So. 258.
112 Law or Evzcraiciry.

ute giving the right to ‘‘ telegraph’’ companies, as such
term has frequently been held to include ‘‘ telephone ’’ com-
panies.*° The legislature, in the absence of constitutional
provisions restricting its discretion, may give the right to
corporations operating telephone lines, but forbid an indi-
vidual owning a telephone system from exercising the priv-
ilege.*7 Condemnation of no more land, nor of a greater
interest therein than is necessary, is permitted. Hence,
in condemning the property of others for a line of poles
and wires, whether the land in question is a part of the
highway** or not, the telephone company can take only an
easement. By language sufficiently explicit, a telephone
company may be empowered to condemn a right of way
along a railroad track.’® :

Sec. 76. Corporations Entitled to Exercise; Lessees of
Public Service Corporations.

The right of eminent domain is a right which cannot be
transferred or delegated by the company to which it is
given.” Thus, a lessee of a public service corporation
cannot condemn lands for a use appurtenant to a way of
the lessor, unless expressly so authorized by statute." He
cannot exercise the right given to his lessor. But a statu-
tory provision authorizing condemnation proceedings by a
street railway company which has acquired any street rail-
road will be construed to authorize such proceedings by an
incorporated lessee of a street railway.”

16. § 11. 19. § 85.

17. Village of London Mills v.
White, 208 Ill. 289, 70 N. E. 313.

18. New Union Telep. Co. v. Marsh,
96 N, Y. App. Div. 122, 89 N. ¥.
Supp. 79.

Asking for fee—The fact, how-
ever, that the telephone company in
its condemnation petition asks for
a fee does not necessarily require a
dismissal of the proceeding. New
Union Telep. Co. v. Marsh, 96 N. Y.
App. Div. 122, 89 N. ¥. Supp. 79.

20. Western Union Teleg. Co. v.
Pennsylvania R. Co., 195 U. S. 594,
25 S. Ct. 150, 49 L. Ed. 322.

21. Western Union Teleg. Co. v.
Pennsylvania R. Co., 195 U. 8. 594,
25 8S. Ct. 150, 49 L. Ed. 322; Mull v.
Indianapolis & C. Traction Co., 169
Ind. 214, 6 St. Ry. Rep. 192, 81
N. E. 657.

22. Mull v. Indianapolis & C.
Traction Co., 169 Ind. 214, 6 St. Ry.
Rep. 192, 81 N. E, 687,
Eminent Domar. 113

Sec. 77. Prerequisites to Exercise of Power.

It is obvious that a person desiring to condemn land for
the purpose of supplying electricity to the public must
manifest in some manner his intention to serve the public
before he can be permitted to exercise the power of eminent
domain. In the same way, an electric company, before
being permitted to condemn lands of others, must show, by
its charter or otherwise, that it is a public service corpora-
tion. This does not necessarily mean that it must be a cor-
poration de jure; as against any one except the state ques-
tioning its right to act as a corporation, a corporation
de facto may exercise the right of eminent domain.” But
outside of the establishment of its public character, but
little, if anything, is required of an electric company as a
prerequisite to its right to exercise the right of eminent
domain. The electric company is not required to complete
its dam, its power plant, and its transmission line, in whole
or in part, before it can maintain condemnation proceed-
ings to acquire flowage rights and rights of way.”

Sec. 78. Prerequisites to Exercise of Power; Municipal
Franchise.

It is no defense to a proceeding by an electric company
to condemn lands necessary for its public purposes that
such company has not yet procured a franchise from
the municipality, the inhabitants of which it proposes
to furnish with electric energy.» As was said in one

23. § 16. street railway company for the run-

24. Deerfield River Co. v. Wilming-
ton Power & Paper Co., 83 Vt. 548,
77 Atl. 862.

25. Tuolumne Water Power Co. v.
Frederick, 13 Cal. App. 498, 110 Pac.
134; State ex rel. Harlan v. ‘Cen-
tralia-Chehalis Elec. Ry. & Power
Co., 42 Wash. 632, 4 St. Ry. Rep.
1064, 86 Pac. 344.

Transmission line crossing high-
ways.—On condemnation proceedings
for the condemnation of land by a

8

ning of a transmission line around a
village, it cannot be urged by the
defendant land owner that the rail-
way company should, as a condition
precedent, have obtained permission
of the local authorities to lead the
wires across highways, where the
lands sought to be condemned do not
adjoin the highways at any point and
the plaintiff is the owner in fee of
so much of the highway as it seeks
to occupy with its line. Syracuse
114 Law or ELectricity.

case:* ‘To deny to a corporation, organized for a pur-
pose which under the statute would entitle it to the power
of eminent domain, the right to exercise the power until
it has obtained a franchise from some municipality, or
made a contract to furnish its product to some city or
village, would be to deprive it of the means by which it is
enabled to construct its works and be in a position to obtain
a franchise or contract.’’

Sec. 79. Prerequisites to Exercise of Power; Contracts

for Furnishing Service.

An electrical company may exercise the right of eminent
domain without first entering into contracts with the per-

Tuake Shore & Northern Co. v. Car-
rier, 149 N. Y. App. Div. 411, 8 St.
Ry. Rep. 92, 134 N. Y. Supp. 791.

In face of a constitutional prohibi-
tion of the construction of a street
railway within the limits of a mu-
nicipal corporation, without the con-
sent of its local authorities, a right
of way for an electric street railway
upon a turnpike road cannot be con-
demned without such consent first
had and obtained. MHarrisburg, etc.,
Ry. Co. v. Harrisburg, etc:, Ry. Co.,
15 Pa. Co. Ct. 389, 5 Am. Elect.
Cas. 1.

Where a street railway company
sought to condemn land for the pur-
pose of creating a water power for
the use of its railway, to be con-
structed between two cities, and it
appeared, among other things, that
the company had procured a right of
way for nearly the whole distance
between the two cities, that it was
negotiating with each of the cities
for franchises, the terms of which
had ‘been practically settled, and
that it was proceeding diligently with
the enterprise, and where nothing
was shown to have occurred that
would prevent its ultimate accom-
plishment, the right to condemn such
land should not be denied on the

ground that it had not procured
franchises from such cities and there-
fore that it had not proceeded far
enough to show that the use contem-
plated was a public use. State ex
rel. Harlan v. -Centralia-Chehalis
Elec. Ry. & Power Co., 42 Wash.
632, 4 St. Ry. Rep. 1064, 86 Pac.
344,

Telephone line—-Where, at the
time of actual construction of a tele-
phone line, the telephone company
was not required by statute as a
condition precedent to such construc-
tion, to obtain from the municipal
body a designation of the streets,
etc., through which its line was to
be constructed, the facts that the
company did not then compensate
the abutting owners either by private
agreement or by legal proceedings,
and that thereafter by statute such
municipal consent was made a pre-
requisite to construction, will not bar
condemnation proceedings begun on
the basis of the original construction
without such a municipal consent.
Wray v. Mott, 83 N. J. L. 110, 33
Atl. 866.

26. Minnesota Canal & Power Co.
v. Pratt, 101 Minn. 197, 9 Am. Electl.
Cas. 1138, 112 N. 'W. 395, 11 L. R.A,
(N. 8.) 105,
Eminent Domain. 115
sons or corporations it ultimately expects to supply with
current.”” It should not be required to enter into contracts
until it is reasonably probable that it will be able to per-
form them.* Before an electric company acquires its
power plant and a right of way for a transmission line to
its customers, it is unable to determine whether it will be
able to supply current and perform its contracts. More-
over, the company is unable, until the approximate cost of
its plant is determined, to fix the rates at which it will sup-
ply current, and in many cases such cost cannot be fairly
estimated at the time it becomes reasonably necessary for
the company to condemn property.

Sec. 80. Prerequisites to Exercise of Power; Municipal
Regulation.

Where an electric company is organized to furnish elec-
tric energy to the public and the power of eminent domain
is delegated to corporations of such character, though such
a corporation becomes subject to governmental regulation,”

27. Tuolumne Water Power Co. v.
Frederick, 13 Cal. App. 498, 110 Pac.
134; Minnesota Canal & Power Co.
v. Pratt, 101 Minn. 197, 9 Am. Electl.
Cas. 1138, 112 N. W. 395, 11 L. R.A.
(N. 8.) 105; Pittsburg Hydro-Elec.
Co. v. Liston, 70 W. Va. 83, 73 S. E.
86, 40 L. R. A. (N. 8.) 602.

“It is not necessary that the plain-
tiff should have made a contract to
furnish electric power before it had
installed its plant and procured the
right of way for its line. To prevent
the plaintiff from exercising the right
of eminent domain until it shall have
obtained a franchise from some city
or village or made a contract to fur-
nish its product to some city or vil-
lage, would be to deprive it of the
means by which it would be enabled
to construct its works and put in a
position to make a contract.” © Tuo-
lomne Water P. Co. v. Frederick, 13
Cal. App. 498, 110 Pac, 134.

28. “It would certainly be revers-
ing the usual order of things to re-
quire a company to obtain a fran-
chise, or contract, to supply the pub-
lic at a certain fixed rate, before it
acquired the land on which to erect
its plant, and before it could know
whether it would ever be in a posi-
tion to comply with its agreement.
After the company obtains the neces-
sary land on which to build its
plant, and the easements necessary
for erecting its poles, or towers, and
stringing its wire, it may then be
able to know at what price it will
be able to serve the public. Before
this is accomplished a contract as to
price would be much a matter of
speculation, and one in which the
public would likely be the loser.”
Pittsburg Hydro-Elec. Co. v. Liston,
70 W. Va. 83, 73 '8. E. 86, 40 L. R.A,
(N. 8.) 602.

29. §§ 323-337,
116 Law oF ELEctRrIicIrty.

the actual exercise of such power of regulation is not a con-
dition precedent to the use by the company of such power
of condemnation.” The regulations may be subsequently
adopted. Similarly, a telephone company may condemn
the rights of abutting owners along a highway, in so far
as it is necessary for it to run a telephone line along the
same, though the local authorities have not approved the
location of the poles and wires at the place where such con-
demnation is sought.

Sec. 81. Necessity of Taking.

The word ‘‘ necessity ’’ is frequently used in a vague
sense in opinions discussing the exercise of eminent do-
main.” It may be used in speaking of the inability of the
condemning company to acquire the particular property in
question; if no other method is open to the company to
acquire certain lands, eminent domain may be said to be
“‘necessary ’’ for their acquisition. The ‘‘ necessity ’’ thus
referred to is satisfied when the company and the land-
owner fail to agree as to the compensation to be paid.

80. Minnesota Canal & Power Co.
yv. Pratt, 101 Minn. 197, 9 Am. Elect}.
Cas. 1138, 112 N. W. 395,11 L. R. A.
(N. 8.) 105, wherein the court said:
“Tt is also contended that the ap-
pellant can not exercise the power
of eminent domain until after the
legislature has actually exercised its
power of control by the enactment of
some regulating statute. The state
has granted the power of eminent
domain in present terms, subject to

its right to regulate the future busi-
ness of the corporation. It may regu-
late this business whenever the con-
ditions arise which call for such reg-
ulation; that is, whenever there shall
be improper business methods to be
corrected or unequal rates to be
equalized. It is not necessary that
the state shall pass statutes in de-
tail regulating the business and rates
of the petitioner before it can exer-
cise the right of eminent domain for

the purpose of enabling it to con-
struct its works.”

31. New Union Telep. Co. v. Marsh,
96 N. Y. App. Div. 122, 89 N. Y.
Supp. 79. But see Winter v. New
York & New Jersey Telep. Co., 51
N. J. L. 83, 2 Am. Electl. Cas. 272,
16 Atl. 188,

32. In California, facts showing the
necessity for the condemnation must
be proved, but need not be pleaded;
and the burden of showing the neces-
sity is on the condemning company.
Northern L. & P. Co. v. Stocker, 13
Cal. App. 404, 109 Pac. 896.

33. St. Louis & San Francisco R.
Co. v. Southwestern Telep. & Teleg.
Co., 121 Fed. 276, 58 C. C. A. 198,
8 Am. Elect]. Cas. 282; Postal Teleg.
Cable Co. v. Oregon Short Line R.
Co., 23 Utah 474, 7 Am. Electl. Cas.
417, 8 Am. Electl. Cas. 281, 65 Pae.
735, 90 Am. St. Rep. 705.
Eminent Domatn, 117

The term is also used when the court is referring to the
‘“necessity ’’ of procuring certain lands by eminent domain,
when other lands might be obtained without resort to the
proceedings, or other lands are equally or more available.
This ‘‘ necessity ’’ is, to a large extent, within the discre-
tion of the company, for it is no answer to the exercise
of eminent domain that other lands could be procured which
would equally well serve the purposes of the company. A
third use of the word may be found when the court is dis-
cussing the extent to which the power may properly be
used. In this sense, it can be said to.be ‘‘ unnecessary ”’
for a company to condemn more than an easement for the
purpose of a right of way for its poles and wires; or for
a company to condemn lands for the generation of 100,000
volts of electricity, when 2,000 volts would supply its re-
quirements.** In the last-mentioned meaning, the proba-
bility of the growth of the electrical company is a vital
matter to be considered. A company may be permitted
to condemn property for ‘the generation of considerable
power, though it now has a market for a comparatively
small amount, where such condemnation is justified by the
probability of an increase in the demand for current.**

34. § 60.

35. See State v. White River Power
Co., 39 Wash. 648, 9 Am. Electl. Cas.
605, 82 Pac. 150, 2 L. R. A. (N. 8.)
842, holding there was no necessity
under the circumstances of that case
for a power plant to generate 50,000
electrical horse power.

36. State v. Superior Court for
Kleckitat County, 70 Wash. 486, 127
Pac. 104.

Condemnation ‘for an 80 horse
power plant, to furnish electric light
to a town that has present need for
only 30 horse power, is not excessive,
in view of the probable growth of
the town. State v. Superior Ct. for
Snohomish County, 71 Wash. 84, 127
Pac. 591.

Proof of power.—Where the presi-
dent of the condemning company
testified generally that all the power
that could be developed by the pro-
posed dam would be necessary, and
that, if the company could get along
with less, it would be satisfied to take
less, and such testimony was uncon-
troverted, it was sufficient to justify
the finding that no more land was
proposed to be taken than the neces-
sities required, even though the evi-
dence did not give the estimated
horse power required or proposed to
be developed. State ex rel. Harlan
v. Centralia-Chehalis Elec. Ry. &
Power Co., 42 Wash. 632, 4 St. Ry.
Rep. 1064, 86 Pac. 344,
118 Law oF Huecrriciry.

Sec. 82. Property Condemnable; Water Power.

The right of an electric company to condemn a water
power or lands for the development of a water power
depends upon the question whether the legislature has
granted to such company the authority to condemn such
property. Electric companies may be, and frequently are,
granted the right of eminent domain to that end.*” On the
other hand, they may be permitted to condemn property
of a different character and yet have no authority to secure
a water power by such proceedings.** The right to con-
demn is strictly construed;*® and, unless the authority to
take a water power is given expressly or by necessary

implication, it is not granted.*°

87. United States— Walker v.
Shasta Power Co., 160 Fed. 856, 87
C. C. A. 660.

Alabama.— Alabama, Interstate
Power Co. v. Mt. Vernon‘Woodberry,
etc., Co., 65 So. 287.

California.— Northern L. & P. Co.
y. Stocker, 13 Cal. App. 404, 109 Pac.
896.

Idaho.— Washington Water Power
Co. v. Waters, 19 Idaho 595, 115 Pac.
682.

South Dakota.— Sioux Falls L. &
P. Co. v. Coughran, 27 S. Dak. 443,
131 N, W. 504.

Tennessee.— Great Falls Power Co.
v. Webb, 123 Tenn. 584, 133 S. W.
1105.

Washington.— State ex rel. Domi-
nick v. Superior Court of King
County, 52 Wash. 196, 100 Pac. 317,
21 L. R. A. (N. 8S.) 448;-State ex
rel. Harlan v. Centralia-Chehalis
Elec. Ry. & Power Co., 42 Wash.
632, 4 St. Ry. Rep. 1064, 86 Pac. 344.

Wisconsin.— Matter of Southern
Wisconsin Power Co., 140 Wis. 245,
122 N. W. 801.

Water power of another electric
company.—One electric company may
have the right to condemn the water
power of another electric company,
where express authority is given by

Where the right to con-

the legislature for such condemna-
tion. This question is discussed in
another section. See § 87.

38. Southwest Missouri Light Co.
v. Scheurich, 174 Mo. 235, 73 S. W.
496; Yadkin River Power Co. v.
Whitney Power Co., 150 N. Car. 31,
63 S. E. 188.

The Missouri laws do not permit a
private business corporation organ-
ized to furnish light and water for
pay to neighboring cities and their
inhabitants to exercise the power of
eminent domain to condemn private
property for the purpose of building
and maintaining a milldam across a
creek with the view of creating a
waterfall and obtaining water power
with which to manufacture electricity
and gas. Private property can be
condemned for a milldam only when
the power thereby gathered is to be
used for running a public mill, that
is, a gristmill. Southwest Missouri
Light Co. v. Scheurich, 174 Mo. 235,
73 S. W. 496. But see McMillan v.
Noyes, 75 N. H. 258, 73 Atl. 759,
adopting a rule apparently to the
contrary,

89. § 68.

40. Oconee Elec. L. & P. Co. v.
Carter, 111 Ga. 106, 36 S. E. 457,
Eminent Doman. 119

demn is given to such electrical companies only as ‘‘ own
or control ’’ a water power, an electric company cannot con-
demn the interest of his co-tenant in a water power.** In
recent years the movement throrghout the country for the
conservation of natural resources has resulted to a certain
extent in limitations upon the right to take water power
by eminent domain. The state may, if its constitution
does not adversely affect its power, withdraw from-a cor-
poration the right of condemning water powers which was
previously delegated to it.”

Rights of Flowage.— The right to injure the property
of another by overflowing it with water is frequently a sub-
ject for condemnation in the development of a water power
for the generation of electricity.** Electric companies are
generally empowered to condemn such rights of flowage,**
though sometimes the power is limited so that its exercise
shall not interfere with any mill or factory actually in

operation.*
flowage rights is withheld.**

41. Oconee Elec. L. & P. Co. v.
Carter, 111 Ga. 106, 36 S. E. 457.

42. Yadkin River Power Co. v.
Whitney Co., 150 N. Car. 31, 63 8. E.
188.

48. Payment of damages required.
—A village operating an electric
plant must compensate the owner of
lands for damages he has sustained
by reason of acts of the municipality
in raising its dam and overflowing
his lands. But, inasmuch as it can
condemn the use of the submerged
land for its purposes, a suit by the
landowner to restrain the flowage
will be stayed until the village can
prosecute proceedings for the con-
demnation of the flowage rights.
Doty v. Village of Johnson (Vt.), 77
Atl. 866. See also, to similar eéf-
fect, Lucas v. Ashland L., Mill & P.
Co., 92 Neb. 550, 138 N. W. 761.

44, United States—Hagerla  v.
Mississippi River Power Co., 202 Fed.
776; Washington Water Power Co.
v. Waters, 186 Fed. 572.

And in some instances authority to condemn

Georgia.—Nolan v. Central Georgia
Power Co., 134 Ga. 201, 67 S. E. 656.

Idaho.— Washington Water Power
Co. v. Waters, 19 Idaho 595, 115 Pac.
682.

Nebraska.— Lucas v. Ashland L.,
Mill & P. Co., 92 Neb. 550, 138 N. W.
761.

New Hampshire— McMillan  v.
Noyes, 75 N. H. 258, 73 Atl. 759.

New York.— Matter of East Can-
ada Creek Elec. L. & P. Co., 49 Misc.
565, 9 Am. Electl. ‘Cas. 605, 99 N. Y.
Supp. 109.

Tennessee— Great Falls Power
Co. v. Webb, 123 Tenn. 584, 133
S. W. 1105.

Vermont.— Deerfield River Co. v.
Wilmington Power & Paper Co., 83
Vt. 548, 77 Atl. 862.

45. Nolan v. Central Georgia Power
Co., 134 Ga. 201, 67 S. HE. 656.

46. A statute authorizing cities
to condemn land to construct water
120 Law or ELEcTRICITY.

Riparian Rights— The condemnation of a water power
along a stream frequently involves the taking of riparian
rights. The condemnation of such rights may be authorized
by the legislature.‘

Ditch or Flume.— If authorized, an electric company may
condemn a right of way for a ditch or flume for taking
water to or from its power-house.*

Interference with Navigable Waters.— The authority of
Congress over navigable rivers is supreme. Congress, in
aid of the navigation thereof may build dams and locks;
or it may authorize a private corporation to build such
dams and use the power created thereby in the generation
of electricity.“ Congress has required the approval of the
secretary of war and the chief of engineers to the con-
struction of public works in a navigable stream.*° Before
a state court permits a corporation to condemn lands for
the construction of such works in a navigable river, the
company seeking the condemnation should first procure the

approval of its plans by the federal officers.™

mains, supply reservoirs, or stand-
pipes, does not authorize condemna-
tion of the right to flood lands in
maintaining waterworks. Tolle v.
City of New Braunfels (Tex. Civ.
App.) 154 8. W. 345.

47. Northen L. & P. Co. v.
Stocker, 13 Cal. App. 404, 109 Pac.
896.

48. Walker v. Shasta Power Co.,
160 Fed. 856, 87 C. C. A. 660; Lam-
born v. Bell, 18 Colo. 346, 4 Am.
Electl. Cas. 573, 32 Pac. 989.

Millrace.— Land for the use of a
millrace for the conveyance of water
from a power house may be con-
demned. Sioux Falls L. & P. Co. v.
Coughran, 27 S. Dak. 443, 131 N. W.
504.

49. Hagerla v. Mississippi River
Power Co., 202 Fed. 776.

50. Act June 21, 1906, c. 3508, 34
Stat. at L. 386; Act June 23, 1910,
e. 360, 36 Stat. at L. 593; Act March

3, 1899, c. 425, § 9, 30 Stat. at. L.
1151.

51. Minnesota Canal & Power Co.
v. Pratt, 101 Minn. 197, 112 N. W.
395, 11 L. R. A. (N. 8.) 105, 9 Am.
Electl. Cas. 1138, wherein the court
said: “ Conceding that the petitioner
is authorized by the statutes to exer-
cise this power and condemn private
property which is required in
the course of the construction of
canals and reservoirs to be used for
the generation of electric power, it
remains to be seen whether the power
can be exercised when the particular
enterprise involves the interference
with and the division of navigable
waters of the state. This question
is distinct from that of the right of
a corporation to condemn private
property under any conditions. A
general grant of the right to condemn
private property for a public use
must be construed as granted in aid
Eminent Domarn. 121

Sec. 83. Property Condemnable; Location for Power Plant.

The condemnation by an electric company of a water
power is, as we have seen,” generally permitted. In such
a case the power-house of the company is really a part of
the water power and land therefor may be taken in eminent
domain proceedings under the authorities there cited. A
different situation arises where the electric company seeks
to generate its current by steam rather than by water
power. In such a case, it may locate its power-house at
almost any place where it will not be a nuisance® to adjoin-
ing owners. Practically one location is as feasible as
another; and, therefore, no necessity for the condemna-
tion of a particular site can, as a general proposition, arise.
This question has arisen with reference to street railway

companies and is discussed in another place.”

Sec. 84. Property Condemnable; Transmission Line.
The condemnation of the use of lands for a transmission

of an enterprise which in itself is
authorized by law and the carrying
out of which does not involve the
breach of some existing law; that is,
a corporation may have the right to
build a dam or reservoir and condemn
private property in aid thereof, and
yet not have the right to condemn
in aid of a particular dam or reser-
voir when the necessary consequence
will be the violation of a statute
which forbids the interference with
certain waters or waters of a cer-
tain character. It does not follow
that, because the state has authorized
the creation of corporations with
power to engage in certain kinds of
business and granted to them the
right of eminent domain, it has au-
thorized particular enterprises of the
designated character regardless of the
consequences in particular cases. A
dam or reservoir for the creation of
power may or may not interfere with
the navigability of the waters af-
fected thereby, and, if the statutes

and general public policy of the state
show an intention to prevent the
navigable waters from being inter-
fered with, it will be presumed that
only such dams, reservoirs and canals
may be constructed as do not inter-
fere with the public right of naviga-
tion. Navigable waters are already
devoted to a public use, and power
to condemn for a public purpose prop-
erty which is already appropriated to
another public use does not exist,
unless granted specifically or by nec-
essary implication.” Minnesota Ca-
nal & Power C. v. Pratt, 101 Minn.
197, 112 N. W. 395, 11 L. R. A.
(N. 8.) 105, 9 Am. Electl. Cas. 1138.

52. § 82.

58. Power plant as nuisance.— The
question whether a power plant is a
nuisance is discussed in a subsequent
section. See § 429.

54, Necessity.— As to the necessity
of condemnation, see § 81.

55. § 63.
122 Law oF Eecrricity.
line from an electric company’s power-house to its cus-
tomers is generally more favored than is the condemnation
of a water power or site for a generating-house. A com-
pany may have authority to condemn a right of way for
its poles and wires, though it has no right to condemn a
water power. As the right of a public service corpora-
tion to exercise the right of eminent domain must be found,
if at all, in a delegation thereof by the legislature,” and a
corporation may be absolutely excluded from exercising
such right, it is apparent that the law-making assembly
may or may not, in its discretion, grant the right of con-
demning the use of lands for a transmission line. The
injury to landowners is comparatively slight and a few
owners might be in a position to block a large electrical
enterprise, and, therefore, the power to condemn a right of
way for its line of poles and wires is generally conferred
upon electric companies.” The condemning power is not
necessarily exhausted by one exercise thereof. After secur-
ing a right of way, it may subsequently obtain by eminent
domain proceedings the right to trim trees near its trans-
mission line.*® Or, if permitted by statute, the electric com-
pany may in one proceeding secure the fee of the land for
its transmission line and an easement for the cutting of
trees in proximity to the same.”

Transmission Line of Street Railway Company Not along
Highway.— A street railway company in the location of its
transmission line is not necessarily limited to the street

56. Oconee Elec. L. & P. Co. v. Car- 72 N. H. 531, 9 Am. Electl. Cas. 102,
ter, 111 Ga. 106, 36 S. EH. 457. 58 Atl. 46, 66 L. R. A. 581.

57. § 69.

58. California—Tuolomne Water
P. Co. v. Frederick, 13 Cal. App.
498, 110 Pac. 134.

Georgia— Jones v. North Georgia
Elec. Co., 125 Ga. 618, 54 S. E. 85,
6L. R. A. (N. 8S.) 122.

Maryland.— Webster v. Susque-
hanna Pole Line Co., 112 Md. 416, 76
Atl. 254, 21 Ann. Cas. 357.

New Hampshire.— Rockingham
County Light & Power Co. v. Hobbs,

North Carolina Wissler v. Yad-
kin River P. Co., 158 N. Car. 465, 74
8. E. 460; Lambeth v. Southern
Power Co., 152 N. Car. 371, 67 S. E.
921,

South Carolina— Southern Power
Co. v. Walker, 89 S. Car. 84, 71 S. E.
356.

59. Yadkin River Co. v. Wissler,
160 N. Car. 269, 76 S. E. 267, 43
L. R. A. (N. 8.) 483.

60. Webster v. Susquehanna Pole
Eminent Domatn. 123

upon which it has laid its tracks. The high currents fre-
quently used by such companies make it advisable, in order
to avoid injury to innocent persons, that, in cases where it
is practicable to do so, its high tension lines be carried
around rather than through cities and villages. Where a
company has such a line which is not required by its neces-
sities to be along the streets or highways, and statutory
provisions so permit, it may exercise the right of eminent
domain for a right of way over private lands.”

Sec. 85. Property Condemnable; Railroad Right of Way.

A telegraph or telephone company cannot condemn an
easement for its poles and wires along the right of way of
a railroad company without authority either expressed or
necessarily implied from the law making body of the state
in which the railroad is located. The property of the
railroad company has already been appropriated to a pub-
lic use, and the general rule, that property once dedicated
to a public use cannot be condemned for another public

service without express authority, applies.”

Line Co., 112 Md. 416, 76 Atl. 254,
21 Ann. Cas. 357.

61. Mull v. Indianapolis & C. Trac-
tion Co., 169 Ind. 214, 6 St. Ry. Rep.
192, 81 N. E. 657; Syracuse Lake
Shore & Northern Co. v. Carrier, 149
N. Y. App. Div. 411, 8 St. Ry. Rep.
92, 134 N. Y. Supp. 791; Matter of
Utica & Mohawk Valley Ry. Co. v.
Weaver (N. Y. Sup. Ct.), 6 St. Ry.
Rep. 192 note.

62. Western Union Teleg. Co. v.
Pennsylvania R. Co., 123 Fed. 33, 59
C. C. A. 113; affirmed 195 U. S. 540,
25 S. Ct. 133, 49 L. Ed. 312; 195
U. S. 594, 25 S. Ct. 150, 49 L. Ed.
322; St. Louis & C. R. Co. v. Postal
Teleg. Cable Co. 173 Ill. 508; 51
N. E. 382; Canadian Pac. Ry. Co. v.
Mooseheau Telep. Co. 106 Me. 363, 76
Atl, 885, 29 L. R. A. (N. S.) 703,
20 Ann. Cas. 721; North Western
Telep. Exch. Co. v. Chicago. etc., R.
Co., 76 Minn. 334, 79 N. W. 315.

The Post

More public use—— Under the stat-
ute of Montana (Code Civ. Proce. p.
3, title 7) which confers on certain
corporations, among which are tele-
graph companies, power to exercise
the right of eminent domain, subject
to the limitation tha’ the court must
find that the use sought to be made
of the property condemned is a pub-
lic use, and, if the property has al-
ready been appropriated to a public
use, that the second is a more neces-
sary public use, it must be held that
the use of land for a telegraph line
is a public use, and that the appro-
priation for telegraph purposes of a
portion of the right of way of a rail-
road not occupied for railroad pur-
poses is for a more necessary public
use than that of the railroad com-
pany. Postal Teleg. Cable Co. v. Ore-
gon Short Line R. Co., 114 Fed. 787,
8 Am. Elect]. Cas. 282.
124 Law or ELEcrriciry.

Roads Act,** passed by Congress in 1866 granting certain
privileges to telegraph companies does not give such com-
panies the power of eminent domain.** Whatever may be
the result where the condemnation of the railroad right of
way has not been expressly authorized, there is no doubt
that the legislature has the power to authorize such a con-
demnation. By the use of appropriate language and the
observance of the constitutional formalities, a telegraph or
telephone company may be invested with the power to con-
demn such portion of a railroad right of way as is neces-
sary for the construction and maintenance of its line of
poles and wires. A state statute granting such right as

63. §§ 176-186.

64, Western Union Teleg. Co. v.
Pennsylvania R. Co., 195 U. S. 540,
25 8. Ct. 133. 49 L. Ed. 312; Western
Union Teleg. Co. v. Pennsylvania R.
Co., 195 U. S. 594, 25 S. Ct. 150, 49
L. Ed. 322; Postal Teleg. Cable Co.
v. Cleveland, etc., R. Co., 94 Fed. 234;
Western Union Teleg. Co. v. South,
etc., R. Co., (Ala.) 62 So. 788; Postal
Teleg. Cable Co. of Louisiana v. Mor-
gan’s, etc., 8. 8. Co., 49 La. Ann. 58,
6 Am. Elect]. Cas. 183, 21 So. 183.

Where a state statute authorizing
the condemnation of such an ease-
ment does not contemplate an action
in the federal courts, such courts
have no jurisdiction of proceedings
for the condemnation of an easement
in a railroad company’s right of way.
Postal Teleg. Cable Co. v. Cleveland,
ete., Ry. Co., 94 Fed. 234,

65. United States.— Pacific Postal-
Telegraph Cable Co. v. Oregon, etc.
R. Co., 163 Fed. 967; St. Louis & San
Francisco R. Co. v. Southwestern
Telep. & Teleg. Co., 121 Fed. 276, 8
Am. Elect]. Cas. 282, 58 C. C. A.
198; Postal Teleg. Cable Co. v. Oregon
Short Line R. Co., 114 Fed. 787, 8
Am. Electl. Cas. 282; Oregon Short
Line R. Co. v. Postal Teleg. Cable
Co., 111 Fed. 842, 8 Am. Elect]. Cas.
267; Postal Teleg. Cable Co. of Idaho

v. Oregon Short Line R. Co., 104
Fed. 623. Affirmed 111 Fed. 842, 49
C. C. A. 663.

Alabama.— Mobile, etc., R. Co. v,
Postal Teleg. Cable Co., 120 Ala. 21,
24 So. 408.

Georgia.— Savannah, etc., R. Co. v.
Postal Teleg. Cable Co., 115 Ga. 554,
8 Am. Elect]. Cas. 278, 42 8S. E. 1.

Indiana.— Postal Teleg. Cable Co.
v. Chicago, etc., Ry. Co., 30 Ind. App.
654, 8 Am. Elect]. Cas. 279, 66 N. E.
919,

Tllinois.— St. Louis & C. R. Co. v.
Postal Teleg. Cable Co., 173 Tl. 508,
51 N. E. 382.

Louisiana.— Postal Teleg. Cable
Co. of Louisiana v. Morgan’s, ete.,
8S. §. Co. 49 La. Ann. 58, 6 Am.
Electl. Cas. 183, 21 So. 183.

Maine.— Canadian Pac. Ry. Co. v.
Moosehead Telep. Co., 106 Me. 363,
76 Atl. 885, 29 L. R. A. (N. S.) 703,
20 Ann. Cas. 721.

Missouri— American Telep. &
Teleg. Co. v. St. Louis, ete, R. Co.,
202 Mo. 656, 101 S. W. 576.

Tennessee.— Mobile, etc., R. Co. v.
Postal Teleg. Cable Co., 101 Tenn.
62, 46 S. W. 571, 41 L. R. A. 403.

Texas.— Southwestern Teleg. &
Telep. Co. v. Gulf, ete., Ry. Co. (Civ.
App.), 52 S. W. 106.

Utah.— Postal Teleg. Cable Co. v.
Eminent Doman.

125

against railroads engaged in interstate commerce is not
inconsistent with any federal legislation or invalid as an
attempted regulation of interstate commerce,® unless it

Oregon Short Line Co., 23 Utah 474,
7 Am. Elect]. Cas. 417, 8 Am. Electl.
Cas. 281, 65 Pac. 735, 90 Am. St. Rep.
705.

“Along and upon.”—A_ statute
providing that a telegraph company
may construct its line “along and
upon any railroad,” etc., authorizes
the condemnation of a right of way
for a telegraph line lengthwise along
and upon the railroad right of way,
and is not limited to the crossing
thereof. St. Louis & C. R. Co. v. Pos-
tal Teleg. Cable Co., 173 Ill. 508, 51
N. E. 382.

“Upon or along.”’— When a teie-
phone company is authorized by a
statute to construct and maintain its
lines “upon or along” a railroad, it
is necessarily implied that it may
take the right of way so far as is
reasonably necessary for that pur-
pose. Canadian Pac. Ry. Co. v.
Moosehead Telep. Co., 106 Me. 363,
76 Atl. 885, 29 L. R. A. (N. 8.) 703,
20 Ann. Cas. 721.

A telephone and telegraph company
has by statute been given the express
right to condemn and appropriate an
easement along the right of way of
a railroad, to erect and maintain its
poles and wires —the right to appro-
priate, however, being rigidly limited
to such use as shall not materially
interfere with the uses the railroad
corporation holding the property is
authorized to put it to, or does put
it to, by law. American Telep. &
Teleg. Co. v. St. Louis, etc., Ry. Co.,
202 Mo. 656, 101 S. W. 576.

The right to construct a telegraph
line along a railroad right of way
may be conferred by a statute per-
mitting the condemnation of any

lands owned by private persons or
corporations. Ft. Worth, etc., Ry.
Co. v. Southwestern Teleg. & Telep.
Co., 96 Tex. 160, 71 S. W. 270, 60
L. R. A. 145.

“In the law of this State, under
which the appellant was incorporated,
it is provided that telegraph com-
panies “shall have power to acquire,
by purchase or otherwise, hold, and
convey such real and personal estate
as may be necessary and proper for
the purpose of erecting and keeping
in repair its lines of telegraph and
the buildings requisite for their
operation,” and that “such corpora-
tion shall have power to acquire such
real estate and right of way as may
be necessary for the uses and pur-
poses herein contemplated, under the
writ of assessment of damages, as
fully as if the act in relation to said
writ were incorporated and made part
hereof. We think the law of this
State gives to a telegraph company
the right and power to condemn land
for its right of way upon the assess-
ment and payment of damages, and
that the reference in the law above
quoted to the act for the assessment
of damages adopts so much of that
act as is necessary to enable the tele-
graph company to exercise such
power.” Postal Teleg. Cable Co. v.
Chicago, etc, Ry. Co., 30 Ind. App.
654, 8 Am. Electl. Cas. 279, 66 N. E.
919.

66. Louisville & N. R. Co. v. West-
ern Union Teleg. Co., 207 Fed. 1;
Western Union Teleg. Co. v. South,
etc., R. Co., (Ala.) 62 So. 788; West-
ern & A. R. Co. v. Western Union
Teleg. Co., 188 Ga. 420, 75 S. E. 471,
42 L. R. A. (N. 8S.) 225.
126

Law oF HEectriciry.

interferes with the franchise of the railroad or the trans-

portation of persons or property.”

Only so much of the

right of way as it needed can be condemned,® and the inter-
est acquired in the railway property is only an easement.”

67. Western & A. R. Co. v. Western
Union Teleg. Co., 138 Ga, 420, 75
S. E. 471, 42 L. R. A. (N. S.) 225;
Cleveland, etc., Ry. Co. v. Ohio Pos-
tal Cable Co., 67 Oh. St. 306, 8 Am.
Elect]. Cas. 252, 67 N. E. 890; Postal
Teleg. Cable Co. v. Oregon Short
Line Co., 23 Utah 474, 8 Am. Elect].
Cas. 281, 65 Pac. 735, 90 Am. St.
‘Rep. 705.

“Common knowledge teaches that
there is ample space on the 100 feet of
the railroad’s right of way, for two
or more telegraph lines, without ob-
structing the free and ample use for
railroad purposes.” Mobile, etc., R.
Co. v. Postal Teleg. Cable Co., 120
Ala. 21, 24 So. 408.

Interference with operation of rail-
road— “Tt is settled law in this
state that a telegraph company, in
the exercise of the right of eminent
domain granted to it by the state,
may condemn a right of way on and
along the right of way of the rail-
road company, when the proposed line
of telegraph will be so constructed
as to produce no material interfer-
ence with the railroad company’s free
exercise of its franchise, or with the
actual operation of the road.
Whether the construction of the tele-
graph line on a particular portion of
the railroad’s right of way will or
will not materially interfere with the
operation of the railroad is ordinarily
a question of fact.” Western & A.
R. Co. v. Western Union Teleg. Co.,
138 Ga. 420, 75 S. BE. 471, 42 L. R. A.
(N. S.) 225.

68. Western Union Teleg. Co. v.
South, etc. R. Co. (Ala.) 62 So. 788.

69. St. Louis & C. R. Co. v. Postal
Teleg. Cable Co., 173 Ill. 508, 51 N. E.

382; Postal Teleg. Cable Co. v. Louis-
iana W. R. Co., 49 La. Ann. 1270,
22 So. 219.

“ We do not think, under the terms
of the laws cited, that more than an
easement or right of way was in-
tended to be authorized to be ac-
quired by telegraph and telephone
companies over rights of way al-
ready appropriated or expropriated.
We do not think it was the intention
of the lawmaker to abridge the fran-
chises of the corporation already
holding possession, or to cast af-
firmative, active duties upon them in
respect to telephone lines which
might be constructed upon their right
of way. We think the lawmaker in-
tended simply to force public corpo-
rations holding a right of way by
expropriation to permit the use and
occupation of a portion of the same,
whenever the conditions under which
the legal permission to do so was
granted and upon which it was based
were found to exist, and so long as
they should continue to exist. These
conditions are “that the ordinary use
of the roads, works, railroads and
waters be not thereby obstructed.”
We are inclined to believe that should
the situation of affairs change sub-
sequently so as to make it necessary
for the original corporation in order
to carry out their functions and du-
ties to resume the use of the whole
or a portion of the right of way
which the second company had newly
acquired, they could legally do so
(unless controlled by special consid-
erations) through proper proceedings
and proof and under proper condi-
tions. Qui prior tempore potior est
jure.” Postal Teleg. Cable Co. of La.
Eminent Domain. 127
A right of way on both sides of the tracks cannot be con-
demned, in the absence of proof of the necessity for such
extended right and of the fact that trains will not be materi-
ally interfered with. No material interference will be
occasioned to the operation of trains.”

‘*Along and parallel ’’ to Railroad.— In one case,” it was
held that a telegraph company was not authorized to con-
demn lands along the right of way of a railroad company
under a statute authorizing the condemnation of lands
‘‘ along and parallel ’’ to railroads. But this decision was
subsequently overruled in the same jurisdiction,” and has
been disapproved in other jurisdictions.”

Selection of Route.— Where a telegraph company wishes
to condemn a right of way along a railroad for its line, and
the railroad also wishes to use its right of way for a line
of its own, the railroad company has a preferential selec-
tion of its route, and the telegraph company cannot con-
demn a portion of a route selected in good faith by the
railroad.”* On the other hand the railroad cannot defeat
the exercise of eminent domain in behalf of the telegraph
company by unnecessarily constructing its line on both
sides of the track.”

v. Louisiana W. Ry. Co., 49 La. Ann.
1270, 22 So. 219.

70. Western & A. R. Co. v. West-
ern Union Teleg. Co,, 138 Ga. 420,
75S. E. 471, 42 L. R. A. (N. S.)
225. 1

71. Postal Teleg. Cable. Co. v.
Norfolk, ete., R. Co., 88 Va. 920, 4
Am, Elect]. Cas. 225, 14 8. E. 803.

72. Postal Teleg. Cable Co. v.
Farmville, etc., R. Co., 96 Va. 661,
32 S. E. 468, 1 Va. Sup. Ct. Rep. 89.

78. St. Louis, etc., R. Co. v. Postal
Teleg. Cable Co., 173 Ill. 508, ‘51
N. E. 382.

See also, Postal Teleg. Cable Co. v.
Morgan’s L. & T. 8S. 8. Co. 49 La.
Ann. 58, 6 Am. Electl. Cas. 183, 21
So. 183.

74. Western & A. R. Co. v. Western

Union Teleg. Co., 138 Ga. 420, 75
S. E, 471, 42 L. R. A. (N. 8.) 225.

75. “The railroad company con-
tends that it should have the right
of prior selection in the location of
a line of telegraph for railroad use
and that it intends to erect poles
upon substantially the same loca-
tions as at present occupied by those
of the telegraph company. On the
other hand, the telegraph company
denies that the railroad company has
any such right, but asserts that it
has the right to select a route over
the railroad’s right of way at any
point which does not materially in-
terfere with the railroad company in
the conduct of its business. These
conflicting claims must be solved by
the application of the rule that
128 Law or ELECTRICITY.
Sec. 86. Property Condemnable; Rights of Owners Abut-
ting Highway.

An examination of the chapter devoted to that subject”
will disclose that there is considerable diversity of opinion
in the various jurisdictions on the question whether a line
of poles and wires of an electric, of a telegraph, or of a
telephone company is, as against an abutting owner owning
the fee in a highway, an additional servitude. Where such
use is not an additional servitude, the company, having
been invested with governmental consent, has the right to
construct its line along the highway without condemnation
or compensation to the abutting owners. In those jurisdic-
tions, however, where the use for such a line is deemed an
additional burden, the company must procure the consent of
the owner or secure the right of way by condemnation pro-
ceedings.” Unless statutory provisions indicate a contrary
intention of the legislature, the company will be permitted
to condemn an easement along the highway.” As a general

property dedicated to one public use
cannot be subjected to another pub-
lic use, except in cases where the
latter use does not materially inter-
fere with the former. If the railroad
company owned the existing line of
telegraph, and it was necessary to
maintain and have it for the safe
and convenient handling of its trains
and cars, no one would seriously con-
tend that the telegraph company
could deprive the railroad company
of its use by exercise of the right of
eminent domain. Assuming, of
course, that the necessity of a line
of telegraph as auxiliary to the oper-
ation of a railroad company, the
railroad company would have the
same right in locating its telegraph
line as it would have in locating its
railroad track, or its depot and its
warehouses, on its own right of way.
If a railroad company was originally
constructing its track, could it be
said that a telegraph company could

arbitrarily select sites for its poles
so as to force the railroad company
to build its track on a less desirable
place on its own right of way?
Surely not. The fundamental basis
of the principle of subjecting one
public use to a second public use is
that the first use must not be ma-
terially interfered with. It would
indeed be « most unfair demand to
make of the owner of property
charged with the discharge of a pub-
lic duty, that he must make his
property subservient to the con-
venience of the demandant who de-
sires it for another public use.”
Western & A. R. Co. v. Western
Union Teleg. Co, 138 Ga. 420, 75
8. E. 471, 42 L. R. A. (N. S.) 225.

76. §§ 277-300.

77. Nicoll v. N. ¥. & N. J. Telep.
Co., 62 N. J. L. 733, 7 Am. Electi.
Cas. 277, 42 Atl. 583, 72 Am. St.
Rep. 66.

78. See Brown v. Radnor Tp. Elec.
Eminent Domain. 129
proposition, it should not be permitted to condemn the fee;
an easement for its poles and wires is sufficient.”

Sec. 87. Property Condemnable; Property of Other Quasi-
Public Corporations.

One of the basic rules of the exercise of the right of emi-
nent domain is that property which is devoted to a public
use cannot, be taken for a different public use without
express or plainly implied legislative authority. The
principle involved is well illustrated by the cases involving
the right of a telephone or telegraph company to condemn
an easement along the right of way of a railroad company.”
By analogy, an electric company may be authorized to con-
demn a right of way across or along a railroad. And, on
the other hand, land owned by an electric company may, in
some cases, be condemned by a railroad company.” The
doctrine that lands devoted for one public use cannot be
taken for another is applicable where one electric company
seeks to condemn the water power or other property of
another electric company.® But a distinction may well be
drawn between the power of a quasi-public corporation in
condemning property of another quasi-public corporation,
and the power of a purely public corporation, such as a city,
to condemn the rights of a quasi-public corporation. In the
latter case, the authority to condemn the property need not
be so clearly expressed. A greater public benefit arises
from the municipal operation of an electric company than
from the operation by a quasi-public corporation. And
this greater benefit, accompanied by statutory provisions
from which the power may be implied, will enable a city or

L. Co., 208 Pa. 453, 9 Am. Elect.
Cas. 305, 57 Atl. 904.

79. New Union Telep. Co. v. Marsh,
96 N. Y. App. Div. 122, 89 N. Y.
Supp. 79.

80. St. Louis & S. F. R. Co. v.
Southwestern Tel. & Tel. Co., 121 Fed.
276, 58 C. C. A. 198, 8 Am. Electl.
Cas. 198; City of Tacoma v. Nis-

9

qually Power Co., 57 Wash. 420, 107
Pac. 199.

81. § 85.

82. New York Cent., etc., R. Co. v.
Daily, 57 Mise. (N. ¥.) 311, 109
N. Y. Supp. 501.

83. Rutland Ry. L. & P. Co. v.
Clarendon Power Co., 86 Vt. 45, 83
Atl. 332.
130 Law oF ELEctRIcIty.
village having authority to operate a municipal lighting
plant * to condemn the electric power plant of a corpora-
tion serving the same city or village.®

Sec. 88. Petition or Complaint.

To satisfy the constitutional provision requiring ‘‘ due
process of law,’’ some legal proceeding must be authorized
for determining the damages sustained by the landowner
when his property is taken for a public use. The condemn-
ing company, must, by a complaint, petition or ‘‘ notice,’’ *
unless the court can take judicial notice thereof, show that
the use for which the property is sought is a public use,*’
and that the company is one which is authorized to condemn
the land in question.* It must also describe with reason-
able particularity the property or the interest therein that
the condemning party seeks to obtain.*® When it is sought

84. Municipal ownership.—The right
of a municipality to operate an
electric plant is discussed in a sub-
sequent chapter. See §§ 146-172.

85. City of Tacoma v. Nisqually
Power Co., 57 Wash. 420, 107 Pac.
199.

86. Georgia— The practice in
Georgia seems to require a notice de-
scribing the property to be con-
demned. Central Georgia Power Co.
v. Maddox, 135 Ga. 246, 69 S. E. 109.
The notice must recite that the prop-
erty proposed to be condemned is for
a strictly public use. Nolan v. Cen-
tral Georgia Power Co., 134 Ga. 201,
67 S. E. 656.

87. Northen L. & P. Coa. v.
Stocker, 13 Cal. App. 404, 109 Pac.
896.

88. Shasta Power Co. v. Walker,
149 Fed. 568, 9 Am. Electl. Cas. 930;
affirmed, Walker v. Shasta Power
Co., 160 Fed. 856, 87 C. C. A. 660;
Tuolumne Water P. Co. v. Frederick,
13 Cal. App. 498, 110 Pac. 134;
Winter v. New York & New Jersey

Telep. Co., 51 N. J. L. 83, 2 Am.
Elect]. Cas. 272, 16 Atl. 188.

Foreign telephone company.—In a
condemnation proceeding brought by
a foreign telephone company, its pe-
tition must allege, not only that the
petitioner is a corporation of its
home state, duly created for the pur-
pose of erecting and maintaining
lines of telephone within such state,
but also that it is empowered by its
charter to condemn and appropriate
private property therein, and in the
absence of such averments the peti-
tion will be bad on demurrer. Cen-
tral Union Telep. Co. v. Village of
Columbus Grove, 28 Ohio Cir. Ct. R.
131.

89. Northern L. & P. Co. v.
Stocker, 13 Cal. App. 404, 109 Pac.
896; Central Georgia Power Co. v.
Maddox, 135 Ga. 246, 69 S. E. 109;
Postal Teleg. Cable Co. v. Patton,
153 Ky. 187, 154 S. W. 1073; Winter
v. New York & New Jersey Telep.
Co. 51 N. J. L. 83, 2 Am. Electl.
Cas. 272, 16 Atl. 188; Sioux Falls
Himinent Domatrn.

131

to condemn an easement along a highway” or railroad,”
the portion thereof which is desired should be described
with reasonable certainty. This does not mean that the
specific location of each pole or the area to be occupied by
the poles shall be averred. As a general proposition, it is
sufficient if it describes the railroad right of way in general
terms, giving the termini and the counties through which it
runs.” Other requirements may be demanded by the spe-

L. & P. Co. v. Coughran, 27 8. Dak.
443, 131 N. W. 504.

Description of poles—JIn a statu-
tory proceeding to assess the dam-
ages to an owner of the soil of a
street by the erection of a telephone
line, if the petition and notice do
not indicate the location and height
of the proposed poles, the number
and size of cross-bars or number of
wires, the petition is fatally defect-
ive. New York, etc., Telep. Co. v.
State, Broome, 50 N. J. L. 432, 2
Am. Electl. Cas. 269, 14 Atl. 122.

90. State ex rel. Turnpike Co. v.
American, etc., News Co., 43 N. J.
L. 381, 1 Am. Electl. Cas. 343.

91. St. Louis, ete., R. Co. v. Postal
Teleg. Cable Co., 173 Till. 508, 51
N. E. 382.

92. Postal Teleg. Cable Co. of Idaho
v. Oregon Short Line Co., 104 Fed.
623; affirmed, 111 Fed. 842, 49 C. C.
A, 663.

Plan to be filed—=In some juris-
dictions the filing of a plan of the
proposed improvement is required.
See Postal Teleg. Cable Co. v. Oregom
Short Line Co., 104 Fed. 623; af-
firmed, 111 Fed. 842, 49 C. C. A. 663.
But when not required by statute, it
is not necessary. St. Louis & C. R.
Co. v. Postal Teleg. Cable Co., 173
Til. 508, 51 N. E. 382.

The tenure by which the railroad
company holds the lands along which
an easement for telegraph purposes
is sought, need not be stated. Postal

Teleg. Cable Co. v. Southern Ry. Co.,
89 Fed. 190.

In Alabama, it is not necéssary
that the exact position to be occupied
by the poles, the side of the track
to be used, the quantity of land, nor
the existence of other lines, be al-
leged. Mobile, etc., R. Co. v. Postal
Teleg. Cable Co., 120 Ala. 21, 24 So.
408.

A complaint in an action by a
telegraph company against a railroad
company to condemn a right of way,
alleging that the property is a rail-
way running between certain termini
within certain counties, and setting
forth the amount of ground needed
for each pole and the distance of
the poles from one another and the
railroad track, sufficiently describes
the way desired. Postal Teleg. Cable
Co. v. Oregon 8. L. R. Co., 23 Utah
474, 8 Am. Elec, Cas. 281, 65 Pac.
735, 90 Am. St. Rep. 705.

A petition to condemn a right of
way: for a telegraph line along and
upon a railroad right of way, which
describes the railroad right of way
as extending from a certain city to
another, gives its width, location of
tracks, etc., and which describes the
proposed improvement by giving the
height and dimensions of the poles,
distance of poles from track and
from each other, length of cross-arms,
etc., is sufficiently specific. St. Louis
& ©. R. Co. v. Postal Teleg. Cable
Co., 173 Ill. 508, 51 N. E, 382.
132 Law or Evecrtriciry.

cifie provisions of local practice. If the description of the
land is incorrect or uncertain, an amendment thereof may
sometimes be had.®*

Sec. 89. Damages; in General.

In proceedings for the condemnation of land for the use
of an electric company, the landowner whose property is
taken or damaged is entitled to compensation. His right
is a constitutional one, which cannot be abridged by any
legislative enactment.** Where the fee of land is taken,
the damages are the actual market value of the land actu-
ally taken.** The possibility that the land taken will be
used in a profitable or unprofitable enterprise is not to be

93. Corporate seal— The annexa-
tion of the corporate seal to the
petition is not required in New Jer-
sey. Coles v. Midland Telep. & Teleg.
Co., 67 N. J. L. 490, 51 Atl. 448;
affirmed without opinion, 68 N. J. L.
413, 53 Atl. 1125.

Condemnation of trees.—A com-
plaint under a statute providing for
the condemnation of trees which
menace an electric line, is insufficient
where it fails to state that the con-
demning company has a right of way
which is menaced by trees. North-
western Elec. Co. v. Zimmerman,
(Oreg.) 135 Pac. 330.

94, Savannah, etc., R. Co. v. Postal
Teleg. Cable Co., 115 Ga, 554, 42
8. E. 1, 8 Am. Elect]. Cas. 278;
Illyes v. White River L. & P. Co.
175 Ind. 118, 93 N. E. 670.

95. § 58.

96. “In condemnation proceedings,
as to land taken, the question is,
what is its market value? The mar-
ket value is the price which it will
bring when it is offered for sale by
one who desires, but is not obliged,
to sell it, and is bought by one who
wishes to buy, but is not under a
necessity to do so. In determining

what this market value is, the jury
are not confined to considering the
use to which it is actually being put
by the owner. He may have a valu-
able corner for a stable or a pigsty.
But he is not obliged to have it
priced on that basis. The character,
location, size, and shape of the prop-
erty, and its availability for differ-
ent uses may be shown. A corner
lot in a town may be proved to be
adapted to use as a garden, or as a
location for a residence, or for a site
for a store or office building. This
may not only increase the number of
probable buyers, but also the prob-
able price which a buyer would pay
for it. If it were proved that the
lot had a coal or iron deposit under
the surface, this would be for con-
sideration in estimating the market-
value. And so of other possible ele-
ments, such as suitability for a
bridge-site or a dam or reservoir.
These would not furnish separate
items for recovery, but would be
legitimate for consideration in esti-
mating market value.”’ Central
Georgia Power Co. v. Stone, 139 Ga.
416, 77 S. E. 565.
Eminent Domarn. 133
considered to increase or decrease the amount of the dam-
ages.” Thus, where a city seeks to condemn the plant of
an electric light company, evidence of the profits which the
company might make, were it permitted to continue its use
of the property, is not admissible to affect the compensa-
tion to be paid. If but part of the owner’s land is taken,
the compensation to be paid is the value of the part taken,
together with the consequential damages sustained by a
reduction in the value of the remainder.® In determining
the consequential damages, if any, to parts of the property
not taken, the jury is not confined to damages proximately
caused by the mere taking; but they should consider any
evidence, if there be such, tending to show whether the
legitimate use of the property taken, for the purpose for
which the condemnation is made will cause damage to the
remainder of the property, lessening its market value.'
That drainage of the part not taken will be prevented and
that it will be filled with sand, is a proper circumstance to
be considered.? In the condemnation of an electric light
plant by a municipal corporation, the fact that the defend-
ant is an electric company supplying the inhabitants of such
city with current has no effect upon the amount of the
damages.®

97. “To enter into the possibili-
ties of profitable or unprofitable in-
vestments, or success or failure of a
business enterprise, would be to lose
sight of the main issue and become
entangled in a maze of collateral
questions. The owner who would
like to show the possible profits of
the condemner, as a means of in-
creasing the estimate of the market
value of the land taken, would hardly
be willing to have the market value
decreased by showing that the enter-
prise involved large risks and might
not be profitable for a long time, if
at all, and that the owner of the land
taken should share the possible losses
as well as the probable profits.” Cen-

tral Georgia Power Co. v. Stone, 139
Ga. 416, 77 S. E. 565.

98. City of Tacoma v. Nisqually
Power Co., 57 Wash. 420, 107 Pac.
199.

99. That the property taken is
lowlands and valleys and the gen-
eral utility of the farm is thereby
destroyed is properly considered in
determining the consequential dam-
ages. Flemister v. Central Georgia
Power Co., 140 Ga. 511, 79 S. E. 148.

1. Flemister v. Central Georgia
Power Co., 140 Ga. 511, 79 S. E. 148.

2. Flemister v. Central Georgia
Power Co., 140 Ga. 511, 79 S. E. 148.

3. City of Tacoma v. Nisqually
Power Co., 57 Wash. 420, 107 Pac.
199.
134 Law or Ewecrriciry.

Transmission Line.— In the case of the line of poles and
wires of an electric or telephone or telegraph line, the
entire tract of the owner’s land is never taken. The only
part exclusively occupied by the company is the square foot
or so where each pole is located. The damages sustained
by a landowner who is compelled to submit to the passage
of a line of poles and wires over his land is the actual value
of the land exclusively occupied by the poles, together with
the consequential damages which are caused to the
remainder of the land.* It is improper to allow specula-
tive damages, such as might be deemed to arise from the
possible danger of the falling of the wires.’ If the owner
is subsequently damaged by the falling of the electric wires,
he will usually find a remedy based on the issue of negli-
gence.° The burden of proof is upon the owner to show
the damages he will sustain by the construction of an elec-
tric line over his premises.’

Sec. 90. Damages; Telegraph or Telephone Line along

Highway.

As was explained in a preceding section, it is only in
certain jurisdictions that electric or telephone or telegraph

4, Long Distance Telep. & Teleg.
Co. v. Schmidt, 157 Ala. 391, 47 So.
731; Illinois Teleg. News Co. v. Meine,
242 Ill. 568, 90 N. E. 230, 26 L. R. A.
(N. 8.) 189; Postal Teleg. Cable Co.
v. Patton, 153 Ky. 187, 154 8. W.
1073; Lambeth v. Southern Power
Co., 152 N. Car. 371, 67 8. E. 921.

“The only land sought to be taken
by appellant for its exclusive use was
the land to be occupied by its poles.
The poles upon which the wires were
to be placed were two feet in diam-
eter at the ground and twenty of
them were to be set in the highway
on appellee’s land. The spaces be-
tween the poles were not sought to
be taken, but the use thereof for
the purposes of stringing, repairing
and maintaining the wires was all
that was contemplated or asked for.

This use was not exclusive but was
to be enjoyed by appellant in con-
nection with the-owner of the land.
The compensation, therefore, appellee
was entitled to for the use of the
spaces between the poles was not
the value of the fee, but was the
amount of decrease in the value of
the land resulting from the right of
the appellant to use it jointly with
appellee for the construction, repair
and maintenance of its telegraph
wires.” Illinois Teleg. News Co. v.
Meine, 242 Ill. 568, 90 N. E. 230, 26
L. R. A. (N. 8S.) 189.

5. Lambeth v. Southern Power
Co., 152 N. Car. 371, 67 S. E. 921.

6. See § 496.

7. Tuolumne Water P. Co. v. Fred-
erick, 13 Cal. App. 498, 110 Pac. 134.
Eminent Domatn. 135
companies find it necessary to condemn an easement for
their poles and wires along a public highway. Where the
company is required to condemn an easement for its line,
the compensation to which the abutting owner is entitled
is the value of the land actually taken, together with the
injury or diminution in value caused to the remaining con-
tiguous land.* The fact that shade trees along the highway
are destroyed in the construction of the line may be con-
sidered in determining the decrease in the value of the
land not taken.® Speculative items of damage such as per-
tain to the possible future value of the property are not to
be considered.’*® The fact that the owner has been in the
custom of cultivating the land between the margin of the
highway as laid out and the beaten track, cannot be con-
sidered in order to enhance the damages." Nor is the
utility of the easement to the condemning company to be
taken into consideration.”

The amount of the damages which may be awarded to a
landowner in such a case is difficult of estimation. In one
case it was held that the owner was entitled to nominal
damages only,’* but this should be construed merely as a
judicial opinion that the damages are not large. While the
damages are many times slight, they are substantial in the

8. Long Distance Telep. & Teleg. premises. Thus, while he may not

Co. v. Schmidt, 157 Ala. 391, 47 So.
731; Tri-state Telep. & Teleg. Co.
vy. Cosgriff, 19 N. Dak. 771, 124 N. W.
75, 26 L. R. A. (N. S.) 1171.

9. Long Distance Telep. & Teleg.
Co. v. Schmidt, 157 Ala. 391, 47 So.
731; Tri-state Telep. & Teleg. Co.,
19 N. Dak. 771, 124 N. W. 75, 26
L. R. A. (N. 8.) 1171.

10. Tri-state Telep. & Teleg. Co.
v. Cosgriff, 19 N. Dak. 771, 124 N. W.
75,26 L. R. A. (N. 8.) 1171.

Value of land for building lots—
While in condemnation proceedings
an owner ‘may not show what the
property might realize in rentals if
improvements were made thereon, he
may show the highest utility of the

show the adaptability of his land
for village lots for the purpose of
showing the value of the lots if the
improvements were made, he may
show such adaptability as bearing
upon its present market value. New
York Telep. Co. v. DeNoyelles Brick
Co., 154 N. Y. App. Div. 845, 139
N. Y. Supp. 748.

11. Tri-state Telep. & Teleg. Co.
v. Cosgriff, 19 N. Dak. 771, 124. N. W.
75,26 L. R. A. (N.S8.) 1171.

12. Tri-state Telep. & Teleg. Co.
v. Cosgriff, 19 N. Dak. 771, 124.N. W.
75, 26 L. R. A. (N. 8.) 1171.

18. Postal Teleg. Cable Co. v.
Bruen, 39 N. Y. Supp. 220, 6 Am.
Electl. Cas. 120.
136 Law or BLeEctTrIiciry.

sense that the owner is entitled to compensation for the
actual damage sustained; and such damages are not, as a
matter of law, merely nominal.’* Appellate Courts are
extremely loath in such condemnation proceedings to set
aside the award on the ground of its excessiveness. Thus,
in one case,* where a telegraph company condemned a
right of way for a trunk line along a highway for distance
of about 4,250 feet, an award of $2,500, though considered
large, was sustained.

Sec. 91. Damages; Telegraph or Telephone Line along
Railroad Right of Way.

Where an easement for a telephone or telegraph line is
condemned along the right of way of a railroad company,
the compensation to which the latter is entitled is, as in
other cases of the exercise of eminent domain, the value of
the land actually taken, together with the diminution in
value of the other property of the railroad.* As the land
actually taken is only that occupied by its poles, as a prac-
tical proposition, the measure of damages is the decrease

14. Tri-state Telep. & Teleg. Co.,
19 N. Dak. 771, 124 N. W. 75, 26
L. R. A. (N. 8.) 1171.

15. New York Telep. Co. v.
DeNoyelles Brick Co., 154 N. Y. App.
Div. 845, 139 N. Y. Supp. 748,
wherein the court said: “The com-
missioners have awarded $2,500, and
to this has been added the costs and
an additional allowance of five per
cent by the order of the court from
which this appeal is taken, so that
it appears that the plaintiff is called
upon to pay over $2,500 for a right
of way of less than one mile. This
looks like a large sum for the dam-
ages which the defendants will sus-
tain, and yet in a condemnation pro-
ceeding, where the owner is entitled
to that “just compensation” which
the Constitution (Art. 1, § 6) de-
mands, it is not customary for this
court to interfere unless it appears

that an erroneous theory has pre-
vailed in arriving at the value of the
premises and the damages to be sus-
tained by the portion not taken.”

16. Western & A. R. Co. v. West-
ern Union Teleg. Co., 138 Ga. 420,
75 8. E. 471, 42 L. R. A. (N.S.) 225;
Atlantic Coast Line R. Co. v. Postal
Teleg. Cable Co., 120 Ga. 268, 48
S. E. 15.

The measure of damages where a
telegraph company condemns a right
of way for its line along and upon
a railroad right of way is the value
of the land actually taken for plac-
ing the poles, and the extent to
which the value of the use of the
portions between poles and under the
wires, for railroad purposes, is di-
minished by their use by the tele-
graph company. St. Louis & C. R.
Co. v. Postal Teleg. Cable Co., 173
Tl. 508, 51 N. E. 382.
Eminent Domar.

137

in the value of the right of way caused by the presence of
the line of poles and wires.’” The value of the easement to
the condemning company and the advantages it secures are
not the measure of damages, nor are they even to be con-
sidered in determining the amount thereof.’* The expense

17. United States.— Postal Teleg.
Cable Co. of Idaho v. Oregon Short
Line R. Co., 104 Fed. 623, affirmed,
111 Fed. 842, 49 C. C. A. 663.

Alabama.— Mobile, etc., R. Co. v.
Postal Teleg. Cable Co., 120 Ala. 21,
24 So. 408.

Louisiana.— Postal Teleg. Cable
Co. v. Louisiana W. R. Co., 49 La.
Ann. 1270, 22 So. 219.

Mississippi.— Mobile, etc., R. Co. v.
Postal Teleg. Cable Co., 76 Miss. 731,
26 So. 370.

Missouri— American Telep. &
Teleg. Co. v. St. Louis, etc., Ry. Co.,
202 Mo. 656, 101 S. W. 576.

Ohio.— Cleveland, etc., Ry. Co. v.
Ohio Postal Teleg. Cable Co., 67 Oh.
St. 306, 8 Am. Elect]. Cas. 252, 67 N.
E. 890.

Texas.— San Antonio, etc., Ry. Co.
v. Southwestern Teleg. & Telep. Co.,
(Civ. App.) 56 S. W. 201; Texas,
etc., R. Co. v. Postal Teleg. Cable Co.,
52 S. W. 108; Southwestern, etc.,
Tel. Co. v. Gulf, etc., R. Co., 52 S. W.
106; Gulf, etc., R. Co. v. Southwest-
ern Teleg. & Telep. Co., 52 S. W. 86.

Utah.— Postal Teleg. Cable Co. of
Utah v. Oregon Short Line Co., 23
Utah 474, 7 Am. Electl. Cas. 417, 65
Pac. 735, 90 Am. St. Rep. 705.

“The spaces, over which the wires
are strung from pole to pole, are not
taken by the telegraph company.
Such damage, as the construction
and operation of the telegraph line
cause to the spaces between the
poles, the appellants are entitled to
recover. The telegraph company
does not acquire, by the judgment

of condemnation, the fee to any por-
tion of the right of way. Any con-
struction, which holds that it does
acquire the fee, is not sanctioned
by the language of the act in rela-
tion to telegraph companies. The
act does not confer the right to use
the land condemned for any other
purpose than to erect telegraph
poles, and suspend wires upon them
and to maintain and repair the same.
The company will have the right to
enter upon that portion of the right
of way, which is between the tele-
graph poles and under its wires, for
the purpose of repairing its line.
But the telegraph company acquires
no right to exclude the railroad
company from the use of the land.
The ownership of the railroad com-
pany remains as it was before, while
the telegraph company merely ac-
quires an easement upon what it con-
demns, for the purpose of entering
thereon in order to erect and repair
the line.” St. Louis, ete., R. Co. v.
Postal Teleg. Co., 173 Ill. 508, 51
IN. E. 382.

18. Western & A. R. Co. v. West-
ern Union Teleg. Co., 138 Ga. 420,
75 S. E. 471, 42 L. R. A. (N. S.)
225; Atlantic Coast Line R. Co. v.
Postal Teleg. Cable Co., 120 Ga. 268,
48 S. E. 15; San Antonio, etc., Ry.
Co. v. Southwestern Teleg. & Telep.
Co., (Tex. Civ. App.) 56 S. W. 201;
Southwestern Teleg. & Telep. Co. v.
Gulf, etc, Ry. Co., (Tex. Civ. App.)
52 S. W. 106; Gulf, ete, R. Co. v.
Southwestern Teleg. & Telep. Co.,

(Tex.) 52 S. W. 86.
138

Law or ELecrsicity.

that the railroad has sustained in clearing’ or otherwise
preparing its right of way,” the possibility that the com-
pany may at some future time lay another track or change
its route so as to utilize the easement condemned,” and the

19. Mobile, etc., R. Co. v. Postal
Teleg. Cable Co., 101 Tenn. 62, 46
S. W. 571, 41 L. R. A. 403; Texas,
etc, R. Co. v. Postal Teleg. Cable
Co., (Tex.) 52 S. W. 108; Southwest-
ern, etc., Tel. Co. v. Gulf, ete, R.
Co., (Tex.) 52 S. W. 106.

“It is said with much earnest-
ness, and with some degree of plaus-
ibility that it would be unjust to
allow a telegraph company to plant
its poles along the right of way,
when a railroad company had ex-
pended thousands of dollars to clear
and keep it free of obstructions,
and yet pay nothing for the privi-
lege. But this view is more speci-
ous than sound; for the railroad
must incur this expense for its own
purposes, whether the telegraph line
is there or not, and must keep its
right of way clear of obstructions,
whether it is occupied by a tele-
graph line or not and there is no
greater burden or expense because
of the presence of a telegraph line.”
Mobile, etc., R. Co. v. Postal Teleg.
Cable Co., 101 Tenn. 62, 46 S. W.
571, 41 L. R. A. 403.

20. St. Louis, etc., R. Co. v. Postal
Teleg. Cable Co., 173 Tl. 508, 51
N. E. 382.

A telegraph company, upon con-
demning a right of way for its line
along and upon a railroad right of
way, need not make compensation
to the railroad company proportionate
to the latter’s expense in preparing
the right of way for a railroad bed,
where the petition avers that, if any
change in the earth’s surface along
the right of way has been made, the
petitioner will not set its poles where
such changes have been made, and

there is no evidence that the rail-
road company has been to any ex-
pense in preparing the right of way
where the telegraph line is to be
constructed. St. Louis, ete, R. Co.
v. Postal Teleg. Cable Co., 173 Ill.
508, 51 N. E. 382.

In Louisiana, however, it has been
held that, in determining what is a
fair compensation for the use and
occupation of the land sought to be
expropriated, the improved condition
of the land is a proper element to be
considered. Postal Teleg. Cable Co.
of La. v. Louisiana W. Ry. Co., 49
La. Ann. 1270, 22 So. 219.

21. Mobile, etc., R. Co. v. Postal
Teleg. Cable Co., 76 Miss. 731, 26 So.
370.

Possibility of laying another track.
—That the railroad company may
wish at some future time to lay
another track which will be then
interfered with by the poles and
wires of the condemning company
is a matter too remote for consider-
ation, where the evidence fails to
show any immediate demand for or
intention to build such track; and
particularly where the petition avers
that in some contingencies, the peti-
tioner will remove the poles to other
points or erect poles high enough
to carry the wires over structures
at its own expense. St. Louis, etc.,
R. Co. v. Postal Teleg. Cable Co.,
173 Til. 508, 51 N. E. 382.

Subsequent tracks—That  tete-
graph poles on a railroad right of
way may be in the way of such
tracks as the railroad company may
thereafter lay is not an element of
damage on condemnation proceedings
by the telegraph company when it
Eminent Domain. 139
added expense of burning grass along the way due to the
presence of the poles,” are not to be considered in fixing the
compensation to be paid by the telegraph or the telephone
company. The rental provided in a lease by the railroad
to another telegraph company of an easement similar to
the one sought in the condemnation proceedings is of no
assistance in determining the damages, where such lease
is void as against public policy for the reason that it
attempts to grant an exclusive privilege along the rail-
road.“ The court, however, in estimating the compensa-
tion, may consider the character and topography of the
country, difficulties of construction,” the width and char-
acter of the railroad right of way,” and the inconvenience
sustained by the railroad.” The damages accruing to the
railroad company will not be mitigated by the circum-
stance that the telegraph or telephone company, under the
statutes of the jurisdiction, may be compelled to move its
line if the railroad company requires the easement for
railroad purposes.”” Nor will a reduction in compensation

agrees in such case, on reasonable
notice, to remove the poles, at its
own expense, to any other adjacent
point on the right of way designated
by the railroad company. Mobile,
ete, R. Co. v. Postal Teleg. Cable
Co., 76 Miss. 731, 26 So. 370.

22. Postal Teleg. Cable Co. of
Utah v. Oregon Short Line Co., 23
Utah 474, 7 Am. Elect]. Cas. 417,
65 Pac. 735, 90 Am. St. Rep. 705;
Southwestern Teleg. & Telep. Co. v.
Gulf, etc., R. Co. (Tex.) 52 8S. W.
106. Contra, Cleveland, ete, Ry.
Co. v. Ohio Postal Teleg. Cable Co.,
67 Oh. St. 306, 8 Am. Elect]. Cas.
252, 67 N. E. 890.

23. St. Louis, etc., R. Co. v. Postal
Teleg. Co., 173 Ill. 508, 51 N. E. 382.

24. Postal Teleg. Cable Co. v.
Louisiana W. R. Co., 49 La. Ann.
1270, 22 So. 219.

25. Cleveland, ete, Ry. Co. v.
Ohio Postal Teleg. Cable Co., 67 Oh.

St. 306, 8 Am. Elect]. Cas. 252, 67
N. E. 890.

26. Postal Teleg. Cable Co. v.
Morgan’s Louisiana, etc., S. S. Co,
49 La. Ann. 58, 6 Am. Electl. Cas.
183, 21 So. 183.

27. Cleveland, etc, Ry. Co. v.
Ohio Postal Teleg. Cable Co., 67 Oh.
St. 306, 8 Am. Elect]. Cas. 252, 67
N. E. 890, wherein it was said:
“It may be said that this rule should
be modified or limited in its applica-
tion, because of the provision in the
statute authorizing the appropria-
tion, whereby the railroad company
at any future time may notify the
telegraph company that it needs for
railroad purposes a part or all of
the ground occupied by it, in which
event the telegraph company is re-
quired to yield possession and locate
elsewhere. We think there should
be no such modification for that rea-
son. The appropriating company,
140 Law or Eectricity.

be made because the railroad will be benefited by the com-
petition in transmitting its messages, which will arise from
the presence of the line of the petitioner.”

Amount of Damages.— It is extremely difficult, owing to
the absence of any satisfactory criterion, to estimate the
amount of damages which should be paid to a railroad upon
the condemnation of an easement by a telegraph or tele-
phone company. When the court considers the cost and
trouble to the railroad company in obtaining its right of
way in the first instance, and the advantage to the telegraph
company of locating its line on that right of way rather
than on adjacent lands parallel thereto, where it would be
required to deal with numerous landowners, and perhaps
to prosecute numerous condemnation suits, it is tempted
to award a very substantial amount; but when it is con-
sidered that the property taken for the line is generally of
no actual value to the railroad company, and is not needed
by it for the operation of its road, the damages sustained
do not appear so large. The presence of a line of telegraph
or telephone poles and wires along a railroad right of way,
as a general rule, does not materially interfere with the
property and rights of the railroad. Where such is the
case, it is said that the compensation to be paid is only
nominal damages.” Nominal damages, however, in the
case of a railroad right of way extending for hundreds of

desiring to avail itself of a statute
containing such a provision, assumes
all the risks of being ousted in
whole or in part, and ventures upon
gaining possession and holding it
against the will of the railroad com-
pany. The latter does not welcome
the new companion, and it may, in
course of time, be asked to give way
to the needs of the railroad. But it
may not comply, and litigation will
follow to secure full possession to
the owner of the right of way. Of
the probability of these sequences,
the telegraph company has full
knowledge, and it cannot insist that

such probable results should mitigate
the compensation to be paid for the
right of appropriation.”

28. American Telep. & Teleg. Co.
v. St. Louis, ete., R. Co., 202 Mo.
656, 101 S. W. 576.

29. Postal Teleg. Cable Co. v. Ore-
gon Short Line Co., 114 Fed. 787, 8
Am. Electl, Cas. 282; Mobile, etc.,
R. Co. v. Postal Teleg. Cable Co., 120
Ala, 21, 24 So. 408; Mobile, etc., R.
Co. v. Postal Teleg. Cable Co., 101
Tenn. 62, 46 S. W. 571, 41 L. R. A.
403; Postal Teleg. Cable Co. v. Ore-
gon Short Line R. Co., 23 Utah 474,
7 Am. Electl. Cas. 417, 8 Am. Electl.
Eminent Domarn. 141

miles is a different matter than the six cents of damages
sometimes awarded in proceedings of lesser scope. Even
when the court describes them as ‘‘ nominal,’’ the damages
may amount to $1 per mile.*° In some cases, however, the
depreciation in the use of the railroad right of way is
deemed substantial. For example, in one case in Louisiana,
the jury assessed the damages for right of way over
105.41 miles of road at $8.50 per mile, amounting in the
aggregate to $892.50; but when the case came before the
appellate court, the award was deemed inadequate, and the
total amount thereof was increased to $2,100. An award
of $40 per mile of railroad track has been sustained where
the witnesses for the telegraph company testified that the
injury to the railroad company would not be more than
two or three dollars a mile, and the witnesses for the rail-
road company testified that the right of way was worth to
the railroad company, either for use or sale, $260 a mile.
In another case an award of $500 was sustained.*

Cas. 281, 65 Pac. 735, 90 Am. St.
Rep. 705.

When the part of the right of way
sought to be condemned by the tele-
graph company is not in actual use
by the railroad company, and it is
shown that the construction of the
telegraph line would work no mate-
rial interference with the railroad
company’s free exercise of its fran-
chises, the railroad company is en-
titled to only nominal damages. Mo-
bile, etc., R. Co. v. Postal Teleg.
Cable Co., 120 Ala. 21, 24 So. 408.

Damages not nominal—An instruc-
tion in a condemnation case, which
told the jury that defendant’s dam-
ages were nominal, was reversible
error, under the evidence in this
case, where defendant had gone to
great cost in grading and clearing of
timber its right of way, and where
if plaintiff is given an easement to

construct a telephone and telegraph
line of poles and wires along defend-
ant’s right of way, defendant’s right
to construct another like line is gone,
and where the expense of keeping the
right of way free from weeds, bushes
and inflammable matter is laid on de-
fendant. American Telep. & Teleg.
Co. v. St. Louis, ete., Ry. Co. 202
Mo. 656, 101 S. W. 576.

30. Postal Teleg. Cable Co. v. Ore-
gon Short Line Co., 114 Fed. 787, 8
Am. Elect]. Cas. 282.

81. Postal Teleg. Cable Co. of La.
v. Louisiana W. Ry. Co., 49 La. Ann.
1270, 22 So. 219.

32. Postal Telegraph-Cable Co. v.
Alabama, etc., R. Co., 68 Miss. 314, 8
So. 375.

33. Oregon Short Line R. Co. v.
Postal Teleg. Cable Co., 111 Fed. 842,
8 Am. Electl. Cas. 267.
142 Law or ELsctricrry.

Sec. 92, Damages; Entry on Lands before Payment.

We have had occasion to mention briefly the circumstance
that the compensation awarded to the landowner is not
always a condition precedent to entry upon the premises
condemned.** While constitutional provisions in some
jurisdictions require that the payment of damages be made
before the condemning company may use the premises in
question, in other jurisdictions the constitutional rights of
the landowner are satisfied if payment is reasonably
assured, and the actual payment may be before or after
entry. Where the legislature has a discretion in the matter,
it may permit a public service corporation to enter upon
and utilize the lands pending the condemnation proceedings
by giving a bond or other assurance of payment.** On the
other hand, the legislature, in exercising its discretion, may
require the condemning company to pay the damages
before it enters upon the premises.”

34. § 58.

35. Matter of Niagara Light &
Power Co., 111 N. Y. App. Div. 686,
9 Am. Electl. Cas. 931, 97 N. Y.
Supp. 853.

Pending an appeal from the award,
a statute may authorize the public
service corporation to enter upon the
premises sought to be condemned.
Savannah, etc, R. Co. v. Postal
Cable Co., 115 Ga. 554, 8 Am. Electl.
Cas. 278, 42 S. E. 1; Gulf, etc, Ry.

Co. v. Southwestern, etc., Telep. Co.,
25 Tex. Civ. App. 488, 61 S. W. 406.

36. Postal Teleg. Cable Co. v.
Southern R. Co., 89 Fed. 190; Dusen-
bury v. Mutual Teleg. Co., 11 Abb.
N.C. (N. Y.) 440, 1 Am. Electl. Cas.
448, 64 How. Pr. 206; Postal Teleg.
Cable Co. v. Oregon Short Line R.
Co., 23 Utah 474, 7 Am. Electl. Cas.
417, 8 Am. Elect]. Cas. 281, 65 Pac.
735, 90 Am. St. Rep. 705.
TAXATION, 143

CHAPTER V.
TAXATION.

SxcTIon 93. Poles and Wires as Realty for Taxation Purposes.
94. Taxable as “ Manufacturing” Companies.
95. Exemption from Taxation.
96. Exemption of Municipal Lighting Plant.
97. Patent Rights.
98. Capital Stock.
99. Franchises.
100. License Fees for Poles.
101. Tax upon Receipts.
102. Special Assessments.
103. Street Railway Companies.
104, Telegraph Companies; Analogy to Taxation of Electric Com-

 

 

 

 

panies.
105. Tangible Property May Be Taxed by State.
106. —— Franchise.
107. Capital Stock.
108. Tax on Business or Occupation of Company.
109. ——-Charges upon Poles and Wires.
110. —— Enforcement by Injunction Restraining Operation of Com-

pany.
111. Telephone Companies.

Sec. 93. Poles and Wires as Realty for Taxation Purposes.

The question whether poles, wires, and other appliances
of an electric company are real or personal property for
the purpose of taxation is discussed in another place in
this work.*

Sec. 94. Taxable as ‘‘ Manufacturing ’’ Companies.

In another place in this work, we have seen that there is
considerable diversity of opinion whether an electric com-
pany is a ‘‘ manufacturing ’’ company.? The proposition
is there discussed whether the generation of electricity is a
process of manufacturing so as to authorize the taxation
of an electric company under a statute relative to the taxa-
tion of ‘‘ manufacturing ’’ companies.

1. § 13. 2. § 7.
144 Law oF ELEcTRICITY.

Sec. 95. Exemption from Taxation.

The desire to encourage the location of manufacturing
enterprises within its borders, has led the legislatures of
several states to exempt from taxation, either wholly or
partially, ‘‘ manufacturing ’’ corporations. Whether an
electric company is entitled to claim an exemption under a
statute of that nature is discussed in another place. The
power of taxation or exemption therefrom resides in the
legislature, as limited by the constitution. It may exempt
an electric company from local taxation, but impose a state
tax on the same company.*

Sec. 96. Exemption from Taxation; Exemption of Munici-
pal Lighting Plant.

By appropriate constitutional or statutory provisions an
electric lighting plant owned and operated by a municipal
corporation may be exempted from taxation for state and
county as well as for municipal purposes.’ It is the public
use of the property which justifies the exemption from tax-
ation. Where the electric plant is used for private as well
as public use, the part devoted to the private use will not
generally be exempted.® In such a case, if it is impossible
to separate the property used in the public purpose from
that used in the private purpose, the entire plant of the
municipality may be taxed.’ Where a part of the municipal
electric. plant extends beyond the municipal limits for
service to persons there residing, the property used in fur-
nishing current to such non-residents may be deemed to be
used for a private use, and hence may be taxable.*

3. § 7.

4. Scranton v. Scranton Elec. L.
& P. Co, 8 Pa. Co. Ct. R. 626;
Lancaster v. Edison Elec, Tum. Co.,
8 Pa. Co. Ct. R. 631.

5. City of Frankfort v. Common-
wealth, 29 Ky. Law. Rep. 699, 94
S. W. 648; Commonwealth v. City
of Paducah, 31 Ky. Law. Rep. 528,
102 8. W. 882; In re Orillia, 7 Ont.
L. (Can.) 389.

6. Village of Swanton v. Town of
Highgate, 81 Vt. 152, 69 Atl. 667, 16
L. R. A. (N. 8.) 867.

7. Village of Swanton v. Town of
Highgate, 81 Vt. 152, 69 Atl. 667, 16
L. R. A. (N. S.) 867.

8. Village of Swanton v. Town of
Highgate, 81 Vt. 152, 69 Atl. 667, 16
L. R. A. (N. S.) 867.
Taxation. 145

Sec. 97. Patent Rights.

A patent right, granted by the United States, as distin-
guished from tangible property produced by the applica-
tion of the patent, is not within the taxing power of a state.®
And this exemption extends to capital stock of an electric
company to the extent that such stock includes the value of
patent rights.° On the other hand, it has been held that
the stock of an electric company issued in consideration of
the right to use certain patents may be taxed." Also, it
has been held that an electrie company is taxable upon
bonds of foreign corporations issued to it in payment for
patent rights, and also upon its patent rights not granted
but held for use in a certain territory.”

Sec. 98. Capital Stock.

The capital stock of corporations is made the subject of
taxation in some jurisdictions, though, as we have seen,”
taxation thereof must not interfere with the patent rights
granted by the federal government. A corporation, how-
ever, is generally not to be taxed for its holdings of stock
in an electric company which pays full taxes.* A contrary
holding in such a case would authorize double taxation. A
state tax on the capital stock of an electric company may
result in its exemption from local taxation.“

Sec. 99. Franhises.

The franchise granted to an electric company by the
state or a municipal division thereof is generally subject

9. People v. Board of Assessors of
City of Brooklyn, 156 N. Y. 417, 51
N. E. 269, 42 L. R. A. 290; affirming
19 N. Y. App. Div. 599, 46 N. Y.
Supp. 388.

10. People v. Board of Assessors
of City of Brooklyn, 156 N. Y. 417,
51 N. E. 269, 42 L. R. A. 290.

11. People ex rel. Edison Elec. L.
Co. v. Campbell, 138 N. Y. 5438, 34
N. E. 370; Com. v. Northern Elec.
L. & P. Co, 145 Pa. St. 105, 3 Am.
Elect]. Cas. 857, 22 Atl. 839.

10

12. People ex rel. Edison Electric
Light Co. v. Campbell, 138 N. Y. 543,
34 N. E. 370.

13. § 97.

14. Commonwealth v. Louisville
Gas Co., (Ky.) 122 S. W. 164;
People v. Board of Assessors of City
of Brooklyn, 19 N. Y. App. Div. 599,
46 N. Y. Supp. 388; affirmed, 156
N. Y. 417, 51 N. E. 269, 42 L. R. A.
290.

15. Scranton v. Scranton Elec. L.
& P. Co., 8 Pa. Go. Ct. 626.
146 Law or ELEctricity.

to taxation. It is frequently a very valuable property
right, and there is no apparent reason why the owner of
such a franchise should not contribute toward the expenses
of government by a tax thereon. It is real property and
should be subjected to local taxation the same as other
realty of the company.’*® The franchise of an electric com-
pany is subject to taxation under a constitutional provision,
authorizing in general terms the taxation of real and per-
sonal property, although there is no special provision of
statute for ascertaining the value of the franchise.” In
some jurisdictions a state board fixes the valuation of fran-
chises and the tax is levied upon the franchise in the same
ratio as other property of the corporation is taxed. The
state, however, may tax the franchise by requiring the com-
pany to pay over a percentage of the receipts from its
business.”*

Sec. 100. License Fees for Poles.

The exaction by the municipal authorities of a license tax
upon poles erected within the municipal boundaries has
been the cause of much bitter litigation. Especially is this
so in relation to poles of telegraph companies which have

16. Stockton Gas & Elec. Co. v.
San Joaquin County, 148 Cal. 313,
83 Pac. 54. Compare, People v.
Board of Assessors of City of Brook-
lyn, 19 N. Y. App. Div. 599, 46 N.Y.
Supp. 388, affirmed, 156 N. Y. 417,
51 N. E. 269, 42 L. R. A. 290.

Tangible property of an electric
light company, situated in or under
public waters, in coanection with a
special franchise, cannot be assessed
for purposes of taxation by the
commissioners of taxes of the city
of New York, but is to be taxed
only as a part of the special fran-
chise upon an assessment made by
the state board of tax commissioners
as provided in the Tax Law; and an
assessment thereof by the commis-
sioners of taxes of the city of New

York should be vacated. People ex
rel. Edison Elec. Tllum. Co. v. Com’rs
of Taxes, 58 Mise. (N. Y.) 249, 110
N. Y. Supp. 833.

17. Commercial Elec. L. & P. Co.
v. Judson, 21 Wash. 49, 56 Pac. 829,
57 L. R. A. 78.

18. See Patterson & Passaic Gas
& Elect. Co. v. State Board, (N. J. L.)
8 Am. Electl. Cas. 403, 54 Atl. 246.

“Gross earnings.”— Under a stat-
ute imposing a franchise tax on the
gross earnings of an electric com-
pany, money paid by a power com-
pany for electricity should not be
deducted fiom the gross earnings.
People ex rel. Genesee Light & Power
Co. v. Sohmer, 162 N. Y. App. Div.
207, 147 N. Y. Supp. 726.
TAXATION. 147
accepted the provisions of the Post Roads Act” and thus
acquired certain privileges in the streets and highways
which are beyond the power of the municipality to abro-
gate. As to electric companies, a city, village, or even a
borough,” unless its right to do so is abridged by its own
contract or statutory enactments, may exact reasonable
license fees of companies using the municipal highways for
their lines of poles and wires. If the right to exact a cer-
tain sum for each pole is sought to be justified upon the
ground that the sum is a rental for the use of the municipal
streets, the municipality must fail in those cases where it
has granted to the electric company a franchise for the use
of such streets and such franchise does not provide for the
payment of rent." Having granted the use of the streets
without requiring the payment of any rental, it cannot later
impair the franchise by requiring a rental.” But the pres-

19. The Post Roads Act is discussed
in §§ 176-186.

20. Boroughs have equal powers
with cities to impose a license tax
for the poles of electric light com-
panies erected in the borough streets.
Borough of Ridley Park v. Citizens
Elec. L. & P. Co., 9 Pa. Super. Ct.
615, 7 Del. Co. R. 395.

Poles in street before creation of
borough.— The fact that the electric
light poles were in the street before
the borough was created does not
affect its power to impose a license
tax thereon. Borough of Lansdown
v. Delaware County & P. Elec. Ry.
Co., 9 Pa. Super. Ct. 621, 7 Del. Co.
R. 398.

21. Hot Springs Elec. L. Co. v.
City of Hot Springs, 70 Ark. 300, 67
S. W. 761.

22. Hot Springs Elec. L. Co. v.
City of. Hot Springs, 70 Ark. 300, 67
8. W. 761, wherein the court said:
“We know, of course, that in this
state, under power reserved in the
constitution, the legislature may,
within certain limits, alter, revoke

or amend the charter of corporations,
but no question of that kind arises
here. We also know that a city
cannot contract away its police
power, and that the city has the
right to inspect the poles and wires
of this company to see that they are
kept in safe condition, and it is
possible that the city may, notwith-
standing this contract, have the right
to impose the cost of such inspection
upon the company. But we do not
decide that question, for the agreed
statement of facts upon which the
case was tried stated that the city
had never had an inspector, or made
any official inspection of electric
light poles. Counsel for the city also
say in their brief that this is clearly
an action for rent, and the circuit
court found that the 50 cents per
pole imposed by the ordinance was
in the nature of a rental charge for
the use of the ground occupied by
the poles. So, looking at the case
as presented by the counsel for the
city, it is clear that there is no
question of the police powers of the
148 Law or Eecrriciry.

ence of the poles and wires is a source of liability to the
city and danger to the inhabitants thereof. Unless the
poles and wires and other appliances of the company are
carefully inspected and kept in order, grave injuries to
persons and property result. The inspection and super-
vision by a city or other municipality of the appliances of
an electric company involves more or less expense, and this
may properly be charged against the company ‘which
derives a profit from the use of the streets. Hence, though
the municipality may not properly charge a rental for its
streets and highways where the company has not agreed
to pay such, it may reach practically the same result by
charging a reasonable sum to reimburse it for the expense
of supervision and inspection.** The foundation of acharge
of this nature is based on its police power; and, inasmuch
as it cannot contract so as to prohibit its exercise of the
police power, it cannot by contract-with an electric company
deprive itself of the right to charge a sum equivalent to
that incurred in exercising this police power. A somewhat
dissimilar conclusion, however, was reached in a lower
court of Pennsylvania, where it was held that a municipal-
ity, after contracting with an electric company for the
lighting of its streets, cannot impose a license tax for police
regulation of the poles and wires used exclusively in fulfill-
ment of that contract, though a tax as to poles not so exclu-
sively used can be imposed.** The payment of such a fee

city involved. So far as the evi-
dence shows, it is an attempt to
charge the company for the privilege
of using the streets, which had been
previously granted to it, and is, in
effect, an effort on the part of the
city to change the terms of its con-
tract with the company, and to im-
pose additional burdens on the com-
pany without its consent. We are
of the opinion that this cannot be
done, and our conclusion is that the
city made out no case against the
defendant.”

28. City of Ft. Smith v. Hunt, 72

Ark. 556, 82 S. W. 163, 66 L. R. A.
238.

24. New Castle v. Elec. Co., 16
Pa. Co. Ct. 663, 6 Am. Electl. Cas.
87, wherein it was said: “As we
understand the law, where a party
makes a contract to do a certain
thing for another, which contract re-
quires the use of that party’s prop-
erty, and the party owning the
property having knowledge of what
use the contract would require of
his property, and with such knowl-
edge signs said contract, he gives
his implied consent to the rightful
TaxaTIon. 149
may be required, although the company pays state taxes
upon both capital stock and gross receipts,” and though in
previous years the municipality neglected its supervisory
duty and incurred no expense ‘in the inspection of the elec-
tric line.” :

Amount of Fee.— The fee must be reasonable in amount.
It is authorized only to reimburse the municipality for its
supervision and inspection of the poles and wires of the
company.” Fifty cents a pole has been held to be a reason-
able sum; though a contrary conclusion has been reached
where the actual cost of the inspection was less than five
cents per pole.”

The Reasonableness of a License Fee is Generally a Ques-
tion for the Court.*°—The court should not submit the
question to the jury with the instruction that, if they find
the fee unreasonable, they may render a verdict for a

smaller fee such as they find to be reasonable.*

use of such property for purpose of
said contract. In other words, when
the city of New Castle entered into
the contract with the defendant in
this case for the furnishing of light
for the said city, and signed the con-
tract for the same subject to the
supervision of the police department
of the city or the city engineer, they
gave the right to erect poles and
wires sufficient to furnish such light,
otherwise it would be unjust and
inequitable. When the city entered
into the contract with the defendant
to light the city they gave them the
right to erect poles and wires to
carry out said contract, and cannot
now impose a tax or levy for police
regulation on any poles or wires that.
are used exclusively for the purpose
of earrying out said contract. With
this view of the law, we are of the
opinion that the city of New Castle
has the right to levy a tax for the
purpose of police regulation on all
poles and wires not used for the ex-
elusive use of the city contract, and

that. those poles and wires used for
the exchusive use of the city con-
tract are exempt from any taxation.”

25. Lancaster v. Edison Elee. Il-
lum. Co., 8 Pa. Co. Ct. 178, 2 Am.
Eleetl. Cas. 116.

26. Borough of West Consho-
hocken v. Conshohocken Elec. L. &
P. Co., 29 Pa. Super. Ct. 7.

27. City of Ft. Smith v. Hunt, 72
Ark. 556, 82 S. W. 163, 66 L. R. A.
238.

28. Fifty cents per pole is not an.
unreasonable license tax to impose
upon a corporation having a capital
stock of $135,000, and doing a. divi-
dend paying business. Lancaster v.
Edison Elec. Ilum. Co., 8 Pa. Co. Ct.
178, 2 Am. Elect). Cas. 116,

29. Saginaw v. Swift Elec. Light
Co., 113 Mich. 660, 72 N. W. 6.

30. Borough of West Consho-
hocken v. Conshohocken Elec. L. &
Power Co., 29 Pa. Super. Ct. 7.

81. Borough of West Consho-
hocken v. Conshohocken Elec. L. &
Power Co., 29 Pa. Super. Ct. 7.
150 ‘Law or E.ecrricrry.

Collection of Fees The fees may be collected in an
action for debt, though the license imposing the same pro-
vides in specific terms for only a penalty in case of default
in payment.”

Sec. 101. Tax upon Receipts.

In some jurisdictions, the legislatures have passed stat-
utes requiring electric companies to pay a percentage of
their gross receipts into the state treasuries. A tax on a
franchise of a public service corporation may take this
form instead of a valuation of such franchise and a tax
thereon in the same ratio as other property is taxed.** In
the same way a municipal corporation may impose a tax
on the receipts of an electric company as a license fee.
Such a tax may be sustained under the police power of
regulation and supervision of its appliances.** A munici-
pality, when granting a franchise to a public service corpo-
ration, may insert as a condition thereof that the company
pay to the municipal corporation a percentage of its
receipts. If no such provision is made a part of the fran-
chise, the city or village granting the same cannot tax the
gross receipts of the company unless such power has been
délegated to it by the state. The power delegated to munici-
palities to collect license taxes, even for revenue purposes,
cannot be construed to include the power to levy a tax upon
the gross receipts of an electric light and power company.**
In determining the particular receipts upon which the per-
centage is to be computed, reference must be made to the
particular statutes of the jurisdiction in question. The
question depends entirely upon the scope of the statutory
enactments. The tax may be computed, not only upon the
receipts from the electric lighting service, but upon the

$2. New Castle v. Elec. Co, 16 Pa. N.Y. App. Div. 207, 147 N. Y. Supp.
Co. Ct. R. 663, 6 Am. Electl. Cas. 87. 726.

88. Patterson & Passaic Gas & 84. Los Angeles Gas & Elec. Corp.
Elec. Co. v. State Board of Assessors, v. City of Los Angeles, 163 Cal. 621,
(N. J. L.) 8 Am. Electl. Cas. 403, 54 126 Pac. 594.

Atl. 246; People ex rel. Genesee 35. § 234,
Light & Power Co. v. Sohmer, 162 36. City of Scranton v. Scranton.
TAxaTION. 151
receipts which the company derives from the furnishing of
power and the sale of supplies and appliances, such as
lamps, drop lights, fans, etc.*7 Even where the tax is a
‘franchise ’’ tax, it may be levied upon the gross annual
receipts of the company from all its business, not merely
upon the receipts from the exercise of the municipal
franchises.**

Sec. 102. Special Assessments.

Where an electric company has a franchise which permits
it to maintain its line along a municipal street, an improve-
ment of such street, such as the widening thereof, a reduc-
tion of the grade, or the pavement thereof, does not affect
the value of the company’s franchise. It is of no material
advantage to the company whether the street be wide or

Elec. L. & H. Co., 33 Pa. Super. Ct.
431, 9 Am. Electl. Cas. 1138.

37. Commonwealth v. Brush Elec.
L. Co., 204 Pa. St. 249, 8 Am. Electl.
Cas. 405, 53 Atl. 1096, wherein the
court said: “The tax is not to be
paid upon the gross receipts from
electric lighting, but upon the gross
receipts from the business of the
company. For the purpose of en-
larging and swelling the volume of
its business, it furnishes not only
electric light, but electric power to
manufacture, and sells electric sup-
plies. Having so extended its busi-
ness beyond the mere furnishing of
light by electricity, the company has
largely increased its revenue, and it
would be a strained construction of
the words of the statute, if the gross
receipts from its business should be
interpreted as meaning only its gross
receipts from electric lighting, simply
because it is called an electric light
company. It is taxed on what it
does. The statute imposes the tax
not upon a portion of its receipts,
those derived from a particular com-
modity it supplies to the public, but

upon all of its receipts from its gen-
eral business conducted under its
franchises. Having, under what it
regards as its franchises, not ques-
tioned by the commonwealth, en-
larged its business by extending the
same beyond the mere furnishing of
light, and having realized largely in-
creased revenue from so doing, its
plea for abatement of the tax
claimed by the State is ungracious,
and cannot avail it in the fact of the
statute declaring what it shall pay.”

38. Patterson & Passaic Gas &
Elec. Co. v. State Board of Assessors
(N. J. L.) 8 Am. Electl. Cas. 403, 54
Atl. 246.

New York.— Under the provision
of section 186 of the Tax Law that
“the term ‘gross earnings, as used
in this section, means all receipts
from the employment of capital
without any deduction,” money paid
by «x power company for electricity
should not be deducted from its
gross earnings in assessing a fran-
chise tax. People ex rel. Genesee Light
& Power Co. v. Sohmer, 162 N. Y.
App. Div. 207, 147 N. Y. Supp. 726.
152 Law or Exxecrriciry.

narrow, whether it be level or steep, whether it be drained
or not, or whether it be paved with asphalt, brick, or other
material. In each case the value of the company’s fran-
chise is not augmented by the improvement. As justice
requires that local assessment for improvements. shall be
made only against property or persons benefited thereby,
an electric company is not generally subjected to such an
assessment.*® Moreover, the value of that part of a fran-
chise which is within the assessment area is so difficult. of
aseertainment that its indefiniteness in value renders it
unpracticable to levy am assessment against it.*° The
determination of the value of an electrie franchise, taken
as a whole, represents a problem of troublesome solution,
and still more troublesome would be the fixing of the value
of an indefinite fractional part of such franchise.

Sec. 103. Street Railway Companies.

The taxation of street raitway companies fails to present
an electrical question which would warrant its discussion
in this work. One seeking light upon the various forms
which the taxation of such companies take can find an
excellent discussion thereof in Nellis on Street Railways
(2d ed.), sections 164-180.

Sec. 104. Telegraph Companies; Analogy to Taxation of
Electric Companies.

A person with a critical turn of mind at first may be
surprised that it is deemed advisable to discuss at some
length the taxation of telegraph and telephone companies,
while it is not thought wise to discuss the taxation of street
railway companies. And yet amoment’s refleetion indicates
the soundness of excluding one and including the others.
In the case of a street railway company, the subjects of

39. Spring Creek Drainage Dist. v. N. ¥. App. Div. 940, 109 N. Y. Supp.

Elgin, etc., R. ©o., 249 IM. 260, 94 1223.
N. E. 529; In re Anthony Avenue, 40. In re Anthony Ave., 46 Misc.
46 Misc. (N. Y.} 525, 95 N. Y. Supp. (N. Y.} 525, 95 N. Y. Supp. 77; af-
77, affrmed on opinion below, 124 firmed on opinion below, 124 N. Y.
App. Div. 940, 109 N. Y¥. Supp. 1123.
TAXATION. 153

the taxation; viz., the franchise, the real estate, the line of
track, and other property, are mot similar to the property
of electric companies. To illustrate, a street railway fran-
chise to operate cars and carry passengers along a street
together with its poles and wires is a different proposition
than the franchise of an electric company which apparently
consists merely of the right to string a few lines of poles
and wires and serve the inhabitants with electricity.
Authorities discussing the taxation of one franchise would
more likely confuse than assist in determining the law rela-
tive to the taxation of the other. In the case of a telegraph
or telephone contpany, however, the property rights are so
similar to those of an electric company that the cases treat-
ing the levy of taxes upon one may be helpful in solving
legal problems relative to the taxation of the other. In
short, taxation of telephone and telegraph companies is
treated on account of its analogy to taxation of electric
companies, and taxation of street railway companies is
excluded on account of its absence of analogy.

Distinction between Taxation of Electric Companies and
of Telegraph Companies.— From what has been said, it is
not to be inferred that differences of vital importance do
not exist between the law of the telegraph taxation and the
law of electric company taxation. The contrary is the case.
A. telegraph line is not the local matter which an electric
lighting system is; it extends from one state to another,
while the plant of an electric company is many times
bounded by the limits of a single municipality. In other
words, the telegraph is subject to the interstate commerce
clause of the United States Constitution. And Congress
has granted to telegraph companies, by the Post Roads
Statute,** certain rights and privileges which cannot be
impaired by state legislation, either by tax statutes or other
enactments.

Sec. 105. Telegraph Companies; Tangible Property May
be Taxed by State.
Neither the interstate ecommerce clause nor the Post

41. §§ 176-186.
154 Law or ELEcTRICITY.

Roads Act, however, release a telegraph company from its
contribution to pay state and local taxes upon its tangible
property.” Thus, in the leading case ** on this question, it
was said: ‘‘ While the state could not interfere by any
specific statute to prevent a corporation from placing its
lines along these post-roads, or stop the use of them after
they were placed there, nevertheless the company receiving
the benefit of the laws of the state for the protection of its
property, and its rights is liable to be taxed upon its real
or personal property as any other person would be. It
never could have been intended by the Congress of the
United States, in conferring upon a corporation of one state
the authority to enter the territory of any other state and
erect its poles and lines therein, to establish the proposition
that such a company owed no obedience to the laws of the
state into which it thus entered, and was under no obliga-

42. United States Western Un-
ion Teleg. Co. v. Attorney-General
of Massachusetts, 125 U. 8. 530, 2
Am. Electl. Cas. 57, 8 S. Ct. 961, 31
L. Ed. 790; Attorney-General of
Massachusetts v. Western Union
Teleg. Co. 141 U. 8. 40, 3 Am.
Electl. Cas. 20, 11 S. Ct. 889; 35 L.
Ed. 628; Postal Teleg. Cable Co. v.
Adams, 155 U. 8. 688, 5 Am. Electl.
Cas. 636, 15 S. Ct. 268, 39 L. Ed.
311; Western Union Teleg. Co. v.
Trapp, 186 Fed. 114, 108 C. ©. A.
226.

Indiana.— Western Union Teleg.
Co. v. Taggart, 141 Ind. 281, 5 Am.
Elect]. Cas. 646, 40 N. E. 1051.

Minnesota. State v. Western
Union Teleg. Co., 96 Minn. 13, 104
N. W. 567,

Missouri.— State ex rel. Gottlieb
v. Western Union Teleg. Co., 165 Mo.
502, 8 Am. Elect]. Cas. 390, 65 S. W.
775; affirmed, 190 U. S. 412, 23 8.
Ct. 730, 47 L. Ed. 1116.

Nebraska.— Western Union Teleg.
Co. v. City of Omaha, 73 Neb. 527,
103 N. W. 84.

Virginia— Postal Teleg. Cable Co.
v. City of Richmond, 99 Va. 102, 37
S. E. 789, 86 Am. St. Rep. 877.

The statute of 1893, which pro-
scribes the method of assessing the
property of telegraph companies for
purposes of local taxation, is not
unconstitutional in that it provides
that the value of the lines in the
State shall be determined by taking
that proportion of the whole value
which the mileage in the State bears
to the whole mileage; it also provid-
ing for deductions in case the extra-
state portion be more valuable than
the intra-state. Assessing the prop-
erty of an interstate telegraph com-
pany within the State as its true
cash value, such value being placed
at that proportion of the entire value
of the company’s property which its
mileage within the State bears to
the entire mileage, is not a tax on
interstate commerce. Western Un-
ion Teleg. Co. v. Taggart, 141 Ind.
281, 5 Am. Elect]. Cas. 646, 40 N. E.
1051.

48. Western Union Teleg. Co. v.
TaxaTION, 155
tion to pay its fair proportion of the taxes necessary to
its support.’’ In assessing the property of sucha telegraph
company, the value of the whole property as a unit may be
considered, and the relation which the value of the prop-
erty in the taxing district under consideration bears to the
value of the entire property taken as the basis for taxation
purposes.**

Sec. 106. Franchise.

The franchise which a telegraph company receives by
virtue of the Post Roads Act — the right to enter upon cer-
tain highways — cannot be taxed by a state.** In addition
to the right given by the federal statute, however, the tele-
graph company may also have obtained a franchise from
the state or municipal corporation. Such a franchise, if of
value, may be taxed for state and local purposes.** Thus,
in California, it is held that, inasmuch as the state can
exact of a telegraph company compensation for the use of
its highways, where it grants to a telegraph company the

Attorney-General of Massachusetts,
125 U. S. 530, 548, 2 Am. Electl. Cas.
57, 8 S. Ct. 961, 31 L. Ed. 790.

44, Western Union Teleg. Co. v.
Taggart, 163 U. 8S. 1, 6 Am. Electl.
Cas. 621, 16-S. Ct. 1054, 41 L. Ed.
49; State v. Western Union Teleg.
Co., 96 Minn. 13, 104 N. W. 567;
State ex rel. Gottlieb v. Western
Union Teleg. Co., 165 Mo. 502, 8
Am. Elect. Cas. 390, 65 S. W. 775;
affirmed, 190 U.S. 412, 23 S. Ct. 730,
47 L, Ed..1116; Western Union Teleg.
Co. v. Dodge County, 80 Neb. 18,
113 N. W. 805; affirmed on rehear-
ing, 80 Neb. 23, 117 N. W. 468.

45. United States—Western Union
Teleg. Co. v. ‘Wright, 185 Fed. 250,
107 C. C. A. 356.

California— Postal Teleg. Cable’

Co. v. Los Angeles, 164 Cal. 156, 128
Pac. 19; Western Union Teleg. Co.
v. Los Angeles County, 160 Cal. 124,
116 Pac. 564; Western Union Teleg.

Co. v. Hopkins, 160 Cal. 106, 116
Pac. 55%; Western Union Teleg. Co.
v. City of Visalia, 149 Cal. 744, 87
Pac. 1023; City of San Francisco v.
Western Union Teleg. Co., 96 Cal.
140, 4 Am. Electl. Cas. 595, 31 Pac.
10.

Montana.— State v. Western Un-
ion Teleg. Co., 43 Mont. 445, 117 Pac.
93.

Virginia— Postal Teleg. Cable Co.
v. City of Richmond, 99 Va. 102, 37
S. E. 789, 86 Am. St. Rep. 877.

Washington.— Western Union
Teleg. Co. v. Lakin, 53 Wash. 326,
101 Pac. 1094, 17 Ann. Cas. 718.

46. Postal Teleg. Cable Co. v. Los
Angeles, 164 Cal. 156, 128 Pac. 19;
Western Union Teleg. Co. v. Los An-
geles County, 160 Cal. 124, 116 Pac.
564, But see, Western Union Teleg.
Co. v. Lakin, 53 Wash. 326, 101 Pac.
1094, 17 Ann. Cas. 718.
156 Law or Evecrricitry.

right to use such highways without requiring the payment
of any consideration, the company thereby acquires a fran-
chise which is subject. to taxation.” <A eity ordinanee, on
the other hand, authorizing the construction of telegraph
poles, and permittmg them to remain where placed, im con-
sideration of the company’s written agreement to permit
their use by the city for certain purposes, does not grant
an effective municipal franchise having a real existence
distinct from the federal franchise, and hence is not taxable
by the city.* Hven a tax in the form of a franchise tax
may be sustained, where it is in heu of all other taxes and
is based on the number of miles of wire within the state.“

47. Postal Telegraph—Cable Co. v.
City of Los Angeles, 164 Cal. 156,
128 Pac. 19; Westerm Union Teleg.
Co. v. Hopkins, 160 Cal. 106, 116.
Pac. 557.

Explanation of view. In Western
Union Teleg. Co. v. Hopkins, 160
Cal. 106, 116 Pae. 557, the court ex-
plained its views as follows: “It
thus appears to he settled by the
decisions af the court of Iast, resort
on. sueh questions that, ever if a
state has mo power to absolutely pro-
hibit such exclusive use of portions.
of its public highway by a, telegraph
company operating under said act,
(see, however, Western Union Tel.
Co. v. Pennsylvania, ete, Co. 195
U. 8. 540, 25 Sup. Ct. 133, 49 L. Ed
312), it mevertheless has a property
interest: in its pubkic highways which
is not divested by a grant of the
United States to the telegraph com-
pany, and whieh may be the subject
of grant, from the state to the com-
pany. Notwithstamding the act. of
Congress, the telegraph company
cannot, appropriate to its exchrsive
use portions of such highways. with-
out beimg subject to charges on be-
half of the state by way of com-
pensation for such use. It is: obvi-
ous, then, that, if the state grants

to such a company the right to such
exclusive possession of portions of
its publie highways without. com-
pensation, the company obtains
thereby something not acquired by
it under the act of Congress, and
that such right so acquired by the
company is nothing more nor less
than a franchise, within a well-rec-
ognized meaning of that term,
granted by the state, having for pur-
poses of assessment a local situs, and
being assessable im the particu-
lar eity or county in which the
streets. so occupied are situated.
* * * Tt is also elear that, where
there is a valid law of the state pur-
porting to grant swch right to tele-
graph companies generally, the ex-
clusive: occupation by a eompany of
portions: of public highways for the
authorized purposes is an acceptance
by it of the offered franchise.”

48. Western Union Teleg. Ca. v.
City of Visalia, 149 Cal. 744, 87 Pae.
1022.

43. Postal Teleg. Cable Ca. v.
Adams, 155 U. S. 688, 5 Am. Elect.
Cas. 636, 15 S. Ct. 968, 39 E. Ed.
311, wherein it was said: “It is
settled that where by way of du-
ties laid on the transportation of
the subjects of imterstate commerce,
TAXATION.

157

Sec. 107. Telegraph Companies; Capital Stock.

A state tax upon the capital stock of a telegraph com-
pany may be levied, when in effect it is a tax upon its
tangible property within the state, as, for example, the
valuation is based upon the proportion of the length of its
lines in the state to their length throughout the entire

country.

or on the receipts derived there-
from, or on the occupation or busi-
ness of carrying it on, a tax is levied
by a State on interstate commerce,
such taxation amounts to a regula-
tion of such commerce and cannot
be sustained. But property in a
State, belonging to a corporation,
whether foreign or domestic, engaged
in foreign or interstate commerce,
may be taxed, or a tax may be im-
posed on the corporation on account
of its property within a State, and
may take the form of a tax for the
privilege of exercising its franchises
within the State, if the ascertain-
ment of the amount is made depend-
ent in fact on the value of its prop-
erty situated within the State (the
exaction, therefore, not being sus-
ceptible of exceeding the sum which
might be leviable directly thereon),
and if payment be not made a con-
dition precedent to the right to carry
on the business, but its enforcement
left to the ordinary means devised
for the collection of taxes. The cor-
poration is thus made to bear its
proper proportion of the burdens of
the government under whose protec-
tion it conducts its operations, while
interstate commerce is not in itself
subjected to restraint or impediment.
* * * In the case before us, the
tax was graduated according to the
amount and value of property meas-
ured by miles, and was in lieu of
taxes levied directly on the property.
In marking the distinction between
the power over commerce and mu-

nicipal power, literal adherence to
particular nomenclature should not
be allowed to control construction in
arriving at the true intention and
effect of State legislation. We are
of opinion that it was within the
power of the State to levy a charge
upon this company in the form of
a franchise tax, but arrived at with
reference to the value of its property
within the State and in lieu of all
other taxes, and that the exercise of
that power by this statute, as ex-
pounded by the highest judicial tri-
bunal of the State in the language
we have quoted, did not amount
to a regulation of interstate com-
merce or put an unconstitutional re-
straint therein.”

50. Western Union Teleg. Co. v.
Attorney-General of Massachusetts,
125 U. S. 530, 2 Am. Electl. Cas. 57,
8 S. Ct. 961, 31 L. Ed. 790.

51. Western Union Teleg. Co. v.
Attorney-General of Massachusetts,
125 U.S. 530, 2 Am. Electl. Cas. 57,
8 S. Ct. 961, 31 L. Ed. 790.

A statute of Indiana, requiring a
telegraph company to pay a tax
upon its property within the State,
walued at such proportion of the
whole value of its capital stock as
the length of its lines within the
State bears to the length of all its
lines everywhere, deducting a sum
equal to the value of its real estate
and machinery subject to local taxa-
tion within the State, is constitu-
tional and valid, notwithstanding
that nothing is in terms directed to
158 Law oF ELectricity.
Sec. 108. Telegraph Companies; Tax on Business or Occu-
pation of Company.

No state has the right to lay a tax on interstate com-
merce in any form, whether by way of duties laid on the
transportation of the subjects of that commerce, or on the
receipts derived from that transportation, or on the occu-
pation or business of carrying it on; and the reason is that
such taxation is a burden on that commerce, and amounts
to a regulation of it, which belongs solely to Congress.”
A state tax on telegraphic messages conveyed over the
lines of telegraph within a state, without regard to whether
such messages are federal government messages or whether
they are going to or coming from without the state, is an

interference with interstate commerce and is void.*

be deducted from the valuation,
either for the value of its franchises
from the United States, or for the
value of its real estate and ma-
chinery situated and taxed in other
States; unless there is something
more, showing that the system of
taxation adopted is oppressive and
unconstitutienal. Western Union
Teleg. Co. v. Taggart, 163 U. S. 1,
6 Am. Electl. Cas. 62, 16 S. Ct. 1054,
41 L. Ed. 49.

The statute of Massachusetts
which declares that every telegraph
company, whether incorporated in
Massachusetts or elsewhere, owning
a line of telegraph in Massachusetts,
is to be there taxed on such pro-
portion only of the whole value of
its capital stock as the length of
line in Massachusetts bears to the
whole length of its lines everywhere;
and, to prevent its tax in that State
.from exceeding that amount, pro-
vides that from the taxable portion
of the value of its capital so ascer-
tained, shall be deducted the value
of any property subject to local taxa-
tion in cities and towns; is not for-
bidden by the acceptance by the tele-
graph company of the rights conferred

Thus,

by the post-roads act or by the inter-
state commerce clause of the United
States Constitution. Attorney-Gen-
eral of Mass. v. Western Union Teleg.
Co., 141 U. 8. 40, 3 Am. Electl. Cas.
20, 11 S. Ct. 889, 35 L. Ed.' 628.

52. Leloup v. Port of Mobile, 127
U. S. 640, 2 Am. Electl. Cas. 79, 8
S. Ct. 1380, 32 L. Ed. 311.

53. Western Union Teleg. Co. v.
Alabama Board of Assessment, 132
U. S. 472, 3 Am. Elect]. Cas. 1; re-
versing 1 Am. Elect]. Cas. 844; West-
ern Union Teleg. Co. v. Com. of
Pennsylvania, 128 U. S. 39, 2 Am.
Electl. Cas 88, 9 S. Ct. 6, 32 L. Ed.
345; Leloup v. Port of Mobile, 127
U. 8. 640, 2 Am. Elect]. Cas. 79, 8
S. Ct. 1380, 32 L. Ed. 211; Western
Union Teleg. Co. v. Texas, 105 U. S.
460, 26 L. Ed. 1067, 1 Am. Electl.
Cas. 373; reversing 55 Tex. 314; Com.
v. Smith, 92 Ky. 38, 3 Am. Electl.
Cas. 13, 17 S. W. 187; Western
Union Teleg. Co. v. Village of Wake-
field, 69 Neb. 272, 8 Am. Elect]. Cas.
380, 95 N. W. 659; Western Union
Teleg. Co. v. City of Fremont, 39 Neb.
692, 4 Am. Electl. Cas. 626, 58 N. W.
415.

Partially invalid.—A single tax, as-
TAXATION. 159
a tax on the ‘‘ gross amount of the receipts by any and
every telegraph, telephone, * * *, derived from the
business done by it in this State, at the rate of two dollars
on the hundred dollars ’’ is invalid as an interference with
interstate commerce.* Likewise, a municipal ordinance
requiring a license fee for doing a telegraph business within
a municipality is void. But a statute or municipal ordi-
nance imposing a.tax upon telegrams, excluding interstate
messages and business done for the federal government, is

valid.*

sessed under a state statute, upon
the receipts of a telegraph company
which were derived partly from in-
terstate commerce and partly from
commerce within the state, but which
were returned and assessed in gross
and without separation or apportion-
ment, is not wholly invalid, but is in-
valid only in proportion to the ex-
tent that such receipts were derived
from interstate commerce. Ratter-
man v. Western Union Teleg. Co., 127
U. S. 411, 2 Am. Elect]. Cas. 68, 8
S. Ct. 1127, 32 L. Ed. 229.

A state cannot tax telegraphic
messages sent from points within the
state to points in other states; those
sent from points in other states to
points within the state; or those
sent to and from points in other
states, which pass over lines partly
within the state. Western Union
Teleg. Co. v. Com. of Pennsylvania,
128 U. S. 39, 2 Am. Electl. Cas. 88,
9 8. Ct. 6, 32 L. Ed. 345.

54, Western Union Teleg. Co. v.
Alabama State Board of Assessment,
132 U. S. 472, 3 Am. Elect]. Cas. 1,
10 S. Ct. 161, 33 L. Ed..409; revers-
ing 1 Am. Elect. Cas. 844,

55, City Council of Charleston v.
Postal Teleg. Cable Co., 3 Am. Electl.
Cas. 56.

Under a statute permitting a mu-
nicipal corporation to demand a li-
cense fee for the transaction of any

A license tax imposed by a city cannot be in excess

kind of ‘business within its limits,
an ordinance imposing such a fee
upon a telegraph company as to all
business done within the state is
ultra vires and void. Such an ordi-
nance, in not excepting telegrams re-
ceived by officers and agents of the
United States, is in violation of the
post-roads act of Congress. Both or-
dinance and statute are unconstitu-
tional and void so far as they under-
take to restrain or restrict the busi-
ness of telegraph companies which
have availed themselves of the privi-
leges of said act of Congress. City
Council of Charlesto~ v. Postal Teleg.
Cable Co., 3 Am. Electl. Cas. 56.

56. Postal Teleg. Cable Co. v.
Charleston, 153 U. S. 692, 5 Am.
Electl. Cas. 663, 14 8. Ct. 1094, 38 L.
Ed. 871, affirming 56 Fed. 419, 4 Am.
Electl. Cas. 620; Western Union
Teleg. Co. v. Alabama Board of As-
sessment, 132 U.S. 472, 10 S. Ct. 161,
33 L. Ed. 409, 3 Am. Electl. Cas. 1;
reversing 1 Am. Elect]. Cas. 844;
Western Union Teleg. Co. v. City of
Charleston, 56 Fed. 419, 4 Am. Electl.
Cas. 620; City Council of Charleston
vy. Postal Teleg. Cable Co., 3 Am.
Electl. Cas. 56, 9 Ry. & Corp. L. Journ.
129; Atlantic Postal Teleg. Cable Co.
v. City of Savannah, 133 Ga. 66, 65
S. E. 184; Western Union Teleg. Co.
v. Village of Wakefield, 69 Neb. 272,
8 Am. Elect]. Cas. 380, 95 N. W. 659;
160 Law of Exxcrriciry.

of what would be the tax on its property within the city
limits under ordinary modes of taxation, and the payment
of such a license tax cannot be a prerequisite to the right
of the company to transact business.”

Sec. 109. Telegraph Companies; Charges upon Poles and
Wires.

Municipalities ina number of different states have sought
to impose upon telegraph companies a charge for its poles
and wires within the municipal limits. Many bitter and
protracted litigations have been waged over the validity
of such charges. Within certain limitations, these charges

are sustainable upon two distinct theories.”

Western Union Teleg. Co. v. City of
Fremont, 39 Neb. 692, 4 Am. Electl.
Cas. 626,58 N. W. 415; Postal Teleg.
Cable Co. v. City of Richmond, 99
Va. 102, 37 S. E. 789, 86 Am. St.
Rep. 877.

“Jf the ordinance in controversy
had contained a clause specifically ex-
eluding from its operation interstate
business and business transacted for
the government of the United States
by the telegraph company, we would
then only need to examine the ques-
tion of the reasonableness of the tax
imposed by the ordinance, which we
would not regard as a very serious
question. Unfortunately, no such
clause is in the ordinance now before
us; the provision being that ‘ every
person, copartnership or corporation
who shall engage in the business or
occupation of receiving, delivering or
transmitting messages by electricity
between points within the state of
Nebraska, and the village of Wake-
field, and person or corporation own-
ing or operating lines for the trans-
mission of messages by wire between
such points and who shall maintain
in the said village an office’ ete,
‘shall pay,’ ete. While we think this
ordinance would, by its terms, fairly

exclude all interstate business of the
company, yet we cannot say that it
does exclude business of the govern-
ment of the United States transacted
by the company through its officers
within the State. This being true, it
takes the instant case without both
the letter and the reason of the rule
announced in Western Union Teleg.
Cable Co. v. Fremont, supra, and Pos-
tal Tel. Cable Co. v. Charleston, su-
pra.” Western Union Teleg. Co. v.
Village of Wakefield, 69 Neb. 272, 95
N. W. 659, 8 Am. Electl. Cas. 380.

57. Postal Teleg. Cable Co. v.
Charleston, 153 U. §. 692, 5 Am
Elect]. Cas. 663, 14 S. Ct. 1094, 38
L, Ed. 871, affirming 56 Fed. 419, 4
Am. Electl. Cas. 620; Postal Teleg.
Cable Co. v. City of Bichmond, 99
Va. 102, 37S. E. 789, 86 Am. St. Rep.
877.

58. “ Municipal corporations vested
with the control of public property
and property devoted to public uses
within their territorial limits, includ-

‘ing the streets and highways, can

impose upon telegraph and telephone
companies using the streets of the
city by permission or lieense and not
under an irrevocable grant or fran-
chise, a reasonable charge in the na-
TAXATION. 161

In the first place, where the telegraph is occupying the
streets and highways solely under the Post Roads Act with
no permission from the state or from the municipality, the
municipality may impose a fee for the use of the streets
and highways in the nature of a rental.” Thus, in the
leading case on this question, the court said: ‘‘All that
we desire or need to notice is the fact that this use is an
absolute, permanent and exclusive appropriation of that
space in the streets which is occupied by the telegraph
poles. To that extent it is a use different in kind and extent
from that enjoyed by the general public. Now, when there
is this permanent and exclusive appropriation of a part
of the highway, is there in the nature of things anything
to inhibit the public from exacting rental for the space thus
occupied? Obviously not. Suppose a municipality per-
mits one:to occupy a space in a public park, for the erection
of a booth in which to sell fruit and other articles; who
would question the right of the city to charge for the use
of the ground thus occupied, or call such charge a tax, or
anything else except rental? So, in like manner, while
permission to a telegraph company to occupy the streets
is not technically a lease, and does not in terms create the

ture of a rental for the exclusive use
of the parts of the streets occupied
by poles. Similar charges may be
imposed upon public service corpora-
tions occupying the streets of 4 mu-
nicipality, not by way of rental but
in the exercise of police power, this
charge being in the nature of a li-
cense fee, not a tax on the property
of the company, for the enforcement
of local governmental supervision.”
City of Springfield v. Postal Tele-
graph Cable Co., 253 Ill. 346, 97 N. E.
672; affirming 164 Ill. App. 276.

59. United States— Postal Teleg.
Cable Co. v. Baltimore, 156 U.S. 210,
15 S. Ct. 356, 39 L. Ed. 399; City of
St. Louis v. Western Union Teleg.
Co., 149 U. S. 465, 4 Am. Electl. Cas.
115, 13 S. Ct. 990, 37 L. Ed. 810;
St. Louis v. Western Union Teleg.

11

Co., 148 U. S. 92,4 Am. Electl. Cas.
102, 37 L. Ed. 380; New England
Teleg. Co. v. Town of Essex, 206 Fed.
926; Western Union Teleg. Co. v.
City of Richmond, 178 Fed. 310; City
of Memphis v. Postal Teleg. Cable
Co., 145 Fed. 602, 76 C. C. A. 292.
_California— Postal Teleg. Cable
Co. v. City of Los Angeles, 164 Cal.
156, 128 Pac. 19.

Illinois— City of Springfield v.
Postal Teleg. Cable Co., 253 Il. 346,
97 N. E. 672; affirming 164 Ill. App.
276.

Maryland.— Postal Teleg. Co. v.
Baltimore, 79 Md. 502, 5 Am. Electl.
Cas. 37, 29 Atl. 819.

60. St. Louis v. Western Union
Teleg. Co., 148 U. S. 92, 4 Am, Elect.
Cas. 102, 37 L. Ed. 380.
162
relation of landlord and tenant, yet it is the giving of the
exclusive use of real estate, for which the giver has a right
to exact compensation, which is in the nature of rental.’
The right to charge rental for the use of municipal ways
may be lost where the state permits the telegraph company
to occupy the streets free of charge,” though a contrary
conclusion has been reached upon this point.” ;

The second theory is based on the police power of super-
vision and inspection which is inherent in every munici-
pality; and the courts sustain the charge as a proper reim-
bursement to the municipality for the expenses incurred
in the supervision and inspection of the lines. A charge
is authorized on this theory only for the reimbursement

Law or ELecrriciry.

61. Hodges v. Western Union
Teleg. Co., 72 Miss. 910, 5 Am. Electl.
Cas. 56, 18 So. 84.

62. City of Memphis v. Postal
Teleg. Cable Co., 145 Fed. 602, 76
C. C. A, 292.

63. United States—Atlantic & P.
Teleg. Co. v. Philadelphia, 190 U. 8.
160, 8 Am. Elect]. Cas. 369, 23 S.
Ct. 817, 47 L. Ed. 995; Western Un-
ion Teleg. Co. v. New Hope, 187 U. 8.
419, 25 S. Ct. 204, 47 L. Ed. 240;
Western Union Teleg. Co. v. City of
Richmond, 178 Fed. 310; City of
Philadelphia v. Western Union Teleg.
Co., 89 Fed. 454, 32 C. C. A. 246, 60
U. S. App. 398.

Illinois City of Springfield v.
Postal Teleg. Cable Co., 253 Ill. 346,
97 N. E. 672; affirming 164 Ill. App.
276.

New York.— City of Philadelphia
v. Postal Teleg. Cable Co., 67 Hun. 21,
4 Am. Elect]. Cas. 92, 21 N. Y. Supp.
556,

Pennsylvania.—Taylor Borough v.
Telegraph Co., 202 Pa. St. 583, 52
Atl. 128; City of Philadelphia v.
American Union Teleg. Co., 167 Pa.
St. 406, 6 Am. Elect]. Cas. 85, 31
Atl. 628; City of Allentown v. West-
ern Union Teleg. Co., 148 Pa. St. 117,

4 Am. Electl. Cas. 90, 23 Atl. 1070,
33 Am. St. Rep. 820.

Virginia.— Postal Teleg. Cable Co.
v. City of Norfolk, 101 Va. 125, 8
Am. Electl. Cas. 401, 43 S. E. 207.

“We hold that the city of Phil-
adelphia had power to pass such an
ordinance as this, requiring the com-
pany to pay a reasonable license fee
for the enforcement of local govern-
mental supervision. In other words,
if a corporation, although engaged in
the business of interstate commerce,
80 carries on its business as to
justify, at the hands of any munici-
pality, a police supervision of the
property and instrumentalities used
therein, the municipality is not bound
to furnisn such supervision for
nothing, and may, in addition to or-
dinary property taxation, subject the
corporation to a charge for the ex-
pense of the supervision.” Atlantic
& P. Teleg. Co. v. Philadelphia, 190
U. S. 160, 8 Am. Electl. Cas. 369, 23
S. Ct. 817, 47 L. Ed. 995.

“Tt will thus be seen that we agree
with the conclusion reached by the
referee ‘that the State has power to
impose taxes upon the property of
such companies within the State, un-
der the laws of the State, and that
TAXATION. 163
of expenses incurred in the police regulation of the com-
pany’s line; the charge cannot be imposed for the pur-
pose of raising revenue for the general purposes of the
municipality.”

A third ground for compelling a telegraph company to
pay an annual sum in the nature of a license fee may be
suggested. Where the telegraph company enters upon the
municipal streets after the passage of an ordinance author-
izing it to do so upon payment of an annual fee, it is deemed -
to have accepted the ordinance unless it makes an express
disclaimer. Having accepted the provisions of the ordi-
nance, it cannot be heard to question its obligation to make
the annual payment as therein provided. This ground of
liability is not, however, a question of taxation, but rather
one of express contract between parties capable of con-

tracting.

Charge Must be Reasonable— Whether the charge is
imposed as rent for the use of the streets, or as reimburse-

ment for supervision,” the

a municipality, under its delegated
powers from the State, can impose all
lawful burdens upon the property of
such companies situated within its
corporate limits. Therefore, if these
license charges upon poles and wires
within the city limits should be held
or found to be legally imposed by the
State, they would not be in conflict
with the provisions of this act of
Congress; or if the municipality, un-
der its delegated power of “ regula-
tion ” from the State, or what ts com-
monly known as “police power,”
should be found to have the right to
make such ordinances, and levy such
imposts upon the poles and wires
within its corporate limits of a com-
pany operating an interstate line,
such ordinances and charges would not
be in conflict with the act, as being
neither on the general business of the
company. nor an interference with
such interstate business.” City of

amount must be reasonable.

Philadelphia v. Postal Teleg. Cable
Co., 67 Hun (N. Y.) 21, 4 Am. Electl.
Cas. 92, 27 N. Y. Supp. 556.

64. Postal Teleg. Cable Co. v. Tay-
lor, 192 U. S. 64, 24 8. Ct. 208, 48
L. Ed. 342; Matter of Delaware &
Atl. Teleg. & Telep. Co’s. License
Fees, 37 Pa. Super. Ct. 151.

65. Postal Teleg. Cable Co. v. City
of Newport, 25 Ky. Law Rep. 635,
8 Am. Elect]. Cas. 25, 76 S. W. 159.

66. St. Louis v. Western Union
Teleg. Co., 148 U. S. 92, 13 8S. Ct.
485, 4 Am. Electl. Cas. 102, 37 L. Ed.
380; City of Memphis v. Postal
Teleg. Cable Co., 164 Fed. 600, 10
Ann. Cas. 342; City of Springfield
v. Postal Teleg. Cable Co., 253 Ill.
346, 97 N. E. 672; affirming 164 Ill.
App. 276.

67. Postal Teleg. Cable Co. v.
Taylor, 192 U. 8. 64, 24 S. Ct. 208,
48 L. Ed. 342; Atlantic & P. Teleg.
Co. v. Philadelphia, 190 U. S. 160,
164

Law or Exscraicrry.

Prima facie the charge is a reasonable one and the burden

is on the telegraph company to show the contrary.™

The

reasonableness of an ordinance imposing a license fee upon
a telegraph company is generally a question for the court,”
yet, where the reasonableness of the ordinance depends
on the amount of the charge, the question may properly be

left to the jury.”

8 Am. Electl. Cas. 369, 23 S. Ct.
817, 47 L. Ed. 995; City of Phil-
delphia v. Western Union Teleg. Co.,
81 Fed. 948.

“Whether the ordinances are rea-
sonable can be judicially inquired
into. When it is said, in some of
the cases, that such a question is for
the determination of the court, it is
not meant that the question may not
be properly submitted to the jury.
What is meant by such observations
is that courts are not precluded from
considering the reasonableness of the
legislative act prescribing the terms
and the amount of the charges. It
has sometimes been urged that such
‘questions are peculiarly suited for
legislative determination; and _ it
must be admitted that there is a
presumption in favor of the validity
of the action of the legislative body,
and that the evidence to justify a
court in holding otherwise must be
clear and convincing. Still, it must
be regarded as conclusively settled
that the legislative authority to im-,
pose license fees or charges is not.
absolute, and must be exercised with}
due regard to the rights of the cor-
porations to be affected.” Philadel-
phia v. Western Union Tel. Co., 89
Fed. 454, 32 C. C. A. 246, 60 U. S.
App. 398.

68. Western Union Teleg. Co. v.
New Hope, 187 U. S. 419, 25 S. Ct.
204, 47 L. Ed. 240; St. Louis v. West-
ern Union Teleg. Co., 148 U. 8. 92,
4 Am. Elect]. Cas. 102, 13 S. Ct. 485,
37 L. Ed. 380; City of Philadelphia

Charges which are reasonable in one

v. Western Union Teleg. Co., 89 Fed.
454, 32 ©. O. A. 246, 60 U. S. App.
398; City of Springfield v. Postal
Telegraph Cable Co., 253 Ill. 346, 97
N. E. 672; affirming 164 Ill. App.
276; Borough of Kittanning v. West-
ern Union Teleg. Co., 26 Pa. Super.
Ct. 346.

69. Atlantic & P. Teleg. Co. v.
Philadelphia, 190 U. S. 160, 8 Am.
Electl. Cas. 369, 23 S. Ct. 817, 47
L. Ed. 995; Borough of Taylor v.
Postal Teleg. Cable Co., 16 Pa. Super.
Ct. 344; City of Chester v. Western
Union Teleg. Co., 3 Lancaster Law
Rev. (Pa.) 164, 2 Am. Elect]. Cas. 93.

In an action to recover a license
fee imposed upon telegraph com-
panies by a borough, where the facts
are not in dispute, the question of
‘the reasonableness of the license fee
is for the court, and if the court
submits the question of the reason-
ableness of the fee to the jury, it is
an error of which the telegraph com-
‘pany cannot complain. Borough of
New Hope v. Western Union Tel Co.,
16 Pa. Super. Ct. 306; affirmed, 187
UW. S. 419, 23 S. Ct. 204, 47 L. Ed.
240.

70. Atlantic & P. Teleg. Co. v.
Philadelphia, 190 U. S. 160, 8 Am.
Electl. Cas. 369, 23 S. Ct. 817, 47
L. Ed. 995; City of Philadelphia v.
Western Union~Teleg. Co., 89 Fed.
454, 32 C. C. A. 246, 60 U. S. App.
398.

Question submitted to jury for-
guidance of court.— Where, in an ac-
tion by a municipality against a
TAXATION.

165

city might be excessive in another city.". Where the charge
is a rental, the elements to be considered are the size of the
city, the value of the property, the size and number of the
poles, and the other demands made on the use of the streets.
When the charge is made as payment for police regulation,
the expenses of such regulation are the criterion for deter-

mining the reasonableness of the charge.”

telegraph company to recover license
fees, the defense was interposed that
the fees are unreasonable, and the
court held that the question of the
reasonableness was for the court, but
submitted it to the jury for their aid
as advisory only, and the jury found
a verdict for the municipality for
less than the amount fixed by the
ordinance, the court should direct
judgment for the company. The ver-
dict of the jury established the un-
reasonableness of the charge, and a
judgment could not be entered for a
smaller amount which might be rea-
sonable. Postal Teleg. Cable Co. v.
Borough of New Hope, 192 U. 8. 55,
24 8. Ct. 204, 48 L. Ed. 388.

71. “It is urged by the city that,
inasmuch as the license fees here
charged are the same as those charged
by the borough of New Hope, the
validity of which was sustained in
Western U. Teleg. Co. v. New Hope,
187 U. S. 419, 23 Sup. Ct. Rep. 204,
it necessarily follows that the charges
here imposed are reasonable. But
this is a mistake. What is reason-
able in one municipality may be
oppressive and unreasonable in
another.” Atlantic & P. Teleg. Co. v.
Philadelphia, 190 U. 8. 160, 8 Am.
Electl. Cas. 369, 23 S. Ct. 817.

72. Postal Teleg. Cable Co. v.
Taylor, 192 U. S. 64, 24 S. Ct. 208,
48 L. Ed. 342; Atlantic & Pac. Teleg.
Co. v. Philadelphia, 190 U. S. 160,
8 Am. Electl. Cas. 369, 23 S. Ct. 817,
47 L. Ed. 995; City of Philadelphia
v. Atlantic & Pac. Teleg. Co., 102

The munici-

Fed. 254, 42 ©. C. A. 325, 7 Am.
Electl. Cas, 226; Taylor Borough v.
Telegraph Co., 202 Pa. ‘St. 583, 52
Atl. 128; Schellsburg v. Western
Union Teleg. Co., 26 Pa. Super. «Ct.
343; Borough of Taylor v. Postal
Teleg. Cable Co., 16 Pa. Super. Ct.
344,

Additional fire companies and ap-
paratus.— In determining the reason-
ableness of the fee, consideration may
be given to the fact that additional
fire companies and apparatus were
rendered necessary by the erection
of poles and wires in the streets.
City of Philadelphia v. Western
Union Teleg. Co., 89 Fed. 454, 32
C. C. A, 246, 60 U. S. App. 398,
wherein the court said: “We think
the trial court erred in excluding
the evidence offered on behalf of the
city going to show that considerable
additional expense, in providing a
greater number of fire companies and
apparatus, is rendered necessary by
the electric ‘wires suspended in the
streets. If, indeed, a new condition
of affairs has been caused by the
erection of wires and poles in the
thoroughfares of the city, which
makes it proper for the authorities,
in order to protect life and property,
to increase its police and fire forces
and equipment, we think such a state
of facts might be shown, and was a
proper matter for consideration in
fixing the amount of the license
charges, and in passing upon their
reasonableness.”

Expense of city council meetings.
166

Law oF HLectTRIcity.

pality may estimate and impose the charge in advance and
may make it large enough to cover any anticipated expenses
and the payment of the fee cannot be avoided because it
may subsequently appear that it was somewhat in excess

—In a litigation involving the rea-
sonableness of a license fee upon tele-
graph poles and wires, the munici-
pality may show the expenses to
which the city is put from time to
time in connection with the meeting
of its council for the purpose of regu-
lating the erection of wires and
poles. City of Philadelphia v. West-
ern Union Teleg. Co., 89 Fed. 454,
32 C. C. A. 246, 60 U. S. App. 398.

Evidence excluded In an action
to determine the validity of a
borough license tax on _ telegraph
poles and wires, it is not error to
reject as immaterial and irrelevant
offers of the telegraph company to
prove the actual cost or value of its
property in the borough; the space
occupied by each of its poles, “this
to show that this property is unrea-
sonably taxed; ” the value of abut-
ting properties and the rate at
which they were taxed; the cost of
reconstructing the line through the
borough; the ordinary depreciation
of such a line, and the present value
of the line; the license fees imposed
by other cities and boroughs; the
capital stock, bonded indebtedness,
net earning and the number of poles
and miles of wire in the entire sys-
tem of the company. Schellsburg
v. Western Union Teleg. Co., 26 Pa.
Super. Ct. 343.

Evidence admitted—=It is proper
to permit the company to prove that
its line was constructed of the best
materials and in the best manner,
and was carefully maintained in the
best physical condition; that it was
located in a sparsely settled com-
munity and in such a manner as not
to endanger or impede public travel;

that it was frequently inspected, at
least once a month, by its expert em-
ployees, and immediately repaired, if
any deterioration was found therein;
the cost of such inspection, not as a
conclusive test of the reasonableness
of the charge imposed by the bor-
ough, but as evidence bearing upon
that question; and that the borough
made no inspection of the poles and
wires, and neither paid out any
Money nor incurred any expense for
that purpose. Schellsburg v. West-
ern Union Teleg. Co., 26 Pa. Super.
Ct. 343. The company may show
that the municipality has made no
inspection, and has neither paid out
any money nor incurred any expense
for that purpose, and that the fee is
grossly disproportioned to the amount
of any expense that might have been
reasonably and fairly incurred for
the most careful, thorough and effi-
cient inspection and supervision pos-
sible, and for all measures and pre-
cautions that could be required to be
taken by the municipality for the
safety of its citizens and the public.
Borough of Norwood v. Western
Union Tel. Co., 25 Pa. Super. Ct. 406.

Financial status of company not
considered.— Upon an issue of the
reasonableness of a charge for police
regulation of telegraph lines, the
amount of capital stock, bonded debt,
and net receipts of the company are
not relevant. Borough of Kittanning
v. Western Union Teleg. Co., 26 Pa.
Super. Ct. 346,

Where testimony is produced show-
ing that the actual cost of the main-
tenance, repair and supervision by
the company of its lines during the
year for which the license fee was
TAXATION.

167

of the actual cost to the municipality, nor may the company
then recover the difference between the amount of the

charge and the actual cost.”

charged was less than one-half that
charged by the city for supervision
alone, and that at first the license
fee per mile of overhead wire was
$2.50, and of underground wire $1,
and that within three years there-
after the charges in respect to under-
ground wire were taken away, and
that, as declared by the head of the
electrical department, the charge for
underground wire was so taken away
for the purpose of inducing the re-
moval of overhead wires and placing
them all under ground, the court
erred in withdrawing the case from
the jury. In view of such testimony
the jury might have come to the con-
clusion that the charge was not made
simply to meet the expenses of super-
vision, but rather to make a charge
so burdensome as to compel the com-
pany to remove its wires from poles
and place them in conduits. Atlantic
& Pac. Teleg. Co. v. Philadelphia, 190
U. §. 160, 8 Am. Electl. Cas. 369,
23 S. Ct. 817, 47 L. Ed. 995.

73. Postal Teleg. Cable Co. v.
Taylor, 192 U. S. 64, 70, 24 S. Ct.
208, 48 L. Ed. 342, where it was
said: “The borough is also not com-
pelled to make its expenditures for
these purposes in advance of demand-
ing the tax from the defendant, but
it must be remembered that such a
tax is authorized only in support of
police supervision, and if it were
possible to prove in advance the
exact cost that sum would be the
limit of the law. As in the nature of
things this is ordinarily impossible,
the municipality is at liberty to make
the charge enough to cover any rea-
sonably anticipated expenses, and
the payment of the fee cannot be
avoided because it may subsequently

The municipal corporation

appear that it was somewhat in ex-
cess of the actual expense of the
supervision, nor may the company
then recover the difference between
the amount of the license fee and
such cost.”

Anticipated expenses.—In Atlantic
& P. Teleg. Co. v. Philadelphia, 190
U. S. 160, 8 Am. Electl. Cas. 369,
23 S. Ct. 817, the court said: “But
it does not follow from this that a
municipality is not subject to any
restraint in the amount of the charge
which it so exacts. True, it is often
said that a license tax is, in its
nature, arbitrary; that it is not
necessarily graduated by the value
of the property invested in the busi-
ness licensed, or its profitableness.
But such observations are pertinent
only in case the license is resorted
to for the purposes of revenue. When
it is authorized only in support of
police supervision, the expense of
such supervision determines the
amount of the charge; and, if it
were possible to prove in advance the
exact cost that would be the limit of
the tax. In the nature of things,
that, however, is ordinarily impos-
sible; and so the municipality is at
liberty to make the charge large
enough to cover any reasonable an-
ticipated expenses. It is authorized
to fix such charge in advance, and
need not wait until the end of the
period for which the license is
granted. It may not act arbitrarily
or unreasonably, but the risk may
rightfully be cast upon the licensee,
and the charge cannot be avoided be-
cause it subsequently appears that it
was somewhat in excess of the actual
expense of the supervision, nor can
the licensee then recover the differ-
168 Law or ELecrriciry.

may not, however, add to the charge because of the liability
to which it may be subjected by reason of injuries that may
arise from defective poles and wires.”

Annual fees of one dollar,’® two dollars,”* and three dol-
lars,”” have been sustained. An ordinance charging a dollar
a pole and two dollars. and a half per mile of wire has been
considered valid.”* And, in the absence of evidence show-
ing that the charge is excessive under the circumstances, a
charge of five dollars a pole will not be held excessive.”
On the other hand, where it appeared that the actual cost
of regulation did not exceed fifty cents a pole, an ordinance
fixing the charge at.a dollar a pole and two dollars and a
half per mile of wire was held invalid. And a charge of
fifty cents a pole may even be excessive. The entire ques-
tion, as stated above, depends upon the outlay demanded
by the police supervision of the poles and wires of the

company.

ence between the amount of the license.
and such cost.”

74. Postal Teleg. Cable Co. v.
Taylor, 192 U. 8. 64, 24 S. Ct. 208,
48 L. Ed. 342.

75. City of Chester v. Western
Union Teleg. Co., 154 Pa. St. 464,
4 Am, Elect]. Cas. 100, 25 Atl. 1134;
City of Chester v. Western Union
Teleg. Co., 3 Lancaster Law Ree.
(Pa.) 164, 2 Am. Electl. Cas. 93.

One dollar and other charges,—
The imposition of a license fee of
$250 and in addition $1 for each pole
and $1 for each 100 feet of conduits
is not improper. * Postal Teleg. Cable
Co. v. City of Norfolk, 101 Va, 125,
8 Am. Electl. Cas. 401, 43 S. E. 207.

An orginal license fee of five dol-
lars, and an annual fee of one dol-
lar a pole and two dollars and a half
per mile of wire is not so obviously
excessive as to warrant the court in
adjudging the ordinance fixing it to
be invalid. Western Union Teleg.
Co. v. City of Philadelphia, 22 W. N.

C. (Pa.) 39, 2 Am. Electl. Cas. 98,
12 Atl. 144.

76. Western Union Teleg. Co. v.
City of Richmond, 178 Fed. 310;
Postal Teleg. Co. v. Baltimore, 79
Md. 502, 5 Am. Elect]. Cas. 37, 29
Atl. 819.

77. City of Memphis v. Postal
Teleg. & Cable Co., 164 Fed. 600, 16
Amn. Cas. 342,

78. Western Union Teleg. Co. v.
Borough of New Hope, 187 U. S.
419, 25 S. Ct. 204, 47 L. Ed. 240;
City of Allentown v. Western Union
Teleg. Co., 148 Pa. St. 117, 4 Am.
Electl. Cas. 90, 23 Atl. 1070, 33 Am.
St. Rep. 820; Borough of Kitanning
v. Western Union Teleg. Co., 26 Pa.
Super. Ct. 346.

79. St. Louis’ v. Western Union
Teleg. Co, 148 U. S. 92, 4 Am.
Electl. Cas. 102, 18 S. Ct. 485, 37
L. Ed. 380.

80. City of Philadelphia v. West-
ern Union Teleg. Co., 81 Fed. 948.

81. Lower Marion Twp. v. Postal
TAXATION. 169

Sec. 110. Telegraph Companies; Enforcement by Injunc-
tion Restraining Operation of Company.

The interstate commerce clause prohibits a state from
suspending the operation of a corporation engaged in inter-
state traffic. Thus, a telegraph company, upon its failure
to pay state taxes, may not be restrained from further
operations within the state until the payment of the tax in
question.”

Sec. 111. Telephone Companies.

The taxation of telephone companies is in some respects
to be distinguished from that of telegraph companies.
Though a ‘‘ telephone ’’ has been held to be a “‘ telegraph ”’
within the meaning of the latter term as used in statutes
for the levy of taxes, the Post Roads Act, as construed by
the United States Supreme Court, does not apply to tele-
phone companies. The result of this has been to deprive
telephone companies of the protection of such statute, when
states have sought to levy taxes against them. A telephone
company, however, as well as a telegraph company, is
engaged in interstate commerce ‘where its lines are not
limited by the confines of a single state.“ For this reason

Teleg. Cable Co., 25 Pa. Super. Ct. Co., 3 Am. Electl. Cas. 9, 48 N. J.

306.

82. Western Union Teleg. Co. v.
Attorney-General of Massachusetts,
125 U. S. 530, 2 Am. Elect]. Cas. 57,
8 S. Ct. 961, 31 L. Ed. 790.

83. § 11.

84. Matter of Taxation of Penn-
sylvania Telep. Co., 48 N. J. Eq. 91,
3 Am. Elect]. Cas. 9, 20 Atl. 846,
27 Am. St. Rep. 463.

Restraint of business for failure
to pay taxes.— A telephone company
having lines extending into more
than one state is an instrument of
interstate commerce, and its business
eannot be restrained by injunction
by a state court, for failure to pay
taxes imposed by such state. Matter
of Taxation of Pennsylvania Telep.

Eq. 91, 27 Am. St. Rep. 463, 20 Atl.
846, wherein it was said: “There
can be no reasonable distinction
made between the office of common
carrier by telephone and the office of
a common carrier of goods by rail-
way or steamboat. In both cases it
is commerce between the States. In
every such instance the consideration
is, when is the transaction within the
constitutional regulation? The dis-
putes which have led to judicial de-
termination of the various questions
have been respecting those conditions
which upon one hand were deemed
commerce and upon the other not.
I think, therefore, the injunction
prayed for in this case ought not to
be allowed; for if it were to be al-
170 Law oF Eectsricity.

a state cannot tax the interstate business of a telephone
company.* But that part of its business which is not inter-
state may be taxed. As in the case of telegraph com-
panies, the tangible property of a telephone company within
the bounds of the state may be taxed though such company
is engaged in interstate commerce.*’ And such a tax may
be computed upon the earnings of the company.*

License Fees.—In connection with the right to impose
upon telegraph companies certain charges in the nature of
license fees, we found® that such a charge can be justified
upon the theory of a ‘‘rental’’ of the right to use the
municipal streets. This ‘‘ rental ’’ is sustained in the case
of such companies because they are given by the Post Roads
Act the right to maintain their poles and wires along post
roads, and neither the state nor the municipality can pro-
hibit the use, but a reasonable compensation therefor may
be required. As telephone companies are not entitled to
the privileges of the Post Roads Act, this reasoning is not
applicable to such companies.” To empower a telephone
company to use the public ways for its poles and wires, a
franchise must be given to such company by the state —
either directly by statute or indirectly by authorizing a local
municipality to grant theright. Ifsucha franchise is given,
either by the state or by a municipal corporation, and no

lowed, it would most certainly, though
indirectly, control commerce between

applied to a telephone company. In
that case the court said: “It is

States.”

85. City of Ogden City v. Cross-
man, 17 Utah 66, 53 Pac. 985.

86. State v. Rocky Mt. Bell Telep.
Co., 27 Mont. 394, 71 Pac. 311.

87. State v. Northwestern Telep.
Exch. Co., 107 Minn. 390, 120 N. W.
534.

88. State v. Northwestern Telep.
Exch. Co., 107 Minn. 390, 120 N. W.
534,

89. § 109.

90. But see City of Pensacola v.
Southern Bell Telep. Co., 49 Fla. 161,
37 So. 820, where the court appar-
ently thought that the telegraph rule

shown by these and other decisions
of the Supreme Court of the United
States, and the Appellate Courts of
New York and Pennsylvania, that
municipalities which have the power
and are charged with the duty ot
regulating the use of their streets,
may impose a reasonable charge in
the nature of a rental for the occu-
pation of certain portions of their
streets by telegraph and telephone
companies, and may also impose a
reasonable charge in the enforcement
of local governmental supervision,
the latter being a police regulation.”
TAXATION. 171

conditions are annexed to the grant, it would be incon-
sistent for the state or municipality later to require the
company to make annual payments for the right granted.”
In case, however, the telephone company has no franchise
from either the state or the municipality, a license fee for
the privilege of doing business may properly be charged.”
And, in any event, a telephone company is subject to super-
vision and regulation in the same way as a telegraph com-
pany, and a municipality exercising such supervision may
lawfully charge the expense thereof against the telephone

company.”*

91. Cumberland Telep. & Teleg.
Co. v. City of Calhoun, 151 Ky. 241,
151 S. W. 659; Cumberland Telep. &
Teleg. Co. v. Hopkins, 121 Ky. 850,
28 Ky. Law Rep. 846, 90 S. W. 594;
City of New Orleans v. Great So.
Telep. & Teleg. Co., 40 La. Ann. 41,
2 Am. Elect]. Cas. 122, 3 So. 533, 8
Am, St. Rep. 502; Wisconsin Telep.
Co. v. City of Milwaukee, 126 Wis.
1, 104 N. W. 1009, 1 L. R. A. (N.S.)
581, 110 Am. St. Rep. 886; Wiscon-
sin Telep. Co. v. City of Oshkosh, 62
Wis. 32, 1 Am. Elect]. Cas. 687, 21
N. W. 828.

Explanation of view.— “The court
is of opinion that, after having sold
the telephone company the privilege
of putting up and operating its line
and conducting its business in the
town, the municipality cannot after-
wards, without the consent of the
telephone company, impose an addi-
tional charge for the identical privi-
lege. This franchise sold by the city
to appellant telephone company was
the creature of the city. It was not
only to occupy its streets, the con-
sideration being compensation for
right of way, but it was for operat-
ing its exchange in the city and re-
ceiving tolls thereat upon its busi-
ness. It was that or nothing. The
city could not impart to the tele-
phone company any corporate qual-

A fee, imposed under the police power of the

ity. That it already had, or must
get from the State. The ordinance
selling the franchise by its terms
went further than to grant the right
to oceupy the city streets and alleys.
It expressly dealt with, and sold for
a consideration, the privilege of doing
the identical business within the city
that it is doing. We concede that
if it should be necessary, in the fair
exercise of its police power by the
city, to compel the telephone com-
pany to conform to some different
plan of conducting its business, or
even that it should be excluded alto-
gether, if it were such a business
as was deleterious to the health or
safety of the citizens, the sale of
the franchise would not preclude the
city in the matter, for it is beyond
the power of a municipality, or of
the State itself, for that matter, to
bargain away its police power by
contract.” Cumberland Telep. &
Teleg. Co. v. Hopkins, 121 Ky. 850,
28 Ky. Law Rep. 846, 90 S. W. 594.

92. Cumberland Telep. & Teleg.
Co. v. City of Calhoun, 151 Ky. 241,
151 S. W. 659; Sunset Telep. & Teleg.
Co. v. City of Pasadena, 161 Cal.
265, 118 Pac. 796.

93. City of Plattsburg v. People’s
Telep. Co., 88 Mo. App. 306; City
of Harrisburg v. Penn. Telep. Co., 15
Pa. Co. Ct. R. 518, 5 Am. Electl. Cas.
172 Law or ELEcrricity.

municipality, can be no larger than is necessary to reim-
burse it for the expenses incurred in the exercise of such
police power.* A charge imposed for the production of
revenue cannot be justified as a police regulation.» Where
the payment of an annual fee is made a condition of the
granting to the telephone company of the municipal fran-
chise, the company cannot afterward repudiate the contract
contained in the franchise and refuse to make payment of

the fee.

63, 3 Pa. Dist. Rep. 815; Philipsburg
v. Cent. Penn. Telep., etc., Co., 22
W. N. C. (Pa.) 572, 2 Am. Electl.
Cas. 105. “Our municipalities are
under the necessity of looking out
for the public safety and they are
liable for damages resulting from
defects, nuisances or obstructions in
their streets. Under its general
police power it has the right to
supervise the erecting of poles and
stringing of wires to see that they
are safe and that the proper precau-
tions are taken. They have the right
to provide for inspection and that
proper care be taken and repairs be
speedily made, and for this purpose
a@ proper and reasonable annual li-
cense or charge be made.” City of
Plattsburg v. Peoples Telep. Co., 88
Mo. App. 306, 311.

94, Sunset Telep. & Teleg. Co. v.
City of Medford, 115 Fed. 202, 8 Am.

Electl. Cas. 402; N. Y. & Penn. Telep.
& Teleg. Co. v. Coudersport Borough,
49 Pa. Super. Ct. 46. Contra, Matter
of Chipchase, 56 Kan. 357, 6 Am.
Electl. Cas. 92, 43 Pac. 264.

95. Sunset Telep. & Teleg. Co. v.
City of Medford, 115 Fed. 202, 8 Am.
Elect]. Cas. 402; Wisconsin Telep.
Co. v. City of Milwaukee, 126 Wis.
1, 104 N. W. 1009, 1 L. R. A. (N.8.)
581, 110 Am. St. Rep. 886. Compare
City of Ogden v. Crossman, 17 Utah
66, 53 Pac. 985.

96. City of Lancaster v. Briggs,
118 Mo. App. 570, 96 S. W. 314; City
of Plattsburg v. People’s Telep. Co.,
88 M. App. 306; City of Mitchell ,v.
Dakota Cent. Telep. Co., 25 S. Dak.
409, 127 N. W. 582.

Conditions in franchises— As to
the validity and effect of conditions
annexed to franchises, see §§ 222—
239.
Contracts ror Evectricat Service. 173

CHAPTER VI.

CONTRACTS FOR ELECTRICAL SERVICE.

SEcTIon 112. In General.
113. Monopolistie Contracts.
114. Meter Rate.
115. Ascertainment of Amount of Current Used.
116. Minimum Charge.
117. Assignability of Contract.
118. Release of Company from Liability for Negligence.
119. Recovery by Company of Compensation.
120. Recovery by Customer of Damages.
121. Recovery by Customer of Over-payment.
122. Specific Performance of Contract.
123. Injunction to Restrain Breach of Contract.
124. Municipal Lighting Contracts.

 

Sec. 112. In General.

In other chapters of this work are discussed matters
which, to a greater or lesser extent, affect the contracts that
may be entered into between an electric company and its
customer. It has been seen that, inasmuch as an electric
company is a public service corporation, it must furnish
electricity to all persons who comply with its reasonable
regulations,’ and that the service must be without discrimi-
nation as to all persons similarly situated. The public
nature of an electric company affords many limitations
upon its right to contract with proposed customers. Par-
ticularly is this true, as has been pointed out,? -with refer-
ence to the compensation to be paid for the current. An
electric company, like all other -corporations, is given the
general power to enter into contracts; and, subject to the
limitations which arise from its public nature and which
have already been pointed out, and subject also to the gen-
eral principles of the law of contracts, it may properly
enter into contracts with its proposed patrons for supply-
ing them with electricity.* It may be that a person desiring

1. § 36. pany is not usually authorized to
2. § 28. furnish current over a large area.

8. Territorial limitations—It is Hence, a contract to furnish current
to be observed that an electric com- to a particular patron may be beyond
174 Law oF ELEctrIcitTy.

current can compel the company to furnish the same with-
out an express written contract, but this does not affect a
contract entered into between the electric company and its
customer. The company is bound by a contract with its
customer and cannot afterward claim that the rate agreed
upon is too low and recover the difference between the
customary rate and the agreed rate.* But, on the other
hand, if the rate charged is discriminatory as to the cus-
tomer, he is not necessarily bound thereby, and he may,
upon discovery of the illegal discrimination, compel the
company to refund the overcharge.® ,

Municipality Having no Power to Operate Lighting
Plant.— While another chapter is devoted to the questions
arising out of municipal lighting plants,® it might be perti-
nent to say at this time that where a city or village has no
authority to operate such a plant for supplying electricity
to its inhabitants, it cannot enter into a legal contract for

such service or recover the contract price therefor.’

Contract Providing for Renewal Thereof.— Where a con-
tract for the furnishing of electric current at a stipulated

its powers, though it has general au-
thority to contract. The defense of
ultra vires, in most jurisdictions,
would not, however, avail a consumer
when sued for the current consumed
by him. The question of territorial
limitations is discussed in another
place. See § 23.

4, Lewisville Light & Water Co. v.
Lester, (Ark.) 160 S. W. 861.

Evidence.—Where the answer, by
appropriate allegations, claims that
plaintiff was negligent by reason of
a mistake in reading its meter and
that in the rendition of monthly
bills, the amount of which plaintiff
was bound to ascertain, and as to
which defendants in no manner par-
ticipated or contributed, they were
not guilty of any wrong, fraud or
deceit and should not be required to
pay for current which through plain-
tiff’s negligence or mistake had not

been charged, as defendants could not
recoup such loss, evidence tending to
show that defendants in the conduct
of their business added to the cost
of such electrical current as they be-
lieved they were using to the prices

charged for work done for their cus-

tomers is competent, and its exclu-
sion on plaintiff’s objection that it
was incompetent, irrelevant and im-
material is error. Queensboro Gas &
Elec. Co. v. Schonecke, 76 Mise.
(N. Y.) 190, 136 N. Y. Supp. 986.

5. Armour Packing Company v.
Edison Elec. Illum. Co., 115 N. Y.
App. Div. 51, 9 Am. Elect]. Cas. 855,
100 N. Y. Supp. 605; Armour & Co.
v. Edison Elec. Illum. Co., 115 N. Y.
App. Div. 57, 9 Am. Electl. Cas. 861,
100 N. Y. Supp. 609. See also, § 55.

6. §§ 125-145.

7. Rand v. Marshall, (Vt.) 78 Atl.
790.
ContRAcTs FoR HLEcTRICAL SERVICE. 175

price for a period of three years provided that the electric
company ‘‘ agrees to renew this contract at its expiration
for an additional three years ’’ should the other party to
the contract desire such renewal, it was held that the elec-
tric company was not bound to renew unless the desire of
the other party for such renewal was communicated on or
before the last day of the original term.*®

Sec. 113. Monopolistic Contracts.

As has been shown in another chapter,® the restriction
of competition between electric companies is not always
denounced by the law. Indeed, weighty reasons may be
advanced to show that the public will be benefited by a con-
_solidation or combination of competing companies. Nor
does public policy necessarily forbid a contract between
the company and customer which tends to give such com-
pany amonopoly. Thus, as explained in a subsequent sec-
tion,”® a covenant forbidding the customer to take current
from a competing company during the term of the contract
may sometimes be enforced by injunction. In the cases
adopting this doctrine, no question was raised but that the
contracts were valid. But it has been held that such a
provision in a contract is against public policy.** A con-
tract with a customer prohibiting the supply of current to
his competitors within the zone of the company’s service,
even if it were not in violation of the company’s franchise”
or express statutory enactments, would be unavailable to
secure the purposes sought, for the public nature of the
company requires it to give service to all persons without
discrimination within the district it serves."

Sec. 114. Meter Rate.
Unless the company is restrained by some provision of
its franchise or by some valid regulation of the state or of

8. Monmouth County Elec. Co. v. lic Service Commission, 163 N. Y.
Consol. Gas Co. of N. J., 83 N. J. L. App. Div. 705, 148 N. Y. Supp. 583.

531, 83 Atl. 900. 12. See Seattle Elec. Co. v. Sno-
9 § 30. qualmie Falls Power Co., 40 Wash.
10. § 123. 380, 9 Am. Electl. Cas. 531, 82 Pac.

11. People ex rel. Perceval v. Pub- 713, 1 L. R. A. (N.'S.) 1032,
18. § 36.
176 Law or JELEcTRICITY.

a municipal division thereof, it can contract with its pro-
posed customers upon either a meter rate or a ‘‘ flat ’’ rate,
provided the charge is neither discriminatory nor unrea-
sonable. ‘The company, subject to the limitations above
mentioned, may discontinue one method of service."* Where
a customer at his own request is changed from the ‘‘ flat ’’
rate system to the meter class, he cannot afterward require
the company to transfer him back to his previous rate.”

Sec. 115. Meter Rate; Ascertainment of Amount of Cur-
rent Used.

Where a consumer is to pay for electric current upon a
basis of the quantity actually consumed, some reasonable
method must be established for the estimation thereof. If
a contract for service designates an impractical or impos-
sible means of ascertaining the electrical energy consumed,
some practical and efficient means should be used to meas-
ure the current actually used, and thus carry out the inten-
tion of the parties.** The recording ‘‘ meter,’’ though sus-
ceptible of inaccuracies, furnishes a practical method of
estimating electric energy. A contract between an electric
company and its patron providing for compensation upon
the ‘‘ meter ’’ plan or at a certain rate ‘‘ as measured by
the meter ’’ presupposes that the meter will accurately
record 'the current that passes through it..7 Though the
contract reads that the customer shall pay for the current
‘‘as measured by the meter,’’ he is required to pay only
for the current he actually uses, where the entire contract
shows that such was the intention of the parties.1® The

18. New York & Queens Elec. Light
& Power Co. v. Long Island Machine

14. Horner v. Oxford Water & Elec.
Co., 153 N. Car. 535, 69 S. E. 607.

15. Mereur v. Media Elec. L., Heat
& P. Co., 19 Pa. Super. Ct. 519.

16. E. E. Souther Iron Co. v.
Laclede Power Co., 109 Mo. App. 353,
9 Am. Electl. Cas. 285, 84 S. W. 450.

17. New York & Queens Elec. Light
& Power Co. v. Long Island Machine
& Marine Construction Co., 123 N.Y.
App. Div. 552, 108 N. Y. Supp. 176.

& Marine Construction Co., 123 N. Y.
App. Div. 552, 108 N. Y. Supp. 176.

“Meter books” may be admitted
in evidence on behalf of the com-
pany to show the amount of current
used by the patron. Missouri Elec.
L. & P. Co. v. Carmody, 72 Mo. App.
534.

Amount of current a question for
Contracts ror Exzcrrican Service.

177

meter readings are prima facie correct, and the burden is
upon the party attacking them to show their inaccuracy.”
If he fails to make any inspection to detect inaccuracies in
the meter, a claim of error in the meter readings is entitled
to but little credit.” Though the customer may attack the
correctness of the particular meter used, he cannot, after
contracting for the use of a certain kind of meter to deter-

jury.—When 2, plaintiff suing on such
contract has proved that the meter
installed by it made too low a regis-
try of the current consumed, but the
defendant has shown that its ma-
chinery was incapable of consuming
the amount of current estimated by
the plaintiff, and that the deviations
in the meter might have been caused
by vibration, it is error to direct a
verdict for the plaintiff. The amount
of current actually used is a question
for the jury. New York & Queens
Electric Light & Power Co. v. Long
Island Machine & Marine Construc-
tion Co., 123 N. Y. App. Div. 552,
108 N. Y. Supp. 176. If there is no
evidence from which the jury can
estimate the current used, a nonsuit
may be granted. Lascher v. Fahn-
stock Printing Co., 221 Pa. St. 49,
69 Atl. 1118. In an action to re-
cover for one-half of the electrical
current claimed to have been supplied
to defendants, and which one-half
was not billed to them because a
mistake, for which defendants were
in no wise to blame, was made in
the reckoning of plaintiff's em-
ployees, who took monthly state-
ments from plaintiff's own meter
which would register but one-half of
the current consumed for the reason
that defendants’ motor, which was
near said meter and open to the in-
spection of plaintiff’s employees, was
a “double phase motor,” it was for
the jury to say whether the defend-
ants were supplied with more elec-

12

trical current than the amount billed
and paid for, and the direction of a
verdict for plaintiff for the amount
claimed, duly excepted to, was re-
versible error. Queensborough Gas
& Elec. Co. v Schoncke, 76 Misc.
(N. Y¥.) 190, 136 N. Y. Supp. 986.

19, Allegheny County Light Co. v.
Maloney, 62 Pittsburgh Leg. Jour.
59; Missouri Edison Elec. Co. v.
Lewis, 86 Mo. App. 612; New York &
Queens Elec. Light & Power Co. v.
Long Island Machine & Marine Con-
struction Co., 123 N. Y. App. Div.
552, 108 N. Y. Supp. 176, wherein it
was said: “In the case at bar, as
the meter establishes a prima facie
case for the plaintiff, the burden is
upon the defendant to impeach ita
veracity, and if it is able to do this
the issue is properly one for the
jury. Under the ruling of the court
there would be no redress for the
defendant if an inaccurate meter
should register a consumption calling
for an impossible payment. The stip-
ulation to pay a8 per meter presup-
poses that the meter is reliable and
correct. I do not see why the de-
fendant should be held to this inac-
curate registration and why also it
should be held to account for the
inaccurate readings of the plaintiff
continued by its own admission for
nearly three years.”

20. Seattle, etc, Ry. Co. v. Seattle-
Tacoma Power Co., 63 Wash. 639, 116
Pac, 289.
178 Law or Eectricrry.

mine the amount of the electricity consumed, assert that
the method was not a proper way to compute the compensa-
tion to be paid.” Where a contract provides for the deliv-
ery of a certain volume of electric current at the storage
plant or sub-station of the generating company at certain
prices, it will generally be construed so as to require the
purchaser to pay for such current only as is actually deliv-
ered to him, and the loss of energy from the transmission
of the current to the sub-station and the passage through
the transformers will be borne by the seller.”

Sec. 116. Minimum Charge.

In the absence of a franchise provision or a governmental
regulation affecting the question, there seems to be no
objection ‘to an electric rate which is computed upon a meter
basis, but requires the payment of at least a stated amount
at regular intervals.** In other words, the ‘‘ minimum
charge ’’ finds justification in law, and a valid contract may
be entered into between an electric company and a con-
sumer requiring the payment of such charge. Under such
a contract the customer is bound to pay such minimum
charge though he consumes no current at all.* The pro-
vision requiring the payment of the minimum charge is a
part of the direct obligation of the contract, and cannot be
construed as an agreement for liquidated damages.”

Sec. 117. Assignability of Contract.

The assignability of electric lighting contracts has re-
ceived very meager attention from the judiciary. In one
litigation twice coming before an intermediate appellate
court of New York, it was held upon the first appeal,”* that

21. Seattle, ete., Ry. Co. v. Seattle-
Tacoma Power Co., 63 Wash. 639, 116
Pac. 289.

22. Whereland Elec. Co. v. Bur-
meister, 122 Minn. 110, 141 N. W.
Ttiy.

23. See § 29.

24. London Elec. Supply Corp. v.

Priddis, 18 T.-L. R. (Eng.) 64.

25. Beck v. Indianapolis Light &
Power Co., 36 Ind. App. 600, 9 Am.
Electl. Cas. 579, 76 N. E. 312.

26. Hudson River Water Power Co.
v. Glens Falls Gas & Elec. L. Co., 90
N. Y. App. Div. 513, 85 N. Y. Supp.
BT,
Contracts FoR ELECTRICAL SERVICE. 179,

the electric company, under the circumstances of the case,
was estopped from denying that the contract could be
assigned by the other party; but upon the second appeal”
it was expressly held that the contract was assignable by
the consumer. The contract in that case provided for the
furnishing of a large amount of current to a cement com-
pany, and that company assigned its right to receive the
electricity to an electric lighting company. This is a vastly
different proposition than is encountered in the ordinary
contract for lighting a building or furnishing current for
an electric motor, but no reason is apparent why a contract
involving a lesser supply of current would not also be
assignable by the customer. Statutory provisions some-
times prohibit the assignment of contracts for public light-
ing.” Apparently no decision has been reported passing
upon the question whether an electric company can transfer
its rights in a contract to furnish electrical energy. The
law permits in many cases the consolidation of electric com-
panies or their transfer to other companies. In these cases
there would seem to be no reasonable ground for denying
the assignability of such incidental rights as the right to
fulfill an ordinary electric contract. If the legislature has
granted to electric companies the right to consolidate or
to sell their businesses, the power to assign their lighting
contract is necessarily implied. There are, of course, some
limitations upon the power of an electric company to assign
its contracts. For example, an electric company cannot
so dispose of its obligation to serve the public that it goes
out of business and there is no responsible substitute to
carry out its contracts.”

Electric Installation — A contract to install electric fix-
tures in a building, as to its assignability, presents a differ-
ent situation than a contract to furnish electricity for the
subsequent illumination of such fixtures. The installation
of such appliances has been held to involve a personal

27. Hudson River Water Power Co. 28. Suburban Elec. L. Co. v. Town
v. Glens Falls Portland Cement Co., of Hempstead, 38 App. Div. 355, 56
107 N. Y. App. Div. 548, 95 N. Y. N. Y. Supp. 443.

Supp. 421. 29. See § 38.
180 Law oF HEectaicrry.
service or liability which cannot be transferred by a person
who has contracted to do the work.”

Sec. 118. Release of Company from Liability for Negli-
gence.

An examination of the authorities will disclose a con-
siderable diversity of view as to when a company may be
released from negligence by stipulations in an executory
contract. At this point, the only question along this line
which arises is the exemption from liability for injuries to
a consumer. Stated in somewhat different language, the
question is: Can the parties to a contract for the furnish-
ing of electric energy legally stipulate that the company
furnishing the current shall not be liable to the customer
for its negligence? And, if it can so stipulate, what lan-
guage is necessary? But few cases upon these questions

are available.

That they cannot stipulate against their

negligence seems to be the opinion in a few jurisdictions.*

30. Swarts v. Narragansett Elec.
L. Co., 26 R. I. 388, 59 Atl. 77, re-
hearing denied, 26 R. I. 436, 59 Atl.
111, wherein it was said: “In the
present case the court is unable to
say, a8 a matter of law to what ex-
tent the personal service of Dr.
Swarts may have been important.
The construction and installation of
electric lamps is not a matter of such
common knowledge that the court can
say how far it should, or should not,
be held to call for personal service,
but apparently the contract implies
it. Electricity is not only a subtle
but also a dangerous element, and
it would seem to call for a high de-
gree of personal skill and intelligence.
It is easy to see that personal service
or liability might be a factor in elec-
trical work, and upon such a possi-
bility contracts have been held to be
non-assignable.”

31. Denver Consol. Elec. Co. v.
Lawrence, 31 Colo. 301, 8 Am. Elect.

Cas. 617, 73 Pac. 39; Horner v. South-
ern Power Co., 154 N. Car. 131; 69
8S. E. 767, 32 L. R. A. (N. 8.)
848. “By this contract the sub-
scriber agrees to comply with all the
rules, regulations and other provi-
sions printed on the contract. On the
contract there is printed a provision
that in case the supply of light should
fail from natural causes or accident,
in any way, the company shall be lia-
ble for damages only after notice, and
then only for the abatement of rent
during such interruption; * nor shall
it be liable in any event for damage |
to person or property arising, ac-
cruing or resulting from the use of
the light.” The object of this pro-
vision is to relieve the company from
the obligation it owes to the general
public and its patrons. Stipulations
of this character cannot relieve the
company of its liability for failure to
perform its duty, and courts usually
decline to enforce them, upon the
Contracts ror ExectricaL Srrvice. 181
On the other hand, the rule in New York seems to be that
exemption from liability may be had, but the contract, in
order to have such effect, must assert the release from lia-
bility in express language.** And in that state, where a
contract for lighting a house provided that the lighting
company should not ‘‘ be liable in any event for damage
to person or property arising, accruing or resulting from
the use of the light,’’ it was held that the company was not
relieved from liability for negligence in permitting an ex-
cessive current to enter said house from its wires.®*

Inspection of Wires.— A duty is placed upon an electric
company to inspect its wires and appliances in order that
injuries may not result to innocent persons.** This duty
cannot be delegated so as to relieve the company of its
responsibility therefor. But the company may enter into
a contract with its customer so as to release itself, in so
far as injuries to the customer are concerned, from the duty
of inspecting interior wires belonging to the customer.**

Sec. 119. Recovery by Company of Compensation; in
General.

An electric company, having complied with the provisions
of its contract with a consumer, may recover from him the
compensation agreed to be paid for the electric energy fur-
nished. If the contract is upon a “ flat’’ rate, the amount
of the recovery is definitely fixed thereby. If based upon
the ‘‘ meter ’’ plan, the damages are measured by amount
of current actually used.*” In such a case the cause of
action is prima facie established by the introduction of the

ground that they are unconscionable L. & P. Co., 112 N. Y. App. Div. 698,

and in contravention of public pol-
icy.” Denver Consol. Elec. Co. v.
Lawrence, 31 Colo. 301, 8 Am. Electl.
Cas. 617, 73 Pac. 39.

32. Witmer v. Buffalo, ete., Elec.
L. & P. Co., 112 N. ¥. App. Div. 698,
9 Am. Elect]. Cas. 787, 98 N. Y.
Supp. 781; affirmed without opinion,
187 N. Y. 572, 80 N. E. 1122.

88. Witmer v. Buffalo, ete., Elec.

9 Am. Electl. Cas. 787, 98 N. Y.
Supp. 781; affirmed without opinion,
187 N. Y. 572, 80 N. E. 1122.

34. §§ 473-476,

35. § 473.

36. Brunelle v. Lowell Electric
Light Co., 188 Mass. 493, 9 Am.
Electl. Cas. 494, 74 N. E. 676. See
also, § 494.

87. § 115.
182 Law oF ELectriciry.

contract and the proof by the meter books of the quantity
of electricity consumed, leaving the burden of showing the
inaccuracy of the meter, if any, on the consumer.*

Maturity of Contract Price— Where a lessor agreed to
furnish current to the lessee of property at a specified price
per kilowatt, but not binding the lessee to take any definite
quantity of current or to.take any for a definite time, the
price for each kilowatt has been held to be due upon deliv-
ery and not at the end of the rental term.*® In reaching
this conclusion in the particular case cited upon this point,
the court was influenced by the construction placed upon
the contract by the parties, it appearing that the lessee
had made the payments before the expiration of the term.

No Current During Strike of Employees.— A contract
for electricity for lighting purposes, providing that the
electric company is not bound to furnish current during
strikes or when unable to secure employees and in other
cases expressly mentioned in the application, is not unen-
forceable by the electric company for want of mutuality.*°

Non-performance by Electric Company.—It is an ele-
mentary rule of the law of contracts that one party cannot
recover the contract price of another party if the former
has failed to perform a condition precedent which is mate-
rial to the contract purpose. This principle is, of course,
applicable to an electric company suing to recover compen-
sation for electricity furnished to another.** An examina-
tion of any general work upon ‘‘ Contracts ’’ will disclose
many exceptions to and limitations on the rule.

Accord and Satisfaction— Where a consumer is using
current under a contract providing for the payment of a

38. Missouri Edison Elec. Co. v. Supp. 421; Hudson River Power

Lewis, 86 Mo. App. 612.

89. William H. Armstrong Co. v.
Lieber (Ind. App.), 103 N. E. 19.

40. Klosterman v. United Elec. L.
& P. Co., 101 Md. 29, 9 Am. Electl.
Cas. 420, 60 Atl. 251.

41. Hudson River Water Power Co.
v. Glens Falls Portland Cement Co.,
107 N. Y. App. Div. 548, 95 N. Y.

Transmission Co. v. United Traction
Co., 98 N. Y. App. Div. 568, 9 Am.
Electl. Cas. 227, 91 N. Y. Supp. 179;
Seattle, R. & 8. Ry. Co. v. Seattle-
Tacoma Power Co., 63 Wash. 639, 116
Pac. 289; Kaukauna Elec. L. Co. v.
City of Kaukauna, 114 Wis. 327, 8
Am. Elect]. Cas. 348, 89 N. W. 542.
Contracts ror ELectricaL Service. 183

minimum charge per month, the payment by the consumer
and the receipt by the company of such minimum charge
is not necessarily an accord and satisfaction so as to bar
the company from compelling the patron to pay the com-
pensation required by the meter readings for those months
when such readings exceeded the minimum charge. There
is no accord and satisfaction, though the consumer with
each monthly remittance sends a statement that the pay-
ment is in full, where the electric company notifies the cus-
tomer that the payments are accepted only on account and
the company offers to adjust controversies which have
arisen between the parties as to the amount to be paid.
Nor does an accord and satisfaction bar the remedy of the
consumer seeking to recover a discriminatory overcharge
by the company, where the payments: which he made were
occasioned by a mistake of fact.*

Sec. 120. Recovery by Customer of Damages.

In another section,** the remedy by way of damages sus-
tained by an applicant for service who is not permitted by
the company to become a customer, is discussed. An exam-

42. Seattle, R. & S. Ry. Co. v. Seat-
tle-Tacoma Power Co., 63 Wash. 639,
116 Pac. 289, wherein the court said:
“The case before us is devoid of all
these essentials. It was the payment
of a confessed and undisputed ac-
count stated. It was not intended
nor received as a liquidation or settle-
ment of the dispute. There was no
agreement, nor anything that could
be implied as an agreement on the
part of the Power Company, in ac-
cepting what was its liquidated ac-
count. Neither was the payment of
the liquidated account a tender upon
the unliquidated account, for it re-
quired the whole amount to satsify
the liquidated debt, and there was
nothing left to operate as a consid-
eration for any accord and satisfac-
tion of the unliquidated debt. It
may be safely asserted that, under-

lying all application of the rule of
accord and satisfaction, in cases of
both liquidated and unliquidated ac-
counts, where the creditor is abso-
lutely and in any event entitled to
receive a definite and fixed sum, but
claims an additional sum to be his
due, which additional sum only is
disputed by the debtor, the payment
by the debtor of the definite and
fixed debt and its acceptance by the
creditor, though tendered as payment
in full, will not constitute an ac-
cord and satisfaction.”

43. Armour Packing Co. v. Edison
Elec. Illum. Co., 115 N. Y. App. Div.
51, 9 Am. Electl. Cas. 855, 100 N. Y.
Supp. 605; Armour & Co. v. Edison
Electric Illuminating Co., 115 N. Y.
App. Div. 57, 9 Am. Electl. Cas. 861,
100 N. Y. Supp. 609.

44, § 54.
184 Law oF ELECTRICITY.

imation of such section will disclose that the applicant may
recover the actual damages sustained, although statutory
provisions give him a remedy for a penalty. If a person
not having a contract can recover damages, a fortiori is a
consumer entitled to damages when the company has vio-
lated its express contract to furnish electric energy.** If
an electric company in violation of its contract refuses to
deliver electric power, in order that the resulting damages
may be minimized, it is the duty of the customer, if it is
reasonably practicable so to do, to procure current from

another source.*

45. Terrace Water Co. v. San An-
tonio L. & P. Co., 1 Cal. App. 511, 9
Am. Electl. Cas. 505, 82 Pac. 562;
Kimball Bros. Co. v. Citizens Gas &
Elec. Co., 141 Iowa 632, 118 N. W.
891; Morris v. Loughborough Corp.
(1908), 1 K. B. (Eng.) 205, 77 L. J.
K. B. 91, 99 L. T. 269, 71 J. P. 521,
6 L. G. R. 55. See also, Stone v.
Schenectady Railway Co., 99 N. Y.
App. Div. 44, 9 Am, Electl. Cas. 225,
90 N. Y. Supp. 742.

Damages where landlord agrees to
furnish current to tenant.— Plaintiff
cannot recover special damages for a
breach of the contract to furnish
power, when he does not allege spe-
cial facts removing the case from
the general rule that the measure of
damages in such case is the difference
between the rental value of the prem-
ises with the power contracted for,
and their rental value with the power
furnished. Kienle v. Fred Gretsch
Realty Co., 133 N. Y. App. Div. 391,
117 N. Y. Supp. 500.

Breach of contract to furnish cur-
rent to run motor to its warranted
capacity In an actio:u to recover
damages for the breach of a contract
to furnish sufficient electrical current
to operate a motor to its warranted
capacity, it was held that the defend-
ants’ obligation was measured by the
warranted capacity of the motor, and
not the amount which by actual ex-

The company, in some cases, may, where

periment it might be found able to
endure. Wofford & Rathbone v.
Buckel P. & Irrigation Co., 35 Tex.
Civ. App. 531, 9 Am. Electl. Cas. 91,
80 S. W. 1078.

Evidence in action for damages.—
Where, in an action for the breach of
a contract to furnish electric power
to run an elevator, the defendant
claimed that the trouble was with the
plaintifi’s motor, it is proper to ad-
mit in evidence the results of a test
of this motor made by the defendant
at its factory under similar condi-
tions. Evidence of an electrical .en-
gineer as to the general inadapt-
ability of the defendant’s current to
plaintiffs motor should also be re-
ceived. Kimball Bros. Co. v. Citi-
zens’ Gas & Elec. Co., 141 Iowa 632,
118 N. W. 891.

Estoppel.— Where the vendor of
electric power voluntarily and wrong-
fully puts an end to a contract and
prevents the other party from per-
forming it, he is estopped from deny-
ing that the injured party has not
been damaged to the extent of his
actual loss, and his outlay fairly
incurred. Terrace Water Co. v. San
Antonio L. & P. Co., 1 Cal. App. 511,
9 Am. Elect]. Cas. 505, 82 Pac. 562.

46. Kimball Bros. Co. v. Citizens’
Gas & Electric Co., 141 Iowa 632, 118
N. W. 891.

Damages.—-In an action for a
Contracts ror EuecrricaL Service. 185
it wrongfully discontinues the service, be liable on the
ground of trespass. Thus, where an employee of the com-
pany obtained an entrance to the customer’s apartment
for the pretended purpose of inspecting the meter and
wrongfully turned off the current without the consent of
the customer, who, at the time, had paid his bill in full, it
was held that the act of the employee constituted a trespass
for which the company was liable.*”

Sec. 121. Recovery by Customer of Over-payment.

A person voluntarily making a payment with full knowl-
edge of the facts cannot, as a general proposition, subse-
quently recover any portion of such payment, though a
timely objection might have saved him a portion thereof.
This statement of the general rule indicates on its face
that a recovery may be had where the payment is made
under a material mistake of fact. Applying the general
doctrine to cases where an electric customer seeks to re-
cover an overcharge from the company, it is clear that the
patron can succeed where at the time of the payment he
had no knowledge ‘that he was the victim of an unjust dis-
crimination; in such a case the payment may be deemed
as made under a mistake of fact.** Likewise. an over-

breach of contract to sell and deliver
electric power the minimum of dam-
ages must of necessity be the pro-
curement from another of that which
the defaulting party failed to deliver.
Terrace Water Co. v. San Antonio L.
& P. Co., 1 Cal. App. 511, 9 Am.
Elect]. Cas. 505, 82 Pac. 562.

47. Olin v. United Elec. L. & P.
Co., 82 Misc. (N. Y.) 427.

48. Armour Packing Co. v. Edison
Elec. Tllum. Co., 115 N. Y. App. Div.
51, 9 Am. Elect]. Cas. 855, 100 N. Y.
Supp. 605; Armour & Co. v. Edison
Electric Illuminating Co., 115 N. Y.
App. Div. 57, 9 Am. Elect]. Cas. 861,
100 N. Y. Supp. 609.

A complaint which alleges in sub-
stance that such company furnish-

ing electricity to the plaintiff unlaw-
fully and unjustly discriminated
against plaintiff by charging other
persons a less rate for the same serv-

‘ice under similar conditions, and that

the payments made by the plaintiff
were made after notice or knowledge
that others were receiving more fa-
vorable rates, etc., states a cause of
action to recover the excess paid.
Under such circumstances a recovery
is not barred on the theory that the
payments made by the plaintiff were
voluntary, for as the plaintiff had no
knowledge of the discrimination, such
payments were made under mistake
as to material fact. A separate de-
fense which alleges that said pay-
ments were made by the plaintiff pur-
186 Law oF ELecrRIcity.

payment made under a mistake as to the time the contract
went into force may be recovered. The other branch of
the general rule is equally applicable to contracts for elec-
tric service. Where the consumer with full knowledge of
all the material facts voluntarily makes a payment to the
company for the service, he must not expect to recover any
portion thereof, though the payment is more than the
amount to which the company is legally entitled.*° Nor in
such a case can the patron offset the over-payment against
sums subsequently due for current.™

Sec. 122. Specific Performance of Contract.

Where an electric company in violation of its obligations
fails to furnish electric current to a consumer, the latter
usually has an adequate remedy. It is not necessary that
he have specific performance of the contract or injunction to
prevent its breach. Irrespective of the contract, he can
generally compel the company to furnish service by man-
damus proceedings.” But in a case where the consumer
is a public service corporation such as a street railway
company and is entitled under its contract to an immense
amount of current, a different situation arises, and the
usual remedies might prove inadequate. In such a case
the street railway company can maintain an action of
specific performance against the electric company to com-
pel the latter to supply the current as provided by the con-
tract. Such a contract may be specifically performed

suant to a specific contract fixing the
rate does not state a defense and is
subject to demurrer. Armour Pack-
ing Co. v. Edison Elec. Dlum. Co.,
115 N. Y. App. Div. 51, 9 Am. Electl.

117 N. Y. Supp. 15; Kienle v. Fred
Gretsch Realty Co., 1833 N. Y. App.
Div. 391; 117 N. Y. Supp. 500; Eas-
ton Power Co. v. Sterlingworth Ry.
Supply Co., 22 Pa. Super Ct. 538.

Cas. 855, 100 N. Y. Supp. 605.

49. Hudson River Water Power Co.
v. Glens Falls Portland Cement Co.,
107 N. Y. App. Div. 548, 95 N. Y.
Supp. 421.

50. Payne v. Witherbee, Sherman
& Co., 200 N. Y. 572, 93 N. E. 954;
modifying 132 N. Y. App. Div. 579,

51. Easten Power Co. v. Sterling-
worth Ry. Supply Co., 22 Pa. Super.
Ct. 538.

52. § 52.

53. Seattle Eleo. Co. v. Snoquamle
Falls Power Co., 40 Wash. 380, 9 Am.
Elect]. Cas. 531, 82 Pac. 713, 1 L. R.
A. (N. 8.) 10382.
Contracts ror Exuectrican SERVICE. 187

though a stipulation thereof provides that the company
shall not furnish electricity to any other company in com-
petition, and such provision is contrary to the franchise of
the electric company. <A contract between a power com-
pany and a cement company for the furnishing of power
to the latter, which contract was assigned by the cement
company to an electric company, cannot be specifically
enforced by the electric company where it has not procured
a guaranty of its apparatus as required by the contract.”

Sec. 123. Injunction to Restrain Breach of Contract.

‘The reasons which permit a large enterprise, such as a
street railway company, to maintain an action for the
specific performance of a contract for a supply of power
authorize injunctive relief in case the power company
threatens to violate its contract and stop the supply of cur-
rent.” Thus, where a city had entered into a contract with
a street railway company whereby it had agreed to furnish
the company power for the operation of its cars, and the
contract was one which the municipality had power to
make, it was held that the company could prosecute a suit
to enjoin the city from carrying into effect a resolution of
the common council whereby it declared its purpose to dis-

54, Seattle Elec. Co. v. Snoqualmie
Falls Power Co., 40 Wash. 380, 9 Am.
Elect]. Cas. 531, 82 Pac. 713, 1 L. R.
A. (N. 8S.) 1032, wherein the court
said: “Conceding that the power
was necessary, there can be no seri-
ous dispute over the question of law
involved. While courts of equity
will not enforce contracts entered
into either in violation of positive
law or a rule of public policy where
the interests of the parties thereto
are alone involved, yet when the pub-
lic interests are involved, it will en-
force such a contract as long as such
public interest requires it. It would
have been greater wrong than any
to which the appellants confessed to
have permitted them arbitrarily and

without warning to stop from opera-
tion the street car and lighting sys-
tems of the city of Seattle, especially
when the only justification offered for
it is a former wilful violation of their
franchise privileges. Neither courts
of law nor equity will lend counte-
nance to a plea so utterly without
justification.” :

55. Hudson River Water Power Co.
v. Glens Falls Portland Cement Co.,
107 N. Y. App. Div. 548, 95 N. Y.
Supp. 421.

56. § 122.

57. Riverside, ete., Ry. Co. v. City
of Riverside, 118 Fed. 736.

58. Riverside, etc., Ry. Co. v. City
of Riverside, 118 Fed. 736.
188 Law or ELecrriciry.

continue the supply of current to the company. But an
injunction will not generally be granted on behalf of a
private person or corporation using only a limited amount
of current. In such a case an adequate remedy at law is
usually afforded the customer.

Restraining Breach by Customer.— Where a street rail-
way company has entered into a contract with an electric
company, whereby it agrees to purchase of the latter the
power for the operation of its system for a term of years
at stated prices, a breach of the contract by the railway
might, and generally would, cause irreparable damages to
the electric company, and a threatened breach may be re-
strained by injunction. This rule places the electric com-
pany upon the same basis as the street railway company
in so far as the enforcement of the contract by injunction
is concerned. Hither, by showing the probable accrual of
irreparable damages, may enjoin a threatened violation of
the contract by the other. The right of the electric com-
pany to prevent a breach of a contract by a customer utiliz-
ing but a small current is not so clear. But in England™
and in at least one jurisdiction in this country,” it has been

59. Kienle v. Fred Gretsch Realty
Co., 133 N. ¥. App. Div. 391, 117
N. Y. Supp. 500.

60. Montgomery L. & P. Co. v.
Montgomery Tract. Co., 191 Fed. 657,
wherein it was said: “Under the
authorities and in the light of rea-
son, the court has no doubt of its
jurisdiction to prevent the irrepa-
rable injury threatened by defend-
ant’s arbitrary refusal to receive the
electric current, and that it is doing
its duty to do so in the present
posture of the case, to the extent of
enjoining the defendant from refus-
ing to receive the electric current
until it has been judicially ascer-
tained, by some tribunal, either in
this court by the taking of proof or
by judgment in some other court,
that the defendant has the right to
treat the contract as abrogated, be-

cause complainant has not performed
it. If the court refuses to grant
relief to that extent, and allows re-

.spondent to breach the. contract,

pending a dispute as to the right to
do so, the complainant will suffer
irreparable injury, if the contract is
breached. On the other hand, if the
respondent has the right to breach
the contract, it will not suffer any
irreparable injury by being prevented
from refusing to take the current
from the complainant until its right
to do so has been ascertained.”

61. Metropolitan Elec. Supply Co.
v. Ginder, (1901) 2 Ch. 799, 70 L. J.
Ch. 862, 84 L. T. 818, 49 W. R. 508,
65 J. P. 519, 17 T. L. R. 435.

62. Beck v. Indianapolis Light &
Power Co., 36 Ind. App. 600, 9 Am.
Elect]. Cas. 579, 76 N. E. 312.

Specific performance not proper
Contracts ror ELectricaL SERVICE. 189
held that, where the customer has agreed to use no current
other than that of the complaining company, the latter is
entitled to an injunction forbidding the customer to pur-
chase electricity of a competing corporation. But in these
cases the payments to be made by the patrons were to
be computed upon the meter readings. Where the con-
tract provides for compensation entirely upon the ‘‘ con-
tract’ or ‘‘ flat’’ rate, without reference to the amount
of current used by the customer, his refusal to use the
current is no ground for injunction or for specific perform-
ance of the contract. In such a case the company has a
complete remedy at law, for it can recover the contract
price of the customer.** Very different is the situation
when the customer agrees to pay for the current upon the
“meter ’’? system. Under that form of contract the deter-
mination of the amount of energy ‘which the customer will
use is purely a speculation, and it may then be argued with
considerable force that the company has no adequate rem-
edy if a violation of the contract is permitted.

Unreasonable Rule of Company.— It has been held that
a rule of an electric company forbidding its customers to
use other lights is unreasonable as tending to create a
monopoly and will not be enforced.’ But a contract
between an electric company and its customer forbidding

remedy.— In Beck v. Indianapolis L.
& P. Co., 36 Ind. App. 600, 9 Am.
Elect]. Cas. 579, 76 N. E. 312, it was
held that where a customer had con-
tracted with an electric company for
electric current and agreed not to
use any electricity except the com-
pany’s for five years, an injunction
to prevent a breach of such a cove-
nant may be granted, though the
courts cannot decree specific perform-
ance of the contract.

63. Contra, People ex rel. Perceval
v. Public Service Commission, 163
N. Y. App. Div. 705, 148 N. Y. Supp.
583.

64. Wabaska Elec. Co. v. City of
Wymore, 60 Neb. 199, 82 N. W. 626.

65. Nacogdoches L. & P. Co. v.

Thomas & Richardson, (Tex. Civ.
App.) 138 S.-W. 1080, wherein the
court said: “The effect of such a
rule, if enforced, can easily be seen.
The tendency would be to drive one
or the other of the systems out of
business, and to give the one remain-
ing a monopoly of the business, If
appellant had the right to impose
this condition as to the use of gas,
it would have equally the right to
impose it as to the use of kerosene
lamps or candles, and thus compel
all of its customers to use its lights
alone, or do without its service en-
tirely. Such a rule or regulation is
on its face unreasonable and could
not be enforced.”
190 Law oF HILECTRICITY.

the customer to use electric light of another company has
been sustained.®

Sec. 124. Municipal Lighting Contracts.

Questions pertaining to the validity, construction, and
effect of contracts between a municipal corporation and an
electric company whereby the latter agrees to furnish to
the former current for street lighting or other purposes,
present, as a general rule, different questions than are
involved in the usual contract for electric current. For
this reason, it is deemed advisable to devote a chapter solely
to municipal contracts.’ In still another chapter will be
discussed the municipal ownership of electric plants for the
service of its inhabitants or for its own use in the lighting
of streets or of municipal buildings.®

66. See §§ 30, 113. 68. §§ 146-172.
67. §§ 125-145.
Mounicrean Lightine Conrracts. 191

CHAPTER VII.

MUNICIPAL LIGHTING CONTRACTS.
SECTION 125. Scope of Chapter.
126. Discretion as to Lighting Streets.
127. Contract an Exercise of Proprietary, Not Governmental, Powers.
128. Power of Municipality to Make.
129, ——— Annexation of Municipality to City.
130. Validity of Contract.
131. Compliance with Formalities; In General.

 

132. ——Who May Make Contract on Behalf of Municipality.
133. —— Municipal Officer Interested in Electric Company.
134. —— Submission to Vote of Inhabitants.

135. Award of Contract to Lowest Bidder.

136. Debt Limit.

137. Duration of Contract; Absence of Statutory Restriction.
138. —— Statutory Limitation upon Period.

139. Beyond Term of Officers Executing Contract.

140. Exclusiveness.

141. Implied Contracts.

142. Special Assessments for Street Lighting.

143. Remedy of Company.

144. Defenses of Municipality.

145. Taxpayers’ Action.

 

Sec. 125. Scope of Chapter.

In another chapter,’ is discussed, in a general way, the
law of contracts between an electric company and its cus-
tomers who wish electrical energy for light, heat, or power
purposes. An examination of the cases cited in that chap-
ter discloses that most of the litigations concerning electric
contracts have arisen in regard to contracts which provide
for the supply of an unusually large amount of electricity,
such as the power for running a manufactory, or the cur-
rent used as the motive force for a street railway system.
The tendency of the cases to involve this class of contracts
is, no doubt, the result of the small sums involved in the
contract with the average patron. In this chapter is con-
sidered a class of electric contracts involving sums in con-
troversy as large as the contracts which have been dis-
cussed. But, though the litigations are similar as to the

1. §§ 112-124.
"192 Law or Evecrricrry.

amount in controversy, they are dissimilar as to the nature
of the legal propositions presented. ‘The circumstance
that one of the parties to a contract for the lighting of
streets or public buildings is a municipal corporation,
presents a situation to be distinguished from that involved
in other contracts. The power of a city or village to con-
tract for a supply of electric current, the validity of the
particular contract, the authority of the municipal officers,
the performance of statutory requirements pertaining to
the conduct of the public business, the mode of payment
for current furnished, the effect of debt limit restrictions —
these, and many other problems, are especially present in
suits over street lighting contracts. We are no longer, as
a general proposition, to be guided by the general principles
of the law of contracts. Now we are to follow the rules of
the law of municipal corporations. But outside of the con-
siderations arising from the municipal character of one
of the contracting parties, a contract for the lighting of
municipal streets or highways is not unlike other electrical
contracts involving the sale of an equally large amount of
current.’

Municipal Ownership of Electric Plant.— Not all the con-
nection between the law of municipal corporations and the
law of electricity is discussed in this chapter. The treat-
ment of questions pertaining to the municipal ownership
of electric plants is left for a subsequent chapter.’

Sec. 126. Discretion as to Lighting Streets.

Municipalities are subservient to the constitution and
legislative acts of the state. Thus, the state may require a
municipal corporation to light its streets, and may desig-
nate the particular kind of light, such as gas, electricity or
other light. But where the state has not specifically
imposed a duty upon a municipal division as to-the manner
of lighting its streets, it has discretionary powers. Indeed,

2. Frederick v. People, 83 Ill. App. Falls Elec. & Water Co. v. City of

89; Reed v. City of Anoka, 85 Minn. Little Falls, 102 Fed. 663.
294, 88 N. W. 981. See also, Little 3. §§ 146-172.
Mounicipau Ligntine Contracts. 193
it is thought that the corporation, unless restricted by
statutory provisions in its discretion, may decline to light
its streets at all and choose to remain in darkness. It is
useless, however, to state that in the present age munici-
palities are not known to refuse absolutely to light their
streets.‘ If for no other reason, the liability, which would
arise from accidents upon its highways, as a practical
proposition, compels a city or village to furnish some light
for travelers.’ The discretion of the municipal corporation
extends also to the mode and extent of the lighting. It may
follow the custom which now seems ancient of lighting with
kerosene lamps; it may use illuminating gas; or, as is gen-
erally the case (at least outside of the natural gas regions),
it may use electricity for lighting. As was said by a judge
in Alabama,° ‘‘ Municipal corporations have the inherent
power to light their streets and public buildings. This
power is essential to their declared object and purposes;
and, having this power and authority, it is a matter of dis-
cretion and expediency as to how they will light them —
whether by pine knots, candles, lamps, natural, or artificial
gas, gasoline, acetylene, or electricity.’’ Hxtensively, its
discretion is still greater. The number, size, brilliancy,
and particular location of the lights is a matter peculiarly

Failure of electric company to fur-
nish light.— Where a traveler is in-
jured by falling into an excavation
in a municipal street, it is no de-
fense, in an action against the mu-

4, See Santa Rosa Lighting Co. v.
Woodward, 119 Cal. 30, 50 Pac. 1025.
5. “The city authorities were
bound not to allow such a condition
of things to obtain that the streets

became, so to speak, public nuisances,
which they would be if they remained
unlighted. If the streets were to
remain in darkness the city would
be liable for any and all damages
which might be sustained because of
the want of light. This condition of
things the authorities having charge
of this branch of the city govern-
ment were bound to avoid.” Per Van
Brunt, J., North River Elec. L. & P.
Co. v. City of New York, 48 N. Y.
App. Div. 14, 62 N. Y. Supp. 726.

13

nicipality for the injuries sustained,
that it had contracted with an elec-
tric light company for a street light
at the place of the accident, and that
the proximate cause of the injury
was the neglect of the company to
light the street in accordance with
the contract. City Council of Mont-
gomery v. Hahe, 148 Ala, 194, 40
So. 665.

6. Darby v. City of Union Springs,
173 Ala. 709, 55 So. 889.
194 Law or ELeEctricrty.

within the discretion of the municipal authorities.’ In the
absence of bad faith, the acts of a municipality in its light-
ing discretion will not generally be interfered with by the
judiciary.*

Sec. 127. Contract an Exercise of Proprietary, Not Gov-
ernmental, Powers.

The powers and duties of municipal corporations are
divided into two classes,—those which are governmental
and those which are non-governmental. The former are
sometimes termed ‘‘ legislative powers,’’ and the latter are
frequently called ‘‘ proprietary ’’ or ‘‘ business ’’ powers.
Street lighting belongs to this latter class.° The officers of
the city when acting under its legislative powers cannot
circumscribe the legislative powers of their successors
and deprive them of the unrestricted exercise of such
powers. Thus, if a street lighting contract were deemed
to be entered into under such powers, it could not extend
for a period longer than the terms of the office of the per-
sons making the same on behalf of the municipality; but,

7. Reed v. City of Anoka, 85 Minn.
294, 88 N. W. 981.

8. McMaster v. City of Waynes-
boro, 122 Ga. 231, 50 8. E. 122. The
authority given to municipalities to
make contracts for street lighting
confers large discretionary powers
upon the local authorities, with the
exercise of which the courts will not
interfere unless clearly abused or un-
less the contract is unreasonable, in-
equitable, and unfair. Reed v. City
of Anoka, 85 Minn. 294, 88 N. W.
981.

The business affairs of a munici-
pality are committed to the corpo-
rate authorities, and the courts will
not interfere except in a clear case
of mismanagement or fraud. Me-
Master v. City of Waynesboro, 122
Ga. 231, 50 8. E. 122.

9. Pikes Peak Power Co. v. City of
Colorado Springs, 105 Fed. 1, 44 C.

C. A. 333; City of Denver v. Hub-
bard, 17 Colo. App. 346, 8 Am. Electl.
Cas. 291, 68 Pac. 993; .Town of Gos-
port v Pritchard, 156 Ind. 400, 59
N. E. 1058; Reed v. City of Anoka,
85 Minn. 294, 88 N. W. 981; Seitz-
inger v. Tamaqua, 187 Pa. St. 539,
41 Atl. 454, 43 W. N. C. 236, 29
Pittsb. L. Jour. (N. S.) 215. Com-
pare State ex rel. People’s Land &
Mig. Co. v. Holt, 132 Wis. 131, 9
Am. Electl. Cas. 1076, 111 N. W.
1106.

“Contracts on the part of a mu-
nicipality for the supply to the
municipality and to its citizens of
water and light are not made in the
exercise of the governmental powers
vested in the municipal council, but
of its proprietary or business
powers.” Little Falls Elec. & Water
Co. v. City of Little Falls, 102 Fed.
663.
Municieau Licutine Contracts. 195
the power being a business one, the officers of the munici-
pality may make a contract which, if otherwise valid, will
bind their successors. The distinction between the two
classes of powers is not so important in contract matters
of the municipality as it is in determining its liability for
torts. Owing to the rule that municipalities are not liable
for the negligence of their employees when engaged in
‘‘ governmental ’’ duties, this distinction is especially
important in cases where the liability of the municipality
for injuries arising out of the operation of a municipal
electric plant is in issue.™

Sec. 128. Power of Municipality to Make.

While the lawmaking body is the source of all the powers
of a municipal corporation, it is not always essential that
its powers be conferred by express language. The power
to light its streets is one which, if not given in express lan-
guage, is necessarily implied. Indeed, the power has been
said to be one of the inherent powers of every municipal
corporation.” Thus, it may be stated as a general rule
that a municipal corporation has the power to light its
streets; and, having this power, the mode of its exercise is
largely within its discretion, and it may contract with an
electric company for light by means of electricity.* In

10. City of Denver v. Hubbard, 17
Colo. App. 346, 8 Am. Electl. Cas.
291, 68 Pac. 993.

Duration of contract.— As to the
duration of municipal lighting con-
tracts, see §§ 137-139.

Georgia.— McMaster v. City of
Waynesboro, 122 Ga. 231, 50 S. E.
122.

Indiana— Town of Gosport
Pritchard, 156 Ind. 400, 59 N.
1058.

fs

11. See §§ 425-427.

12. Darby v. City of Union Springs,
173 Ala. 709, 55 So. 889.

18. United States— Anoka Water-
works Elec. L. & P. Co. v. City of
Anoka, 109 Fed. 580.

Alabama.— Darby v. City of Union
Springs, 173 Ala. 709, 55 So. 889.

Colorado.— City of Denver v. Hub-
bard, 17% Colo. App. 346, 8 Am.
Electl. Cas, 291, 68 Pac. 993.

Iowa.— Davenport Gas & Elec. Co.
v. City of Davenport, 124 Iowa 22,
9 Am. Electl. Cas. 72, 98 N. W. 892.

Kentucky.— Newport v. Newport
Light Co., 89 Ky. 454, 1 8. W. 394;
appealed, 151 U. S. 527.

Michigan— Howell Elec. L. & P.
Co. v. Village of Howell, 132 Mich.
117, 8 Am. Electl. Cas. 363, 92 N. W.
940, 9 Det. Leg. N. 544; Belding Land
& Imp. Co. v. City of Belding, 128
196 Law or Eecrricrry.

the absence of unusual circumstances, the power to contract
for electric light is not exhausted by one exercise thereof,
and further contracts may be made.’* Nor, in every case,
is a municipality prohibited from entering into a contract
because the voters have authorized an increase of indebt-
edness for building a municipal plant.** The fact that a
gas or an oil lighting equipment already owned may be
rendered useless and valueless is not sufficient to authorize
a court to enjoin the city from making a contract to have
the streets lighted by electricity.° Nor does the fact that
the city has granted an exclusive privilege to a gas com-
pany of lighting a city with gas, deprive the city of the
power to contract with an electric light company for elec-

tric lighting.”

Mich. 79, 87 N. W. 113, 8 Det. Leg.
N. 537; Putman v. Grand Rapids,
58 Mich. 416, 25 N. W. 330.

Minnesota.—Reed v. City of Anoka,
85 Minn. 294, 88 N. W. 981.

Mississippi— Reid v Trowbridge,
78 Miss. 542, 8 Am. Electl. Cas. 363,
29 So. 167.

New Hampshire— Blood v. Man-
chester Elec. L. Co., 68 N. H. 340,
39 Atl. 335.

New Jersey.— Mason v. Cranbury
Township, 68 N. J. L. 149, 8 Am,
Elect]. Cas. 365, 52 Atl. 568.

Pennsylvania.— Muncy Electric
Light, Heat & Power Co. v. People’s
Electric Light, Heat & Power Co.,
218 Pa. St. 636, 67 Atl. 956; Seitz-
inger v. Borough of Tamaqua, 187
Pa. St. 539, 41 Atl 454, 48 W. N.C.
236, 29 Pittsb. L. Jour. (N. 8.) 215;
Edison Elec. Illum. Co. v. Jacobs, 8
Kulp (Pa.) 120.

Washington— Townsend Gas &
Elee. Co. v. City of Port Townsend,
19 Wash. 407, 53 Pac. 551.

“The lighting of public streets is
public busines, and towns are ex-
pressly empowered to vote money for
that purpose. P. S., c. 40, § 4. No
limitation is put upon this power in

reference to the lighting of streets
that does not pertain to it in refer-
ence to other subjects. A town has
as complete power to contract for
lighting its streets as for building
its highways or other public works.
The only limitation is the general
one that the contract shall be * nec-
essary and convenient’ for the trans-
action of the town’s business. This
is simply a declaration of the com-
mon law applicable to all corpora-
tions, public as well as private, con-
fining their powers to contract to
those subjects which are necessary
and proper to enable them to fulfill
the object of their incorporation.”
Blood v. Manchester Elec. L. Co., 68
N. H. 340, 39 Atl. 335,

14, Bronx Gas & Elec. Co. v. City
of New York, 17 Mise. (N. Y.) 433,
41 N. Y. Supp. 358.

15. Seitzinger v. Borough of Tama-
qua, 187 Pa. St. 539, 41 Atl. 454, 29
Pittsb. Leg. J. (N. 8.) 215, 43 W. N.
C. 236,

16. McMaster v. City of Waynes-
boro, 122 Ga. 231, 50 S. E. 122.

17. Parkersburg Gas Co. v. City of
Parkersburg, 30 W. Va. 435, 4 S. E.
650.
Mounicreau Licutine Contracts. 197

Contract with Individual— A municipality, unless re-
stricted by its charter or other legislative enactment, may
contract with an individual for a supply of electric current."

Alternative Right to Operate Municipal Plant.—A munici-
pal corporation may be authorized in its discretion either
to construct and operate a municipal lighting plant’ or to
contract with a lighting company for a supply of light. In
such a case, though the provision be deemed void as to the
municipal plant, it may be sustained so that it will empower
the local authorities to contract with an electric lighting
company for street lighting.”

Contract Involving a Franchise— Not every contract
between a municipality and an electric company, whereby
the latter agrees to furnish electric current for the former,
contemplates merely the furnishing of light for the illumi-
nation of streets and public buildings. The first contract
between such parties frequently involves other rights. It
may grant a franchise to‘the electric company for the use
of the municipal streets and highways. It may be said that
the entering into of a contract for municipal lighting gives
to the electric company a franchise to use the streets and
highways of the municipal corporation to such an extent
as is necessary to enable the company to fulfill its con-
tract.”" But the contract may go further; it may by express
words give the company the right to erect its poles and
wires in the public places in order that it may furnish elec-
tric energy to private consumers.” Such a provision is an

18. Reed v. City of Anoka, 85
Minn. 294, 88 N. W. 981; Citizens
Elec. L. & P. Co. v. Sands, 95 Mich.
551, 4 Am. Electl. Cas. 58, 55 N. W.
452, 20 L. R. A. 411.

19. See §§ 146-172.

20. Belding Land & Imp. Co. v.
City of Belding,’ 128 Mich. 79, 87
N. W. 113, 8 Det. Leg. N. 537%

21. Expiration of contract.—Where
an electric company has contracted
with a municipality to furnish elec-
tricity for street lights, upon the
expiration of the contract, it has no
easement or franchise in the streets,

and may be compelled to remove its
poles and wires therefrom, though it
furnished light to private persons
during the term of the contract with-
out protest from the municipality.
Horner v. City of Eaton Rapids, 122
Mich. 117, 80 N. W. 1012, 6 Det. Leg.
N. 665.

22. Nelson v. City of Murfressboro,
179 Fed. 905; Anoka Waterworks
Elec. L. & P. Co. v. City of Anoka,
109 Fed. 580; Little Falls Elec. &
Water Co. v. City of Little Falls,
102 Fed. 663.

!
198 Law or ELecrriciry.

electric franchise, and its validity and effect is similar to
that of a franchise granted independently of a contract.”
But it is clear that, if the legislature has not delegated to
-the municipal authorities the power to grant franchises to
electric companies, such a provision would be of no force. |
In other words, the municipality cannot, under the guise
of a contract for street lighting, grant franchise rights
which statutory provisions do not authorize it to grant.*
Where an ordinance granting a franchise to an electric
company is invalid for failure to comply with statutory
formalities, a provision thereof requiring the municipality
to take and pay for a certain number of street lights cannot
be sustained.”

Contract with Promoters of Company to be Formed.—
Unless special statutory provisions require a contrary hold-
ing, there is no reason why a municipal corporation may
not contract for public lighting with the promoters of a
corporation to be thereafter organized.”

Erection of Poles and Appliances.—— When making a con-
tract for street lighting, the municipality has the right and
authority to erect and maintain poles and electric appli-
ances at. its own expense, or it may be provided in the con-
tract that they shall be erected and maintained at the
expense of the electric company.”

Sec. 129. Power of Municipality to Make; Annexation of
Municipality to City.
The annexation of territory to a municipality generally
imposes upon the latter the obligations of the district so
annexed. Thus, where a municipality has in good faith

23. Municipal franchises— For a
discussion of municipal franchises,

parts are also void, but when that
part which is void is clearly independ-

see §§ 192-243, 258-276.

24, Nelson v. City of Murfressboro,
179 Fed. 905.

25. Meyer v. Town of Boomville,
162 Ind. 165, 70 N. E. 146, wherein
it was said: “The rule is that if a
part of a statute or ordinance is
void, other essential and connected

ent, and not essentially connected with
the remainder, the latter will stand.”
26. Belding Light & Imp. Co. v.
City of Belding, 128 Mich. 79, 87
N. W. 113, 8 Det. Leg. N. 537.
27. Oakley v. City of Atlantic City,
63 N. J. L. 127, 44 Atl. 651.
Monictpau Licuitne Contracts. 199
entered into a valid contract for public light, and such
municipality is thereafter annexed to another municipality,
the latter, as a general rule, is bound to carry out the con-
tract made by the former.** The good faith of the local
authorities is a requisite to the enforcement of the contract.
Thus, when a municipality, after the enactment of a statute
annexing it to another municipal corporation and but a few
days before such statute goes into effect, enters into a
contract for street lighting for a considerable term, for
example, ten years from the date of the contract, the con-
tract will be held void on the ground that it is not an exer-
cise of good faith but is an attempt to nullify the authority
of the officials of absorbing municipality.”

Sec. 130. Validity of Contract.

The validity of a contract depends upon several different
considerations. For example, the contracting parties must
be capable of contracting; the subject matter of the con-
tract must be legal; a legal consideration must exist; the
assent of the contracting parties must be procured without
fraud or other vitiating influence; and such formalities as
are prescribed by law must be complied with by the parties.
If the contract is otherwise valid, it will not be avoided
because the municipality has given a gas company the
exclusive privilege of lighting the city with gas; or
because another company has made an offer to furnish the
light at a less price, where it appears that such company

28. Bronx Gas & Elec. Co. v. City Dillon Mun. Corp. [4th ed.] 97.) It

of New York, 17 Mise. (N. Y.) 433,
41 N. Y. Supp. 358.

29. Hendrickson v. City of New
York, 38 N. Y. App. Div. 480, 56
N. Y. Supp. 580; affirmed, 160 N. Y.
144, 54 N. E. 680, wherein the court
said: “Municipal corporations ‘may
make authorized contracts, but they
have no power as a party, to make
contracts or pass by-laws which shall
cede away, control or embarrass their
legislative or governmental powers,
or which shall disable them from
performing their public duties’ (1

would seem to be equally true that a
municipal corporation just about to
merge its individuality into another
and larger corporate entity may not
make a contract from which it can
derive no benefit during its independ-
ent existence and which would de-
prive its successor of a portion of
the power expressly granted to that
successor by the Legislature.”

30. Parkerburg Gas Co. v. City of
Parkersburg, 30 W. Va. 435, 4 S. E,
650.
200 Law oF BILECTRICITY.

had formerly furnished light under a contract with the
municipality and had refused to lower its price until con-
vinced that the contracting party was a competitor.”

Capacity of Parties— In the case of electric lighting con-
tracts, the electric company is capable of contracting.”
Likewise, we have seen that municipalities are empowered
to enter into a contract for the lighting of the municipal
streets. The parties, however, may be competent to enter
into contracts providing for the lighting’ of municipal
streets, and yet be incompetent to engage in the particular
contract which is the subject of controversy. To illustrate,
while a city or village undoubtedly has the power to con-
tract with an electric company for the lighting of its streets,
it may be unable to contract for a considerable period,* or
it may, by reason of its ‘‘ debt limit ’’ be unable to incur
an obligation of the size of particular contract.

Subject Matter and Consideration.— Speaking broadly,
there is no illegality about the subject matter of a contract
whereby a municipality agrees to pay certain sums for
electric current furnished by the other party for the light-
ing of the municipal streets. But the contracts are not
always so simple. In some cases they grant valuable prop-
erty rights in the nature of franchises to the electric com-
pany.** If the municipality has the power to grant the
franchise in question and the exercise of the power is vested
in the same officer or body which is empowered to make the
street lighting contracts, in the absence of statutory pro-
visions compelling other practice, there is no objection to
a street lighting contract which also awards a franchise
to the electric company. But a contract for the lighting of
public places may not properly contain a clause whereby
the municipality becomes as surety or guarantor for the
payment of the bonds of the electric company, or a pro-

31. City of Denver v. Hubbard, 17 33. §§ 137-139.
Colo. ‘App. 346, 8 Am. Electl. Cas. 291, 34. § 136.
68 Pac. 993. 35. § 128.

32. Powers of company.— As to the 36. Lynchburg, etc., St. Ry. Co. v.
powers and duties of an electric com- Dameron, 95 Va. 545, 28 8. E. 951.
pany, see §§ 16-56.
MunticipaL, Lightine Contracts. 201

vision giving the company a bonus to aid in the construc-
tion of the plant.*’ Such provisions are beyond the power
of a municipal corporation. The consideration for the
normal street lighting contract is the furnishing of elec-
tricity by one party and the payment therefor by the other,
and no illegality can be assigned to such considerations.
Likewise, there can be no opportunity for the claim that
the contract is void for want of ‘‘ mutuality.’’ But it has
been held that a contract for the lighting of city streets
which requires the company to supply as many lights as
the city may designate at a certain price per light, without
in any way designating the number of lights or furnishing
a criterion by which damages for violation of the contract
may be determined, is void for want of mutuality, and will
not support an action where the city declines to make the
designation.®*

Assent.— That a contract for public lighting must be
entered into without fraud or other infirmative circum-
stance is properly deduced from the general rules appli-
cable to all contracts. The assent is shown by the accept-
ance by one party of an offer made by the other. Where
an electric light company makes an offer to a municipality
for the public lighting of such municipality, stipulating the
time within which the offer is to be accepted, and the latter
accepts the offer, a contract thereupon arises, which, assum-
ing full compliance with all statutory provisions, is valid,
and binds both contracting parties.*® Under such circum-
stances, it is immaterial that the municipal authorities,
between the time of the offer and the time of the accept-
ance, advertised and received bids for such public lighting.“
Where a bid or offer of an electric light company for public
. lighting is accepted by the municipal council, and the rego-
lution accepting the same contemplates the execution of a

87. Village of Morrice v. Sutton, 39. Lansdowne v. Citizens’ Elec. L.
139 Mich. 643, 103 N. W. 188, 12 Det. & P. Co., 206 Pa, St. 188, 55 Atl. 919.
Leg. N. 19. 40. Lansdowne v. Citizens’ Elec. L.

88. EI Paso Gas, Elec. Light & P. & P. Co., 206 Pa. St. 188, 55 Atl. 919.
Co. v. City of El Paso, 22 Tex. Civ.

App. 309, 54 8. W. 798.
202 Law or EectRIcItry.

formal contract, and the company thereupon sends a form
of agreement to the legal officer of the municipality which
is acceptable to him and such officer prepares the written
contract and delivers it to the general manager of the elec-
tric company, the agreement is binding on the company,
though not executed by it.

Formalities Prescribed by Law.— One of the most serious
difficulties with the validity of contracts for public lighting
is the following of all the formalities which may be pre-
scribed by the legislature.“ The requirements of the legis-
lature must be satisfied, or the contract will not be
approved by the courts.

Sec. 131. Compliance with Formalities; in General.

It is customary for municipal charters to prescribe cer-
tain procedure for the making of municipal contracts.
General laws also are enacted requiring the compliance
with certain formalities in the awarding of such contracts.
In some eases an advertisement for bids is required; in
other cases a proposed contract must be submitted to the
voters for their approval. Other regulations circumscribe
the power of the municipal officials. If the requirements
are ‘‘ mandatory,’’ their non-compliance affects the validity
of the contract; but, if they are construed as merely ‘‘ direc-
tory,’’ the contract, though irregular, may be not without
life. A statute which requires a previous appropriation
for a contract by a city council for the disbursement of city
funds, has been held mandatory, and consequently an elec-
tric lighting contract without such appropriation is void.*
In the absence of specific provisions regulating the making
of municipal contracts, the officials must act in good faith
and with reasonable discretion and judgment for the bene-
fit of the municipality ;** but they need not advertise for

41. Lansdowne v. Citizen’s Elec. 48. Roberts v. City of Fargo, 10 N.
Light & Power Company, 206 Pa. Dak. 230, 86 N. W. 726.
St. 188, 55 Atl. 919. 44. Oakley v. City of Atlantic City,

42. §§ 131-135. 63 N. J. L. 127, 44 Atl. 651.
MunicrpaL Lightine Contracts. 203
bids,** or submit the contract to a vote of the inhabitants
of the municipality.*

Sec. 132. Compliance with Formalities; Who may Make
Contract on Behalf of Municipality.

Inasmuch as all persons entering into contractual rela-
tions with public corporations or their officers are charge-
able with notice of the powers of such public officers and
of the limitations thereupon,*’ it is vital that the electric
company make no mistake as to the proper officials with
whom to negotiate for a municipal lighting contract. In
the case of a village, township,* or borough,*® which has
but few officials, no difficulty is experienced in determining
the proper persons or body which may make the contract
for public lighting. In the case, however, of a city, especi-

45. § 135.

46. § 134.

47. Roberts v. City of Fargo, 10
N. Dak. 230, 86 N. W. 726.

48. A township committee is au-
thorized to make contracts for street
lighting. Mason v. Cranburg Town-
ship, 68 N. J. L. 149, 8 Am. Electl.
Cas. 365, 52 Atl. 568.

Town Board.— A town board may
be authorized to make an electric
lighting contract, and the contract
is not invalidated because the meet-
ing at which it was entered into was
designated in the minutes as a meet-
ing of the town auditors. Bronx
Gas & Elec. Co. v. City of New York,
17 Mise. (N. Y.) 433, 41 N. Y. Supp.
358.

49. Entry in ordinance book.—A
resolution of a borough council au-
thorizing a contract for the lighting
of its streets need not be transcribed
in the ordinance book or duly adver-
tised. Seitzinger v. Borough of Ta-
Mmaqua, 187 Pa. St. 539, 41 Atl. 454,
43 W.N. C. 236, 29 Pitts. L. Jour.
(N. S.) 215; Lansdowne v. Citizens
Elec. & Power Co., 206 Pa. 188, 55
Atl. 919.

Submission of ordinance to chief
burgess of borough.— In the case of
Jones v. Schuylkill Light, Heat &
Power Co., 202 Pa. St 164, 51 Atl.
762, it was held, under the act of
May 23, 1893, providing that every
ordinance and resolution which shall
be passed by council shall be sub-
mitted to the chief burgess of such
borough for his approval, that a reso-
lution of the council accepting the
bid of an electric light company to
light the streets for a term of years
to be presented to the chief burgess
for his approval, when it is not in
pursuance of a general ordinance pro-
viding for the lighting of the streets,
and authorizing contracts therefor at
stated periods. Evidence of prior
borough ordinances to prevent inter-
ference with borough lights and of
prior contracts for lighting for sim-
ilar periods of years is not sufficient
to show that the resolution accepting
the bid in question was in pursuance
of a general ordinance authorizing
such contract. Jones v. Schuykill L.
H. & P. Co., 202 Pa. St. 164, 8 Am.
Electl. Cas. 365, 51 Atl. 762.
204 Law oF ELectriciry,

ally if it is of considerable size, the situation is somewhat
different. As a general proposition, in making a contract
for street lighting, a city is represented by its city council,”
and an ordinance or resolution of such body may be held
to be essential to the validity of the contract.* Moreover,
to such resolution or ordinance may be required the
approval of the mayor or chief executive of the city, or, aS
an alternative, the passage thereof over his veto.” A city
charter may require the approval of more than a majority
of the members of the city council.** On the other hand,
though the power of contracting is in the common council,
it may be held that a formal ordinance or resolution is
unnecessary. But in large cities, it has been found more
practical to. have a department or branch of the city gov-
ernment which specializes in public works or in street
illumination, and which is charged with the duty of con-

tracting for street lighting,

50. Reid v. Trowbridge, 78 Miss.
542, 8 Am. Electl. Cas. 363, 29 So.
167.

51. Broderick v. City of St. Paul,
90 Minn. 443, 97 N. W. 118; Platt
v. City of Englewood, 68 N. J. L. 231,
8 Am. Electl. Cas. 364, 52 Atl. 239.

Ordinance following execution of
contract.— The ordinance or resolu-
tion required by the act of the legis-
lature may either precede or follow
the formal actual execution of the
contract awarded for such lighting.
Oakley v. City of Atlantic City, 63
N. J. L. 127, 44 Atl. 651.

Designation of number and loca-
tion of lamps.—An ordinance pro-
vided that the company should fur-
nish, at a price therein named, as
many lights as the city may order,
to be located where it should order,
within certain limits. Held, that
such order need not be expressed in
the form of an ordinance, although
the charter of the city provides that
it can only contract by ordinance;

either with or without the

the mere designation of number and
location of lamps not being a con-
tract. City of Baxter Springs v.
Baxter Springs L. & P. Co., 64 Kan.
591, 8 Am. Elect]. Cas. 125, 68 Pac.
63.

52. State v. Jones, 98 Minn. 6, 106
N. W. 963; Platt v. City of Engle-
wood, 68 N. J. L. 231, 8 Am. Electl.
Cas. 364, 52 Atl. 239; El Paso Gas,
Electric Light & P. Co. v. City of El
Paso, 22 Tex. Civ. App. 309, 54 S. W.
798.

538. State ex rel. Suburban Elec Co.
v. Elizabeth, 59 N. J. L. 134, 36 Atl.
673, holding that, under a charter
provision requiring a vote of three-
fourths of the members of the com-
mon council upon the adoption of a
resolution awarding a contract of
this character, at least ten members
of the council must vote in favor
thereof, where the council is com-
posed of thirteen members.

54. Town of Gosport v. Pritchard,
156 Ind. 400, 59 N. E. 1058.
Monicrpat Licutine Contracts. 205
approval of any other board or body.** This matter is, of
course, one which depends on the construction to be placed
on the statutes applicable to the particular municipality.

Delegation of Power.— Where the statutes of the state
have lodged the power to enter into lighting contracts with
a particular officer, board, or body, such officer, board, or
body cannot delegate the power to another. Thus, where
the power is in the common council of a city, it cannot dele-
gate the power of contracting to a committee of the mem-
bers of the council. The contract must be negotiated by
the council, or, if the negotiations are conducted by a com-
mittee, the contract must be submitted to the council for
discussion, consideration, and adoption.

Sec. 133. Compliance with Formalities; Municipal Officer
Interested in Electric Company.

By general statute or local charter provisions, members
of the city council, or other officials who make contracts,
are forbidden to be interested in any contract made by
them. A violation of such a provision is, not only immoral
and, in some cases, contrary to the penal code of the state,
but renders the contract illegal.*’ Such prohibitions do not
generally discriminate as to the quantity of interest which
disqualifies the official from acting. A person who is not
an officer of the electric company, but who happens to be a
small stockholder, is disqualified as decisively as the presi-
dent of the corporation who owns .a controlling interest
therein. The doctrine has been extended still further. In
one case in New Jersey,* a contract was disapproved where

55. See City of Hartford -v. Hart-
ford Elec. Light Co., 65 Conn. 324,
32 Atl. 925; American Lighting Co.
of Baltimore v. McCuen, 92 Md. 703,
48 Atl. 352; Blank v. Kearney, 44

_N. Y. App. Div. 592, 61 N. Y. Supp.
79.

56. Foster v. City of Cape May, 60
N. J. L. 78, 36 Atl. 1089.

57. Foster v. City of Cape May, 60
N. J. L. 78, 36 Atl. 1089; Kennett

Elec. L. Co. v. Borough of Kennett
Square, 8 Kulp (Pa.) 105, 4 Pa, Dist.
R. 707.

58. Foster v. City of Cape May, 60
N. J. L. 78, 36 Atl. 1089.

59. Foster v. City of Cape May, 60
N. J. L. 78, 36 Atl. 1089, wherein
the court said: “ Another objection
to this resolution is that Johtison,
a member of the city council who
voted for the resolution, without
206 Law oF ELeEctriciry.

one member of the city council held one share of stock as
collateral to a loan made by him, and such member testified
that he considered the share without value and would have
returned it had his debtor asked him to do so. This is an
extreme case, and marks the limit to which the doctrine will
be extended. The validity of the contract does not depend
on whether the interested members vote for or against the
adoption thereof. The contract may be avoided notwith-
standing they voted against the same.”

Sec. 134. Compliance with Formalities; Submission to
Vote of Inhabitants.

In the absence of a constitutional, statutory, or charter
provision restricting the power of its officials, a munici-
pality may enter into a street lighting contract without a
favorable vote thereon by the voters of the municipality.™
Frequently, however, it is required that a vote of inhabit-
ants shall be taken before contracts extending for a certain
period or involving the payment of certain sums shall be
entered into by the municipality. A vote is indispensable
to the validity of a contract falling within such restric-

whose vote the resolution could not
have been adopted, was interested in
the contract it purported to author-
ize. Section 84 of the city charter
provides that no member of the city
council shall be directly or indirectly
interested in any contract the ex-
pense of which shall be paid from
the city treasury. Johnson testified
that he held the certificate for one
share of the stock of the Franklin
Electric Light Company, that was
given to him by Lafayette Miller, as
collateral security for a debt that was
still unpaid; that the certificate had
never been formally assigned to him,
and that he would have handed it
back to Miller if he had asked for it.
He also testified that he never put
any value on the stock and that the
company had not been prosperous. It
is probable that a company which

theretofore had not been prosperous
may become prosperous, and its stock
which was valueless, may become of
value by means of this contract which
Johnson’s vote awarded to the com-
pany. The interest of Johnson may
be small, but the statute makes no
discrimination with respect to the
interest which should disqualify.”

60. Kennett Elec. L. Co. v. Borough
of Kennett Square, 8 Kulp (Pa.) 105,
4 Pa. Dist. R. 707.

61. McMaster v. City of Waynes-
boro, 122 Ga. 231, 50 S. E. 122; Beld-
ing Light & Imp. Co. v. City of Beld-
ing, 128 Mich. 79, 87 N. W. 113, 8
Det. Leg. N. 537; Reid v. Trowbridge,
78 Miss. 542, 8 Am. Electl. Cas. 363,
29 So. 167; Mason v. Cranbury Town-
ship, 68 N. J. L. 149, 8 Am. Electl.
Cas. 365, 52 Atl. 568.
Mounicrpau Licuttne Contracts. 207
tions. The providing of electricity for the lighting of
public streets is a ‘‘ necessary ’’ expense within the mean-
ing of a constitutional provision restricting local govern-
ments in the making of contracts without a vote of the
electors, except for ‘‘ necessary expenses.’’* But a favor-
able vote of the inhabitants will not make a contract valid
which contains unreasonable provisions; as, for example, a
contract providing for an excessive rate to be paid and
extending over an unreasonable period.“ In other words,
the absence of a required vote may invalidate the contract;
but the presence of a vote, whether required or not, will not
validate an illegal agreement.

Sec. 135. Compliance with Formalities; Award of Contract
to Lowest Bidder.

The rule as to advertising for bids and awarding con-
tracts for street lighting to the lowest bidder is somewhat
analogous to that relative to submitting such contracts to
popular vote. Unless constitutional or statutory (either
general law or special charter) provisions require such
practice, it is not necessary for the municipal authorities
to advertise for bids or award a street lighting contract to
the lowest bidder. But mandatory provisions must be

62. Wadsworth v. City of Concord,
133 N. Car. 587, 8 Am. Electl. Cas.
315, 45 S. HE. 948.

63. Davis v. Fremont, 135 N. Car.
538, 47 S. E. 671.

64, Lefever v. Northwestern Heat,
Light & P. Co., 119 Wis. 608, 8 Am.
Electl. Cas. 330, 97 N. W. 203, 100
Am. St. Rep. 917.

65. Santa Rosa Lighting Co. v.
Woodward, 119 Cal. 30, 50 Pac. 1025;
Belding Light & Imp. Co. v. City
of Belding, 128 Mich. 79, 87 N. W.
113, 8 Det. Leg. N. 537; Reid v.
Trowbridge, 78 Miss. 542, 8 Am.
Electl. Cas. 363, 29 So. 167; Oakley
v. City of Atlantic City, 63 N. J. L.
127, 44 Atl. 651.

“The contract may be made with-
out previous advertisement and re-

ception of proposals. It need not be
awarded to the lowest bidder, and it
may be awarded, even after adver-
tisement be had and proposals re-
ceived, to the highest bidder, if such
course be deemed the most advan-
tageous to the city, in the absence of
fraud, and in the exercise of reason-
able judgment on the part of the
municipal authority in whom the
power is reposed. There is no stat-
utory restriction of this character
upon the exercise of the power, and,
in the absence of it, the power can
be exercised in a bona fide manner
and with reasonable discretion and
judgment for the benefit of the mu-
nicipality.” Oakley v. City of At-
lantie City, 63 N. J. L. 127, 44 Adl.
651.
208 Law or HLEcTRICITY.

obeyed, and a contract awarded without competitive bid-
ding in violation of the constitution or statutes, will not
meet the approval of the courts.”

Work on Public Streets or Public Buildings.— It has been
held that advertisement for bids for street lighting by elec-
tricity is not required by reason of a charter provision
requiring that the mayor and council shall not make con-
tracts exceeding a certain amount for work on ‘‘ public
streets or public buildings ’’? without advertisement.” A
similar decision has been reached in the construction of a
statute providing: ‘‘In the erection, improvement, and
repair of all public buildings and works, in all street and
sewer work, and in all work in or upon streams, bays, or
water fronts or in or about embankments, or other works
for protection against overflow and in furnishing any sup-
plies or materials for the same, when the expenditure
required for the same exceeds the sum of five hundred dol-
lars, the same shall be done by contract and shall be let
to the lowest responsible bidder, after due notice, under
such regulations as may be prescribed by ordinance.’’ ®

Lowest Bid.— What constitutes the lowest bid is some-
times a troublesome question.” A. difference in amount or
rate is not always conclusive on the question. A large city
may accept a bid for the lighting of the entire city, though
another company offers to light a part thereof at a lower
amount than the bid of the successful bidder for such part.”
The lowest bidder, moreover, is not necessarily entitled to
a writ compelling the municipality to enter into a contract

66. City of Providence v. Provi-
dence Elec. L. Co., 122 Ky. 237, 28
Ky. Law Rep. 1015, 91 S. W. 664.
See also, City of Hartford v. Hart-
ford Elec. Light Co., 65 Conn. 324, 32
Atl. 925.

67. Reid v. Trowbridge, 78 Miss.
542, 8 Am. Electl. Cas. 363, 29 So.
167.

68. Tanner v. Town of Auburn, 37
Wash. 38, 9 Am. Electl. Cas. 378, 79
Pac. 494.

69. A charter provision which re-
quires that certain public work shall
be let to the lowest responsible bidder
requires such information to be put
within reach of bidders as will en-
able them to bid intelligently, and
enable the city to know whose bid is
lowest. City of Detroit v. Circuit
Judge of Wayne County, 79 Mich.
384, 44 N. W. 622.

70. Potts v. City of Philadelphia,
195 Pa. St. 619, 46 Atl. 195.
Municteau Licutine Contracts. 209

with him, for the bid may be construed merely as a method
to enable the city to acquire information relative to electric
lighting.”

Sec. 136. Debt Limit.

By constitutional or statutory provisions, municipal cor-
porations are restricted as to the sums they may owe.
Whether a contract increases the indebtedness of the
municipality beyond its ‘‘ debt limit ’’ is discussed to some
length in relation to the construction and operation of
municipal electric light plants.” The violation of the limit
by a contract for street lighting, while equally important
to the life of the particular contract, does not so frequently
present a question for judicial determination. In regard
to street lighting contracts which continue for a period of
years, the question arises whether the entire amount to be
paid by the municipality during the contract period or
merely the contract price for a year is to be considered in
determining if the local authorities have exceeded the limit.
Under such circumstances a difference of opinion has
arisen. The courts of some jurisdictions take the view
that such a contract creates an indebtedness for the whole
amount to be paid.”* In other jurisdictions, it is held that
not more than the annual contract price is to be consid-
ered. A third view of the situation is possible, for it may
be argued with considerable force that even the annual
payments are not a ‘‘ debt ’’ within the meaning of the con-
stitutional or statutory provisions until after they become
due.”® This, however, like all other questions arising out
of such ‘‘ debt limit ’’ provisions, is a matter which depends
upon the construction of the particular provisions involved

71, State ex rel. People’s Land & & P. Oo. v. City of Anoka, 109 Fed.
Mfg. Co. v. Holt, 132 Wis. 131,9 Am. 580; City of Denver v. Hubbard, 17

Electl. Cas. 1076, 111 N. W. 1106. Colo. App. 346, 8 Am. Electl. Cas. 291,
72. § 164. 68 Pac. 993.
73. Beard v. City of Hopkinsville, 75. Wade v. Borough of Oakmount,

95 Ky. 239, 24 8. W. 872; Evans v. 165 Pa. 479, 30 Atl. 959. See also,
Holman, 244 Ill. 596, 91 N. E. 723. Dallas Elec. Co. v. City of Dallas, 23
74, Anoka Water Works, Elec. L. Tex. Civ. App. 323, 58 S. W. 153.

14
210 Law or E.ectriciry.

in each case. A charter provision forbidding the incur-
ring of any liability, in addition to that provided for by
the annual appropriation bill, during the year for which
the appropriation was made, will not prevent a city from
entering into a contract for lighting under the act in ques-
tion; the utmost effect that can be given to such provision
is to prevent any payments for lighting for the remainder
of the fiscal year.”

Sec. 137. Duration of Contract; Absence of Statutory
Restriction.

When there is no legislative restriction upon the term for
which a contract for street lighting may be made, the
municipal officers may exercise their discretion in the mat-

ter; and, if such discretion is reasonably exercised, the
courts will not avoid the contract, though it runs for

more than a year.” Thus

76. Beard v. City of Hopkinsville,
95 Ky. 239, 24 8. W. 872. See also,
City of Denver v. Hubbard, 17 Colo.
App. 346, 8 Am. Electl. Cas. 291, 68
Pac. 993.

77. Belding Light & Imp. Co. v.
City of Belding, 128 Mich. 79, 87
N. W. 113, 8 Det. Leg. N. 537.

78. Statutory provisions applying
to other municipalities considered
in determining reasonableness.— In
City of Denver v. Hubbard, 17 Colo.
App. 346, 8 Am. Electl. Cas. 291, 68
Pac. 993, the court, sustaining the
validity of a contrac for ten years,
said: “As to the reasonableness of
the term fixed, there being no express
limit upon the power of a city as to
time, the court should not undertake
to interfere with the judgment of the
city council, which is conversant with
the needs and necessities of the city
as well as existing conditions and
circumstances to be considered in
fixing the term of a contract, unless
it is clearly made to appear that

contracts for such periods

there has been an abuse of discre-
tion. There is no showing here to
support such a finding. Practically
the only contention is that a 10-year
term is too long because it is for
10 years. In the general statutes
governing all towns and cities of the
State except Denver, and possibly
one town, the municipalities are au-
thorized to contract for lighting for
a term of 25 years. If this be a per-
missible term, we certainly see no
reason why 10 years would be an un-
reasonable term for the city of Den-
ver, a municipality existing in the
same State, and created by the same
legislative power.”

79. Blood v. Manchester Elec. L.
Co., 68 N. H. 340, 39 Atl. 335; Mason
v. Cranbury Township, 68 N. J. L.
149, 8 Am. Electl. Cas. 365, 52 Atl.
568; Seitzinger v. Borough of Tama-
qua, 187 Pa, St. 539, 41 Atl. 454,
29 Pittsb. Leg. J. (N. S.) 215, 43
W.N. C. 236.
Municreau Ligutine Contracts. 211
as three,® five,’ and ten years*? have been sustained as
reasonable.

Contract Giving Franchise to Electric Company.— As has
been stated above,** in some cases, especially when an elec-
tric company is first commencing business, it has been
found expedient, when making a contract for municipal
lighting, to grant a franchise to the company to use the
streets for private as well as public lighting. Though such
practice may prove confusing, there seems to be no legal
objection thereto. Under such circumstances a contract may
well be considered reasonable, though its duration would
be thought unreasonable if it were made with a going con-
cern having all necessary franchise rights.* Thus a con-
tract involving both a public service contract and the grant
of a franchise for a period of thirty-one years has been sus-
tained.**- But a contract extending over an absolute term
of thirty years and a contingent term of twenty years addi-
tional, where the rate to be paid for the light was clearly
excessive, in connection with other circumstances, has been
held unreasonable and void.*

80. Tanner v. Town of Auburn, 37
Wash. 38, 9 Am. Electl. Cas. 378, 79
Pac. 494.

81. Seitzinger v. Borough of Tama-
qua, 187 Pa. St. 539, 41 Atl. 454, 43
W. N. C. 236, 29 Pittsb. Leg. J.
(N. S.) 215; Edison Elec. Illum. Co.
v. Jacobs, 8 Kulp (Pa.) 120.

Five years with power in munic-
ipality to terminate contract.—A
contract which will run for five years
unless sooner terminated by the mu-
nicipality, as it has a right to do
upon three months’ notice, is not un-
reasonable. City of Hartford v.
Hartford Elec. Light Co., 65 Conn.
324, 32 Atl. 925.

82. City of Denver v. Hubbard, 17
Colo. App. 346, 8 Am. Electl. Cas.
291, 68 Pac. 993; Reid v. Trowbridge,
78 Miss. 542, 8 Am. Elect]. Cas. 363,
29 So. 167; Blood v. Manchester Elec.
L. Co., 68 N. H. 340, 39 Atl. 335.

83. § 128.

84, A contract giving a franchise
for ten years and providing that at
the time of the expiration of such
term, the municipality could pur-
chase the plant or extend the contract
for ten years more is not unreason-
able. Muncy Elec. Light, Heat «
Power Co. v. People’s Light Heat &
Power Co., 218 Pa. St. 636, 67 Atl.
956.

85. Reed v. City of Anoka, 85
Minn. 294, 88 N. W. 981.

Thirty years—In Little Falls
Elec. & Water Co. v. City of Little
Falls, 102 Fed. 663, it was held that
a contract for supplying a city with
water for a period of thirty years
was not unreasonable where it in-
volved the erection and maintenance
of an expensive plant.

86. LeFever v. Northwestern Heat,
Light & P. Co., 119 Wis. 608, 8 Am.
Electl. Cas. 330, 97 N. W. 203, 100
Am. St. Rep. 917.
212 Law oF BELECTRICITY.
Sec. 138. Duration of Contract; Statutory Limitation Upon
Period.

The time for which a municipal lighting contract may be
made is within the control of the legislature; and, if its fiat
designates a specific period beyond which a single contract
may not be extended, a contract in contravention thereof
is not legal.*7 The reverse —that a contract not in opposi-
tion to an express limitation is legal—is equally true, pro-
vided no other infirmities therein exist.** Statutes in some
states have fixed the term of ten years as the extreme for
which such contracts shall be made.*® For other munici-
palities, a period of one year is the legislative construction
of reasonableness in the duration of such contracts.*° At
the other extreme we find statutes authorizing such con-
tracts for a term of twenty-five years.“ When a munici-
pality is expressly authorized to contract for a period not
exceeding a specified number of years, it is a fair inference
that such corporation is forbidden to contract for a longer

period.”

87. Edison Elec. Co. v. Pasadena,
178 Fed. 425, 102 C. C. A. 401; Vil-
lage of Morrice v. Sutton, 139 Mich.
643, 103 N. W. 188, 12 Det. Leg. N.
19; Oakley v. City of Atlantic City,
63 N. J. L. 127, 44 Atl: 651; City of
Wellston v. Morgan, 59 Oh. St. 147,
52 N. E. 127; Davy v. Hyde Park, 16
Oh. C. C. 507.

“It is within the province of the
legislature to prescribe the terms
and conditions upon which municipal
corporations may enter into such con-
tracts. It is held by many respect-
able courts that the power to make
such contracts is unlimited as to
time. There are other authorities to
the contrary. The question is of
much importance to the citizens of
this State, and deserves the careful
consideration of the legislative de-
partment of the government.” Wads-

worth v. City of Concord, 133 N.
Car. 587, 8 Am. Elect]. Cas. 315,
45 S. E. 948.

88. Davenport Gas & Elec. Co. v.
City of Davenport, 124 Iowa 22, 9
Am. Elect]. Cas. 72, 98 N. W. 892.

89. Village of Morrice v. Sutton,
139 Mich. 643, 103 N. W. 188, 12 Det.
Leg. N. 19; City of Wellston v.
Morgan, 59 Oh. St. 147, 52 N. EL
127; Davy v. Hyde Park, 16 Oh. C
C. 507.

90. Edison Elec. Co. v. Pasadena,
178 Fed. 425, 102 C. C. A. 401; Put-
nam v. Grand Rapids, 58 Mich. 416,
25 N. W. 330.

91. Davenport Gas & Elec. Co. v.
City of Davenport, 124 Iowa 22, 9
Am. Electl. Cas. 72, 98 N. W. 892.

92. City of Wellston v. Morgan, 59
Oh. St. 147, 52 N. E. 127.
Municreau Ligutine Contracts. 213

Effect of Provisions Relative to Levying Taxes.— It has
been held that charter provisions prohibiting the creation
of municipal liabilities in any one year exceeding the
amount to be raised by tax and providing that payments on
a municipal contract shall be made from sums raised by
tax for the year for which such contract is made, have the
effect of limiting municipal contracts to a duration of one
year.” But, on the other hand, a provision fixing a method
of levying an annual tax to pay for street lighting has been
construed as an enlargement of the right of the city to pro-
cure funds for such purposes and not as a restriction upon
the general right of the municipality to contract for street
lighting.** This latter decision is in accord with a Colorado
decision® sustaining a contract running for ten years,
though the municipal charter contained a provision pro-
hibiting the city council from ordering the payment of any
money in excess of the amount appropriated for the cur-
rent year, and also prohibiting the execution of a city con-
tract providing for the payment of city money until a
definite amount of money shall have been appropriated
therefor. It was held that under such statute, the council
is not required to appropriate sufficient money to meet the
aggregate amount to be paid under the contract, but that
the statute is fully complied with by providing annually
for the amount payable under such contract.

Evasion of Limitations.— The courts will ferret out and
disapprove any attempted evasion of statutory limitations
upon the duration of such contracts. A contract beyond
the prohibited period cannot be sustained, though it is in
the form of a lease of the company’s lighting system to
the municipality for certain ‘‘ rentals.’’* Nor, having
made one contract for the full period, can the municipality,

93. Putnam v. Grand Rapids, 58 95. City of Denver v. Hubbard, 17
Mich. 416, 25 N. W. 330. Colo. App. 346, 8 Am. Elect]. Cas.
94. Townsend Gas & Elec. Co v. 291, 68 Pac. 993.
City of Port Townsend, 19 Wash. 96. Edison Elec. Co. v. City of Pasa-
407, 53 Pac. 551. dena, 178 Fed. 425, 102 C. C. A. 401.
214 Law or Euecrriciry,
during the life of such contract, make another for a similar
period to take effect upon the expiration of the former.”

Totally Void.—A contract in excess of the statutory
limit of duration is considered void in toto; it cannot be
sustained as a contract for merely the statutory period.*

Sec. 139. Duration of Contract; Beyond Term of Officers
Executing Contract.

It has been pointed out above” that contractual relations
between a municipality and an electric company for public
lighting are created by virtue of the proprietary, not the
governmental, powers of the municipal corporation. It
was further pointed out that one effect of placing such con-
tracting in the category of proprietary powers was, that a
street lighting contract, otherwise valid, could extend
beyond the term of office of the persons representing the
city in negotiating for the contract. Whether the rule is
based upon this reason or upon other grounds, it is clear
that a municipal lighting contract may legally extend

97. Village of Morrice v. Sutton,
139 Mich. 643, 103 N. W. 188, 12 Det.
Leg. N. 19.

98. City of Wellston v. Morgan, 59
Oh. St. 147, 52 N. E. 127; Gaslight
& Coke Co. of New Albany v. City of
New Albany, 156 Ind. 406, 59 N. E.
176.

Reasoning of court.—In City of
Wellston v. Morgan, 59 Oh. St. 147,
52 N. E. 127, the court holding that
a contract for ninety-nine years was
a violation of a ten year statute and
void for any period, said: “It is
suggested, however, that the ordi-
nance was not absolutely void, but
may be treated as good for the term
of ten years, since the subject-mat-
ter is not ultra vires, and inasmuch
as ninety-nine years is greater than
ten years and must include it; and
hence the contract in that way may
be supported. This implies that the

purpose of the law is only to pre-
vent the enforcement of contracts
made in violation of its terms, and
not to prevent the making of such
contracts. Now, the language of the
statute is that the municipalities re-
ferred to shall have power to con-
tract for light for any term not ex-
ceeding ten years. This implies
with as much force as if it had been
expressly stated that the municipal-
ity shall not have power to contract
for any term longer than ten years
and the natural inference is, we think,
that the purpose is to inhibit such
contracts entirely, for the only cer-
tain way of insuring their non-en-
forcement is to prevent their at-
tempted execution. This may not
be effectually accomplished unless
they are held to be void.”
99. § 127.
Municipau Ligutine Contracts. 215
beyond the terms of office of the municipal agents acting in
its behalf?

Sec. 140. Exclusiveness.

It would not seem that anyone would have the courage to
attack a street lighting contract on the ground of ‘‘ exclu-
siveness,’’ but the fact that the question is one which some-
times comes before the courts requires — or rather justifies
—its discussion. With the exception of a few of the larger
cities, few municipalities have more than one electric com-
pany operating within their boundaries. The franchise and
the operation of such company is necessarily ‘‘ exclusive ”’
as long as no other company is aathorized to do business
therein. A contract for the lighting of the streets of most
of our cities and villages can be nothing but exclusive. As
to those places having more than one company operating,
no sound reason can be advanced for forbidding the munici-
pality from contracting with a single company for all the
electric current it wishes. The courts, when the objection
of ‘‘ exclusiveness ’’ has been urged, have, as a rule, sum-
marily disposed of the objection.’

Sec. 141. Implied Contracts.

While a contract between a municipality and an electric
company for the lighting of streets will not, perhaps, be
implied with the same freedom as a contract with an indi-
vidual or private corporation, yet there seems to be no doubt
that in some jurisdictions a contract, under certain equitable

1. City of Denver v. Hubbard, 17
Colo. App. 346, 8 Am. Electl. Cas.
291, 68 Pac, 993; Tanner v. Town of
Auburn, 37 Wash. 38, 9 Am. Electl.
Cas. 378, 79 Pac. 494.

2. City of Denver v. Hubbard, 17
Colo. App. 346, 8 Am. Electi, Cas.
291, 68 Pac. 993; Davenport Gas &
Elec. Co. v. City of Davenport, 124
Towa 22, 9 Am. Electl. Cas. 72, 98
N. W. 892; Reid v. Trowbridge, 78
Miss. 542, 8 Am. Electl. Cas. 363, 29
So. 167.

“Tt requires no argument or cita-
tion of authorities to sustain the
proposition that, if the city had the
power to make the contract for its
supply of water, it would not be
void because of exclusiveness, for
all contracts for service of this kind
must, in their very nature, be ex-
clusive.” Davenport Gas & Elec. Co.
v. City of Davenport, 124 Iowa 22, 9
Am. Elect]. Cas. 72, 98 N. W. 892.
216 Law oF ELsEcrsiciry,

circumstances, will be implied, and that the municipality
will be bound thereby and compelled to pay the reasonable
value of the service it has had. Though there is no express
contract, where the lights are furnished to and accepted by
the municipality with the expectation that they shall be
paid for, the municipality will be compelled to make reason-
able compensation therefor, where the contract is one
which the municipality, by a compliance with the required
formalities, may lawfully make.* Thus, where a company
continued to furnish lights and the municipal corporation
continued to receive the same after the expiration of a
written contract, and there was nothing to show a contrary

3. Brush Elec. L. & P. Oo. v.
Montgomery, 114 Ala. 433, 21 So.
960; City of Baxter Springs v. Bax-
ter Springs L. & P. Co., 64 Kan. 591,
8 Am. Electl. Cas. 125, 68 Pac. 63;
Howell Elec. L. & P. Co. v. Village
of Howell, 132 Mich. 117, 8 Am.
Elect]. Cas. 363, 92 N. W. 940, 9
Det. Leg. N. 544; Central Elec. Co.
v. Street Lighting District of Wood-
bridge Tp., 71 N. J. L. 403, 9 Am.
Electl. Cas. 215, 58 Atl. 1080; North
River Elec. L. & P. Co. v. City of
New York, 48 N. Y. App. Div. 14,
62 N. Y. Supp. 726.

Excuse from payment.— An _ in-
firmity in an executory contract
which might be taken advantage of
by its repudiation before execution
will not avail to excuse from pay-
ment for benefits received thereunder
after execution. This rule applies
to a municipality as well as to an
individual. City of Baxter Springs
v. Baxter Springs L. & P. Co., 64
Kan. 591, 8 Am. Elect]. Cas. 125, 68
Pac. 63.

No express contract—“If we,
however, should allow the correct-
ness of the city’s contention that no
written acceptance of the terms of
the ordinance was ever filed as pro-
vided therein, and that no specific

contract as to the number of lights
provided thereby was shown, still
we might not adopt the conclusion
that the light company could not
recover for the want of a contract,
because, over and beyond all this, it
appears without question that the
light company had proceeded to
erect its plant, and had put in the
lights as required; had furnished the
same to the city, in its city hall and
council chamber and upon its streets,
for a period of three years, without
objection or complaint in any manner
whatever; and had carried out its
part of the contract. This all being
so, the city may not now question the
regularity of this contract. A con-
tract good enough to obtain benefits
under is good enough to warrant a
recovery of payment for such bene-
fits. While the contract remained an
executory one, the city might require
its acceptance in accordance with its
terms; but, when it has been exe-
cuted on the part of all concerned, no
such objection can be entertained.
This rule of ordinary morals applies
as strongly to a municipality as to an
individual.” City of Baxter Springs
v. Baxter Springs L. & P. Co., 64 Kan.
591, 8 Am. Electl. Cas. 125, 68 Pac.
63.
Municreau Lieutine Contracts. 217
intention, it was held that a renewal of the old contract
would be conclusively presumed.* Similarly, where an
electric light company furnished to a city a number of
lights in excess of the number stipulated in its contract
with said city, and thereafter it demanded payment for the
extra lights, and on refusal, requested the city to designate
the lights to be removed so as to reduce the number to that
provided for in the contract, but the city refused to permit
the removal of any of the lights, and continued to use them,
it was held that there was an implied contract on the part
of the city to pay for the use of the extra lights from the
time of such demand.’ Likewise, it has been held that, an
express contract between the parties being void because a
constitutional provision requiring advertisement for bids
was not complied with, the municipality must, nevertheless,
pay the reasonable value for the lights it has secured.®
But this is a decision in which all courts will not concur,
for, on the other hand, it has been held, where a contract
was made in violation of a charter provision prohibiting
a contract for more than one year, that the acceptance of
benefits thereunder by the municipality raises no implied
agreement to compensate the company therefor.’ Of
course, if the municipal officers expressly disaffirm any con-
tract or liability, there can be no opportunity for the aris-
ing of an implied contract, and the municipality is not
liable for current supplied.®

Sec. 142. Special Assessments for Street Lighting.

The payments for street lighting are generally made out
of the general funds of the municipality. The illumina-
tion of the streets is of general benefit to the entire com-

4. Howell Elec. L. & P. Co. v. Vil-

lage of Howell, 132 Mich. 117, 8 Am.

Electl. Cas. 363, 92 N. W. 940, 9 Det.

Leg. N. 544.

5. Brush Elec. L. & P. Co. v. Mont-
gomery, 114 Ala. 433, 21 So. 960.

6. City of Providence v. Provi-
dence Elec. L. Co., 122 Ky. 237, 28
Ky. Law Rep. 1015, 91 S. W. 664.

7. Edison Elec. Co. v. City of Pas-
adena, 178 Fed. 425, 102 ©. O. A.
401.

8. Howell Elec. L. & P. Co. v. Vil-
lage of Howell, 132 Mich. 117, 8 Am.
Electl. Cas. 363, 92 N. W. 940, 9 Det.
Leg. N. 544; Alpena Elec. L. Co. v.
City of Alpena, 130 Mich. 413, 90
N. W. 36, 9 Det. Leg. N. 98.
218 Law oF Execrriciry,

munity. While it may be that adjoining property owners
are specially benefited by the lighting, their advantage is
not so marked as in the case of sewers and other improve-
ments. Thus, it is not usual to charge the cost of the light-
ing to the property owners. But there seems to be no
limit to the variety of provisions which may be inserted in
charters for the government of cities; and it is not sur-
prising to find that a city may be authorized to create an
‘‘inside lighting district ’’ consisting of the business sec-
tion of the city, the cost of the lighting of which is to be
paid in part out of the general lighting funds and in part
by special assessment upon the property owners.*°

Sec. 143. Remedy of Company.

In case a municipality does not pay for its street lighting
according to its contract, the electric company has prac-
tically the same remedies as though an individual refused
to pay for current consumed. Its remedy is by action to
recover the contract priee,* or damages,” rather than by

9. “Local improvements.”—Towers
for electric lights are not “local im-
provements.” Putnam v. City of
Grand Rapids, 58 Mich. 416.

10. Parker v. Wallace, 80 Misc.
(N. Y.) 425, 142 N. Y. Supp. 523.

11. Town of Gosport v. Pritchard,
156 Ind. 400, 59 N. E. 1058.

Inspection.— Where, in an action
by an electric light company against
a city to recover the value of elec-
tricity furnished, the defendant de-
nies that the electricity was fur-
nished pursuant to a contract or
that the price charged was the rea-
sonable or market value, so that if
the plantiff fails to establish a con-
tract it can only recover the rea-
sonable value, the defendant, in order
to prepare for trial, is entitled to an
inspection of all the books and papers
of the plaintiff and of its plant, in
so far as the same will tend to show
the actual cost of manufacturing and

delivering the electricity during the
period. New York Edison Co. v.
City of New York, 133 App. Div. 728,
118 N. Y. Supp. 238.

12, A gas company, which was
furnishing gas to a city under a con-
tract, upon the adoption of electric
lighting by the city before the ex-
piration of the gas contract, can not
recover for gas which it continued to
furnish to light the street lamps, but
its remedy is only for breach of the
contract. City of Newport v. New-
port L. Co., (Ky.) 30 S. W. 606.

Cancellation of contract before
commencement thereof.—Where, after
entering into a contract for street
lighting, the municipality passes an
ordinance annuling the contract, the
electric company is entitled to sue
on the contract without waiting for
the time of performance. Block v.
City of Meridian, 169 Fed. 516, 95
C. CG. A. 14.
Muntcreat Licguttne Contracts. 219
specific performance” or mandamus" to compel perform-
ance, or injunction* to restrain a breach of the contract.
The discussion in the preceding chapter’ indicates that
a municipality, using current under an agreement to pay
therefor according to the ‘‘meter’’ system, might be
enjoined from refusing to use the current during the con-
tinuance of the contract; but few, if any, public lighting
contracts are made upon the meter basis.

Sec. 144. Defenses of Municipality.

In an action by an electric company to recover the
compensation stated in a contract for street lighting,
various defenses may be set up by the municipality.7 The
failure of the company to furnish the electricity accord-
ing to the terms of the contract prohibits a recovery,'®

18. See § 122. ;

14. Town of Gosport v. Pritchard,
156 Ind. 400, 59 N. E. 1058.

15. Wabaska Elec. Co. v. City of

. Wymore, 60 Neb. 199, 82 N. W. 626.

16. § 123.

17. Contract between city and
electric illuminating company.— A
city which makes a contract for the
furnishing of electric light should not
be allowed to escape payment for
lighting furnished and accepted there-
under, on the plea that at the time
the electric lighting contract was exe-
cuted there was a contract with a
gas illuminating company for the
furnishing of gas light, and that the
common council of the city had ap-
propriated all of the taxes levied for
the lighting purposes for payment of
obligations incurred under the con-
tract with the gas illuminating com-
pany, when it appears that such an
appropriation was not compulsory
under the terms of the gas illuminat-
ing company’s contract, but was an
arbitrary act in utter disregard of
the obligation flowing out of the elec-
tric illuminating contract. Kennedy
v. City of New York, 99 App. Div.

588, 9 Am. Elect]. Cas. 252, 91 N. Y.
Supp. 252.

18. Kaukauna Elec, L. Co. v. City
of Kaukauna, 114 Wis. 327, 8 Am.
Electl. Cas. 348, 89 N. W. 542.

Failure to furnish additional
lights.— The ordinance requiring the
company to furnish lights at a cer-
tain stipulated price should ordi-
narily be construed so as to bind the
company to furnish lamps at the
times and places required by the city;
a failure to so furnish lights is a
breach of the contract, precluding re-
covery thereon, if it be shown that
the city has not accepted or volun-
tarily received any of the benefits
arising therefrom. The plaintiff not
being entitled to recover at all upon
the contract owing to a breach of its
terms, it cannot complain of the at-
taching of conditions to the recovery
of the contract price requiring it to
bury its wires and to give the bond
demanded by the city. Kaukauna
Elec. L. Co. v. City of Kaukauna, 114
Wis. 327, 8 Am. Electl. Cas. 348, 89
N. W. 542.

Failure of illuminating company
to supply light during stipulated
220

Law or Execreiciry.

unless the company’s breach is waived by the municipal

corporation.*®

Contract and Franchise Combined.— The combination of
a street lighting contract and an electric franchise so that
both are awarded by the same municipal ordinance, while

a legal practice,° may easily lead to confusion.”

hours.— The fact that the electric
lighting contract required the lights
to be furnished from sunset to sun-
rise, and that the electric light com-
pany only furnished such lights after
1:30 a. M., is not a defense to an ac-
tion brought by the electric light
company against the city to recover
moneys due under the contract, where
it appears that such contract pro-
vided “in case for any reason any
of such lamps are not lighted and
lights are not furnished during any
of the times herein provided or dur-
ing the hours herein provided for, a
rebate pro rata according to the time
they are not so lighted shall be made
from the amount here provided to be
paid,” and that the city had never
contended that such variations from
the terms of the contract, concerning
the hours during which the electric
light should be furnished, were with-
in the quoted provision of the con-
tract. Kennedy v. City of New York,
99 App. Div. 588, 9 Am. Electl. Cas.
252, 91 N. Y. Supp. 252.

19. Central Elec. Co. v. Street
Lighting District of Woodbridge Tp.,
71 N. J. L. 403, 9 Am. Elect]. Cas.
215, 58 Atl. 1080. Kaukauna Elec. L.
Co. v. City of Kaukauna, 114 Wis. 327,
8 Am. Electl. Cas. 348, 89 N. W. 542,
wherein the court said: “Generally
speaking, no rule of law is more
elementary or better settled than
that one cannot recover the contract
price when he has not performed the
precedent contract consideration ma-
terial to the contract purpose, and
not measurable in damages. * * *
This rule has its modifications, aris-

The vio-

ing out of conduct of the defendant
upon which can be predicated an as-
sumption of acceptance, consent, or
waiver. When this exists, so that
the plaintiff has parted with its prop-
erty or service upon the justifiable
belief that it is voluntarily received
by the defendant as satisfying the
contract, the latter will not be per-
mitted to defend on the ground of
imperfections or differences which it
might have detected and made basis
of refusal before receiving the bene-
fit, or permitting plaintiff to suffer
the loss.”

20. § 128.

21. Kaukauna Elec. L. Co. v. City
of Kaukauna, 114 Wis. 327, 8 Am.
Electl. Cas. 348, 89 N. W. 542, where-
in the court said: “The ordinance
or contract serving as the basis of the
rights of the respective parties in
this case is one of a character now
become very common in this State,
where the city acts in a twofold ca-
pacity: First, as a governmental
body exercising delegated power of
the State, it confers, and limits with
conditions, the privilege or franchise
to use the public streets. * * *
In addition to this function as an
agent of the State, however, the city,
in the same instrument or ordinance,
exercises its function as a business
corporation, with power to purchase,
contract for and pay for electric
lights for public purposes, and to
specify the conditions of such contract-
ing,;—a power arising under its own
charter. In the argument in this
case, as in the ordinance itself, these
two functions are greatly confused,
Munictpau Ligutinc ContTRACcts. 221

lation of a provision of the franchise is not necessarily a
violation of the conditions of the street lighting contract,
and the company may recover for the lighting though it has
violated a provision of the franchise.” For example, a
clause of the ordinance pertaining to placing the electric
wires underground and to the painting of its poles relates
to the franchise, and the company may recover for the
lights though such provision has not been complied with.”
Likewise, the failure of the company to furnish, as required
by the ordinance, a bond to indemnify the municipality
from all damages arising from the exercise of the com-
pany’s franchise, is no defense to such an action; but a
different result might be reached where the bond is given
to secure the performance of the contract, and the breach
is not waived by the municipality.”

Ultra Vires.— An examination of a general work on Con-
tracts or Corporations will disclose a conflict of decisions
as to whether a corporation can set up the defense of ultra
vires as a defense to a contract when it i received the

benefits thereof.”

and it is not always easy to separate
those provisions which pertain to the
one portion or the other of the in-
strument. In the formulation of such
a document, reciprocal duties are usu-
ally imposed both upon the grantee
of the franchise and upon the city.
Some of these duties or conditions
clearly relate exclusively to the sub-
ject of the franchise. Others with
equal clearness may apply only to
the contractual and commercial duty
of supplying lights to the city, to be
paid for when so supplied. Other
provisions, conditions, and covenants
may be of a mixed character, pos-
sibly applicable to both phases, so
that their disobedience would at once
constitute a breach of the plaintifi’s
contractual duty, which forms the

basis of the city’s promise to pay,
and also a breach of the conditions
upon which it holds its franchise
from the State to ocoupy the public
streets.”

22. Kaukauna Elec. L. Co. v. City
of Kaukauna, 114 Wis. 327, 8 Am.
Electl. Cas. 348, 89 N. W. 542.

23. Kaukauna Elec. L. Co. v. City
of Kaukauna, 114 Wis. 327, 8 Am.
Electl. Cas. 348, 89 N. W. 542.

24. Kaukauna Elec. L. Co. v. City
of Kaukauna, 114 Wis. 327, 8 Am.
Elect]. Cas. 348, 89 N. W. 542.

25. Kaukauna Elec. L. Co. v. City
of Kaukauna, 114 Wis. 327, 8 Am.
Electl. Cas. 348, 89 N. W. 542.

26. City of Kansas City v. Wyan-
dotte Gas Co., 9 Kan. App. 325, 61
Pac. 317.
222 Law oF ELectriciry,

Sec. 145. Taxpayers’ Action.

The right of a taxpayer to attack a street lighting con-
tract depends, to a large extent, upon the statutes of the
particular jurisdiction. Generally speaking, a taxpayer
may have relief where the acts of the municipal officials are
fraudulent, illegal,’ or unauthorized.” The action may be
maintained to restrain the municipality from appropriat-
ing its funds in payment for light under an illegal or unau-
thorized contract.” In at least one jurisdiction, under
certain circumstances, a taxpayer may compel the officials
to advertise for bids and award a street lighting con-
tract, where the municipality has not entered into such a
contract.*°

27. Hanson v. Hunter Elec. L. Co., 29. Blood v. Manchester Elec. L.
86 Iowa 722, 48 N. W. 1005, 53 N. W. Co., 68 N. H. 340, 39 Atl. 335.
84. 30. See Santa Rosa Lighting Co. v.

28. Putman v. Grand Rapids, 58 Woodward, 119 Cal. 30, 50 Pac. 1025.
Mich. 416, 25 N. W. 330.
Mouniorpan OwNERSHIP. 223

CHAPTER VIII.
MUNICIPAL OWNERSHIP.
SECTION 146. General Observations.
147. Constitutional Questions.
148. Statutory Authority for Municipal Ownership.
149. Express Authority.
150. Implied Authority.
151. —— Public Lighting.
152, —— Private Lighting.
153. Inherent Authority.
154. Municipal Ownership of Conduits.
155. Sale to Inhabitants of Surplus Power from Plant for Public
Lighting.
156. Grant of Franchise to Electric Company as Bar to Municipal
Ownership.
157. Purchase by Municipality of Plant Owned by Electric Com-
pany.
158. Location of Power Plant.
159. Furnishing Current for Operation of Street Railway.
160. Right to Make Profit.
161. Territory Served.
162. Service to Non-residents.
163. Vote of Inhabitants.
164. Debt Limit.
165. Contracts for Construction or Equipment of Plant.
166. Payments for Plant.
167. —— Bonds.
168. —— Special Assessments upon Property Owners.
169, Recovery for Current.
170. Employees Running Plant.
171. Grant to Others of Right to Use Municipal Poles.
172, Liability for Torts.

 

Sec. 146. General Observations.

At the commencement of the preceding chapter, the treat-
ment passed from the law of Contracts to that of Municipal
Corporations. This chapter continues the discussion of
the law of Municipal Corporations so far as the same per-
tains to electrical subjects. The questions discussed in
the last chapter relate to contracts by the municipality
with another company which furnished and sold the elec-
tricity. This chapter deals with the right of a municipal
corporation to generate, transmit, use, and sell electrical
224 Law oF ELEctTRICITY.

energy, together with the rights and obligations that flow
from the municipal ownership of an electric plant. It is
evident that the propositions discussed in this chapter are
to be classed as a part of the law of Municipal Corpora-
tions; but it is also evident that they are a vital part of a
work on Electricity. In treating various rights and la-
bilities of electric companies, certain questions pertaining
to municipal corporations which have undertaken the
municipal ownership of electric plants have already been
discussed in this work. Thus, a municipality when enter-
ing upon the privilege of furnishing electricity to persons
or private corporations is under the obligation of serving
all members of the public without discrimination to the
same extent that a private electric company is obligated.*
Likewise, in the chapter on Taxation, the subject of the
taxation of municipal plants was discussed.’

Electric Plant Owned by Federal Government.— While
not a practical proposition to the legal profession in gen-
eral, the fact that the federal government is committed
to a limited ‘‘ municipal’? ownership is of interest. In
1903 Congress passed an act*® providing that ‘‘ Private
parties or companies doing business in the Yellowstone
National Park under authority from the government may
be permitted, in the discretion of the Secretary of War,
to use electricity furnished by the electric lighting and
power plant of Fort Yellowstone and Mammoth Hot
Springs at actual cost to the Government for operation,
maintenance, and depreciation of the plant and ten per
centum additional, under such regulations as may be pre-
scribed by the Secretary of War.’’

‘

Sec. 147. Constitutional Questions.

At the threshold the question arises whether a munici-
pality may be constitutionally authorized to engage in the
generation and disposition of electricity. The question
presents no difficulty, however, for it is clear that it may be

1. § 37. 3. Act March 3, 1903, ¢ 1007, § 1,
2. § 96. 32 Stat. at L. 1130.
Municrpau OWNERSHIP.

225

so empowered, either for the lighting of public places‘ or

for the service of its inhabitants.®

4. Mealey v. City of Hagerstown,
92 Md. 741, 48 Atl. 746; Opinion of
Justices, 150 Mass. 592, 24 N. E.
1084, 8 L. R. A. 487; Mitchell v. City
of Negaunee, 113 Mich. 359, 71 N. W.
646, 4 Det. Leg. N. 318, 38 L. R. A.
157, 67 Am. St. Rep. 468; State ex
rel. Town of Canton v. Allen, 178
Mo. 555, 77 S. W. 868; Linn v.
Chambersburgh Borough, 160 Pa. St.
511, 4 Am. Electl. Cas. 647, 28 Ail.
842.

“The maintenance of public streets
and public buildings is a public serv-
ice, and it may be reasonably neces-
sary to light them-in order that the
greatest. public benefit may be ob-
‘tained from using them. To say
nothing of the usefulness of lighting
streets as a means of promoting or-
der and of affording protection to
persons and property, the common
convenience of the inhabitants may
require that they be lighted. Cities
and thickly settled towns have for
a long time been accustomed to light
their public buildings and some of
their streets at the public expense.
If the streets and public buildings
are to be lighted, the means is a
matter of expediency. If, the Legis-
lature can authorize cities and towns
to light their streets and public
buildings, it can authorize them to do
this by any appropriate means which
it may think expedient. As a ques-
tion of constitutional power, we can-
not distinguish the right to author-
ize cities and towns to buy gas or
electricity for their use, from the
right to authorize them to manu-
facture it for their use.” Opinion of
Justices, 150 Mass. 592, 24 N. E. 1084,
8 L. R. A. 487.

5. Florida— Jacksonville Elec. L.
Co. v. City of Jacksonville. 36 Fla.

15

Indeed, the constitu-

229, 6 Am. Elect]. Cas. 668, 18 So.
677, 30 L. R. A. 540, 51 Am. St. Rep.
24.

Indiana.— Rushville Gas Co. v. City
of Rushville, 121 Ind. 212, 23 N. E.
22.

Maryland.— Mealey v. City of Ha-
gerstown, 92 Md. 741, 48 Atl. 746.

Massachusetts.— Opinion of Jus-
tices, 150 Mass. 592, 24 N. E. 1084,
8 L. R. A. 487.

Michigan.— Muskegon Trac. & L.
Co. v. City of Muskegon, 167 Mich.
331, 132 N. W. 1060, 18 Det. Leg. N.
711; Mitchell v. City of Negaunee,
113 Mich. 359, 71 N. W. 646, 4 Det.
Leg. N. 318, 38 L. R. A. 157, 67 Am.
St. Rep. 468.

Missouri— State ex rel. Town of
Canton v. Allen, 178 Mo. 555, 77 S.
W. 868.

Pennsylvania.— Linn v. Chambers-
burgh Borough, 160 Pa. St. 511, 4 Am.
Electl. Cas. 647, 28 Atl 842.

Texas.— Joy v. City of Terrell
(Civ. App.) 138 S. W. 213.

“We have no doubt that, if the
furnishing of gas and electricity for
illuminating purposes: is a publie serv-
ice, the performance of this service
can be delegated by the Legislature
to cities and towns for the benefit of
themselves and their inhabitants, and
that such cities and towns can be
authorized to impose taxes for this
purpose upon their inhabitants, and
to establish reasonable rates which
the inhabitants who use the gas or
electricity can be compelled to pay.
The fundamental question is whether
the manufacture and distribution of
gas or electricity to be used by cities
and towns for illuminating purposes
is a public service. * * * If the
Legislature is of opinion that the
common convenience and welfare of
226

Law or ELecrriciry.

tions of some states expressly authorize a municipality to
establish and operate public utilities.°

the inhabitants of cities or towns
will be promoted by conferring upon
the municipalities the power of man-
ufacturing and distributing gas or
electricity for the purpose of fur-
nishing light to their inhabitants we
think that the Legislature can confer
the power.” Opinion of Justices, 150
Mass. 592, 24 N. E. 1084, 8 L. R. A.
487.

“The power of the Legislature to
authorize municipal corporations to
supply gas and water for municipal
purposes, and for the use and benefit
of such of their inhabitants as wish
to use and are willing to pay there-
for at reasonable rates, has never
been seriously questioned. In view
of the fact that electricity is so
rapidly coming into general use for
illuminating streets, public and pri-
vate buildings, dwellings, etc., why
should there be any doubt as to the
power to authorize such corporations
to manufacture and supply it in like
manner as artificial gas has been
manufactured and supplied? It is
a mistake to assume that municipal
corporations should not keep abreast
with the progress and improvements
of the age.” Linn v. Chambersburgh
Borough, 160 Pa. St. 511, 4 Am.
Electl. Cas. 647, 28 Atl. 842.

“It is conceded by counsel for
complainants that municipalities may
furnish water to their citizens. They
seek to distinguish the right to fur-
nish water from the right to furnish
light by saying that water is a neces-
sity for all, but that electric light
is a luxury. It will hardly be con-
tended that the necessities of modern
life do not require light as well as

water, and we think the reasoning ,

of the cases cited shows conclusively
that it is within the legislative prov-
ince to confer upon municipalities
the right to furnish both under
proper restrictions.” Mitchell v. City
of Negaunee, 113 Mich. 359, 71 N. W.
646, 4 Det. Leg. N. 318, 38 L. R. A.
157, 67 Am. St. Rep. 468.

Furnishing power.— Cities may be
constitutionally authorized to fur-
nish electric power, as well as lights,
to their inhabitants. Clark v. City
of Los Angeles, 160 Cal. 30, 116 Pac.
722, wherein the court said: “It is
contended that the business of sup-
plying electricity for motive power
is a private business not within the
scope of municipal purposes for
which, under the Constitution, mu-
nicipal corporations may be organ-
ized as provided in sections 6 and 8
of article 11. We can see no ground
for any distinction in this respect be-
tween the use of electricity for power
and its use for heat and light, for
which purposes counsel admit that
cities may distribute it if authorized
by law. It has come to be in com-
mon use in homes for the operation
of light machines such as sewing ma-
chines and suction cleaners, and its
supply for this use is also conceded
to be a proper municipal purpose.
The fact that it may also be fur-
nished to persons desiring to apply it
to larger machines for manufacturing
or other business purposes is no sound
reason for holding such distribution
to be without the scope of municipal
powers.”

6. City of Pamona v. Sunset Telep.
& Teleg. Co. 224 U. 8. 330, 32 S. Ct.
477, 56 L. Ed. 788.
MounicrpaL OwNERSHIP. 227

Sec. 148. Statutory Authority for Municipal Ownership.

There being no constitutional objection to the municipal
ownership of an electric lighting plant,’ whether a munici-
pality is authorized to operate an electric plant depends
upon its charter and the general laws of the state. The
courts, adopting the language of a well-known writer® stat-
ing the general rule as to the powers of municipal corpora-
tions, have frequently said: ‘‘ It is a general rule, and an
undisputed proposition of law, that a municipal corpora-
tion possesses and can exercise the following powers, and
no others: First, those granted in express words; second,
those necessarily or fairly implied in or incident to the
powers expressly granted; third, those essential to the
declared objects and purposes of the corporation—not
simply convenient, but indispensable. Any fair, reason-
able doubt concerning the existence of power is resolved
by the courts against the corporation, and the power is
denied.’’

Conditions Precedent to be Performed.— Where the right
to erect and operate a municipal electric plant is subject to
certain conditions, such as a vote of the taxpayers,® com-
pliance therewith must be made. Thus, where a statute
prohibits lighting systems in municipalities without certifi-
cate of authority granted by a commission or department
of the state government the erection of a plant without
such authority may be enjoined.*® Likewise, the charter
of the municipality may impose conditions which must be
performed; as, for example, where a vote of two-thirds of
the aldermen of the city is required on the expediency of
the undertaking."

7. § 147. Co. v. Village of Potsdam, 112 N. Y.
8. Judge Dillon. App. Div. 810, 99 N. Y. Supp. 551.
9. § 163. See also, Wisconsin Tract, etc., Co. v.

10. Pottsdam Elec. L. & P. Co. v. City of Menasha, (Wis.) 145 N. W.
Village of Potsdam, 49 Misc. (N. Y.) 251.
18, 97 ‘N. Y. Supp. 190; affirmed on 11, Bay City Tract. & Elec. Co. v.
opinion below, 113 N. Y. App. Div. Bay City, 155 Mich. 393, 119 N. W.
894, See also, Potsdam Elec. L. & P. 440, 15 Det. Leg. N. 1039.
228 Law or ELecrriciry.

Sec, 149. Express Authority.

If charter provisions or general statutes’ specifically
authorize a municipal corporation to engage in public or
private lighting, there can be no question as to its general
power so to do.” If first authorized for public lighting
alone, and subsequently the additional power of furnishing
current to private persons is conferred upon the munici-
pality, it may use the old plant therefor.

Express Power Includes Private Lighting. —If legisla-
lative acts expressly authorize a municipal corporation to
erect and maintain a lighting plant, with no limitation that
the same shall be used solely for public lighting, it may

use it for private lighting.*

12. Alabama Darby v. City of
Union Springs, 173 Ala. 709, 55 So.
889.

California Clark v. City of Los
Angeles, 160 Cal. 30, 116 Pac. 722.

Indiana.— Rushville Gas Co. v. City
of Rushville, 121 Ind. 212, 23 N. E.
72,

Louisiana. Houma Lighting & Ice
Mfg. Co. v. Town of Houma, 127 La.
726, 53 So. 970.

Maryland.— Mealey v. City of Ha-
gerstown, 92 Md. 741, 48 Atl. 746.

Michigan.— Mitchell v. City of Ne-
gaunee, 113 Mich. 359, 71 N. W. 646,
4 Det. Leg. N. 318, 38 L. R. A. 157,
67 Am. St. Rep. 468.

Minnesota.— Backus v. City of Vir-
ginia, 142 N. W. 1042.

Missouri.— State ex rel. City of
Chillicothe v. Gordon, 233 Mo. 383,
135 S. W. 929; State ex rel. Town
of Canton v. Allen, 178 Mo. 555, 77
S. W. 868.

Nebraska.— Hurd v. City of Fair-
bury, 87 Neb. 745, 128 N. W. 638;
Todd v. City of Crete, 79 Neb. 671,
113 N. W. 172.

Vermont.— Rand v. Marshall, 84
Vt. 161, 78 Atl. 790.

Wisconsin.— Neacy v. City of Mil-
waukee, 151 Wis. 504, 139 N. W. 409.

And when a statute, without

“Other permanent improvements.”
—A constitutional provision author-
izing municipal taxation for certain
public purposes and “other perma-
nent improvements,” authorizes the
issuance of bonds for the purchase or
construction of an electric light plant.
Simpson v. City of Nacogdoches, (Tex.
Civ. App.) 152 S. W. 858.

13. Baker v. City of Cartersville,
127 Ga. 221, 9 Am. Electl. Cas. 932,
56 S. E, 249; Mealey v. City of Ha-
gerstown, 92 Md. 741, 48 Atl. 746,

14. Thomson-Houston Elec. L. Co.
v. City of Newton, 42 Fed. 723, 3
Am. Electl. Cas. 507; Cary v. Blod-
gett, 10 Cal. App. 463, 102 Pac. 668;
Jacksonville Elec. L. Co. v. City of
Jacksonville, 36 Fla. 229, 6 Am.
Elect]. Cas. 668, 18 So. 677, 30 L.
R.A. 540, 51 Am. St. Rep. 24; Chris-
tensen v. City of Fremont, 45 Neb.
160, 63 N. W. 364; Chandler v. City
of Seattle (Wash.), 141 Pac. 331.

“It is also urged that the city
has only the authority to erect an
electric plant for the purpose of light-
ing the streets and public places of
the city, and is not authorized to
furnish lights for use in the houses
and stores of its citizens. The act
of the General Assembly giving the
MounicipaL OWNERSHIP. 229

restricting the right of public lighting, contains sections
relative to the fixing and collecting of rates to be charged
the inhabitants for the use of the lights, the conclusion is
irresistible that private lighting is also intended.”

Express Authority Includes Furnishing of Power.—
Where a city charter expressly authorizes a city to furnish
electricity to its inhabitants, it may furnish electric power
to private consumers.*®

Authority to Operate Implied from Authority to Erect
and Maintain.— Where statutes expressly authorize a mu-
nicipality to erect and maintain an electric light plant,
authority is implied to own and operate such a plant.”

Authority to ‘‘ Operate and Maintain ’’ not Implied from
Power to ‘‘ Purchase or Construct.’’ — It has been held that
a grant of the right to ‘‘ purchase or construct ’’ a water-
works or electric light plant does not confer power to

‘¢maintain or operate ’’ such a plant.*®

right to cities to erect, or to author-
ize the erection of electric plants,
makes no distinction between lights
used for public or private purposes;
and the right of the city in the erec-
tion of its own plant is not limited
in any other way than is the right
of a company authorized by the city
to erect the plant.” Thomson-Hous-
ton Elec. L. Co. v. City of Newton,
42 Fed. 723, 3 Am. Electl. Cas. 507.

The charter act of the city of Jack-
sonville conferring power upon the
city council to provide for lighting
the city by gas or other illuminating
material, or in any other manner, to-
gether with other specified powers,
held sufficient to authorize the erec-
tion and maintenance, at public cost,
of an electric plant of sufficient power
and capacity to light, not only the
streets and public places in the corpo-
ration, but also for the purpose of
supplying the inhabitants of the city
with electric light for use in their
private residences and houses. Jack-

sonville Elec. L. Co. v. City of Jack-
sonville, 36 Fla. 229, 6 Am. Electl.
Cas. 668, 18 So. 677, 30 L. R. A. 540,
51 Am. St. Rep. 24.

15. Christensen v. City of Fremont,
45 Neb. 160, 63 N. W. 364.

16. Clark v. City of Los Angeles,
160 Cal. 30, 116 Pac. 722.

17. Darby v. City of Union Springs,
173 Ala. 709, 55 So. 889.

18. State v. Wilder, 200 Mo. 97,
98 S. W. 465, wherein it was said:
“It is a well-settled law of this state
that municipal corporations possess
and can exercise only such powers
as are granted in express words, or
those necessarily incident to or im-
plied in the powers expressly granted.
(City of Nevada to use v. Eddy, 123
Mo. 1. c. 557.) We do not think it
can be reasonably maintained that
the power to maintain and operate
waterworks is necessarily incident to
or implied in the power to purchase
or construct waterworks or electric
light plants; on the contrary, we
230 Law oF ELecrriciry.

Sec. 150. Implied Authority.

The right of a municipality to operate an electric plant
need not always be expressed; it may in some cases be
implied.? It is evident that a distinction must be drawn
between the operation of a plant for the purpose merely of
lighting the public streets, public buildings and other public
places, and the operation of a plant for the service of the
inhabitants in addition to the public lighting. Implied
power may be found for public lighting, though no such

power can be found for private lighting.”

Sec. 151. Implied Authority; Public Lighting.

The power to maintain a municipal lighting plant is fre-
quently implied from the power to light the streets,” the

think it was the purpose of the peo-
ple in conferring this power upon
cities of the population named to ac-
quire waterworks and electric light
plants which would be self-sustaining.
The word ‘maintain’ does not mean
‘to provide or construct, but to keep
up and preserve, and the word ‘ oper-
ate’ means to put into or continue
in operation or activity. These ex-
pressions have a distinct signification
from the words ‘purchase or con-
struct.’ See also, State ex rel., City
of Chillicothe v. Gordon, 233 Mo. 383,
135 S. W. 929.

19. Lake Charles Ice, L. & Water
Works Co. v. Lake Charles, 106 La.
65, 30 So. 289. Rand v. Marshall,
86 Vt, 161, 78 Atl. 790.

20. “ The providing of light for the
public purpose of lighting the public
streets and public places, and such
lights as are convenient for the trans-
action of public business, is a very
small and insignificant enterprise as
compared with that of supplying
light to the inhabitants generally for
their private use. The two objects
are manifestly distinct because of
the different nature of the use to

which the lights are to be devoted in
the different cases. The terms of the
express grant of the power to pro-
vide light for the public purposes
named do not indicate any intention
to give the distinct and larger power
to establish « plant for furnishing
light for private use to all the inhab-
itants of the city who may desire it,
and no such intention can be imputed
to the framers of the charter from
the language there employed.” Hy-
att v. Williams, 148 Cal. 585, 84
Pac, 41.

21. IWinois— Blanchard v. Village
of Benton, 109 Ill. App. 569; Hay
v. City of Springfield, 64 Ill. App.
671.

Kansas.— State v. City of Hia-
watha, 53 Kan. 477, 36 Pac. 1119.

Kentucky.— Overall v. City of
Madisonville, 125 Ky. 684, 9 Am.
Elect]. Cas. 1065, 31 Ky. Law Rep.
278, 102, S. W. 278.

Nebraska.— Christensen v. City of
Fremont, 45 Neb. 160, 63 N. W. 364,

North Carolina.— Fawcett v. Town
of Mt. Airy, 134 N. Car. 125, 8 Am.
Elect]. Cas. 341, 45 S. E. 1029, 63
L. R. A. 870, 101 Am. St. Rep. 825.
MunicipaL OwneErsuIp. 231
courts taking the view that such authority empowers the
municipality to exercise its discretion as to whether it will
contract for its light or furnish it from a plant of its own.”
A clause, therefore, authorizing it to contract for a supply
of light does not act as a restriction upon the right to own
a plant.** Indeed, the power to contract for a supply of
light has been construed as giving the power to contract for
an electric light plant to furnish the light.*

A Contrary View.— The courts are not all agreed upon
the validity of the inference just mentioned.” In a com-
paratively early case in Massachusetts,” it was held that

South Carolina— Maudlin v. City
Council of Greenville, 33 S. Car. 1,
11S. E. 434, 8 L. R. A. 291.

“We have no hesitation in declar-
ing that the power to provide for and
regulate the lighting of streets and
the erection of lamp posts fairly im-
plies the power to erect gas works
or an electric light plant to be used
by the city for the purpose of light-
ing the streets.” Christensen v. City
of Fremont, 45 Neb. 160, 63 N. W.
364.

22. “Where a city is given the
power, either expressly or by neces-
sary implication as an incident to
its police power, to light its streets,
and where the precise method is not
expressly provided, it may either hire
another to furnish the lights, or may
furnish its own lights. The power
to do the thing unreservedly gives
the city the discretion in the choice
of means it will adopt.” Overall v.
City of Madisonville, 125 Ky. 684,
9 Am. Electl. Cas. 1065, 31 Ky, Law
Rep. 278, 102 S. W. 278.

28. State v. City of Hiawatha, 53
Kan. 477, 36 Pac. 1119.

24, Swann v. City of Murray, 146
Ky. 148, 142 8. W. 244.

25. In Alabama, in one decision,
where the municipality did not have
express authority to light the streets,

it was held that power to do so by a
municipal plant would not be in-
ferred. Posey v. Town of North
Birmingham, 154 Ala. 511, 45 So. 663,
15 L. R. A. (N.S.) 711. The court
said: “It cannot reasonably be said
that the power is necessarily or fairly
implied in or incident to the powers
expressly granted; nor is it essential
to the declared objects and purposes
of the corporation. It may be con-
ceded that the lighting of the streets
of the town is a very great conven-
ience, and, furthermore, may have a
tendency to the repression of a cer-
tain class of crimes; but it is not in-
dispensable to this end. It is unlike
the supply of pure and wholesome
water, which is essential to the life
of the citizen; and hence in this re-
spect the case is differentiated from
those wherein it is decided that the
supply of water to the inhabitants,
being indispensable, is considered as
an implied power essential to the de-
clared objects and purposes of the
corporation.” This decision was ad-
versely criticised in a subsequent
case Darby v. City of Union Springs,
173 Ala. 709, 55 So. 889.

26. Spaulding v. Inhabitants of
Peabody, 153 Mass. 129, 26 N. E.
421, 10 L. R. A. 397, wherein it was
232

Law or EXLEctTRICITY.

a municipal corporation could not erect and maintain an
electric lighting plant for either private or public lighting
under a statute authorizing it to erect and maintain street

lamps.

This decision, being contrary to the views of a

number of courts in other jurisdictions,’ has received con-

said: “Towns are subordinate divi-
sions of the state, and they vary
greatly in the number of their in-
habitants, and in the amount of their
taxable property. It is wholly for
the Legislature to determine, within
the limits of the constitution, the
powers which towns shall possess;
and when it appears that the custom
of the Legislature has been specifi-
eally to define from time to time the
purposes for which towns may raise
money by the taxation of their in-
habitants, and when the Legislature
ean at any time grant additional
powers if they are deemed necessary,
a somewhat strict construction of ex-
isting statutes is reasonable, and in
accordance with the presumed inten-
tion of the Legislature. Under the
special acts whereby Boston was au-
thorized to maintain street lamps, it
could not have been held that the
town or city was authorized to engage
in the whale fisheries for the purpose
of procuring oil. The intention was
that the oil for the lamps should be
bought as persons generally bought
oil used for lamps. Towns are au-
thorized to raise money for the sup-
port and employment of the poor, but
it could not reasonably be held that
it was intended that towns should
at public expense erect and maintain
factories for the manufacture of all
the clothing which the poor might
wear, or of all the implements which
they might use. Towns are author-
ized to raise money for carrying
pupils to and from the public schools,
but this could not be held to author-
ize towns to maintain a street rail-

way or a steam railroad. Towns are
authorized to maintain public li-
braries, but this does not mean that
they can maintain paper-mills and
printing establishments for making
books for the libraries. These are un-
doubtedly extreme examples, but they
illustrate the necessity of a some-
what strict construction of the stat-
utes relating to the powers of towns.”

27. “We are, however, unable to
recognize the validity of the reason-
ing in that case. We are unable to
see the analogy between the city of
Boston, because authorized to light
its streets, engaging in whale fishing
to procure oil for that purpose, or
the other supposed cases, and the
generation and supply of electricity.”
City of Crawfordsville v. Branden,
130 Ind. 149, 28 N. E. 849, 14 L. R.
A! 268, 30 Am. St. Rep. 214.

“Our attention is called to the case
of Spaulding v. Peabody, 153 Mass.
129, holding that under somewhat
similar grants of power a city may
not erect and maintain works for
the manufacture and distribution of
electric light for lighting the streets.
But this case is based to a large
extent on a consideration of peculiar
Massachusetts statutes and a narrow
construction theretofore placed upon
them by the court. The case is op-
posed to an otherwise practically
uniform array of authorities. The
reasoning on the general question is
far from satisfactory, and while it is
still a recent case, it has encountered
already considerable adverse criti-
cism.” Christensen v. City of Fre-
mont, 45 Neb. 160, 63 N. W. 364.
MunicrpaL OwNERSHIP. 233
siderable criticism. But the same conclusion has been
reached in at least one other jurisdiction.”

Limitation of Indebtedness Except for Lighting Plant.—
A constitutional provision prohibiting a municipality from
becoming indebted in an amount exceeding five per cent of
the assessed value of the property therein, ‘‘ except for the
construction of or purchase of water works, gas or electric
light plants,’’ will not be construed so as impliedly author-
izing the municipal ownership of an electric light plant.”

Sec. 152. Implied Authority; Private Lighting.

If in a particular jurisdiction it is held that a munici-
pality has no authority to operate an electric plant for the
lighting of public places, such as streets, parks, and public
buildings, a fortiori, it has no power to operate such a plant
for furnishing current to its inhabitants. While, as has
been stated above, the authority to maintain a plant for
lighting streets may be implied from the authority to light
the streets, the power to operate a plant to secure electric
current for private lighting may not be inferred from such
authority.*° Nor is a power to condemn lands for public
purposes to be construed as authority to engage in a public
utility enterprise for service to the inhabitants.** On the
other hand, it has been held that power to establish a
municipal lighting plant for the service to the inhabitants
is granted by a statute which empowers the city council
of a city to ‘‘ contract for supplying the city with water and
lights. ’?

28. Lighthipe v. City of Orange, 75
N. J. L. 365, 68 Atl. 120; affirmed
without opinion, 76 N. J. L. 817, 74
Atl. 1135; Howell v. City of Mill-
ville, 60 N. J. L. 95, 36 Atl. 691.

29. Posey v. Town of North Bir-
mingham, 154 Ala. 511, 45 So. 663,
15 L. R. A. (N. 5S.) 711.

80. Hyatt v. Williams, 148 Cal.
585, 84 Pac. 41; Spaulding v. In-
habitants of Peabody, 153 Mass. 129,
26 N. E. 421, 10 L. R. A. 397; Chris-

tensen v. City of Fremont, 45 Neb.
160, 63 N. W. 364; Maudlin v. City
Council of Greenville, 33 S. Car. 1,
11S. E. 434, 8 L. R. A, 291; Village
of Swanton v. Town of Highgate, 81
Vt. 152, 69 Atl. 667, 16 L. R. A.
(N. S.) 86%.

31. Hyatt v. Williams, 148 Cal.
585, 84 Pac. 41.

32. Swann v. City of Murray, 146
Ky. 148, 142 S. W. 244, wherein it
was said: “Appellants’ first conten-
234 Law or ELectriciry,

Sec. 153. Inherent Authority.

As a general rule, the power to erect and maintain an
electric lighting plant either for public lighting or private
service is not one of the inherent powers of a municipality.*
Under the weight of authority, unless the power is ex-
pressly given or fairly implied from express powers, the
municipality cannot erect a plant for public lighting, and,
consequently, not for private lighting.

Contrary View.— A contrary view has been promulgated
to the effect that a municipality, independently of any stat-
utory provisions, has an inherent right to operate an elec-
tric plant for the lighting of public places.** And this rule

tion is that a city of the fifth class,
to which Murray belongs, is without
authority in law to own or maintain
a water works system or electric light
plant. Appellants’ counsel have
failed to call our attention to any
adjudicated case sustaining this con-
tention. We think such authority
is conferred upon cities of the fifth
class by section 3637, Kentucky Stat-
utes, which empowers the city coun-
cil “to contract for supplying the
city with water and lights.” This
can better be done by the council’s
contracting for the construction of
water works or a lighting plant to
be owned and controlled by the city,
than to be dependent for water or
lights upon such plant owned by in-
dividuals or corporations, whose
power to fix tHe cost of water and
lights used by the inhabitants of
the city would exceed that of the
city authorities. In either case the
matter of supplying the inhabitants
of the city with water and lights
would be effected by the city council
under power conferred upon it by
the statute, ‘to contract’ for the
water and lights.”

33. Alabama.— Posey v. Town of
North Birmingham, 154 Ala. 511, 45
So. 663, 15 L. R. A. (N. S.) 711.

The effect of this decision is limited
by a subsequent case, wherein it was
disapproved by the judge writing the
opinion. Darby v. City of Union
Springs, 173 Ala. 709, 55 So. 889.

California Clark v. City of Los
Angeles, 160 Cal. 30, 116 Pac. 722.

Illinois.— Village of Ladd v. Jones,
61 Ill. App. 584.:

Nebraska.— Christensen v. City of
Fremont, 45 Neb. 160, 63 N. W. 364.

South Carolina— Maudlin v. City
of Greenville, 33 S. Car. 1, 11 S. E.
434, 8 L. R. A. 291.

34. City of Crawfordsville v.
Braden, 130 Ind. 149, 28 N. E. 849,
14 L. R. A. 268, 30 Am. St. Rep.
214. See also, Ellinwood v. Reeds-
burgh, 91 Wis. 131, 64 N. W. 885.

“So far as lighting the streets,
alleys and public places of a munici-
pal corporation is concerned, we think
that, independently of any statutory
power, the municipal authorities have
inherent power to provide for light-
ing them. If so, unless their discre-
tion is controlled by some express
statutory restriction, they may, in
their discretion provide that form of
light which is best suited to the
wants and the financial condition of
the corporation. * * * We see no
good reason why they may not also,
Municrpan OwnersHIP. 235
has been extended so as to authorize such ao plant for
private as well as public lighting.**= As to public lighting
the doctrine may be explained as an implication upon an
implication. That is to say, the court decides that the
municipality has implied power to light the streets, and
then proceeds a further step and, assuming that the munici-
pality has full power to light streets, implies therefrom the
power of municipal ownership to supply the light. The
weakness in this reasoning is the assumption that an im-
plied power to light the streets is equal to an express statu-
tory provision giving such power, so that the same implica-
tion can be drawn from either. As to private lighting, the
doctrine holds that furnishing electricity to private per-
sons for lighting is an exercise of the police power of the
municipality,** but this view is clearly contrary (whether
or not it may be bolstered up by the police powers of the
municipality) to the general rule that a city or village as
to inherent powers has only those which are indispensable

to the objects and purposes of the corporation.

without statutory authority provide
and maintain the necessary plant to
generate and supply the electricity
required. Possessing authority to do
the lighting, that power carries with
it incidentally the further power to
procure, or furnish whatever is neces-
sary for the production and dissemi-
nation of the light.” City of Craw-
fordsville v. Braden, 130 Ind. 149,
28 N. E. 849, 14 L. R. A. 268, 30
Am. St. Rep. 214.

35. City of Crawfordsville v.
Braden, 130 Ind. 149, 28 N. E. 849,
14 L. R. A. 268, 30 Am. St. Rep. 214.

36. “The corporation possessing, as
it does, the power to generate and
distribute throughout its limits, elec-
tricity for the lighting of its streets
and other public places, we can see
no good reason why it may not also
at the same time, furnish it to the
inhabitants to light their residences
and places of business. To do so, is

This

in our opinion, a legitimate exercise
of the police power for the preserva-
tion of property and health.” City
of Crawfordsville v. Braden, 130 Ind.
149, 28 N. E. 849, 14 L. R. A. 268,
30 Am. St. Rep. 214.

37. “In the City of Crawfordsville
v. Braden, 130 Ind. 149, it was held
that in the absence of any express
power a municipality has the in-
herent power to light its streets, and
to determine the means to be adopted
for that purpose, extending to the
construction and maintenance of
works therefor. Having gone so far,
the court proceeds to hold that hav-
ing the power for that purpose, the
city may also maintain works to fur-
nish lights for private buildings. The
reasoning resorted to in support of
the last conclusion is far from con-
vineing. The court says that to light
residences and places of business of
the inhabitants is a legitimate exer-
236 Law oF ELecrricity.
Indiana decision has been severely criticised,®’ but a similar
conclusion has been reached in North Carolina.”

Sec. 154. Municipal Ownership of Conduits.

A municipality may construct and maintain a system of
conduits for electric wires, and may rent space therein to
electric companies.*® In analogy to the implied right of
a municipality to operate an electric plant under an ex-
pressed right to light the municipal streets, it has been held
that a municipality under a general authority to keep
streets in good order and repair and free from encroach-
ments, may construct a conduit to accommodate electric
wires.*° The matter of conduits and underground wires
is discussed at length in another place.*

Sec. 155. Sale to Inhabitants of Surplus Power from Plant
for Public Lighting.

Assuming that a municipal corporation has no power to
operate an electric light plant for service to its inhabitants,
but has power to operate a plant for public lighting, can it
sell or dispose of surplus energy generated in its plant
for public lighting to private corporations or individuals?
Within reasonable limits the local officials may determine
the size of the plant, and they may properly assume that
the municipality will grow and that in future years more
current will be required for public lighting. It, therefore,
naturally results that upon the installation of its plant for

cise of the ‘police power.’  Else-
where in the opinion, the police

legal reason for such action can be
found.” Christensen v. City of Fre-

power is referred to as a term ‘ diffi.
cult to precisely define or limit.’ If
the view of the Indiana court is to
prevail, it might better be said that
it is a term without definition or lim-
itation. The result of some of the
cases relating to the police power
arouses the suspicion that courts
have sometimes been disposed to seek
in this term an excuse for sustaining
acts seemingly conducive to the gen-
eral welfare where no satisfactory

mont, 45 Neb. 160, 63 N. W. 364.

88. Fawcett v. Town of Mt. Airy,
134 N. Car. 125, 8 Am. Elect]. Cas.
341, 45 S. E. 1029, 63 L. R. A. 870,
101 Am. St. Rep. 825.

39. Purnell v. McLane, Mayor of
Baltimore City, 98 Md. 589, 8 Am.
Electl. Cas. 55, 56 Atl. 830.

40. O’Brien v. City of Erie, 7 Pa.
Dist. Rep. 491, 20 Pa. Co. Ct. 337.

41. §§ 338-348.
MunicrpaL OwNERSHIP. 237
public lighting, the municipality has the means of generat-
ing a supply of electricity beyond its consumption for such
purpose. Though the judicial approval of the sale of such
surplus to its inhabitants seems to offer to a certain extent
an opportunity for evasion of the prohibition of private
lighting, such sale is held to be proper.*? As was said in
one case,** ‘‘ If the municipality may build and operate its
own plant for that [public lighting] purpose, and it may, it
ought to be permitted to sell the surplus of its product as
it would be to sell any of the horses bought for its fire
department when they are no longer needed in the public
service, or to sell anything else it rightfully had, but had
no further use for.’’ The theory upon which the validity
of the sale is sustained is that the generating plant is a
business proposition, and that good business justifies the
disposal rather than the waste of the surplus.** A surplus
may arise before the city has completed the wiring and the

42. Overall v. City of Madison-
ville, 125 Ky. 684, 9 Am. Electl. Cas.
1065, 31 Ky. Law Rep. 278, 102 8. W.
278; Crouch v. City of McKinney, 47
Tex. Civ. App. 54, 9 Am. Electl. Cas.
1087, 104 S. W. 518. See also Pikes
Peak Power Co. v. City of Colorado
Springs, 105 Fed. 1, 44 C. C. A. 333.

43. Overall v. City of Madison-
ville, 125 Ky. 684, 9 Am. Electl. Cas.
1065, 31 Ky. Law Rep. 278, 102 S. W.
278.

44. “In no instance of which we
are aware has it been held by any
court, or allowed by an act of the
legislature, that a municipality could
go into a commercial business purely
as an enterprise of gain. It is al-
ways allowed or supported by the
reason that it has the right to make
or store the product for its public
use. Common sense and good busi-
ness allow that it should sell its sur-
plus to its inhabitants, rather than
to waste it. In this way it is
enabled, too, to accomplish the main
purpose, the public purpose, by

enabling it to own and to econom-
ically operate a plant for that pur-
pose. A city, doubtless, would not
be allowed to act as a bond broker.
Nevertheless, it may invest its sink-
ing fund, which it is allowed and
required to have in certain contin-
gencies, in commercial bonds, and
necessarily to sell them. Its pris-
oners may be required to work in its
workhouse. May not the product of
their labor be sold? The situations
all seem to us to be analogous. The
main feature in each is a clearly gov-
ernmental power and duty. The
other or added feature is incidental,
and allowed as a sensible and neces-
sary concomitant of the main pur-
pose. We think the city had the
power to install a light plant to
furnish public lighting, and _ inci-
dentally, as is proposed, light to its
inhabitants.” Overall v. City of
Madisonville, 125 Ky. 684, 9 Am.
Electl. Cas. 1065, 31 Ky. Law Rep.
278, 102 S. W. 278.
238 Law oF E.ectricity,

installation of street lights throughout the entire city, and
thus the city would be justified in selling a part of the cur-
rent when the public places are not all lighted pursuant to
the municipal plan for public lighting.*® Where a city has
exhausted the funds appropriated for the wiring and in-
stallation of street lights, there can be no objection to its
selling the surplus power to private individuals until more
funds are appropriated for the public lighting system.*
And it seems that current funds of the municipality
may be used so as to enable it to furnish current to the
inhabitants.*”

Sec. 156. Grant of Franchise to Electric Company as Bar
to Municipal Ownership.

Municipal franchises granted to electric companies
authorizing them to string their electric lines in the public
places and to supply the inhabitants of a city or village
with electric current may or may not confer exclusive
rights.** The exclusiveness of the privilege depends upon
whether the municipality has the power to grant a fran-
chise which will exclude others from a similar grant, and
also, assuming the municipal power, whether the munici-
pality has, by appropriate language, actually conferred
such aright. If its franchise is not exclusive, as is gener-
ally the case in this country, an electric company cannot
object to the acts of the municipality either in granting a
similar franchise to another company,* or, if it has legis-
lative authority, in installing and operating a plant itself
for the generation of electricity for both public and private

45. Crouch v. City of McKinney, 47

Tex. Civ. App. 54, 9 Am. Electl. Cas.
1087, 104 S. W. 518.

46. Crouch v. City of McKinney, 47
Tex. Civ. App. 54, 9 Am. Electl. Cas.
1087, 104 S, W. 518.

47. “There being a surplus of
power, the council had the right to
expend current funds to put that
power in use, and the expending of

such funds in supplying electricity
sold to its citizens for private use
was not in derogation of the Consti-
tution relative to taxation.” Crouch
v. City of McKinney, 47 Tex. Civ.
App. 54, 9 Am. Elect]. Cas. 1087,
104 S. W. 518.

48. §§ 219-222,

49. § 203.
Mounicrpan OwNERSHIP.

lighting.”

239

That, as a result of the competition thereby

created, the company will be driven out of business,* or
the city sustain financial loss,” affords the company no

50. United States.— City of Joplin
v. Southwest Missouri Light Co., 191
U. 8. 150, 8 Am. Elect]. Cas. 66, 24
S. Ct. 43, 48 L. Ed. 127, reversing
113 Fed. 817; Little Falls Elec. &
Water Co. v. City of Little Falls, 102
Fed. 663; Thomson-Houston Elec. L.
Co. v. City of Newton, 42 Fed. 723,
3 Am. Electl. Cas. 507.

California Clark v. City of Los
Angeles, 160 Cal. 30, 116 Pac. 722.

Louisiana— Houma L. & Ice Co.
v. Town of Houma, 127 La. 726, 53
So. 970.

Michigan.— Muskegon Trac. & L.
Co. v. City of Muskegon, 167 Mich.
331, 132 N. W. 1060, 18 Det. Leg. N.
711.

Nebraska.— Minden-Edison L. & P.
Co. v. City of Minden, 142 N. W.
673; Bell v. David City, 142 N. W.
523.

Pennsylvania.— Titusville L. & P.
Co. v. City of Titusville, 196 Pa. St.
3, 46 Atl. 195.

Texas.— Crouch v. City of Mc-
Kinney, 47 Tex. Civ. App. 54, 9 Am.
Electl. Cas. 1087, 104 S. W. 518; Joy
v. City of Terrell, (Civ. App.) 138
S. W. 213.

“Tt seems to be the contention of
complainant that, because the ordi-
nance permitting it to use the streets,
alleys, and public places in the de-
fendant city under certain restric-
tions, was approved May 8, 1900,
and has still nearly 19 years to run,
therefore the city is precluded from
undertaking the erection of a munici-
pal plant which will become a com-
petitor with complainant for busi-
ness. To agree with this position
would be to hold that, in passing the
ordinance in question, the defendant
city had placed itself in the hands

of a monopoly for the period during
which the ordinance is operative. We
cannot so hold. It would, we think,
scarcely be contended that the city
might not license another competing
company to use its streets, etc., for
the purpose of furnishing a necessity
to the inhabitants thereof. Detroit,
ete., R. Co. v. Railway, 171 U. S.
48, 18 S. Ct. 732; City of Joplin
v. Light Co., 191 U. S. 150, 24 §.
Ct. 43; Knoxville Water Co. v. Knox-
ville, 200 U. S. 22, 26 S. Ct. 224.
If it may do this, why may it not
itself engage in such competition?
Sections 23 and 24 of article 8 of
the Constitution of 1909 clearly
clothe cities and villages with the
necessary authority to engage in such
enterprises under the restrictions
there imposed.” Muskegon Tract. &
L. Co. v. City of Muskegon, 167
Mich. 331, 132 N. W. 1060, 18 Det.
Leg. N. 711.

51. Thomson-Houston Elec. L. Co.
v. City of Newton, 42 Fed. 723, 3
Am. Elect]. Cas. 507; Clark v. City
of Los Angeles, 160 Cal. 30, 116 Pac.
722.

“Jt is entirely possible that the
proposed action of the city may cause
loss to the complainant. But there
is no ground justifying action by the
court short of holding, that by the
mere action of the city in authoriz-
ing the complainant to establish its
plant without any grant of exclusive
rights, the city thereby deprived
itself of the right to erect an electric
plant for the benefit of its citizens;
and this extreme ground I am not
prepared to take.” Thomson-Houston
Elec. L. Co. v. City of Newton, 42
Fed. 723, 3 Am. Elect]. Cas. 507.

52. “But is said by complainant:
240 Law or ELectricity.

ground for relief. If, on the other hand, the exclusive
nature of the franchise is established and the company has
relied upon the same and spent large sums of money in the
construction of its electric system, the privilege becomes
a contract protected by constitutional provisions from im-
pairment either by a franchise to another company® or by
the operation of a plant by the municipality itself. And,
though not exclusive, whatever rights are granted thereby
cannot be taken from the company without its consent,
unless there has been a forfeiture on its part or its plant
has become a nuisance.”

Sec. 157. Purchase by Municipality of Plant Owned by
Electric Company.

In the absence of special provision of law, there is no
legal obligation upon a municipal corporation to purchase
the system of an existing company with which it comes into
competition when it undertakes to generate its own elec-
tric current. It may, as the preceding section indicates,
permit the company to linger until financial difficulties
cause its dissolution. But though it has a legal right to
starve the existing system, a more honorable procedure,
perhaps, would be to purchase it, paying therefor its rea-
sonable value. And it is generally held that a municipal

power is complete and undoubted, its
electors are dealing with their own

‘It does not appear to be seemly
that there should exist a condition

of affairs which is certain to bring
about competition between the city
and private parties, bringing loss to
all concerned, without profit or ad-
vantage to the city or anybody else.’

The ‘certainty of loss to all con-
cerned’ apprehended by complainant
rests solely upon supposition. There
is no evidence to support the predic-
tion. But, even if it were conclu-
sively proven that this undertaking
would result in loss to the city as
well as to complainant, the courts
would be powerless to restrain the
city from its proposed course. Its

money, and, if they choose to invest
it in losing enterprises, so long as
they comply with the law, it is their
own concern.” Muskegon Tract. & L.
Co. v. Muskegon, 167 Mich. 331, 132
N. W. 1060, 18 Det. Leg. N. 711.

53. See §§ 199 et seq.

54. Monett Elec. L. P. & Ice Co. v.
City of Monett, 186 Fed. 360. See
also, Walla Walla v. Walla Walla
Water Co. 172 U. S. 1, 43 L. Ed.
341, 19 S. Ct. 77.

55. Wakefield v. Village of Theresa,
125 N. Y. App. Div. 38, 109 N. Y.
Supp. 414,
MounicrpaL Ownersuip. 241
corporation empowered to operate an electric light plant
may properly purchase the plant of a company already
supplying electricity in the same territory.*° Moreover, in
some jurisdictions when a municipality is about to enter
upon the municipal ownership of an electric system, statu-
tory provisions convert the duty of purchasing an existing
system from a moral to a legal obligation, by compelling:
the municipality to purchase the same upon an appraisal
thereof. Such statutes are constitutional,” and may be
enforced by the company. And a company having gen-
eral authority to erect poles and string wires in streets
is not wholly debarred of the benefits of such a statute by

the fact that its poles are not legally located.”

56. Backus v. City of Virginia,
(Minn.) 142 N. W. 1042.

Resort to condemnation unneces-
sary.— Where a municipality is au-
thorized to purchase an existing elec-
tric plant, the consideration may be
‘fixed by agreement between the par-
ties without resorting to the power
of eminent domain. Backus v. City
of Virginia, (Minn.) 142 N. W. 1042.

Purchase without assumption of
bonds on system.— Statutory provi-
sions may authorize a, municipal cor-
poration to purchase the electric sys-
tem of a public service corporation
without assuming the payment of
bonds which are a lien against the
property. Connor v. City of Marsh-
field, 128 Wis. 280, 107 N. W. 639.

57. Norwich Gas & Elec. Co. v.
City of Norwich, 76 Conn. 565, 9
Am. Elect]. Cas. 305, 57 Atl. 746;
Citizens Gas Light Co. v. Inhabitants
of Town of Wakefield, 161 Mass. 432,
5 Am. Elect]. Cas. 631, 37 N. E. 444,
31 L. R. A. 457,

The commissioners appointed un-
der the statute to decide as to the
price and conditions of sale are not
judges, and they cannot pass upon
the constitutionality of the statute.
Norwich Gas & Elec. Co. v. City of

16

Norwich, 76 Conn. 565, 9 Am. Electl.
Cas. 305, 57 Atl. 746.

58. Hudson Elec. L. Co. v. Inhab-
itants of Hudson, 163 Mass. 346, 40
N. E. 109.

In determining the value, of the
plant the commissioners may _prop-
erly consider its earning capacity as
a going concern. Norwich Gas &
Elec. Co. v. City of Norwich, 76 Conn.
565, 9 Am. Electl. Cas. 305, 57 Atl.
746,

Subsequent vote against municipal
ownership.—After a municipality has
taken proceedings as required by law
for entering into the municipal
ownership of an electric plant and
has voted at two separate town meet-
ings that it is expedient so to do,
and the existing company has started
proceedings to compel the municipal-
ity to purchase its system, it cannot
by a subsequent vote relieve itself
from the liability to purchase the
plant. Hudson Elec. L. Co. v. In-
habitants of Hudson, 163 Mass. 346,
40 N. E. 109.

59. Citizens Gas Light Co. v. In-.
habitants of Town of Wakefield, 161
Mass. 432, 5 Am. Electl. Cas. 631,
37 N. E. 444, 31 L. R. A. 457, wherein
it was said: “The contention is that,
242 Law oF ELEcrTRICcITY.

Sec. 158. Location of Power Plant.

The location of the power plant of a municipal corpora-
tion generating electricity is largely a matter of its dis-
cretion. In the absence of restrictive provisions, it may
locate its plant outside of the municipal boundaries ;*° and,
as we have seen,” may be authorized to exercise the power
of eminent domain to secure a water power or proposed
site for a generating plant without its municipal bounda-
ries. It may not, however, erect its plant in the center of
a public street to the annoyance and injury of abutting
owners. Even if the municipality owns the fee to the
streets, it has no right to obstruct the street in such man-
ner, as it holds the street in trust for the ordinary and
necessary purposes for which streets are usually sub-
jected.” It seems that a proposition may legally be sub-
mitted to the voters of a city or village for a combined
water and electric plant. It necessarily follows that the
electric plant may be at the location of the waterworks.
Indeed, under certain statutes, it was at one time held in
New Jersey that a city, in order to establish an electric

so far as the electric plant is con-
cerned, every pole supporting the
wires within the limits of the high-
ways in the town of Wakefield is a
public nuisance and that the town
cannot be compelled to purchase
property of the petitioner which the
petitioner cannot legally use, and
which may be removed or destroyed
as a nuisance. The petitioner has
received general authority to erect
poles and lay wires in the public
streets of the town. How far the
particular location of the poles, and
the quality and style of them, were
subject to the approval of the select-
men of the town need not now be con-
sidered. The petitioner actually
owned and operated an electric plant
in the town. The specific property
which the town is required to pur-
chase in accordance with the provi-
sions of the act, and the price, time

and other conditions of the sale, are
to be determined by the commissioner
or commissioners to be appointed un-
der sec. 13. If the poles in the
public ways were not legally located,
this would not entirely defeat the
petition; and what effect it would
have upon the property to be pur-
chased, or the price to be paid for it,
cannot now be determined.”

60. In Canada, it has been held
that a municipality cannot locate its
plant twenty miles outside of the mu-
nicipal limits. Shawinigan Hydro-
Elec. Co. v. Shawinigan Water & P.
Co., 45 Can. Sup. Ct. 585, (1912 C)
Ann. Cas. 928.

61. See §§ 71, 82.

62. MclIllhinny v. Village of Tren-
ton, 148 Mich. 380, 9 Am. Electl. Cas.
1073, 111 N. W. 1083.

63. § 163.
Monicrpa, OwNERSHIP. 243

plant, must be possessed of waterworks from which it can
derive mechanical power which, either alone or together
with additional power to be developed for the purpose, may
be used in furnishing the desired electrical energy.“

Sec. 159. Furnishing Current for Operation of Street
Railway.

The right of a municipality, which is lawfully engaged
in furnishing electric current to its inhabitants, to supply
electric power to a street railway company has, apparently,
never been denied. Nor has the right been expressly
affirmed. In one decision, however, construing statutes of
California, it was held that certain cities therein, having
secured a supply of electricity by contract, might sub-
contract to furnish a portion of such supply for the opera-
tion of a street railroad.®

Sec. 160. Right to Make Profit.

But little consideration has been given to the question
whether a municipality may so operate its electric light
plant as to create a profit, or whether the rates must be
so adjusted as to preclude gain from the enterprise. The
sale of the surplus power of a public lighting plant to
private consumers has been sustained on the ground that
good business requires the sale rather than the waste of
the surplus.** This reasoning may easily be expanded so
as to authorize a municipal corporation to make a profit
from either a public or a general lighting plant; and,
though no decision can be found expressly permitting the
management of a lighting plant for profit to the munici-
pality, the right, within proper limitations is sustained by
reason. On the other hand, a municipal corporation is
formed, not for pecuniary profit, but for service to the
public. Thus, it cannot enter into the electric business

64, Lighthipe v. City of Orange, 75 65. Riverside, etc., Ry. Co. v. City
N. J. L. 365, 68 Atl. 120; affirmed of Riverside, 118 Fed. 736.
without opinion, 76 N. J. L. 817, 74 66. § 155.
Atl. 1135.
24d Law or Execrriciry.

with the sole purpose of profit as a private corporation
may do.” The right of municipal ownership of public
utilities is supported by the public use to which it intends
to devote the property; but, having purchased or con-
structed an electric system primarily for the purpose of
serving the public, there is no reason why it should not be
allowed to make a reasonable profit therefrom.

Sec. 161. Territory Served.

Municipal ownership does not necessarily imply that the
electric system shall be co-extensive with the municipal
boundaries. It may cover more or less than the municipal
area. Lands within the municipal limits may be taxed
for the construction and maintenance of a municipal elec-
tric plant, though they receive no benefit therefrom.” To
a considerable extent the local officials have a discretion as
to where the electric lines shall be conducted, and it has
been held that a taxpayer or resident cannot compel them
to extend such lines so that he may have service.”

Sec. 162. Territory Served; Service to Non-residents.
The right of a municipality owning and operating its
own electric plant to supply current to persons residing’
without the municipal limits, depends, like its other powers,
upon the authority which the legislature has seen fit to
grant to it. It may be authorized to supply such non-
residents.” Indeed, it has been held that such power need

67. “In no instance of which we Leg. N. 318, 38 L. R. A. 15%, 67

are aware has it been held by any
court, or allowed by an act of legis-
lature, that a municipality could go
into a commercial business purely as
an enterprise of gain. It is always
allowed or supported by the reason
that it has the right to make or
store the product for its public use.”
Overall v. City of Madisonville, 125
Ky. 684, 9 Am. Elect]. Cas. 1065, 31
Ky. Law Rep. 278, 102 S. W. 278.

68. § 147.

69. Mitchell v. City of Negaunee,
113 Mich. 359, 71 N. W. 646, 4 Det.

Am. St. Rep. 468.

70. Moore v. City Council of Har-
rodsburg, 32 Ky. Law Rep. 384, 105
8. W. 926.

71. City of Henderson v. Young,
119 Ky. 224, 9 Am. Electl. Cas. 249,
83 S. W. 583, 26 Ky. Law Rep. 1152;
Village of Swanton v. Town of High-
gate, 81 Vt. 152, 69 Atl. 667, 16
L. R. A. (N. S.) 867; Rand v. Mar-
shall, 84 Vt. 161, 78 Atl. 790. See
also, Clark v. City of Los Angeles,
160 Cal. 30, 116 Pac. 722.
MounicirpaL OwneRsHIP. 245
not be expressly given and that a municipality, having the
right to furnish current for private lighting and not being
restricted as to the territory to be served, may in its dis-
cretion supply electricity to non-residents, within reason-
able limits, as well as residents.” The power of the legis-
lature is supreme and may be exercised arbitrarily. Though
express authority to serve persons beyond its boundaries
does not negative the power to serve persons within the
municipal limits,” the statutory provisions may be so con-
strued as to permit service to non-residents and, at the
same time, forbid similar service to residents.”

Sec. 163. Vote of Inhabitants.

While in most states the legislature has the power to
authorize the local officials to construct and operate a
municipal electric plant without a vote of the inhabitants
or taxpayers,” nevertheless it is eminently proper that
their wishes be consulted, and the usual legislative practice
is to have the municipal ownership of public utilities con-
ditioned upon the approval of the taxpayers: or inhabit-
ants. Of course, the right to vote upon the proposition
assumes the right of municipal ownership of the plant pro-
posed. Where the municipal corporation has no power to
erect or operate such a plant, a taxpayer may enjoin the
spending of the municipal funds for preparing specifica-
tions or advertising for proposals for the erection of the
plant or for elections thereupon.”

As a Necessary Expense.— Under the Constitution of
North Carolina, a municipal corporation may not incur
debts or issue bonds, except for ‘‘ necessary expenses,”’
without a submission of the proposition to the voters.”

72. City of Henderson v. Young,
119 Ky. 224, 9 Am. Electl. Cas. 249,
83 S. W. 583, 26 Ky. Law Rep. 1152.

78. Rand v. Marshall, 84 Vt. 161,
78 Atl. 790.

74. Village of Swanton v. Town of
Highgate, 81 Vt. 152, 69 Atl. 667,
16 L. R. A. (N. 8.) 867.

75. Connor v. City of Marshfield,
128 Wis. 280, 107 N. W. 639.

76. Kemp v. Hazelhurst, 80 Miss.
443, 31 So. 908.

77. Howell v. City of Millville, 60
N. J. L. 95, 36 Atl. 691.

78. “Indebtedness incurred by a
city or town for a supply of water
246

Law oF ELEctriciIvy.

But it is held that the erection and maintenance of an elec-
tric light plant, either for public lighting or for both public
and private lighting, is a ‘‘ necessary expense,’’”® and con-
sequently municipal ownership may be secured without the

approval of the voters.®°

stands on the same footing as in-
debtedness incurred for lighting pur-
poses, and, if such indebtedness be a
necessary expense, then whether or
not a municipality may incur it does
not depend upon the approval of the
proposition by a majority of the
qualified voters of the municipality.
It is only in cases where counties,
cities, or towns undertake to con-
tract debts or pledge their faith, or
loan their credit or levy taxes, except
for the necessary expenses thereof,
that the submission of the proposi-
tion must be made to a vote of the
qualified voters of such county, city,
or town.” Fawcett v. Town of Mt.
Airy, 134 N. Car. 125, 8 Am. Electl.
Cas. 341, 45 S. E. 1029, 63 L. R. A.
870, 101 Am. St. Rep. 825.

79. Fawcett v. Town of Mt. Airy,
134 N. Car. 125, 8 Am. Electl. Cas.
341, 45 S. E. 1029, 63 L. R. A. 870,
101 Am. St. Rep. 825, wherein it was
said: “The words ‘necessary ex-
pense’ then, must mean such ex-
penses as are or may be incurred in
the establishing and procuring of
those things without which the peace
and order of the community, its
moral interests, and the protection of
its property and that of the prop-
erty and persons of its inhabitants,
would seriously suffer considerable
damage; leaving out of view the mat-
ter of the great inconvenience that
would be attendant upon our present
social life for want of such expendi-
tures. * * * As to the question of
lighting the streets and public places,
the experience of all who live in
towns and cities of any considerable

This conclusion has not been

population is that without lights
upon the streets and in the public
buildings, both life and property
would be insecure, to say nothing of
the almost complete destruction of
the conveniences of life and the mar-
ring of its social features. The fire
department, probably the most im-
portant of the municipal departments,
would be rendered ineffective, and a
considerable part of the commerce —
trade of the country — would be de-
stroyed, for, under our changed con-
ditions, a good deal of the traffic
between different communities and a
respectable part of our mail service
are conducted at night. It will not
do to say that a city or town may
expend money or incur a debt for
the purchase of lights by the month
or the year, but that it may not
incur a debt for the construction and
operation of a system of water works
or for the installment of an electric
plant for lighting. If the matter of
lighting is a necessary expense, then
how and in what manner the city
shall furnish such lighting is with
the authorities of the city or town
to determine. The courts determine
what class of expenditures made or
to be made by a municipal corpora-
tion come under the definition of
necessary expenses. The governing
authorities of the municipal corpora-
tions are vested with the power to
determine when they are needed, and,
except in cases of fraud, the courts
cannot control the discretion of the
commissioners.”

80. City of Gastonia v. Citizens’
Nat. Bank, (N. Car.) 81 8. E. 755;
MunicipaL OwnersHIP. 247
reached without difficulty, for in a prior decision a contrary
holding was made.

Proposition to be Voted Upon.— The question to be voted
upon should be so worded as to make it clear what the
municipal officials propose to do. The proposition should
disclose the manner in which the authorities intend, if a
favorable vote is had, to pay for the municipal plant.”
This ordinarily compels a description of the bonds issued
to raise the required funds, but it has been held that the
time of the maturity of the bonds need not be stated.*

Dual Proposition.— Ordinarily, in order that the voters
may have an opportunity to express their views, it is re-
quired that the proposition be single, not dual, in form.
Thus, a proposition to erect a waterworks plant and an
electric light plant may not be joined in the same pro-
posal.** On the other hand, the fact is recognized that the
voter rarely has an opportunity to vote upon the precise
proposition which he favors over all other propositions,*
and thus a proposition may be submitted for one plant com-
bining both water and electric service.** A proposition for
such a combined plant may be considered as single in
nature, though two distinct products may result from its
construction and operation.*” <A proposition to acquire

Davis v. Fremont, 135 N. Car. 538,
47 S. E. 671; Faweett v. Town of
Mt. Airy, 134 N. Car. 125, 8 Am.
Electl. Cas. 341, 45 S. E. 1029, 63
L. R. A. 870, 101 Am. St. Rep. 825.

81. Mayo v. Town of Washington,
122 N. Car. 5, 29 S. E. 343, 40 L. R.
A. 163.

82. “ When the electors of a city
are called upon to vote upon the
question of the erection of an elec-
trie plant, it is of the highest im-
portance for them to know what pro-
vision is to be made for payment of
the expense of such erection; and it
seems to me that the true wishes of
the voters can be better ascertained
by submitting to them the terms
upon which the council expect to be

able to erect the plant, than by sub-
mitting the single question of erect-
ing or not erecting. Voters are not
prepared to vote understandingly
upon such a question unless they
know how it is proposed to raise the
funds needed in the erection of the
plant.” Thomson-Houston Elee. L.
Co. v. City of Newton, 42 Fed. 723,
3 Am. Electl. Cas. 507.

83. Clark v. City of Los Angeles,
160 Cal. 30, 116 Pac. 722.

84. State v. Brasington, 93 S. Car.
447, 76 S. E. 1086.

85. Cary v. Blodgett, 10 Cal. App.
463, 102 Pac. 668.

86. Cary v. Blodgett, 10 Cal. App.
463, 102 Pac. 668.

87. Cary v. Blodgett, 10 Cal. App.
248 Law oF ELEctRIcITY.

and construct electric works, including such appurtenances
as water rights, etc., is not dual.** Nor is a proposition
‘‘to purchase or install’’ an alternative or dual propo-
sition as to avoid bonds subsequently issued.

Sec. 164. Debt Limit.

The tendency of municipal governments to incur indebt-
edness for future payment has caused constitutional and
statutory provisions making a ‘“‘ debt limit ’’ for munici-
palities. The issuance of bonds for a municipal electric
plant, as a general rule, creates an indebtedness, and, if
such indebtedness exceeds the limitation, the proposed
municipal plant may be blocked. In some states, however,
by special provision bonds for public utilities, such as elec-
tric plants, gas plants, waterworks, etc., are not included
in computing the indebtedness which a municipality may
incur.” The legislature may well take notice of the dis-
tinction which exists between incurring an indebtedness for
general expenses, pavements, parks, or other purposes
which produce no revenue, and an indebtedness for a pub-
lic utility which earns a revenue and may-actually pay for
itself. In at least one jurisdiction it is held that a munici-
pality does not create an indebtedness by obtaining prop-
erty to be paid for wholly out of the income thereof.”
Interest accruing upon the indebtedness is considered a
mere incident to the debt and is not included in computing
the amount of indebtedness.” It is incumbent upon the
person asserting the violation of the debt limit to show that

463, 102 Pac. 668; State v. Wilder,
200 Mo. 97, 98 S. W. 465; State ex
rel. Town of Canton v. Allen, 178
Mo. 555, 77 S. W. 868.

An ordinance authorizing a
waterworks and electric light plant”
is not to be construed as containing
two propositions, though the ordi-
nance would have been better worded
had it been for a “combined water
works and electric light plant.”

“

State v. Wilder, 200 Mo. 97, 98 S. W.
465. :

88. Clark v. City of Los Angeles,
160 Cal. 30, 116 Pae. 722.

89. Hurd v. City of Fairbury, 87
Neb. 745, 128 N. W. 638.

90. See State v. Wilder, 200 Mo. 97,
98 S. W. 465.

91. Evans v. Holman, 244 III. 596,
91 N. E. 723.

92. Blanchard v. Village of Benton,
109 Ill. App. 569.
MunicipaL Ownrrsuip. 249
the proposed official acts incur an excessive debt. Thus,
if the municipality, in an action against it to recover sums
agreed to be paid for equipment in the power plant, defends
on the ground that the contract violates the debt limit, it
must show that it did not have sufficient funds on hand.
at the time of entering into the contract to meet the
obligation.”

Time of Indebtedness.— Bonds for a municipal lighting
plant are not considered a ‘‘ debt ’’ until they are issued.*
Therefore, the local officials may reduce the city indebted-
ness between the time of the authorization of the bonds and
the actual issuance thereof so that the bonds will not violate
the limit, though a contrary result would have been reached
had the bonds been issued at the time of the authorization
thereof. Or, failing to procure funds to reduce the exist-
ing indebtedness before the issuance of the bonds, the legis-
lature may come to the relief of the lighting proposition
and increase the limit.” This relief is, of course, impossi-
ble where the limit is fixed by the Constitution.

Evasion of Limit.— Evasions of the provisions against
excessive indebtedness are discouraged. For example, the
courts will not allow a municipality and an electric com-
pany proposing to sell its system to the municipality to
evade the debt limit by the acts of the company in placing
2. mortgage upon the system just prior to the sale and the
issuance of bonds by the municipality for only the amount
of the equity. Though the latter does not expressly assume

93. Linn v. Chambersburgh Bor-
ough, 160 Pa. St. 511, 4.Am. Elecitl.
Cas. 647, 28 Atl. 842.

94. Arbuckle-Ryan Co. v. City of
Grand Ledge, 122 Mich. 491, 81 N. W.
358, 6 Det. Leg. N. 860.

95. Thomson-Houston Elec. L. Co.
vy. City of Newton, 42 Fed. 723, 3
Am. Elect]. Cas. 507. “The vote of
the electors upon a proposition to is-
sue bonds for municipal improve-
ments does not ipso facto create a
debt against the city to the amount

authorized. The indebtedness of the
city is not thereby increased. The
increase occurs when the bonds are
issued and become valid obligations
in the hands of the holders, that is
when they are sold and delivered to
the purchaser.” Clark v. City of Los
Angeles, 160 Cal. 30, 116 Pac. 722.

96. Thomson-Houston Elec. L. Co.
v. City of Newton, 42 Fed. 723, 3
Am. Elect]. Cas. 507.

97. Clark v. City of Los Angeles,
160 Cal. 30, 116 Pac. 722.
250 Law 'or Evecrricrry.

the payment of the mortgage, it is considered a ‘‘ debt ’’
within the meaning of the debt limit. So, too, a city may
not enter into a contract in the form of a lease with an
electric company for the purchase of the latter’s electric
system for a total amount exceeding the debt limit, though
the contract provides for yearly payments for a number
of years. But where the municipality is constructing a
plant rather than purchasing one previously in operation,
it may build the same piecemeal as its funds permit, and the
debt limit is not violated by purchases which are paid for
out of the current revenues of the municipality, though the
aggregate cost of the plant may exceed the debt limit.

Sec. 165. Contracts for Construction or Equipment of
Plant.

A municipality having general power to make contracts
and hawing the right to construct a municipal lighting plant
may, of course, enter into a contract with another to con-
struct and put its electric system into operation. In award-
ing contracts of this nature, due regard must be given to
the required formalities, such as the advertisement for
proposals,’ the award of the contract to the lowest bidder,
a vote of the taxpayers, etc. Where contracts are required

98. Evans v. Holman, 244 Ill. 596,
91 N. E. 723.

Different result—In one case in
Wisconsin, it was held that, where a
municipality purchased an electric
plant subject to a mortgage thereon,
the prior indebtedness was not a debt
within the meaning of the debt limit.
The cases may, perhaps, be reconciled
by reason of the peculiar wording of
the Wisconsin statutes. Connor v.
City of Marshfield, 128 Wis. 280, 107
N. W. 639.

99. Baltimore & O. S. W. R. Co. v.
People, 200 Ill. 541, 66 N. E. 148.
Compare Hay v. City of Springfield,
64 Ill. App. 671.

1. Overall v. City of Madisonville,
125 Ky. 684, 9 Am. Electl. Cas. 1065,

102 S. W. 278, 12 L. R. A. (N. 8.)
433. But see Palmer v. City of Hel-
ena, 40 Mont. 498, 107 Pae. 512.

2. Schenck v. Borough of Olyphant,
181 Pa. St. 191, 37 Atl. 258.

8. General Elec. Co. v. Town of Ft.
Deposit, 174 Ala. 179, 56 So. 802.

Under charter powers limiting the
purchasing power of the municipality
of real and personal property to a
valuation of $1,000, without a con-
tract above that amount being rati-
fied by the electorate, a contract made
by the town council for the purchase
of electrical machinery at about
$4,000, is void if not ratified by the
electorate of the town. While the
rule is that under a contract which
is illegal, the property obtained can-
MunicipaL OwnersHIP. 251
to be let to the lowest bidder, and the local officers duly
advertise and receive proposals, one being from two com-
panies jointly, but thereafter one of such joint bidders
submits a proposal to the committee appointed to investi-
gate the proposals, a contract awarded upon such proposal
is not valid.* Likewise, the debt limit of the municipality
must be considered, for a violation thereof is fatal to the
validity of the contract. Moreover, under some city char-
ters, proposed expenditures must be submitted to a board
of estimate for approval.® But, in the absence of statutory
restrictions, a municipal contract for a plant for electric
lighting is not invalid because the city has no money on
hand at the time the contract is made which can lawfully
be applied to such purpose.” The municipal council is
usually the body which is invested with the power of pur-
chasing machinery and equipment for the municipal plant,°
but city charters can by no means be charged with sim-
ilarity, and the purchasing power is many times vested in
another body or person.°

Sec. 166. Payment for Plant.

Within certain limits, the means by which payment shall
be made for a municipal electric plant is within the dis-

not be recovered, as in the case of
a mere void contract, yet a contract
which is void only for want of rati-
fication of the electors of the city or
town, is not illegal, and a seller may,
in appropriate proceedings, recover
from the municipality the property
procured under such contract. Gen-
eral Elec. Co. v. Town of Ft. Deposit,
174 Ala. 179, 56 So. 802.

4, Attorney-General ov. Public
Lighting Commission of Detroit, 155
Mich. 207, 118 N. W. 935, 15 Det.
Leg. N. 958.

5. Arbuckle-Ryan Co. v. City of
Grand Ledge, 122 Mich. 491, 81 N. W.
358, 6 Det. Leg. N. 860; American
Elec. Co. v. City of Waseca, 102 Minn.

329, 113 'N. W. 899; Schenck v. Bor-
ough of Olyphant, 181 Pa, St. 191, 37
Atl. 258.

Debt limit—As to the effect of
“debt” limits, see §§ 136, 164.

6. Ray City Traction & Elec. Co. v.
Bay City, 155 Mich. 393, 119 N. W.
440, 15 Det. Leg. N. 1039.

7. Mitchell v. City of Negaunee,
113 Mich. 359, 71 N. W. 646, 4 Det.
Leg. N. 318, 38 L. R. A. 157, 67 Am.
St. Rep. 468.

8. Southern Express Co. v. B. R.
Electric Co., 126 Ga. 472, 55 S. E.
254.

9. American Elec. Co. v. City of
Waseca, 102 Minn. 329, 113 N. W.
899.
252 Law or ELecrriciry.

cretion of the local authorities..° Having authority to con-
struct or purchase such a plant, it may use unappropriated
moneys in its general fund for such purpose." Current
funds may be used for this purpose, though statutory pro-
visions expressly authorize the issuance of bonds and the
levy of taxes for the raising of funds for the municipal
plant. Or the city may plan to pay for the plant out of
the revenues to be derived therefrom;* in such a case, cer-
tificates of indebtedness may be issued to be paid out of
the revenue of future years.** The customary method of
raising the necessary funds, however, is the issuance and
sale of bonds.** Whatever the mode of payment, if it
involves an indebtedness, regard must be had for constitu-
tional or statutory provisions fixing the ‘‘ debt limit ’”’ of
the municipality.*®

Sec. 167. Payment for Plant; Bonds.

The amount of money necessarily involved in the pur-
chase of an existing electric plant or in the construction
of a new plant requires, as a general proposition, that pay-
ment therefor shall extend over a term of years. The
simplest, as well as the customary, device for extended
payments is the issuance of bonds. The power given to
a municipal corporation to purchase or construct an elec-
tric system, in the absence of restriction by ‘‘ debt ’’ limit
or otherwise, carries with it the power to issue bonds to
raise the necessary funds.’ Express provision is gener-
ally made, however, for the issuance of bonds in such
cases." The procedure outlined by statute in such cases

10. Houma L. & Ice Co. v. Town of
Houma, 127 La. 726, 53 So. 970.

16. § 164.
17. Rushville Gas Co. v. City of

11. Christensen v. City of Fremont,
45 Neb. 160, 63 N. W. 364.

12. Christensen v. City of Fremont,
45 Neb. 160, 63,N. W. 364.

18. Houma L. & Ice Co. v. Town of
Houma, 127 La. 726, 53 So. 970.

14. Houma L. & Ice Co. v. Town
of Houma, 127 La. 726, 53 So. 970.

15. § 167.

Rushville, 121 Ind. 212, 23 N. E. 72;
Backus v. City of Virginia, (Minn.)
142 N. W. 1042; Connor v. City of
Marshfield, 128 Wis. 280, 107 N. W.
639.

18. See also, Simpson v. City of
Nacogdoches, (Tex. Civ. App.) 152
S. W. 858.
. MuntcrpaL OwnersaHip. 253
must be at least substantially complied with.* If the
approval of the taxpayers or inhabitants is required, bonds
may not be issued without a favorable vote upon the ques-
tion.” As to the formalities in the passage of ordinances,
propositions to be voted upon, elections to be had, letting
of contracts, and other matters, the particular statutes of
the jurisdiction must be carefully studied.”

Unlawful Use of Plant as Defense to Bonds.— The fact
that a municipal corporation, after the construction of an
electric plant, uses the same in whole or in part for an
unlawful purpose, does not relieve it from the payment of
the bonds regularly issued for its construction.” Thus,
assuming that the municipality has power to operate an
electric plant for public lighting, but no power to operate
such a plant for furnishing electricity to private persons,
if it does unlawfully serve private persons, nevertheless,
the payment of its bonds cannot be avoided by its officials
or by taxpayers.”

Sec. 168. Payment for Plant; Special Assessments upon
Property Owners.

It has been stated in connection with contracts with elec-
tric companies for street lighting’** that such lighting is
of general benefit to all the members of the municipality
so that special assessments to pay the cost thereof is not
a customary practice. With equal force the same observa-
tions apply to the cost of municipal electric plants. Thus,
as a general proposition, a municipal corporation cannot
tax the cost against the property owners by special assess-
ments.> As the matter is one largely within the control

sue.

19. See Livermore v. City of Mill-
ville, (N. J.) 90 Atl. 380,

20. § 163.

21. Sinking fund.—- Statutory pro-
visions construed, and held that a
municipality was not required to cre-
ate a sinking fund to provide for
municipal lighting bonds until after
an election authorizing the bond is-

Muskegon Tract. & L. Co. v.
City of Muskegon, 167 Mich. 331, 132
N. W. 1060, 18 Det. Leg. N. 711.

22. Blanchard v. City of Benton,
109 Ill. App. 569.

23. Blanchard v. City of Benton,
109 Ill. App. 569.

24. § 142.

25. Ewart v. Village of Western
254 Law oF ELECTRICITY.

of the lawmaking body, statutory provisions may be found
in some jurisdictions permitting special assessments to
cover the expense of the whole or a part of the system.
In one case,”* it was held that the cost of the power-house
and generating plant, with machinery and appliances
therein, must be met by general taxation, but that the poles,
conductors, lamps, and appliances connected therewith
were of local benefit and their cost could be met by special
assessment.

Sec. 169. Recovery for Current.

Where a municipal corporation is engaged in the munici-
pal ownership of an electric plant for service to its inhab-
itants, the relation between it and its customers is the same,
except as express law makes a distinction, as that between
a private electric company and customers of such a com-
pany. A municipal corporation empowered to maintain
an electric system and furnish electricity to private persons
can collect the sums due it in the same manner as an elec-
tric company can collect of its consumers.” But, where
a municipality assumes to furnish electricity to private
persons when it has no power so to do, its acts are ultra
vires, and it has been held that it cannot recover for cur-
rent so supplied.”®

Recovery of Landlord for Electricity Furnished to
Tenant.— The public character of a municipality operating
its own electric system has led to the enactment of statutes
conferring other remedies upon it for the collection of its
rates. Thus, by a general statute applicable to all munici-
palities operating electric plants for service to private
persons or by special charter provisions, it is sometimes
sought to render a landlord liable for electricity supplied
to his tenant. When it is within the power of the landlord
to permit or refuse the introduction of the electric current
in his building, such statutes are constitutional and may be

Springs, 180 Tl. 318, 54 N. E. 478; 27. See § 119.
Stehmeyer v. Charleston, 53 S. Car. 28. Village of Ladd v. Jones, 61
259, 31 S. EB. 322. Ill. App. 584.

26. Ewart v. Village of Western
Springs, 180 Tl. 318, 54 N. EB. 478.
MounicrpaL OwneErsHIP. 255
enforced.” If the municipality continues to furnish cur-
rent to the tenant in disregard of:the owner’s directions,
the landlord is not liable therefor.*°

Sec. 170. Employees Running Plant.

The power to operate a municipal lighting plant implies
authority to employ such persons as may be reasonably
necessary for the proper maintenance and operation of the
system.** While the head of the lighting department of
the municipality may be deemed a public officer, persons
working in the plant as engineers,” electricians, etc., or
persons extending and repairing electric lines as linemen,”
are not officers, but are merely employees. Statutes some-
times prescribe the officials who shall have charge of mu-
nicipal lighting plants and define their powers and duties.
The appointment of a manager of sucha plant, who shall
have power to hire and discharge employees, may be
authorized by statute.** Where the superintendent of the
city’s electric plant encounters the problem of carrying the
city’s electric wires across the wires of a telephone com-

29. City of East Grand Forks v.
Luck, 97 Minn. 373, 107 N. W. 393,
6L. R. A. (N. S.) 198; Rand v. Mar-
shall, 84 Vt. 161, 78 Atl. 790. In
Rand v. Marshall, 84 Vt. 161, 78 Atl.
790, the court considering the consti-
tutionality of such a statute, said:
“Tn considering the validity of the
provision making the rates charge-
able upon the owner and his building,
regard must be had to the relations
existing between the lessors of tene-
ments and the village. The lessor is
the owner of the property. The wires
are put in by the village at the own-
er’s request. Both parties act in the
expectation that the electricity will
be used by the occupant of the build-
ing. The facilities afforded increase
the rental value of the building, but
their use is not essential to its occu-
pancy. The village is not obliged
to furnish electricity until paid for,

and so may refuse to furnish it until
payment is secured to its satisfac-
tion. The owner can protect himself
from liability at any time by direct-
ing that no electricity be furnished.
In view of these considerations, we
think this provision of the charter
involves nothing that impairs the con-
stitutional rights of the owner.”

30. Rand v. Marshall, 84 Vt. 161,
78 Atl. 790.

31. Rockebrandt v. City of Madi-
son, 9 Ind. App. 227, 36 N. E. 444.

82. State v. Anderson, 57 Oh. St.
429, 49 N. E. 406.

83. Lamp trimmer.— A person em- *
ployed by a city council to trim
lights in its electrical department is
not a public officer. State v. Ander-
son, 57 Oh. St. 429, 49 N. E. 406.

‘84, Capron v. City of Taunton, 196
Mass. 41, 81 N. E. 873.
256 Law oF ELEcTRICITY.

pany, and finds that he has carried the wires dangerously
near the telephone wires, he has authority to correct the
mistake by raising the city’s wires or lowering them, or
he may arrange with the telephone company for a change
in the location of their wires, or he may adopt any other
scheme reasonably calculated to accomplish the purpose
sought.** Persons having charge of the operation of a
municipal plant are not generally empowered to attend to
the financial operation of the plant, but their powers and
duties are confined to the physical operation thereof. They
may not generally purchase machinery or supplies for the
plant, but such purchases must be made by the municipal
assembly or other body which is authorized to make con-
tracts and incur obligations on behalf of the municipality.*

Sec. 171. Grant to Others of Right to Use Municipal Poles.

It has been found extremely convenient for electric, tele-
graph, and telephone companies to grant to each other the
use of their poles. In the absence of statutory restriction
there is no reason why one private corporation should not
grant such right to another. But the situation is different
when the party owning the poles is a municipal corpora-
tion. The right to use the poles of another is a property
right; and, though a municipality would have the right to
accept a grant of the use of a private corporation’s poles,
it has not the same power of granting property to another
as has a private person. In the absence of power, either
express or implied, it may not convey its property to
another. Hence, the power of the local officials to grant
such right to a private company has been denied.*7 And,
if the municipality may not directly convey this right, a
private corporation should not be allowed to acquire the
same indirectly, as by estoppel.** Further consideration

35. Central Union Telep. Co. v. City 87. City of Columbus v. Colum-
of Conneaut, 167 Fed. 274,93 C.C. A. bus Public Service Co., 17 Ohio Dec.
196. 291, 9 Am. Elect]. Cas. 668.

36. Southern Express Co. v. B. R. 38. City of Columbus v. Columbus
Electric Co., 126 Ga. 472, 55 S. E. Public Service Co., 17 Ohio Dec. 291,
254. 9 Am. Electl. Cas. 668.
MuwicrpaL OWNERSHIP. 257

by the courts of this question may, however, lead to a
modification of the doctrine laid down in what appears to
be the only reported decision upon the question.

Sec. 172. Liability for Torts.

In another chapter® is discussed the question whether a
municipal corporation is liable for the negligence or wrong-
ful acts of employees operating a municipal lighting plant.

89. §§ 425, 426.
17
258 Law oF ELECTRICITY.

CHAPTER IX.
RIGHT OF WAY FOR LINES; POST ROADS ACT.

SECTION 173. General Observations.
174. Electric Lines through Public Domain.
175. Telegraph and Telephone Lines in Indian Reservations.
176. Post Roads Act; In General.

177. —— Constitutionality of Statute.

178. —— Purpose of Statute.

179, —— What are Post Roads.

180. —— Effect of Statute.

181. ——No Application to Telephone or Electric Companies.
182, —— Use of Materials from Public Lands.
183. —— Rights not Transferable.

184. —— Priority of Government Messages.

185, —— Purchase of Lines by Government.

186. ——- Acceptance of Obligation to be Filed.
187. Under or Over Navigable Waters; In General.
188, ——- Injuries to Vessels.

189. —— Injuries to Lines.

190. —— Over Rivers.

191. —— Oceanic Cables.

Sec. 173. General Observations.

In this chapter and in several following ones are dis-
cussed the rights with which companies are invested or
which they may acquire in order to enable them to run
their lines of poles and wires from one place to another.
This is, not only an important matter, but one which covers
a broad scope. Electric, telegraph, and telephone lines
run in almost every conceivable place. Electricity may be
conducted along or across streets or highways, along or
across railroad rights of way, across private property, or
across the public domain or other public property. From
the various classes of property which may be affected, it
naturally follows that certain privileges or rights of way
may be granted by private individuals or corporations,
by municipal corporations,’ by states,* and even by the
federal government.* In this chapter will be discussed,

1. §§ 313-322. 8. §§ 244-257,
2. §§ 258-276. 4. §§ 174-191.
Rieut or Way For Lines; Post Roaps Act. 259

besides some incidental matters of national scope, the
rights granted by the federal government. Following this
will be found a treatment of the franchise rights granted
by states and municipalities. In later chapters will be
found a treatment of the rights of individuals and private
corporations, including a discussion of the rights of abut-
ting owners, the rights of railroad companies, and the
rights of private persons over whose property lines are
conducted.

Sec. 174. Electric Lines Through Public Domain.

Several different statutes have been passed by congress
authorizing electric companies, as well as telegraph and
telephone companies, to acquire, by following prescribed
conditions, rights of way for poles and lines through pub-
lic lands, national forests, reservations, etc. Of these, the
one first enacted applied exclusively to electric companies 5
and provided as follows: ‘‘ That the Secretary of the In-
terior be, and hereby is, authorized and empowered, under
general regulations to be fixed by him, to permit the use of
right of way to the extent of twenty-five feet, together with
the use of necessary ground, not exceeding forty acres,
upon the public lands and forest reservations of the United
States, by any citizen or association of citizens of the
United States, for the purposes of generating, manufactur-
ing, or distributing electric power.’’

A few years later an act was approved authorizing the
Secretary of the Interior to permit the use of rights of
way through public lands, reservations, public parks, etc.,
to electric companies and divers other companies. This
act® provides as follows: ‘‘ That the Secretary of the In-
terior be, and hereby is, authorized and empowered, under
general regulations to be fixed by him, to permit the use
of rights of way through the public lands, forest and other
reservations of the United States, and the Yosemite,
Sequoia, and General Grant national parks, California, for

5. Act May 14, 1896, c. 179, § 2, 29 6. Act. Feb. 15, 1901, c. 372, 31
Stat. at L. 120. Stat. at L. 790.
260 Law oF HELEctRIcirTy.

electric plants, poles and lines for the generation and dis-
tribution of electrical power, and for telephone and tele-
graph purposes, and for canals, ditches, pipes and pipe
lines, flumes, tunnels, or other water conduits, and for
water plants, dams and reservoirs used to promote irriga-
tion or mining or quarrying, or the manufacturing or
cutting of timber or lumber, or the supplying of water for
domestic, public, or any other beneficial uses to the extent
of the ground occupied by such canals, ditches, flumes, tun-
nels, reservoirs, or other water conduits or water plants,
or electrical or other works permitted hereunder, and not
to exceed fifty feet on each side of the marginal limits
thereof, or not to exceed fifty feet on each side of the center
line of such pipes and pipe lines, electrical, telegraph and
telephone. lines and poles, by any citizen, association, or
corporation of the United States, where it is intended by
such to exercise the use permitted hereunder or any one
or more of the purposes herein named: Provided, That
such permits shall be allowed within or through any of said
parks or any forest, military, Indian, or other reservation
only upon the approval of the chief officer of the Depart-
ment under whose supervision such park or reservation
falls and upon a finding by him that the same is not incom-
patible with the public interest: Provided, further, That all
permits given hereunder for telegraph and telephone pur-
poses shall be subject to the provision of title sixty-five of
the Revised Statutes of the United States, and amendments
thereto, regulating rights of way for telegraph companies
over the public domain: And provided further, That any
permission given by the Secretary of the Interior under
the provisions of this act may be revoked by him or his
successor in his discretion, and shall not be held to confer
any right, or easement, or interest in, to, or over any public
land, reservation or park.’’

An act passed in 1911,’ allows the granting of easements
to electric and other companies for their lines through pub-
lic lands. It provides as follows: ‘‘ Rights of way through
public lands, national forests, and reservations, for elec-

7. Act Mar. 4, 1911, c. 238, 36 Stat. at L. 1253.
Rieut or Way For Lines; Post Roaps Act. 261

trical poles and lines; approval of chief officer of depart-
ment; forfeiture for non-user; rights of holders of pre-
vious permits.

That the head of the department having jurisdiction over
the lands be, and he hereby is, authorized and empowered,
under general regulations to be fixed by him, to grant an
easement for rights of way, for a period not exceeding
fifty years from the date of the issuance of such grant,
over, across, and upon the public lands, national forests,
and reservations of the United States for electrical poles
and lines for the transmission and distribution of electrical
power, and for poles and lines for telephone and telegraph
purposes, to the extent of twenty feet on each side of the
center line of such electrical, telephone, and telegraph lines
and poles, to any citizen, association, or corporation of the
United States, where it is intended by such to exercise the
right of way herein granted for any or more of the pur-
poses herein named: Provided, That such right of way
shall be allowed ‘within or through any national park,
national forest, military, Indian, or any other reservation
only upon the approval of the chief officer of the depart-
ment under whose supervision or control such reservation
falls, and upon a finding by him that the same is not incom-
patible with the public interest: Provided, That all or any
part of such right of way may be forfeited or annulled by
declaration of the head of the department having jurisdic-
tion over the lands for nonuse for a period of two years
or for abandonment. That any citizen, association, or cor-
poration of the United States to whom there has heretofore
been issued a permit for any of the purposes specified
herein under an existing law, may obtain the benefit of
this act upon the same terms and conditions as shall be
required of citizens, associations, or corporation hereafter
making application under the provisions of this statute.”’

Sec. 175. Telegraph and Telephone Lines in Indian Reser-
vations.

Besides the enactments mentioned in the foregoing sec-

tion some of which apply to telegraph and telephone as well
262 Law or ELecrricirty,

as other corporations, special acts have been adopted rela-
tive to telegraph and telephone lines in Indian reserva-
tions. A statute passed in 1899* provides: ‘‘ That a right
of way for a railway, telegraph, and telephone line through
any Indian reservation in any state or territory, or through
any lands held by any Indian tribe or nation in Indian
territory, or through any lands reserved for an Indian
agency or for other purposes in connection with the Indian
service, or through any lands which have been allotted in
severalty to any individual Indian under any law or treaty,
but which have not been conveyed to the allottee with full
power of alienation, is hereby granted to any railroad com-
pany organized under the laws of the United States, or of
any state or territory, which shall comply with the pro-
visions of this act and such rules and regulations as may
be prescribed thereunder: Provided, That no right of way
shall be granted under this act until the Secretary of the
Interior is satisfied that the company applying has made
said application in good faith and with intent and ability
to construct said road, and in case objection to the grant
ing of such right of way shall be made, said secretary shall
afford the parties so objecting a full opportunity to be
heard: Provided further, That where a railroad has here-
tofore been constructed, or is in actual course of construc-
tion, no parallel right of way within ten miles on either side
shall be granted by the Secretary of the Interior, unless in
his opinion, public interest will be promoted thereby.’’

In 1901, a comprehensive act pertaining to telegraph and
telephone lines in Indian lands was passed.? This pro-
vides: ‘‘ That the Secretary of the Interior is hereby
authorized and empowered to grant a right of way, in the
nature of an easement, for the construction, operation, and
maintenance of telephone and telegraph lines and offices
for general telephone and telegraph business through any
Indian reservation, through any lands held by an Indian
tribe or nation in the Indian territory, through any lands

8. Act March 2, 1899, c. 374, § 1, 9. Act Mar. 3, 1901, c. 832, § 3, 31
30 Stat. at. L. 990. Stat. at L. 1083.
Ricut or Way For Lines; Post Roaps Act. 263

reserved for an Indian agency or Indian school, or for other
purpose in connection with the Indian service, or through
any lands which have been allotted in severalty to any indi-
vidual Indian under any law or treaty, but which have not
been conveyed to the allottee with full power of alienation,
upon the terms and conditions herein expressed. No such
lines shall be constructed across Indian lands, as above
mentioned, until authority therefor has first been obtained
from the Secretary of the Interior, and the maps of definite
location of the lines shall be subject to his approval. The
compensation to be paid the tribes in their tribal capacity
and the individual allottees for such right of way through
their lands shall be determined in such manner as the
Secretary of the Interior may direct, and shall be subject
to his final approval; and where such lines are not subject
to state or territorial taxation the company or owner of the
line shall pay to the Secretary. of the Interior, for the use
and benefit of the Indians, such annual tax as he may
designate, not exceeding five dollars for each ten miles of
line so constructed and maintained; and all such lines shall
be constructed and maintained under such rules and regu-
lations as said secretary may prescribe. But nothing
herein contained shall be so construed as to exempt the
owners of such lines from the payment of any tax that may
be lawfully assessed aainst them by either state, terri-
torial, or municipal authority; and Congress hereby
expressly reserves the right to regulate the tolls or charges
for the transmission of messages over any lines con-
structed under the provisions of this act: Provided, That
incorporated cities and towns into or through which such
telephone or telegraphic lines may be constructed shall
have the power to regulate the manner of construction
therein, and nothing herein contained shall be so construed
as to deny the right of municipal taxation in such towns
and cities.’’

This act of 1901, it has been held, prevails over local regu-

lations established by Indian tribes and operates to extin-
guish exclusive franchises purporting to be given by an
264 Law oF ELectriciry.

Indian tribe for the maintenance of a telephone line within
certain areas.’® The latter part of the statute which per-
mits cities and towns to regulate the manner of construc-
tion, does not permit such municipalities to fix the rates
for telephone charges or to exclude such telephone lines
from the municipal streets."

A subsequent act’? provides: ‘‘ That the right to locate,
construct, own, equip, operate, use, and maintain a railway,
telegraph, and telephone line or lines into, in, or through
the Indian territory, together with the right to take and
condemn lands for right of way, depot grounds, terminals,
and other railway purposes, in or through any lands held
by any Indian tribe or nation, person, individual, or munici-
pality in said territory, or in or through any lands in said
territory which have been or may hereafter be allotted in
severalty to any individual Indian or other person under
any law or treaty, whether the same have or have not been
conveyed to the allottee, with full power of alienation, is
hereby granted to any railway company organized under
the laws of the United States, or any state or territory,
which shall comply with this act.’’

Sec. 176. Post Roads Act; in General.

In 1866, Congress passed a statute giving to such tele-
graph companies as would accept the responsibilities of
the act the right to maintain their lines across public lands
and along military and post roads. While this statute con-
sists of several sections, the important one provides as
follows: ‘‘ Any telegraph company now organized, or which
may hereafter be organized, under the laws of any state,
shall have the right to construct, maintain, and operate
lines of telegraph through and over any portion of the pub-
lic domain of the United States, over and along any of the

10. Muskogee Nat. Telep. Co. v. 11. South McAlester-Eufaula Telep.
Hall, 118 Fed. 382, 55 C. C. A. 208, Co. v. State, 25 Okla. 524, 106 Pac.
8 Am. Elect]. Cas. 64; reversing 4 962.

Ind. Terr. 18, 64 S. W. 600. 12. Act Feb. 28, 1902, c. 134, § 13,
32 Stat. at L. 47.
Ricut or Way For Linzs; Post Roaps Act. 265
military or post roads of the United States which have been
or may hereafter be declared such by law, and over, under,
or across the navigable streams or waters of the United
States; but such lines of telegraph shall be so constructed
and maintained as not to obstruct the navigation of such
streams and waters, or interfere with the ordinary travel
on such military or post roads.’’** This statute is com-
monly called the ‘‘ Post Roads Act.’’

District of Columbia.— The Post Roads Act applies with
full force in the District of Columbia."*

Federal Question.— The question of the extent and char-
acter of rights granted to telegraph companies by the Post
Roads Act is, like the construction of other congressional
acts, a federal question as to which the decisions of the
United States Supreme Court are final.?®

Sec. 177. Post Roads Act; Constitutionality of Statute.

Telegraphic communication between states is interstate
commerce,** and hence may be the subject of regulation

13. Act July 24, 1866, c. 230, § 1,
14 Stat. at L. 221, Rev. Stat. § 5263.

14. Hewett v. Western Union Teleg.
Co., 4 Mackey, (D. C.) 424, 2 Am.
Elect]. Cas. 222.

15. Western Union Teleg. Co. v.
Hopkins, 160 Cal. 106, 116 Pac. 557.

16. Western Union Teleg. Co. v.
James, 162 U. S. 650, 6 Am. Electl.
Cas. 858, 16 S. Ct. 934, 40 L. Ed.
1105; Western Union Teleg. Co. v.
Pendleton, 122 U. 8. 347, 2 Am.
Electl. Cas. 49, 7 S. Ct. 1126; Western
Union Teleg. Co. v. Texas, 105 U. 8.
460, 1 Am. Elect]. Cas. 373; revers-
ing 55 Tex. 314; Pensacola Teleg. Co.
v. Western Union Teleg. Co., 96 U. 8.
I., 1 Am. Electl. Cas. 250, 24 L. Ed.
708; Carver v. State, 11 Ga. App. 22,
74.8. E. 556; Postal Teleg. Co. v. City
of Baltimore, 79 Md. 502, 5 Am.
Electl. Cas. 37, 29 Atl. 819; Western
Union Teleg. Co. v. Atlantic, etc.,

Teleg. Co., 5 Nev. 102; Postal Teleg.
Cable Co. v. City of Richmond, 99
Va, 102, 37 S. E. 789, 86 Am. St.
Rep. 877. “It has been settled by
the adjudications of this court that
telegraph lines, when extending
through different states, are instru-
ments of commerce which are pro-
tected by the above clause in the
Federal Constitution, and that the
messages passing over such lines from
one state to another constitute a por-
tion of commerce itself.” Western
Union Teleg. Co. v. Jones, 162 U. S.
650, 6 Am. Electl. Cas. 858, 16 S. Ct.
934, 40 L. Ed. 1105.

“A telegraph company occupies the
same relation to commerce as a car-
rier of messages, that a railroad
company does as a carrier of goods.
Both companies are instruments of
commerce, and their business is com-
merce itself. They do their trans-
266

Law oF ELEctriciry,

under the interstate commerce clause of the federal consti-

tution.”

portation in different ways, and their
liabilities are in some respects dif-
ferent, but they are both indispens-
able to those engaged to any consid-
erable extent in commercial pur-
suits.” Western Union Teleg. Co. v.
Texas, 105 U. S. 460, 1 Am. Electl.
Cas. 373.

Differs from other commerce.—
Though it is commerce, the courts
recognize that telegraphic communi-
cation is not commerce in the same
sense that the transportation of
goods is commerce. Western Union
Teleg. Co. v. Pendleton, 122 U. S.
347, 2 Am. Electl. Cas. 49, 7 S. Ct.
1126, wherein the court said: “ Al-
though intercourse by telegraphic
messages between the States is thus
held to be interstate commerce, it
differs in material particulars from
that portion of commerce with for-
eign countries and between the states
which consists in the carriage of per-
sons and the transportation and ex-
change of commodities, upon which
we have been so often called to pass.
It differs not only in the subjects
which it transmits, but in the means
of transmission. Other commerce
deals only with persons, or with visi-
ble and tangible things. But the
telegraph transports nothing visible
and tangible; it carries only ideas,
wishes, orders, and intelligence. Other
commerce requires the constant at-
tention and supervision of the carrier
for the safety of the persons and
property carried. The message of the
telegraph passes at once beyond the
control of the sender, and reaches the
office to which it is sent instantane-
ously. It is plain, from these es-
sentially different characteristics that
the regulations suitable for one of

The Post Roads Act constitutes a withdrawal of

these kinds of commerce would be
entirely inapplicable to the other.”

17, “The electric telegraph marks
an epoch in the progress of time. Ina
little more than a quarter of a cen-
tury it has changed the habits of
business, and become one of the ne-
cessities of commerce. It is indis-
pensable as a means of inter-com-
munication, but especially is it so in
commercial transactions. The statis-
tics of the business before the recent
reduction in rates show that more
than eighty per cent. of all the mes-
sages sent by telegraph related to
commerce. Goods are sold and money
paid upon telegraphic orders. Con-
tracts are made by telegraphic cor-
respondence, cargoes secured, and the
movement of ships directed. The
telegraphic announcement of the mar-
kets abroad regulates prices at home,
and a prudent merchant rarely enters
upon an important transaction with-
out using the telegraph freely to se-
cure information.

“Tt is not only important to the
people, but to the government. By
means of it the heads of the de-
partments in Washington are kept in
close communication with all their
various agencies at home and abroad,
and can know at almost any hour,
by inquiry, what is transpiring any-
where that affects the interests they
have in charge. Under such circum-
stances, it cannot for a moment be
doubted that this powerful agency
of commerce and inter-communica-
tion comes within the controlling
power of Congress, certainly as
against hostile State legislation.”
Pensacola Teleg. Co. v. Western Un-
ion Teleg. Co, 96 U. 8S. 1, 1 Am.
Electl. Cas. 250, 24 L. Ed. 708.
Ricut or Way For Lines; Post Roaps Act. 267

such commerce from state control and interference,*® and
is a legitimate regulation of such comerce.”®

Sec. 178. Post Roads Act; Purpose of Statute.

The Post Roads Act had a two-fold purpose. In the first
place, it was intended to facilitate the construction of tele-
graph lines.” Secondly, it was intended to secure to the
federal government the use of such lines for postal, mili-
tary, and other purposes.” It seems that, when the act
was introduced, it was advocated as a measure necessary
for the public interests, in order to restrain the monopoly

18. Western Union Teleg. Co. v.
Pennsylvania R. Co., 195 U. S. 540,
25 S. Ct. 133, 49 L. Ed. 312.

19. Pensacola Teleg. Co. v. Western
Union Teleg. Co., 96 U. S. 1, 1 Am.
Electl. Cas. 250, 24 L. Ed. 708; West-
ern Union Teleg. Co. v. Pennsylvania,
R. Co., 195 U. S. 540, 25 S. Ct. 133,
49 L. Ed. 312; Carver v. State, 11
Ga. App. 22, 74 S. E. 556; Western
Union Teleg. Co. v. Atlantic, etc.,
Teleg. Co., 5 Nev. 102.

20. Western Union Teleg. Co. v.
Texas, 105 U. S. 460, 1 Am. Electl.
Cas. 373.

21. “ Now, what is the act of 1866,
and what was the design and pur-
pose of it? Upon its face it calls
itself, ‘An act to aid in the con-
struction of telegraph lines, and to
secure to the government the use of
the same for postal, military and
other purposes.” Here is a great
scheme of progress — material prog-
ress — announced by the Legislature.
Its purpose ‘to aid in the construc-
tion of telegraph lines’ with a view
to what? To the largest purposes of
government: ‘To secure to the gov-
ernment the use of the same for pos-
tal, military and other purposes;’
thus shadowing forth those great ne-
cessities which are growing upon us
day by day in the exercise of the

commercial and postal necessities of
this great nation. * * * No more
plenary power could be embraced
within the terms of a statute than
is declared upon the face of this
statute: ‘any telegraph company
now organized, or which may here-
after be organized, under the laws of
any State in this Union, shall have
the right to construct, maintain and
operate lines of telegraph;’ with
what view? In order, amongst other
things, as declared upon the face of
the statute, ‘that telegraphic com-
munications between the several de-
partments of the government of the
United States and their officers and
agents shall, in their transmission
over the lines of any of said com-
panies, have priority over all other
business, and shall be sent at rates
to be annually fixed by the Post-
master-General;’ and further, as is
contemplated in the third section,
that the United States shall have
the privilege at any time after five
years to become possessed of and
own all these lines for certain ascer-
tained prices, to be determined ac-
cording to the terms of the statute
with a view to the great purposes of
government.” Hewett v. Western
Union Teleg. Co., 4 Mackey (D. C.)
424, 2 Am. Electl. Cas. 222.
268 Law oF ELEctricity.

which it was alleged had been acquired by the Western
Union Telegraph Company.” But, nevertheless, that com-
pany has accepted the benefits of the act, and it now con-
stitutes one of their greatest rights in the maintenance of
its lines.

Sec. 179. Post Roads Act; What Are Post Roads.

The statute permits the construction, maintenance, and
operation by telegraph companies of their lines over and
along any of the ‘‘ post-roads ’’ of the United States.” It,
therefore, becomes material to ascertain what highways
are ‘‘ post roads ’’ within the meaning of the statute. In
1872, the post roads were enumerated by an act*™* which
provided as follows: ‘‘ The following are established post-
roads: All the waters of the United States, during the
time the mail is carried thereon. All railroads or parts of
railroads which are now or hereafter may be in operation.
All canals, during the time the mail is carried thereon. All
plank-roads during the time the mail is carried thereon.
The road on which the mail is carried to supply any court-
house which may be without a mail, and the road on which
the mail is carried under contract made by the Postmaster-
General for extending the line of posts to supply mails to
post-offices not on any established route, during the time

22. In City of Philadelphia v. West-
ern Union Teleg. Co., 11 Phila. (Pa.)
327, 2 W.N. C. 455, 33 Leg. Int. 129,
it was said: “It is a curious fact,
but one which being a part of the
political history of the United States
I may be at liberty to mention, that
this act was introduced into Con-
gress and publicly advocated in both
houses aS a measure necessary for
the public interests, in order to re-
strain the monopoly which it was
alleged had been acquired by the
company which is the defendant in
the present suit by consolidating
with other companies (Cong. Globe,
First Session, 39th Congress, pp.

8744, 3745, 3481). It is recorded in
the official journal that when the bill
was read in the Senate, a distin-
guished member of that body asked
another ‘how Congress could pass
such a bill? The answer was,
“by main strength’ That the com-
pany against which the act was prin-
cipally directed should now appeal to
it as one of the main sources of their
power and privileges, is one of the
results of special legislation which
sometimes occur.”

23. § 176,

24. U. S. Rev. Stat. § 3964, Act
June 8. 1872, ¢. 335, §§ 200-205, 17
Stat. at L. 308, 309.
Rieut or Way For Lines; Post Roaps Act. 269
such mail is carried thereon. All letter-carrier routes
established in any city or town for the collection and deliv-
ery of mail matters.’’ Under this statute, there can be no
doubt but that all railroads,” and all city streets upon
which letter carrier routes are established™ are ‘ post-
roads.’? The statute is not limited to such post-roads as
are within the public domain, but includes all located
within the territorial boundaries of the United States.”

Subsequently, it was provided by Congress,”* ‘‘ That all
public roads and highways while kept up and maintained
as such are hereby declared to be post routes.’’ It has

25. Western Union Teleg. Co. v.
Pennsylvania R. Co., 120 Fed. 981,
reversed, 123 Fed. 33, 59 C. C. A. 113,
same case, 195 U. S. 540, 25 S. Ct.
133, 49 L. Ed. 312, 195 U. 8. 594,
25 S. Ct. 150, 49 L. Ed. 322; Western
Union Teleg. Co. v. Mayor of New
York, 38 Fed. 552, 2 Am. Electl. Cas.
195, 3 L. R. A. 449, 2 Inters. Com.
Rep. 533; Western Union Teleg. Co.
v. Baltimore & O. Teleg. Co., 19 Fed.
660, 1 Am. Electl. Cas. 623.

26. Western Union Teleg. Co. v.
Mayor of New York, 38 Fed. 552, 2
Am. Elect]. Cas. 195, 3 L. R. A. 449,
2 Inters. Com. Rep. 533; Western
Union Teleg. Co. v. Hopkins, 160 Cal.
106, 116 Pac. 557.

27. Pensacola Teleg. Co. v. Western
Union Teleg. Co., 96 U. S. 1, 1 Am.
Electl. Cas. 250, 24 L. Ed. 708; West-
ern Union Telep. Co. v. Hopkins, 160
Cal. 106, 116 Pac. 557; Union Trust
Co. of New York v. Atchison, ete., R.
Co., 8 N. Mex. 327, 6 Am. Electl. Cas.
171, 43 Pac. 701,

“It is insisted, however, that the
statute extends only to such military
and post-roads as are upon the public
domain; but this, we think, is not so.
The language is: ‘Through and over
any portion of the public domain of
the United States, over and along any
of the military or post-roads of the
United States which have been or

may hereafter be declared such by
act of Congress, and over, under, or
across the navigable streams or
waters of the United States.’ There
is nothing to indicate an intention of
limiting the effect of the words em-
ployed, and they are, therefore, to
be given their natural and ordinary
signification. Read in this way, the
grant evidently extends to the public
domain, the military and post-roads,
and the navigable waters of the
United States. These are all within
the domain of the national govern-
ment to the extent of the national
powers, and are, therefore, subject
to legitimate congressional regula-
tion.” Pensacola Teleg. Co. v. West-
ern Union Teleg. Co., 96 U. S. 1, 1
Am, Elect]. Cas. 250, 24 L. Ed. 708.

This statute is not limited in its
application to military and post-roads
upon the public domain; therefore it
applies to and governs a railroad al-
though it passes over and through,
in part, private property, obtained by
the railroad company by purchase or
by condemnation proceedings under
the statute. Union Trust Co. of
N. Y. v. Atchison, etc., R. Co., 8 N.
Mex. 327, 6 Am. Electl. Cas. 171, 43
Pac. 701.

28. Act March 1, 1884, c. 9, 23
Stat. at L. 3.
270 Law oF ELectricity.

been held that ‘‘ post routes ’’ as used in this statute is
equivalent to ‘‘ post-roads’’ as used in the Post Roads
Act.”

Sec. 180. Post Roads Act; Effect of Statute.

As to those streets and highways which are ‘‘ post
roads,’’ and this includes nearly all public highways, the
statute gives, so far as congressional power is concerned,
telegraph companies which submit thereto, the right to
construct and maintain their lines of poles and wires along
such roads. This right, though subject to reasonable regu-
lations,*° may not be impaired by the state or municipal
governments. In other words, a company acting with the
acquiescence of the landowners cannot be denied the right

to maintain its lines along post roads.*

29. New England Teleg. Co. v.
Town of Essex, 206 Fed. 926.

30. §§ 323-337.

31. United States—New England
Teleg. Co. v. Town of Essex, 206 Fed.
926; Mackay Teleg. & Cable Co. v.
City of Texarkana, 199 Fed. 347;
Western Union Teleg. Co. v. City of
Richmond, 178 Fed. 310.

California.— Western Union Teleg.
Co. v. Superior Court of Sacramento
County, 15 Cal. App. 679, 115 Pac.
1091.

Georgia.— Carver v. State, 11 Ga.
App. 22, 74 8. E. 556,

Nevada.—Western Union Teleg. Co.
v. Atlantic & Pac. Teleg. Co., 5 Nev.
102.

Washington.— Western Union
Teleg. Co. v. Lakin, 53 Wash. 326,
101 Pac. 1094, 17 Ann. Cas. 718.

A telegraph company engaged in
interstate commerce under the act of
Congress July 24, 1866, by virtue of
its written acceptance of the provi-
sions, restrictions, and obligations
imposed by that act, has a right to
operate lines of telegraph through
and over the public or post-roads of

A state statute

any county in the State, and to oc-
cupy these roads with its telegraph
poles, this right to be enjoyed in sub-
ordination to the public use of such
roads, and subject to any lawful ex-
ercise of the public power of the state
or county, so that travel should not
be unreasonably obstructed or the
public rights unreasonably interfered
with. The state cannot by any spe-
cific statute, nor the county by the
action of any of its authorities, pre-
vent such a corporation from plac-
ing its lines and poles along the
post-roads or routes, or stop the use
of them after they are so placed.
The limit of their power and au-
thority is regulation as to manner in
which the right given by Congress
shall be exercised by such a corpora-
tion. Carver v. State, 11 Ga. App.
22,74 8. E. 556.

“From the principles as thus af-
firmed, these incontrovertible proposi-
tions flow: (1) That telegraph corpo-
rations that have accepted the re-
strictions and obligations prescribed
as to such corporations by Congress
are not primarily beholden to any
Ricut or Way For Lines; Post Roaps Act.

271

purporting to grant to one company the exclusive right to
maintain its lines in a certain portion of the state is con-
trary to the federal statute and void.”

state for their right to transact a
telegraph business therein; that the
sole source of their authority to
enter any of the states or territories
of the United States, where there are
military and post-roads and govern-
ment waterways, for the purpose of
doing business therein is in the acts
of the federal Congress. (2) That
no state has the power, under the
indicated circumstances, to exclude
such corporations from the right or
privilege of carrying on the business
for which they are formed within
its borders; that, while the state may
impose upon such corporations, as
it may upon all corporations of what-
ever kind or nature, organized and
existing under the laws of another
state, reasonable regulations, and to
that end prescribe and require cer-
tain reasonable prerequisites to the
exercise of the authority conferred
on them by Congress to do business
in such state, yet no state will be
permitted, whether under the guise
of regulation or otherwise, to enact
any legislation the effect of which
would or might practically be to pre-
vent them from doing business in
such state, or in effect result in an
attempt on the part of such state
to regulate commercial intercourse
between its citizens and those of
other states, or to control the trans-
mission of all telegraphic correspond-
ence within its own jurisdiction. In
other words, any state legislation
hostile to the right of such foreign,
telegraph corporations to do business
in a state in which they are author-
ized to do business by Congress would
be in direct conflict with the laws of
Congress, and therefore void. Western
Union Teleg. Co. v. Superior Court

of Sacramento County, 15 Cal. App.
679, 115 Pac. 1091.

32. Pensacola Teleg. Co. v. Western
Union Teleg. Co., 96 U. S. 1, 1 Am.
Electl. Cas. 250, 24 L. Ed. 708,
wherein it was said: “The statute of
July 24, 1866, in effect amounts to
@ prohibition of all State monopolies
in this particular. It substantially
declares, in the interest of commerce
and the convenient transmission of
intelligence from place to place by
the government of the United States
and its citizens, that the erection
of telegraph lines shall, so far as
state interference is concerned, be
free to all who will submit to the
conditions imposed by Congress, and
that corporations organized under the
laws of one State for constructing
and operating telegraph lines, shall
not be excluded by another from
prosecuting their business within its
jurisdiction, if they accept the terms
proposed by the national government
for this national privilege. To this
extent, certainly, the statute is a
legitimate regulation of commercial
intercourse among the States, and is
appropriate legislation to carry into
execution the powers of Congress
over the postal service. It gives no
foreign corporation the right to enter
upon private property without the
consent of the owner, and erect the
necessary structures for its business;
but it does provide, that whenever
the consent of the owner is obtained,
no State legislation shall prevent
the occupation of post-roads for tele-
graph purposes by such corporations
as are willing to avail themselves of
its privileges.” See also, Western
Union Teleg. Co. v. Atlantic & Pac.
Teleg. Co., 5 Nev. 102.
272

Law oF HLECTRICITY.

The rights of private persons or corporations are not
affected? Their rights must be acquired by agreement or
by condemnation proceedings. Likewise, property rights
of municipal corporations or of the state must be

respected.*

38. United States— Western Un-
ion Teleg. Co. v. City of Richmond,
224 U. S. 160, 32 S. Ct. 449, 56 L. Ed.
710; affirming 178 Fed. 310; Western
Union Teleg. Co. v. Pennsylvania R.
Co., 195 U. S. 540, 25 8. Ct. 133, 49
L. Ed. 312; Western Union Teleg. Co.
v. Ann Arbor R. Co., 178 U. S. 239,
20 S. Ct. 867, 44 L. Ed. 1052; Pensa-
cola Teleg. Co. v. Western Union
Teleg. Co., 96 U. S. 1, 1 Am. Electl.
Cas. 250, 24 L. Ed. 708; New England
Teleg. Co. v. Town of Essex, 206
Fed. 926; Kester v. Western Union
Teleg. Co., 108 Fed. 926; Atlantic
& Pacific Teleg. Co. v. Chicago, ete.,
R. Co., 6 Biss. (U. S.) 158, 1 Am.
Elect]. Cas. 111.

Maryland.— Postal Teleg. Cable Co.
v. Baltimore, 79 Md. 502, 5 Am.
Electl. Cas. 37, 79 Md. 502; American
Telep. & Teleg. Co. v. Pearce, 71 Md.
535, 3 Am. Electl. Cas 169, 18 Atl.
910.

North Dakota Cosgriff v. Tri-
state Telep. & Teleg. Co., 15 N. Dak.
210, 107 N. W. 525,5 L. R. A. (N.S.)
1142.

Ohio.— Daily v. State, 51 Oh. St.
348, 5 Am. Elect]. Cas. 186, 37 N. E.
710, 46 Am. Rep. 578.

Additional servitude—In those
jurisdictions (see chapter XI)
wherein it is held that the mainte-
nance of a telegraph line along a
highway, the fee of which is owned
by the adjoining owner, is an ad-
ditional servitude, the federal statute
does not affect the right of the land-
owner to compensation for his dam-
ages. Kester v. Western Union Teleg.
Co., 108 Fed. 926; Western Union

Teleg. Co. v. Polhemus, 167 Fed. 231;
reversed on other grounds, 178 Fed.
904, 102 C. C. A. 105, 29 L. R. A.
(N. S.) 465; Clausen, etc., Brewing
Co. v. Baltimore, etc., Teleg. Co.,
(N. Y.) 2 Am. Electl. Cas. 210; Cos-
griff v. Tri-state Telep. & Teleg. Co.,
15 N. Dak. 210, 107 N. W. 525, 5
L. R. A. (N. 8.) 1142; Daily v. State,
51 Oh. St. 348, 5 Am. Electl. Cas.
186, 37 N. E. 710, 46 Am. Rep. 578.

34. Western Union Teleg. Co. v.
City of Richmond, 224 U. S. 160, 32
S. Ct. 449, 56 L. Ed. 710; affirming
178 Fed. 310; St. Louis v. Western
Union Teleg. Co., 148 U. S. 92, 4 Am.
Electl. Cas. 102, 37 L. Ed. 380; New
England Teleg. Co. v. Town of Essex,
206 Fed. 926; Postal Teleg. Cable Co.
v. City of Newport, 25 Ky. Law Rep.
635, 8 Am. Electl. Cas. 25, 76 8S. W.
159; Postal Teleg. Cable Co. v. Balti-
more, 79 Md. 502, 5 Am. Electl. Cas.
37, 79 Md. 502.

Property of state— In St. Louis v.
Western Union Teleg. Co., 148 U. 8.
92, 4 Am. Electl. Cas. 102, 37 L. Ed.
380, it was said: “It is a miscon-
ception, however, to suppose that the
franchise or privilege granted by the
act of 1866 carries with it the un-
restricted right to appropriate the
public property of a State. It is
like any other franchise, to be ex-
ercised in subordination to public as
to private rights. While a grant
from one government may supersede
and abridge franchises and rights
held at the will of its grantor, it
cannot abridge any property rights
of a public character created by the
authority of another sovereignty. No
Ricut or Way For Lines; Post Roaps Acr.

273

Along Railroads.— The statute does not give telegraph
companies the right to construct their lines along railroads
without compensation to the railroad,** nor does it give the
right of eminent domain for the condemnation of such
rights.*° The right must be acquired by agreement with the
railroad * or condemnation proceedings under state stat-

one would suppose that a franchise
from the federal government to a
corporation, State or national, to con-
struct interstate roads or lines of
travel, transportation or communi-
eation, would authorize it to enter
upon the private property of an in-
dividual, and appropriate it without
compensation. No matter how broad
and comprehensive might be the
terms in which the franchise was
granted, it would be confessedly sub-
ordinate to the right of the individ-
ual not to be deprived of his prop-
erty without just compensation. And
the principle is the same when, under
the grant of a franchise from tlfe
national government, a corporation
assumes to enter upon property of a
public nature belonging to a State.
It would not be claimed, for instance,
that under a franchise from Congress
to construct and operate an interstate
railroad, the grantee thereof could
enter upon the State-house grounds
of the State, and construct its depot
there, without paying the value of
the property thus appropriated. Al-
though the State-house grounds be
property devoted to the public uses,
it is property devoted to the public
uses of the State, and property whose
ownership and control are in the
State, and it is not within the com-
petency of the national government
to dispossess the State of such con-
trol and use, or appropriate the same
to its own benefit, or the benefit of
any of its corporations or grantees
without suitable compensation to
the State. This rule extends to

18

streets and highways; they are the
public property of the State.”

35. Western Union Teleg. Co. v.
Ann Harbor R. Co., 178 U. S. 239,
20 S. Ct. 867, 44 L. Ed. 1052; Atlan-
tic & Pacific Teleg. Co. v. Chicago,
etc., R. Co., 6 Biss. (U. S.) 158, 1 Am.
Elect]. Cas. 111; Northwestern Telep.
Exch. Co. v. Chicago, etc., Ry. Co., 76
Minn. 334, 79 N. W. 315; American
Telep. & Teleg. Co. v. Pearce, 71 Md.
535, 3 Am. Electl. Cas. 169, 18 Atl.
910.

The Act of Congress of July 24,
1866, does not authorize telegraph
companies to erect and maintain their
lines along the right of way of rail-
roads without compensation to the
latter and without their consent, and
if it did, it would be unconstitutional.
Atlantic & Pacific Teleg. Co. v. Chic-
ago, etc., R. Co., 6 Biss. (U. S.) 158,
1 Am, Electl. Cas. 111.

Railroad on public lands.— Where
a railroad procures its right of way
by grant of public lands from the
federal government, it takes the land
subject to the Post Roads Act and
may be compelled on payment of
damages to the railroad to permit a
telegraph company to extend its lines
along the railroad. Postal Teleg.
Cable Co. of Idaho v. Oregon Short
Line R. Co., 104 Fed. 623, affirmed,
111 Fed, 842, 49 C. C. A. 663; Mer-
chantile T. Co. v. Atlantic & Pac. R.
Co., 63 Fed. 513, 5 Am. Electl. Cas.
207.

86. § 74.

37. §§ 302, 303.
274 Law or ELEctricity.

utes. The statute, however, forbids a railroad company
from giving one telegraph company the right to maintain
its line along the railroad exclusive of any other company.”
Notwithstanding an apparently exclusive right, a state may
authorize the acquisition of similar rights by a company
entitled to the benefits of the Post Roads Act.*® Where
the Post Roads Act is inapplicable, as, for example, in Can-
ada, a contract giving one telegraph company the exclusive
right to maintain a telegraph line along the railroad is
valid and will be enforced.*°

Taxation of Telegraph Companies.— The Post Roads Act
materially affects the power of states and municipal
divisions to tax the property of telegraph companies. This

matter, however, is discussed in another chapter.

88. United States— Pensacola
Teleg. Co. v. Western Teleg. Co., 96
U. S. 1, 1 Am. Elect]. Cas. 250, 24
L. Ed. 708; United States v. Union
Pace. R. Co., 160 U. §. 1, 6 Am. Electl.
Cas. 697, 16 S. Ct. 190, 40 L. Ed.
319; Merchantile T. Co. v. Atlantic
& Pac. Ry. Co., 63 Fed. 910, 5 Am.
Electl. Cas. 219; Western Union
Teleg Co. v. Baltimore & Ohio Teleg.
Co., 23 Fed. 315, 1 Am. Electl. Cas.
728; Western Union Teleg. Co. v.
Baltimore & O. Teleg. Co., 19 Fed.
660, 1 Am. Elect]. Cas. 623; Western
Union Teleg. Co. v. Burlington, etc.,
Ry. Co., 11 Fed. 1, 1 Am. Electl. Cas.
402; Western Union Teleg. Co. v.
American Union Teleg. Co., 9 Biss.
Cc. Cc. (U. S.) 72, 1 Am. Electl. Cas.
288.

Alabama.— New Orleans, etc., R.
Co. v. Southern & Atl. Teleg. Co., 53
Ala. 211, 1 Am. Elect]. Cas. 190.

Georgia— Western Union Teleg.
Co. v. American Union Teleg. Co., 65
Ga. 160, 1 Am. Electl. Cas. 306, 38
Am. Rep. 781.

Mississippi— Mobile, ete., R. Co.
v. Postal Teleg.—Cable Co., 76 Miss.
731, 26 So. 370.

New Mexico.— Union Trust Co. of
New York v. Atchison, etc. R. Co.,

8 N. Mex. 327, 6 Am. Electl. Cas.
171, 43 Pac. 701.

A contract of the railroad company
purporting to grant an exclusive
right of way to one telegraph com-
pany in hostility to the rights of
others is void. A telegraph company
thus discriminated against may seek
its remedy by intervention in an ac-
tion brought to foreclose a mortgage
given by the railroad, the property
of which is in the hands of a receiver.
Merchantile T. Co. v. Atlantic & Pac.
R. Co., 63 Fed. 513, 5 Am. Electl.
Cas. 207.

39. Merchantile T. Co. v. Atlantic
& Pac. R. Co., 63 Fed. 513, 5 Am.
Electl. Cas. 207; New Orleans, etc.,

R. Co. v. Southern & Atlantic Teleg.
Co., 53 Ala. 211, 1 Am. Elect]. Cas.

190; Western Union Teleg. Co. v.
American Union Teleg. Co., 65 Ga.
160, 1 Am. Electl. Cas. 306, 38 Am.
Rep. 781; Mobile, etc, R. Co. v.
Postal Teleg. Cable Co., 76 Miss, 731,
26 So. 370.

40. Western Union Teleg. Co. v.
New Brunswick Ry. Co., N. Bruns.
Eq. Cas. 338; affirmed, 17 Can. Sup.
Ct. 152.

41. § 104.
Rigut or Way ror Lines; Post Roaps Act. 275

Does Not Give Power of Condemnation.— In connection
with the right of eminent domain, it was shown that the
Post Roads Act does not give a telegraph company accept-
ing the benefits thereof the right of condemnation.“ The
rights of third parties which it seeks must be acquired by
agreement or by condemnation proceedings authorized by
state laws.

Sec. 181. Post Roads Act; No Application to Telephone or
Electric Companies.

In the first chapter of this work,* it was pointed out that,
in the early history of telephonic communication, many
state statutes applying to ‘‘ telegraph ’’ companies were
construed to apply to ‘‘ telephone ’’ companies also. In
fact, the decision by the United States Supreme Court in
City of Richmond v. Southern Bell Telephone Company,
holding that the Post Roads Act did not apply to telephone
companies, was the first important decision to the contrary.
As to the construction of Post Roads Act the decision of
the United States Supreme Court is final, and must be
followed by state courts as well as inferior federal courts.*®
A corporation formed for both telegraph and telephone
purposes cannot, because of its telegraph business, claim
the benefits of the act as to lines used in its telephone busi-
ness.**® Nor has a telegraph company any right under such
statute to install a district telegraph system for the pro-
curing and carrying of messages, running of errands, and
giving of signals and alarms.*’ Apparently, no one has
ever had the courage to claim that a corporation engaged

42. § 74.

43. § 11.

44.174 U. S. 761, 7 Am. Electl.
Cas. 788, 19 S. Ct. 778, 43 L. ed.
1162, affirming 85 Fed. 19, 28 C. C.
A. 659.

45. Sunset Telep. & Teleg. Co. v.
City of Pomona, 164 Fed. 561; re
versed on other grounds, 172 Fed.
829, 97 C. C. A. 251; Cumberland
Telep. & Teleg. Co. v. City of Evans-

ville, 127 Fed. 187; affirmed, 143 Fed.
238, 74 0. C. A. 368; Cosgriff v. Tri-
state T. & T. Co, 15 N. Dak. 210,
107 N. W. 45.

46. Sunset Telep. & Teleg. Co. v.
City of Pomona, 164 Fed. 561; re-
versed on other grounds, 172 Fed.
829, 97 C. C. A. 251.

47. Toledo v. Western Union Teleg.
Co., 107 Fed. 10, 46 C. C. A. 111,
52 L. R. A. 730.
276 Law oF E.ectriciry.

in the generation and disposition of electric energy has
any rights under the Post Roads Act. It is clear that such
a claim would be unsuccessful.

Sec. 182. Post Roads Act; Use of Materials from Public
Lands.

Not only does the Post Roads Act authorize the exten-
sion of telegraph lines over the public domain, but it per-
mits telegraph companies to take therefrom materials,
such as stone, timber, etc., for the construction of their
lines. A subdivision of the act,** provides as follows:
‘‘Any telegraph company organized under the laws of any
state shall have the right to take and use from the public
lands through which its lines of telegraph may pass, the
necessary stone, timber, and other materials for its posts,
piers, stations, and other needful uses in the construction,
maintenance, and operation of its lines of telegraph, and
may pre-empt and use such portion of the unoccupied pub-
lic lands subject to pre-emption through which their lines
of telegraph may be located as may be necessary for their
stations, not exceeding forty acres for each station; but
such stations shall not be within fifteen miles of each
other.’’

Sec. 183. Post Roads Acts; Rights not Transferable.

Section 5265 of the Revised Statutes of United States
provides as follows: ‘‘ The rights and privileges granted
under the provisions of the act of July twenty-four,
eighteen hundred and sixty-six, entitled ‘An act to aid in
the construction of telegraph lines, and to secure to the
government the use of the same for postal, military, and
other purposes,’ or under this title, shall not be trans-
ferred by any company acting thereunder to any other
corporation, association, or person.’’

Sec. 184. Post Roads Act; Priority of Government Mes-
sages,

One of the advantages accruing to the federal govern-
ment from the acceptance by telegraph companies of the

48. Rev. Stat. 5264, Act July 24, 1866, c. 230, § 1.
Rigut or Way ror Lines; Post Roaps Act. 277

privileges of the Post Roads Act is the priority to be
accorded governmental messages. It is provided in the act®
that: ‘‘ Telegrams between the several Departments of
the Government and their officers and agents, in their
transmission over the lines of any telegraph company to
which has been given the right of way, timber, or station
lands from the public domain shall have priority over all
other business, at such rates as the Postmaster-General
shall annually fix. And no part of any appropriation for
the several Departments of the Government shall be paid
to any company which neglects or refuses to transmit such
telegrams in acordance with the provisions of this section.’’

Sec. 185. Post Roads Act; Purchase of Lines by Govern-
ment.

Another privilege accruing to the federal government is
the right to purchase the lines at an appraised value. The
statute, as to this right, provides: ‘‘ The United States
may, for postal, military, or other purposes purchase all
the telegraph lines, property, and effects of any or all com-
panies acting under the provisions of the act of July
twenty-fourth, eighteen hundred and sixty-six, entitled ‘An
act to aid in the construction of telegraph lines, and to
secure to the government the use of the same for postal,
military, and other purposes,’ or under this title, at an
appraised value, to be ascertained by five competent, dis-
interested persons, two of whom shall be selected by the
Postmaster-General of the United States, two by the com-
pany interested, and one by the four so previously
selected.’’

Sec. 186. Post Roads Act; Acceptance of Obligation to be
Filed.
The Post Roads Act does not ipso facto confer privileges
upon all telegraph companies. A company must signify
49. Rev. Stat., § 5266, Act July 50. Rev. Stat., § 5267, Act July

24, 1866, c. 230, § 2, 14 Stat. at L. 24, 1866, c. 230, § 3, 14 Stat. at L.
221. 221.
278 Law oF BLEctRicIry.

its intention to receive the benefits and sustain the obliga-
tion thereof by filing a written acceptance thereof with the
Postmaster-General.* <A certificate of the Postmaster-
General of the filing of the required acceptance is compe-
tent evidence to show such acceptance.” A letter of the
Postmaster-General to the effect that an acceptance had
been received by him and placed on file is not proper evi-
dence thereof without authentication of the signature.**

Sec. 187. Under or Over Navigable Waters; in General.

Congress has the power of regulation as to navigable
waters within the United States.* It may regulate or
cause the removal of obstructions placed in such waters.
Until congressional action in the matter has been taken,
however, state legislatures may, so far as the federal con-
stitution is concerned, authorize the obstruction of navi-
gable waters;* but, when congress exercies its superior
authority over such streams, any state law in opposition
thereto is inoperative. By the Post Roads Act, the federal
lawmakers have, to a limited extent, exercised their author-
ity as to obstructing navigable waters with telegraph wires.
This act gives to telegraph companies the right to con-
struct, maintain, and operate lines of telegraph over,
under, or across the navigable streams or waters of the

51. Rev. Stat. § 5268, Act July one of its own tidal and navigable
24, 1866, c. 230, § 4, 14 Stat. at L. streams. Congress, however, may
221. interpose by either general or special

52. Postal Teleg. Cable Co. of Utah laws. It may regulate all obstruc-
v. Oregon Short Line R. Co., 23 Utah tions in or over navigable waters,
474, 7 Am. Electl. Cas. 417, 8 Am. and cause their removal, and punish
Elect]. Cas. 281, 65 Pac. 735,90 Am. those who shall thereafter erect
St. Rep. 705. them. Any state law in opposition

53. Western Union Teleg. Co. v. to such action by congress igs in-
Atlantic & Pacific Teleg. Co., 5 Nev. operative and void. Within the

102. sphere of their authority both the
54. Doboy & Union Island Teleg. legislative and judicial power of the
Co. v. De Magathias, 25 Fed. 697, nation is paramount.” Doboy &

55. “It is competent for the mu- Union Island Teleg. Co. v. De Maga-
nicipal power of a state, in good  thias, 25 Fed. 697.
faith, and for a constitutional pur- 56. Doboy & Union Island Teleg.
pose, to authorize the obstruction of Co. v. Magathias, 25 Fed. 697.
Rieut or Way ror Lines; Post Roaps Act. 279
United States; but the statute contains a limitation upon
the right by providing that ‘‘ such lines of telegraph shall
be so constructed and maintained as not to obstruct the
navigation of such streams and waters.’’™

Sec. 188. Under or Over Navigable Waters; Injuries to
Vessels.

Both the Post Roads Act and the general principles of
admiralty jurisprudence sustain the right of navigation
as the primary and paramount use of navigable waters,
and an obstruction to such use is condemned as a nui-
sanee.*® If an interference with such navigation is slight
and not sufficient materially to impair navigation and con-
duces to a greater public good, it is tolerated; but if
material or unnecessary, it is unlawful.*° Thus, wires may

57. § 176.

58. Blanchard v. Western Union
Teleg. Co., 60 N. Y. 510, 1 Am. Electl.
Cas. 176.

59. Blanchard v. Western Union
‘leleg. Co., 60 N. Y. 510, 1 Am. Electl.
Cas. 176,

60. “In furtherance of commerce
and travel slight obstructions, and
such as may temporarily interrupt
the passage of vessels, or occasion a
cursory inconvenience, but which do
not materially impair navigation, are
made lawful and tolerated by reason
of the greater public good that re-
sults from these inconsiderable dis-
turbances of the right of the public
to the free and uninterrupted use of
navigable streams. Upon this prin-
ciple the bridging of streams, the
building of wharves and other like
acts may be permitted, the necessary
obstruction in every case being re-
duced to its minimum. * * * Tele-
graphs, and as a consequence tele-
graph wires are a commercial and
business convenience, if not necessity,
and a public benefit. There is a
necessity that the lines of communi-

cation should not be interrupted by
streams, and that wires and cables
should be carried over or under navi-
gable streams, as occasion may re-
quire. If slight disturbance of, or
interference with the use of the
streams for the purposes of naviga-
tion were the necessary consequence,
telegraph companies might neverthe-
less be permitted, within the limits
named, to pass their wires over or
under the stream, so constructing
their works as not unnecessarily or
materially to interrupt or annoy
commerce and navigation.” Blanch-
ard v. Western Union Teleg. Co., 60
N. Y. 510, 514, 1 Am. Electl. Cas,
176.

“As applied to navigation, I cannot
sustain the distinction contended for
between an obstruction and an inter-
ference. The cables, whatever their
exact position was, were in a per-
manent position. If they interfered
at all with the rightful or necessary
use of steamers in that locality, the
interference was also permanent. And
& permanent interference, which pre-
vents a vessel from going where she
280 Law or ELectriciry.

be, when necessary to the public good, strung across navi-
gable streams, but this must be done in such a manner that
vessels will not be delayed or injured thereby.“ In some
cases, it may be that placing the lines upon the surface of
the bed of the waters would not be sufficient; if the waters
are so shallow that every inch of draught is required for
navigation purposes, the proper place for wires or cables
is ‘‘in the bed.’’*? Wires or cables may be said to be
wrongfully laid when they are so placed as to come in con-
tact with vessels navigating the water in the ordinary
course of commerce, when, without such wires or cables,
the vessel could proceed with no interruption.” If a tele-
graph or other line wrongfully obstructs a navigable

ordinarily has a right to go, and
where in her maneuvres she may find
it necessary to go, whether that neces-
sity be constant or frequent, or only
occasional, as emergencies may com-
pel her, seems to me to constitute an
‘ obstruction.’ ” Western Union Teleg.
Co. v. Inman, etc., S. S. Co., 43 Fed.
85, 3 Am. Electl. Cas. 556; affirmed,
59 Fed. 365, 4 Am. Elect]. Cas. 641.

61. Blanchard v. Western Union
Teleg. Co., 60 N. Y. 510, 1 Am. Electl.
Cas. 176.

62. “The telegraph company’s con-
tention amounts to this: that it has
a right to the exclusive use of the
silt or mud for its cables, without
interference from vessels. Such, how-
ever, is not the language of the act
of Congress. That act permits the
cables to go ‘under water’ but ‘ not
s0 as to obstruct navigation.’ Noth-
ing in the act gives any absolute
right to lay cables in all cases on
the very top of even a solid bottom.
A cable so laid would not perfectly
meet even the language of the stat-
ute, for it would still be in the water,
and not, as the statute says, ‘ under
the waters’ Circumstances might
exist where, if it were reasonably
practicable, the cables would be re-

quired to be laid below the surface
of even a solid bottom; or, as Allen,
J., says, ‘in the bed of the stream,’
and not merely on the surface of the
bed.” Western Union Teleg. Co. v.
Inman, etc., S. S. Co., 43 Fed. 85,
3 Am. Electl. Cas. 556; affirmed, 59
Fed. 365, 4 Am. Electl. Cas. 641.

63. Blanchard v. Western Union
Teleg. Co., 60 N. Y. 510, 1 Am. Electl.
Cas. 176.

Navigation is injuriously inter-
rupted when the channel of the river
is made less safe, and ships and ves-
sels are hindered, delayed or injured.
Telegraph cables so laid or suspended
in the water as to catch upon the
keels, or come in contact with ves-
sels navigating the stream, with such
draught as the depth of water will
permit, and which, but for such
cables, would pass without difficulty
or interruption, are improperly
placed and do injuriously interrupt
navigation. They violate the condi-
tion annexed to the permission given
by statute to construct telegraph
wires across the navigable waters of
the state. Blanchard v. Western
Union Teleg. Co., 60 N. Y. 510, 1 Am.
Elect]. Cas. 176,
Ricut or Way ror Lines; Post Roaps Act. 281
stream so that a vessel thereon, without contributing negli-
gence, is injured by contact therewith, the owner of the
telegraph line or other line is liable for the injury to the
vessel.* Not only must they be properly laid in the first
instance, but they must be thereafter maintained so as not
to interfere with navigation. In a proceeding for injuries
occasioned to a vessel by coming in contact with a wire or
cable across navigable waters, a prima facie case is made
when it is shown that the vessel, which is adapted in all
respects to navigation on the water and had frequently
passed the locus in quo without injury, upon the particular
occasion came in contact with a submerged wire or cable
and received injury thereby.®

Navigable Mud.—Upon the bed of some navigable waters
is a soft yielding mud, of more or less consistency. It is
distinguished from the solid bed by the practical test of
whether a vessel may move through it.” If a vessel is able

64. Western Union Teleg. Co. v.
Inman, etc., 8. S. Co., 43 Fed. 85, 3
Am. Electl. Cas. 556; affirmed, 59
Fed. 365, 4 Am. Electl. Cas. 641;
Stephens, etc., Transp. Co. v. West-
ern Union Teleg. Co., 8 Ben. (U. 8.)
502, Fed. Cas. No. 13,371; Blanchard

jury unexplained, authorized the
finding that the defendant had, by
its cables, unlawfully obstructed the .
navigation of the river, and caused
the damage. The defendant had so
constructed its line across the waters
of the Hudson River as to interrupt

v. Western Union Teleg. Co., 60N. Y.
510, 1 Am. Electl. Cas. 176.

65. Stephens, etc., Transp. Co. v.
Western Union Teleg. Co., 8 Ben.
(U. 8.) 502, Fed. Cas. No. 13,371.

66. Blanchard v. Western Union
Teleg. Co., 60 N. Y. 510, 1 Am. Elect.
Cas. 176. “A prima facie case was
made against the defendant when the
plaintiffs proved that the steamer,
adapted, in all respects, to the navi-
gation of the river, and which had
for years, and in safety, passed over
this part of the stream almost daily,
and requiring less depth of water
than other vessels passing over the
same point without grounding, had
come in contact with the defendant’s
cable and received injury. The very
fact of a collision and consequent in-

naviga’.on; the cable so placed, or
suffered, as to injure the vessels was
pro tanto a public nuisance.” Blanch-
ard v. Western Union Teleg. Co., 60
N. Y. 510, 1 Am. Electl. Cas. 176.

67. “The soft, yielding, navigable
mud, in which these cables were more
or less immersed, is not to be con-
founded with the solid bed of the
stream referred to in the above
cases. Such mud constitutes no
sharply defined bottom. It changes
from time to time and is dredged
out as occasion requires. It admits
of navigation by steamers through it,
and forms a part of the available
draught of water, and as such it is
counted on and constantly used. The
line of division between such navi-
gable mud and the true bottom is
282 Law oF ELEcTRICITY.

to proceed, by her own motive power, through it, such mud
may be classified as ‘‘ navigable water,’’ and a vessel so
proceeding may be said to be engaged in ‘‘ navigation ’’
as that term is used in the Post Roads Act.’’®* This being
so, wires or cables may not be laid in such mud so as to
obstruct the passage of vessels through the same; and, if a
vessel in the course of navigation receives injury from a
wire or cable so placed, in the absence of contributory neg-
ligence, the burden is upon the owner of the wire or cable
to show that the injury was not caused by his negligence.”

Loss of Anchor.—In 1884 an international convention
for the protection of submarine cables was held.” Arti-
cle VII of the convention provides as follows: ‘‘ Owners
of ships or vessels who can prove that they have sacrificed
an anchor, a net, or other fishing gear in order to avoid
injuring a submarine cable shall receive compensation from
the owner of the cable. In order to establish a claim to
such compensation, a statement, supported by the evidence
of the crew, should, whenever possible, be drawn up
immediately after the occurrence; and the master must,
within twenty-four hours after his return to, or next put-

distinguishable by no other test than
the practical one of the ability of
the ship to plow through it. So far
as affects the rights of navigation,
whatever depth of mud of this vari-
able consistency steamers are accus-
tomed to plow through, and do and
must plow through, in the course of
their maneuvres in and about the
docks, is to be treated as a part of
the stream, and not as a part of the
solid bottom.” Western Union Teleg.
Co. v. Inman, etc., S. 8S. Co., 43 Fed.
85, 3 Am. Electl. Cas. 556; affirmed,
59 Fed. 365, 4 Am. Electl. Cas. 641.

68. Western Union Teleg. Co. v.
Inman, etc. S. 8. Co., 43 Fed. 85,
3 Am. Elect]. Cas. 556; affirmed, 59
Fed. 365, 4 Am. Electl. Cas. 641.

69. Western Union Teleg. Co. v.
Inman, ete. 8. S. Co, 43 Fed. 85,

3 Am. Electl. Cas. 556; affirmed, 59
Fed. 365, 4 Am. Electl. Cas. 641.
“Whatever the cause of the accident
in question, the owner of the cables
laid across this navigable stream has
failed to show that it did not happen
because of any failure to maintain
them in such a way as not to ob-
struct navigation; and, as the owners
of the steamship have shown that
she was navigating when she en-
countered them, the person who un-
dertook to maintain the cables so as
not to obstruct navigation has failed
to sustain the burden of proof which
the accident cast upon him.” West-
ern Union Teleg. Co. v. Inman, etc.,
S. S. Co., 59 Fed. 365, 4 Am. Electl.
Cas. 641.
70. See 24 Stat. at L. 989-1000.
Rieut or Way For Lines; Post Roaps Act. 283
ting into port, make a declaration to the proper authori-
ties. The latter shall communicate the information to the
consular authorities of the country to which the owner of
the cable belongs.’? Where the anchor of a vessel fouls a
submarine cable and is sacrificed by the captain on the
faith of the provisions of this article, the liability of the
owner is to make compensation, but not further to pay
damages arising from such sacrifice.”

Contributory Negligence In a proceeding for injuries
to a vessel caused by collision with a wire or cable acrosg
navigable waters, the fact that the vessel in question and
other vessels have at other times touched the wire or cable
in passing, does not tend to establish contributory negli-
gence at the time in question.” Nor is a vessel at fault if,
after having the screw of its propeller caught in a sub-
marine cable, it endeavors to free itself therefrom with
such devises and skill as are at her command and refuses
an offer of assistance from employees of the owner of the
cable made at a time when it is thought that the screw is
clear from the cable.”

Sec. 189. Under or Over Navigable Waters; Injuries to
Lines.

Where, as stated in the preceding section,’* a submarine
cable is so maintained as to interfere with the passage of
vessels upon navigable waters, the owner of such a cable
is not entitled to recover for injuries thereto which arise
out of the collision between the cable and a vessel.”*> But,
though this is true, it must be remembered that, subject to
navigation, the bed of navigable waters is a proper place

71. Agincourt S. S. Co. v. Eastern
Extension Teleg. Co., 76 L. J. (K. B.)
884,

72. Blanchard v. Western Union
Teleg. Co., 60 N. Y. 510, 1 Am. Elect.
Cas. 176.

73. Stephens, etc., Transp. Co. v.
Western Union Teleg. Co. 8 Ben.
(U. S.) 502, Fed. Cas. No. 13,371.

74, § 188.

75. Western Union Teleg. Co. v.
Inman, etc., S. 8. Co. 43 Fed. 85,
3 Am. Electl. Cas. 556; affirmed,
59 Fed. 565, 4 Am. Electl. Cas. 641;
Stephens, etc., Transp. Co. v. Western
Union Teleg. Co., 8 Ben. (U. S.) 502,
Fed. Cas. No. 13,371.
284 ; Law or ELeEctriciry.

for wires and cables.”* If the owner of the cable can show
that the injury thereto was caused by the negligence or
wrongful acts of those operating the vessel, he may recover
the damages sustained by him.” Thus, in one case,’* where
it appeared that a ship, in casting her anchor, got foul of a
submarine telegraph cable. The crew heaved up the anchor
to the water’s edge, and the cable came up entangled with
it. In order to free the anchor from the telegraph cable
the mate of the ship, acting under the direction of the
master, cut the telegraph cable in two with a hatchet. It
appeared further that by the exercise of ordinary nautical

76. “I will assume, for the pur-
pose of this judgment, that the bot-
tom of the sea may be used for
lawful purposes. The question has
arisen in respect of oyster-beds and
sunken vessels; and we may take it,
inasmuch as there are acts of par-
liament on the subject, that the
placing of telegraphic cables at the
bottom of the sea is a known mode
of using that part of the earth’s sur-
face. The plaintiffs’ property, there-
fore, was lawfully placed where it
was. The defendants also had an
undoubted right to navigate the high
sea, and, if need be, to let go their
anchor wherever the safety or con-
venience of their ship required it to
be done. These two rights happen
to conflict. Upon the face of the
declaration, therefore, it appears that
the property of the plaintiffs was
damaged by an anchor of the defend-
ants dropped in a place where they
had a right to drop it. Then comes
the replication, which admits the de-
fendants’ right to anchor, provided
that right be exercised with due care
and skill, in the ordinary course of
navigation, but alleges that what was
done was done negligently and con-
trary to the due course of navigation.
The whole essence of the case thus
turns upon the word negligent.” Sub-

marine Teleg. Co. v. Dickson, 15 C. B,
(N. 8.) (Eng.) 759, 109 E. C. L, 759,
10 Jur. (N. 8S.) 211.

, 77. The Clara Killam, L. R, 3 Adm.
& Eccl. (Eng.) 161; Submarine
Teleg. Co. v. Dickson, 15 C. B. (N. 8.)
(Eng.) 759, 109 E. C. L. 759, 10
Jur. (N. S.) 211.

78. The Clara Killam, L, R. 3 Adm.
& Eccl. (Eng.) 161, wherein it was
said: “I must consider that this
telegraph cable was lawfully placed
at the bottom of the sea, and in the
spot where it received the injury.
I must also consider that the vessel
which did the injury to it was in
the exercise of her right both in the
navigating the surface of the sea,
and in dropping her anchors where
and when she had let them go. The
law requires that each party should
exercise his right so as, if possible,
to avoid a conflict with the right of
the other. It was the duty, there-
fore, of the ship to disentangle, if
possible, her anchor from the cable
without injuring it. She was bound
to apply ordinary skill, and to take
the time necessary for this purpose,
unless she thereby exposed herself
to present or imminent peril — the
suggestion in the ninth paragraph of
the answer, that it was impossible
to extricate her anchors ‘before the
RicHt or Way ror Lines; Post Roaps Act. 285
skill the anchor might have been freed from the cable by
the crew, without cutting the cable; and it was held that
the court had jurisdiction to entertain an action instituted
by the owners of the cable against the ship for damage
done to the cable, and that the owners of the cable were
entitled to judgment in the action. Likewise, where a ves-
sel anchors in a prohibited part of a river and thereby
injures a submarine cable, the ship becomes liable for the
damages, though there were no indications of the place
where such cable had been laid or notices of warning given
as to where it was located.”

Sec. 190. Under or Over Navigable Waters; Over Rivers.

A person or corporation running electric lines, or other
lines of wire, may, if the stream is not wide, conduct such
wires over a river by means of towers placed on the banks
thereof. The Post Roads Act apparently permits this
practice over navigable rivers, where the wires are suffi-
ciently high as not to obstruct navigation on the stream.
It is, of course, impractical over streams of considerable
width. The duty of a company stringing wires over the
surface of a stream is to place, in the first instance, the
wires at such a height as to permit the free passage of
river boats under it, and then to exercise reasonable care
to prevent the line from becoming an obstruction and.
menace to navigation. It is not material that injuries

lapse of a considerable time, save
by severing the said cable,’ cannot
be admitted as a justification of the
act.”

79. Bell Telep. Co. v. The Rapid, 5
Can. Exch. 413, 12 Quebec Super Ct.
37,

80. Heiberger v. Missouri & Kan-
sas Telep. Co., 133 Mo. App. 452, 113
8S. W. 730, wherein the court said:
“ Both in the construction and main-
tenance of its line, defendant was
bound to take into consideration the
right of the public to navigate the
river, and was required by the plain-

est principles of law, first, to build
the line at a height above the waters
sufficient to permit the free passage
under it of river boats, and then to
exercise at least reasonable care to
prevent it from becoming an obstruc-
tion and menace to navigation.
Though not an insurer of travelers
on the highway against danger of
injury from fallen wires, defendant
owed them the duty we have defined,
and a negligent breach of such duty
would afford a person injured thereby
an action for the damages sustained.”
286 Law or ELEctRiciry.

therefrom would not have been sustained had the boat been
a larger one or if it had been equipped with a different
engine; however small and crude a boat may be, its free
passage may not be wrongfuly. obstructed." In such a
case, a prima facie case is made by showing that a collision
oceurred between a boat and the wire in question.” The
presumption of negligence arising in such a case may be
overcome by the showing that the falling of the wire was
not the result of negligence in the construction and mainte-
nance of the line, and that the defendant had neither actual
nor implied notice of the fact that it had fallen in time to
have removed the obstruction by the exercise of reasonable
care.**

Sec. 191. Under or Over Navigable Waters; Oceanic
Cables.

Whether a person, either an alien or corporation, has

the right to establish a physical connection by means of a

81. Heiberger v. Missouri & Kan-
sas Telep. Co., 133 Mo. App. 452,
113 S. W. 730. “It is immaterial
that the wire might not have formed
an obstruction to a larger boat nor
to one equipped with a reversible
engine. ‘Defendant was required to
anticipate the presence of small craft
on the river, and plaintiff was justi-
fied in relying on the presumption
that defendant would throw no dan-
gerous obstacle in the way of her
boat, however small or crude it might
be.” Heiberger v. Missouri & Kansas
Telep. Co., 133 Mo. App. 452, 113
S. W. 730.

82. Heiberger v. Missouri & Kan-
sas Telep. Co., 133 Mo. App. 452, 113
S. W. 730. “In showing that a
wire owned by defendant did obstruct
the passage of the boat and injured
her without any fault on her part,
she made a prima facie case of negli-
gence against the defendant which, if
not rebutted, would raise a conclu-
sive presumption of negligence. The

burden. of proof shifted to the de-
fendant to explaim the presence of
the wire at that place. The very
fact that it was there bespoke want
of care either in the construction of
the line, its repair, or in the discov-
ery and correction of an accidental
displacement of the wire. Since de-
fendant had exclusive control of the
wire and, in the ordinary course of
things, an accident such as this could
not happen if proper care were exer-
cised, it accords better with the dic-
tates of reason and justice to require
defendant to exculpate itself from
the imputation of negligence than to
require plaintiff in her pleading and
proof to put her finger on the specific
act of negligence that caused her
injury.” Heiberger v. Missouri &
Kansas Telep. Co., 133 Mo. App. 452,
113 8S. W. 730.

83. Heiberger v. Missouri & Kan-
sas Telep. Co., 183 Mo. App. 452, 113
8. W. 730.
Rieut or Way ror Lines; Post Roaps Act. 287

telegraphic cable from the shores of one country to the
shores of another depends upon the consent of the coun-
tries. Such a cable cannot be landed on the shore of
United States without its consent.** The consent may
properly be given by treaty or statute; but, in the absence
of any legislation upon the subject, it has been thought
that the granting or refusal of the right is a question rest-
ing with the executive. The Post Roads Act gives no
rights to corporations organized under the laws of a for-
eign country ;** and, even if applicable to a particular cor-
poration, it does not apply to oceanic lines designed for
telegraphic communication with foreign countries.”

84. United States v. La Compagnie 86. De Castor v. Compagnie Fran-
Francaise des Cables Telegraphiques, caise du Teleg. de Paris, 85 Hun
77 Fed. 495. (N. Y.) 231, 32 N. Y. Supp. 960.

85. United States v. La Compagnie 87. De Castor v. Compagnie Fran-
Francaise des Cables Telegraphiques, caise du Teleg. de Paris, 85 Hun
77 Fed. 495, (N. Y.) 231, 32 N. Y. Supp. 960.
288

SECTION 192.

193,

194.

195.

196.

197.

198,

199,
200.

201.

202.
203.
204,
205.
206.

207.
208.
209.
210.
211.

212.

213.
214.
215.
216.

217,
218.

219.

220.

221,

222,
223.

224,
225.

226.

227.
228.

229.
230.

231.

232.

233.

Law oF ELeEctricity,

CHAPTER X.

FRANCHISES; IN GENERAL.

Primary and Secondary Franchises.

Streets May Properly be Used for Lighting and Communication.

What Constitutes a Franchise.

Necessity of Franchise; in General.

—— Line of Individual along Rural Highway.

—— Turnpikes.

Rights Given by Franchise.

Protection from Impairment; in General.

-—— Regulation of Company.

—— Discontinuance of Highway.

-—— Taxation.

Grant to Other Companies.

—— Municipal Ownership of System.

—— Injury to Appliances from Moving Buildings along Streets.

Grant Not Utilized.

—— Enforcement of Conditions Annexed to Grant.

—— Reservation of Right to Revoke.

Transfer of Franchise; in General.

-—— Ratification or Estoppel.

—— Assignment of Part of Franchise.

—— Mode of Transfer.

Rights of Parties after Transfer.

Forfeiture of Franchise; in General.

—— Waiver of Forfeiture.

—— Function of Court.

Surrender or Modification of Franchise.

Duration of Franchise.

Exclusiveness of Franchise; in General.

—— Implication of Power to Grant Exclusive Franchise from
Control of Streets.

—— Exclusive Feature Does Not Render Entire Franchise Void.

—— Exclusive as against One Not Having a Franchise.

Conditions Annexed to Franchise; in General.

—— Duty of Imposing Conditions.

Waiver of Conditions.

—— Estoppel.

—— Enforcement of Conditions.

— Bond.

—— Duration of Franchise.

—— Free Service to Municipality.

—— Liability for Damages.

—— Poles.

—— Party Lines.

 

 

 

 
FRaNCHISES; IN GENERAL. 289

Section 234. —— Percentage of Proceeds.
235. —— Power Plant.
236. ——— Rates for Service.
237. —— Revocation of Right.
238. ——- Time Limit for Construction of System.

239. —— Wires.

240. Remedies; Franchise Holder.
241. —— State.

242. —— Municipality.

243. —— Taxpayers.

Sec. 192. Primary and Secondary Franchises.

Theoretically, as has been noted in a previous chapter,
the power of a body of persons to do business as a corpora-
tion is a franchise. The franchise to be a corporation and
to engage in the electric or other business is termed its
‘‘ primary ’’ franchise, while the rights which it subse-
quently acquires to place its poles and wires along streets
or highways are calledits ‘‘ secondary ’’ franchise.?, Under
modern practice, the ‘‘ primary ’’ franchise is so easily
procured that its value is of slight importance. In this
chapter the term ‘‘ franchise ’’ refers to the ‘‘ secondary ”’
privilege. The so-called primary franchise seems to be a
privilege granted to the stockholders or incorporators, as
such; while the secondary franchise, after incorporation,
inheres in the company, not in the individual members
thereof? Statutes granting to certain corporations the
right ‘‘ to transact any business in which electricity over
or through wires may be applied to any useful purpose,’’

1. § 16.

2. “One needs, * *~ * to dis-
tinguish between corporate fran-
chises; in the sense of the right to
corporate existence, and corporate
franchises, as the term is often, not
very accurately used; in the sense of,
a privilege owned by a corporation
in its proprietary capacity; a thing
granted which when accepted is
property, may be acquired or parted
with as any other property might,
barring special legislative restric-
tions.” City of LaCrosse v. LaCrosse

19

Gas & Elec. Co., 145 Wis. 408, 130
N. W. 530.

In Maine, the secondary franchise
of an electric company is called a
“power.” Crawford Elec. Co. v.
Knox County Power Co., 110 Me. 285,
86 Atl. 119.

8. Payne v. Golbach, 14 Ind. App.
100, 42 N. E. 642; Phillipsburg Elec.
L., Heating & P. Co. v. Inhabitants of
Town of Phillipsburg, 66 N. J. Law
505, 8 Am. Electl. Cas. 149, 49 Atl.
445.
290 Law oF ELEcTRICITY.

and conferring certain rights and privileges upon such
corporations in a certain city, have been construed to grant
merely the primary franchise, and not to give such corpo-
rations a franchise to place their lines in the city streets
against the will of the city authorities.*

Sec. 193. Streets May Properly be Used for Lighting and
Communication.

In connection with the right of eminent domain, it was
pointed out that the use of property for supplying elec-
tricity or furnishing telephonic or telegraphic communica-
tion to the public is a public use justifying the delegation
of such power to companies so engaged.® The public
character of the use enables a company, not only to have
the right of condemnation, but to receive a franchise to
use the public places for its appliances. The public high-
ways are dedicated primarily for the purposes of travel
and transportation.® This primary use must not be abro-
gated; but, nevertheless, on account of their public nature,
electric, telegraph, and telephone companies may be given
the right to maintain their lines along the same, subject,
however, to such primary use.’

Sec. 194. What Constitutes a Franchise.

The term ‘‘ franchises ’’ as used in connection with elec-
tric, telegraph, and telephone companies usually refers to

4, Edison Elec. Illum. Co. of Bal-

Rocky Mountain Bell Telep. Co., 12
timore v. Hooper, 85 Md. 110, 6 Am.

Mont. 102, 4 Am. Elect]. Cas. 73, 29

Electl. Cas. 8, 36 Atl. 113.

5. § 58.

6. See Cincinnati Inclined Plane
Ry. Co. v. Suburban Teleg. Assoc.,
48 Oh. St. 290, 3 Am. Elect]. Cas.
443, 29 Am. St. Rep. 557, 27 N. E.
890, 12 L. R. A. 534, 30 Cent. L. J.
218.

7. Kibbie Telep. Co. v. Landphere,
151 Mich. 309, 115 N. W. 244, 14
Det. Leg. N. 953, 16 L. R. A. (N. 8.)
689; Hook v. Bowden, 144 Mo. App.
331, 128 IS. W. 261; Hershfield v.

Pae. 883; City of Utica v. Utica
Telep. Uo., 24 N. Y. App. Div. 361,
7 Am. Electl. Cas. 67, 48 N. Y. Supp.
916. “The primary purpose for
which highways and streets are es-
tablished and maintained is for the
convenience of public travel. The
use of such highways and streets for
water mains, gas pipes, telephone and
telegraph lines is secondary and sub-
ordinate to the primary use for
travel, and such secondary use is per-
missible only when not inconsistent
FRANCHISES; IN GENERAL. 291
the rights which are granted by the sovereign power to
such companies authorizing them to use the highways and
other public places for their poles, wires, conduits, and
other appliances.® Technically, the term refers only to the
rights granted in some manner by the sovereign, and
does not include the permission which a local municipality
gives in order to enable such a company to place its appli-
ances upon the municipal streets. To illustrate, a com-
pany may be authorized by statute to occupy the highways
of the state for lines of poles and wires, but such statute
may require the company to obtain the consent of the
municipal officers before placing its lines within the bounds
of incorporated municipalities. The right granted by the
state, or the combination of the state and municipal grant
may be called a ‘‘ franchise;’’® the consent of the local
authorities, even if indispensable to the construction of the

system, is a ‘‘ permit ’’ or a ‘‘ license.’’ *°

with the primary object of the estab-
lishment of such ways.” State v.
City of Spokane, 24 Wash. 53, 7 Am.
Elect]. Cas. 96, 63 Pac. 1116.

8. Indeterminate permits.— In Wis-
consin, since the passage of their
Public Utility Law in 1907, electric
companies, pursuant to the provisions
of such act, may acquire “ indetermi-
nate y-rmits,” which permits prac-
tically amount to franchises. City of
La Crosse v. La Crosse Gas & Elec.
Co., 145 Wis. 408, 130 N. W. 530;
Calumet Service Co. v. City of Chil-
ton, 148 Wis. 334, 135 N. W. 131.

9. Missouri River Telep. Co. v. City
of Mitchell, 22 S. Dak. 191, 116
N. W. 67.

10. Dakota Central Telep. Co. v.
City of Euron, 165 Fed. 226; City
of Chicago v. Chicago Telep. Co., 230
Ill, 157, 82 N. E. 607, 13 L. R. A.
(N. S.) 1084, 12 Ann, Cas. 109; Read-
field Telep. & Teleg. Co. v. Cyr, 95
Me. 287, 7 Am. Elect]. Cas. 820, 49
Atl, 1047; American Loan & Trust
Co. v. General Elec. Co., 71 N. H. 192,

Even if the local

8 Am. Electl. Cas. 117, 51 Atl. 660.
See also, Metropolitan Home Telep.
Co. v., Emerson, 202 Mass. 402, 88
N. E. 670. “The ordinance in this
case prescribes certain conditions
upon which the city of Chicago, as
a municipal entity, is willing to per-
mit appellee to use its streets, and
parts of these conditions are that
appellee shall make, semi-annually,
a report of the business done by it
within the city limits for the pre-
vious six months and pay into the
city treasury three per cent of such
sum. Appellee accepted this ordi-
nance, and from that time forth it
became a _ contract between the
parties. A franchise emanates from
the government or sovereign power,
and where a corporation is created
by law, with power to use the
streets of the city, upon the consent
of the city, under such conditions
as may be imposed, and by ordinance
such consent is prescribed or privilege
granted, the grant by the city is
a license and is not a franchise. When
292 Law oF ELEcrRIcIty.

officers have an undivided authority over the granting of
rights to place electric appliances in the municipal streets,
where a grant is made with a condition annexed that the
municipality may revoke the same at any time, the priv-
ilege depends upon the municipal will to such an extent
that some courts do not consider that it has the dignity of
a ‘‘franchise,’’ and hold that it is merely a ‘‘ license.’’*
A distinction, sometimes made between a franchise and a
license, is that the former is an easement or contract which
may not be revoked, while the latter is subject to revoca-
tion.” Following the same test of revocability, where the
privilege of using the highways has been granted, before
such grant has been acted upon by the company so that it

such license is accepted by the cor-
poration a valid and binding contract
is created with the municipality, to
compel the performance of which
mandamus will not lie.” City of
Chicago v. Chicago Telep. Co., 230 Ill.
157, 82 N. E. 607, 13 L. R. A. (N.S.)
1084, 12 Ann. Cas. 109. s

Permit to place wires upon tele-
graph poles.— The Board of Electrical
Control of the city of New York per-
mitted an electric light company to
string wires upon certain poles be-
longing to a telegraph company, and
it was held that the permit was a
mere license, and that the board could
subsequently cause the wires to be
removed. East River Elec. L. Co.
v. Grant, 57 N. Y. Super. Ct. 553, 3
Am. Electl. Cas. 127.

Not a mere license—In New
Jersey, under a statute authorizing
electric light companies to erect poles
in highways, except that in incorpo-
rated cities and towns permission
must be obtained and the streets des-
ignated, it was held that the permis-
sion was not a mere license which
could be revoked, but was a franchise.
Inhabitants of East Orange Tp. v.
Suburban Elec. L. & P. Co., 59 N. J.

Eq. 563, 7 Am. Electl. Cas. 37, 44
Atl. 628.

11. Coverdale v. Edwards, 155 Ind.
374, 7 Am. Electl. Cas. 15, 58 N. E. 495.

Reservaton of right to amend or
alter does not give right to revoke.—
Where an ordinance contains a clause
permitting the municipality to alter
or amend the ordinance as the neces-
sities of the city demand, the city
may not revoke or repeal the ordi-
nance itself. Such provision is to be
considered merely as # reservation of
police control. City of Owensboro v.
Cumberland Telep. & Teleg. Co., 230
U. S. 58, 33 S. Ct. 988.

12. Newman v. Village of Avon-
dale, 31 Week. Law Bull. (Ohio) 123,
4 Am. Electl. Cas. 82.

Distinction between franchise and
permit—“A franchise involves a
greater or less degree of compre-
hensiveness and generality, and its
exercise something of time and devel-
opment. A permit, specification or
location is narrow and _ definite,
adapted to immediate or early use or
service, and depending upon present
conditions.” Metropolitan Home
Telep. Co. v. Emerson, 202 Mass. 402,
88 N. E. 670.
FRANCHISES; IN GENERAL. 293:
acquires rights constitutionally protected, the right is
sometimes called a ‘‘license.’’** A distinction between
franchises and licenses based upon revocability is not in
accordance with the terminology used by some courts. In
some cases rights have been called ‘‘ licenses,’’ but it has
been held that they are contract rights which may not be
repealed by the municipal officials.* What has been said
is not to be construed as requiring all grants made by
municipal corporations to be termed ‘“licenses.’? In a
subsequent chapter,” it is shown that municipalities may
be delegated the power of granting franchises. Where a
municipality has the power and duly exercises it the result-
ing right should be called a ‘‘ franchise.’’** The wording
of the ordinance is not controlling on the question of the
nature of the right granted. A company and a munici-
pality may stipulate that the arrangement between them
shall not be deemed to grant a franchise, but the courts
may hold that a franchise has actually been granted.”
Likewise, an ordinance granting the right to use municipal
streets may, by its terms, grant merely ‘‘ permission ’’ and
yet the permission to erect poles and wires in the streets,

13. Matter of New York Elec. Lines
Co., 201 N. Y. 321, 94 N. E. 1056;
People ex rel. N. Y. Electric Lines
Co. v. Ellison, 115 N. Y. App. Div.
254, 101 N. Y. Supp. 55; affirmed,
188 N. Y. 523, 81 N. E. 447.

14, See § 199.

15. §§ 258 et seq.

tions. Two subsequent statutes, with
reference to the construction and use
of conduits, expressly recognized and
excepted from their operation the
said ordinances and the rights and
privileges thereby granted. Held,
that the ordinance was a contract and
not a license, and could not be re-

16. Cumberland Telep. & Teleg. Co.
v. City of Evansville, 127 Fed. 187;
affirmed, 143 Fed. 238, 74 C. C. A.
368; Metropolitan Home Telep. Co.
v. Emerson, 202 Mass. 402, 88 N. E.
670.

Conduits.— A municipal ordinance,
enacted with legislative authority,
permitted two telephone companies,
plaintiffs, to construct and use con-
duits for their wires, provided they
should comply with certain condi-

pealed or modified to the prejudice of
the plaintiffs, who had complied with
all its conditions, there being no pub-
lie necessity for such repeal or modi-
fication in the proper exercise of the
police power of the municipality.
Chesapeake & P. Telep. Co. v. Balti-
more, 89 Md. 689, 7 Am. Electl. Cas.
135, 43 Atl. 784, 44 Atl. 1033.

17. Arpin v. City of Thief River
Falls, 122 Minn. 34, 141 N. W. 833.
294 Law or ELectricirty.
when expenditures have been made on the faith thereof,
will be deemed more than a mere license."

Sec. 195. Necessity of Franchise; in General.

As is more fully explained in the following chapter,” the
control of the highways is lodged in the sovereign power,
and all franchises to use such highways emanate, either
directly or indirectly, from such power. The right of an
electric, telegraph, or telephone company to maintain its
lines along the public highways may be given directly by
constitutional” or by statutory provisions,” or it may be
given indirectly, as through municipal corporations acting
as agents of the sovereignty.” If given directly, it is not
necessary that additional consents be secured from the
municipal authorities. As to lines through the public do-
main, Indian reservations, territories of the United States
and through the District of Columbia; and, in some cases,
along highways, military roads, railroads, and under nav-
igable waters, the federal government is the sovereignty
which has the power of dispensing franchise privileges.”
In other cases the power is lodged in the different states.
But no electric, telegraph, or telephone company may use
the public places for its appliances without authority,
either direct or indirect, from some sovereign power hay-
ing jurisdiction thereover.* Wires may not be conducted

18. East Tenn. Telep. Co. v. City
of Frankfort, 190 Fed. 346. This
same litigation was in the state
courts of Tennessee and a contrary
result reached. Hast Tennessee Telep.
Co. v. City of Frankfort, 141 Ky. 586,
133 8S. W. 564; rehearing denied,
143 Ky. 86, 136 S. W. 138. The
question, in so far as it pertains to
the right of the municipality to re-
voke the right, is a federal question
upon which the United States Courts
can revise the judgment of state
courts.

19. § 244,

20. § 246.

21. §§ 247-251.

22. §§ 260 et seq.

23. §§ 174-191.

24, United States— Southern Bell
Telep. & Teleg. Co. v. City of Mobile,
162 Fed. 523; Northwestern Telep.
Exch. v. City of St. Charles, 154 Fed.
386.

Ilinois— City of Springfield v.
Postal Telegraph Cable Co., 253 TL
346, 97 N. E. 672.

Kentucky.— Cumberland Telep. &
Teleg. Co. v. City of Calhoun, 151
Ky. 241, 151 S. W. 659; East Tennes-
see Telep. Co. v. Anderson County
Telep. Co., 115 Ky. 488, 8 Am. Electl.
FRANCHISES; IN GENERAL. 295
either over or under a public highway without govern-
mental authority; and it does not affect this rule that the
ownership of the land subject to the highway is in the
abutting owner who wishes to lay a conduit under the
street.2> If the grantee of a franchise to erect one system,
duly erects such system, the franchise is fulfilled, and he
cannot thereafter erect another system without another
franchise.* The fact that a corporation is engaged in
interstate commerce does not, of itself, give it the right to
place its poles and wires in public places; if the federal
government, under the interstate commerce clause, has not
legislated with reference to its rights in such places, it can-
not enter public places within the boundaries of a state
without the consent of such state.?” A telephone company
does not require a franchise for the operation of its ex-
change alone; but, if the streets of the municipality are

Cas. 19, 24 Ky. Law Rep. 2358, 74
S. W. 218; East Tennessee Telep. Co.
v. City of Russellville, 106 Ky. 667,
21 Ky. Law Rep. 305, 51 8. W. 308;
Newport v. Newport Light Co. 89
Ky. 454, 1 8. W. 394; appealed, 151
U.S. 527.

Montana.— State v. City of Hel-
ena, 34 Mont. 67, 85 Pac. 744.

New York.— City of Utica v. Utica
Telep. Co., 24 N. Y. App. Div. 361,
7 Am. Electl. Cas. 67, 48 N. Y.
Supp. 916.

Oklahoma.— Bartlesville Elec. L. &
P. Co. v. Bartlesville Interurban Ry.
Co., 26 Okla. 453, 109 Pac. 228, 29
L. R. A. (N. 8.) 77.

Oregon.— Nat. Automatic Fire
Alarm Co. of Oregon v. City of Port-
land, 59 Oreg. 409, 117 Pac. 285.

Pennsylvania.— Keystones State
Telep. & Teleg. Co. v. Borough of Rid-
ley Park, 28 Pa. Super. Ct. 635.

Canada.— Town of Selkirk v. Sel-
kirk Elec. Co., 20 Manitoba (Canada)
461, 15 W. L. R. 703.

“No telephone company can law-
fully occupy the streets of a city

with its poles and wires without leg-
islative authority granted directly by
the Legislature, or by the municipal
authorities in pursuance of express or
implied authority delegated to it.
The authority to consent to the use
of the streets of a city by a telephone
company resides primarily in the Leg-
islature of the state, but may be dele-
gated to the municipality directly
concerned.” Southern Bell Telep. &
Teleg. Co. v. City of Mobile, 162 Fed.
523.

25. Butler v. City of Cincinnati, 25
Ohio Cir. Ot. 772.

In New Jersey it has been held
that an abutting owner has the right,
as against the municipality, to con-
nect the buildings on his property
with electric wires already on poles
in the public streets. Borough of
Brigatine v. Holland Trust Co.,
(N. J. Eq.) 37 Atl. 438.

26. Eby & Smith v. City of
Lathrop, 128 Mo. App. 315, 107 S. W.
410.

27. Northwestern Telep. Exch. v.
City of St. Charles, 154 Fed. 386.
296 Law oF Eecrriciry.

used in connection with the exchange, a franchise is re-
quired.* The necessity of a franchise cannot be obviated
by the use of wires laid by a predecessor without license ;”
or by having the company’s customers own the wires where
they cross the streets or by having such customers put
up the entire wires.*° Where the persons owning a tract
of land, in order to promote a town, divided the territory
into streets and lots and dedicated the streets to the public,
but by the dedication deed reserved to themselves the ex-
clusive right to construct and maintain electric lines and
other public utilities along and across the streets, it was
held that such reservation was void, because it created a
monopoly and also because it sought to bind the municipal
authorities in their control over the most important inter-
ests of the town. A corporation constructing or main-
taining a line of poles and wires in a public place without
proper authority, is a trespasser engaged in an unlawful

act,°? and its poles and wires are nuisances.**

28. Cumberland Telep. & Teleg. Co.
v. City of Calhoun, 151 Ky. 241, 151
S. W. 659; Bland v. Cumberland
Telep. & Teleg. Co., 33 Ky. Law Rep.
399, 109 S. W. 1180.

29..Attorney-General v. Walworth
L. & P. Co. 157 Mass. 86, 4 Am,
Electl. Cas. 70, 31 N. E. 482, 16
L. R. A. 398. But see Borough of
Brigatine v. Holland Trust Co.
(N. J. Eq.) 37 Atl. 438.

80. Attorney-General v. Walworth
L. & P. Co., 157 Mass. 86, 4 Am.
Electl. Cas. 70, 31 N. E. 482, 16
L. R. A. 398, wherein the court said:
“Tt seems to us quite out of the
question to say that a company may
escape the prohibition of the statute
by turning over to a customer so
much of each wire as crosses street,
and then continuing to use the wire.
If it is forbidden to erect, it is for-
bidden to use wires which it has
erected. And it is within the words
of the act, as well when it erects a

It may be

wire technically, as a servant of its
customer, with intent to use the wire
for the purposes of its business, but
to evade the act as when it erects
it on its own behalf. We agree that
we cannot order wires to be taken
down, the owners of which are not
before us. But we can order the de-
fendant not to use them.”

31. Jones v. Carter, 45 Tex. Civ.
App. 450, 101 S. W. 514.

82. Cumberland Telep. & Teleg. Co.
v. City of Calhoun, 151 Ky. 241, 151
8. W. 659; Newman v. Village of
Avondale, 31 Week. Law Bull. (Ohio)
123, 4 Am. Electl. Cas. 82.

Injury to employee— Where an
employee of a telegraph company
which had not secured the required
designation of the places for its
poles, while climbing a pole with his
back to the street and carrying a tele-
graph wire attached to his body, was
injured by the collision of a street
railway car with such wire, it was
FRANCHISES; IN GENERAL. 297
compelled to desist from its unlawful occupation by the
state, the municipality, the holder of a franchise for the
same service,®* or by an owner of real estate abutting the
highway.

Foreign Electric Company.— If a domestic electric com-
pany may not use the streets and highways within a munici-
pality without a franchise, it would seem, as a matter of
logic, that a foreign corparation would likewise be com-
pelled to procure a franchise. This is legally so unless
interstate comity requires a different holding. ‘The doc-
trine of interstate comity has never been extended so as to
permit a foreign corporation to engage in the electric busi-
ness without the procurement of a franchise.”

Sec. 196. Necessity of Franchise; Line of Individual
Along Rural Highway.

In one jurisdiction it has been held that a person may
build and maintain an electric line upon a rural highway
without obtaining a franchise or license from any officer,
providing the construction is done in a way that does not
seriously impede or endanger public travel or unecessarily
interfere with the reasonable use of the highway by other

held that he was engaged in doing
an illegal act which contributed to
his injury, and he could not recover
of the street railway company, where
it did not appear that the driver of
the car acted recklessly and wantonly.
Banks v. Highland Street R. Co., 136
Mass. 485.

Injuries to lines unlawfully placed.
— As to the liability of persons or
corporations for injuries to lines
which are placed in the public streets,
see §§ 366-376.

33. § 430.

34. § 242.

35. Bartlesville Elec. L. & P. Co.
v. Bartlesville Interurban Ry. Co., 26
Okla. 453, 109 Pac. 228, 29 L. R. A.
(N. 8.) 7%. See also, § 240.

36. § 290.

87. Patapasco Electric Co. v. City
of Baltimore, 110 Md. 306, 72 Atl.
1039, wherein it was said: “The
comity exhibited by the several
American states toward each other
secures to a corporation created by
any one of them almost the same use
of its chartered powers and privileges
in the territory of the others which
it enjoys in the one that created it.
That comity, however, is always ex-
tended to foreign corporations by the
domestic state in such manner as to
do no violence to its own policy or
injury to its own citizens, and the
foreign corporation will not be per-
mitted to exercise any powers or
conduct any occupation forbidden to
a domestic corporation by the laws or
policy of the state.”
298 Law oF ELsEctRIcITy.

members of the public and there is no invasion of the
rights of the owners of abutting lands.** While this ruling
seems contrary to the general doctrine announced in the
foregoing section, it will be found that the cases in support
of the general doctrine either involve municipal streets or
the rights of corporations. In what seems to be the only
reported decision upon this point it appeared that private
individuals acting as partners in the business of furnishing
electric current had franchises to operate within the limits
of two different cities, but, when they attempted to extend
a transmission line from one city to the other, with no
governmental authority for the use of the rural highway
connecting the two cities, the state brought an action to
enjoin the construction of the line. The partners succeeded
upon the ground that no authority was required. The
decision proceeds upon the ground that the use of the high-
way for the transmission of electric currents is a public as
well as a proper use thereof, and that a natural person has
the same right to convey electricity along the road by means
of wires as he would have to carry by means of wagons,
storage batteries or other appliances used in making light,
heat, and power. Whether or not the result is sound,
this reasoning is not entirely satisfactory. The analogy
between transmitting electricity by wires and conveying

88. State v. Weber, 88 Kan. 175,
127 Pac. 536.

person needs no special license or
grant of authority in order to use a

39. “Being a public use and the
line « public utility it is, of course,
subject to the control of the public,
and the legislature might well pre-
scribe the conditions upon which a
Inghway should be used for that pur-
pose just as it has regulated the use
of automobiles, telephones and other
methods of transportation, traffic and
communication on the highways. This
highway was established under the
statutory rules prescribed by the
legislature. Having been so estab-
lished it was open for any proper
public use which the people might
choose to make of it. A natural

highway for any of the purposes for
which it was established. The legis-
lature might have prescribed the con-
ditions on which persons might trans-
mit and transport light, heat and
power along a highway, but it has not
done so, and in the absence of a stat-
utory regulation there is no reason
why they may not be transmitted
and transported over the highway as
freely as storage batteries or other
appliances used in making heat, light
and power may be carried in a wagon
over the same highway.” State v.
Weber, 88 Kan. 175, 178, 127 Pac.
536.
FRANCHISES; IN GENERAL. 299
storage batteries by wagon is not close enough to warrant
the inference that, because one is permitted without ex-
press authority, the other also is permitted. The decision
does not consider the circumstances that the passage of
vehicles along the highway is purely a temporal use, while
the maintenance of an electric line is, to a limited extent,
permanent and exclusive. The number of vehicles which
may use the road is practically unlimited, while the width
of the highway permits but few electric lines. But the
tenor of the decision obviously discloses several limita-
tions upon the rule. (1) To reach such result, it is neces-
sary that the state should not have otherwise exercised its
control over the highway; the legislature may require indi-
viduals to secure a franchise, and the reasoning of this
decision is applicable only where the legislature has not
required such a grant. (2) Asa corollary from this first
proposition, it is clear that the decision has no application
to municipalities to which the legislature has given control
of their streets.*° (3) The decision does not apply to cor-
porations.“ (4) The right must not be exercised in such

40. “It is true that cities grant
rights and prescribe the conditions
upon which individuals and corpora-
tions may use the streets for certain
purposes, but that does not militate
against the view that an individual
may use the rural highways for the
same purposes without special author-
ity. The power to control the streets
has been delegated by the state to the
cities under which they may make
grants of public rights for public
purposes; but where the power has
not been delegated and the state has
prescribed no conditions limiting or
regulating the use of the highway
the people are at liberty to use it
for travel, transportation and com-
munication, subject to the condition
that such use does not interfere with
other lawful uses of the street nor
invade the rights of the owners of
abutting lands.” State v. Weber,
88 Kan. 175, 179, 127 Pac. 536.

41, “It is argued that because ex-
press authority to make such use of
the highway has been conferred on
corporations there is an inference
that special legislative permission is
necessary to that use by any one.
Special authority is given to a corpo-
ration not because a grant is essen-
tial to the legal use of a highway for
highway purposes by the people, but
the grant is made in part to confer
on an artificial being some of the
rights which natural persons pos-
sess. In vesting the corporation with
some of the power and duties of a
natural person, and which its own
shareholders enjoy without a grant,
the legislature provides how these
duties and powers shall be exercised
by the corporation and the conditions
on which it may use the streets and
highways in the conduct of its busi-
ness. The fact that a franchise is
essential to the exercise of its limi-
300

Law or ELecrriciry.

a manner as to impede or endanger public travel or un-
necessarily interfere with the reasonable use of the high-
way by other members of the public, or invade the rights of
the owners of abutting lands.”

Sec. 197. Necessity of Franchise; Turnpikes.

Where a statute requires electric light and power com-
panies to obtain a special grant from the legislative body
of the state and also the assent and approval of the mayor
and city council of a city before using the streets or high-
ways ‘‘ of ’’ such city, the preposition ‘‘ of ’? may be con-
strued as indicating the locality and municipal jurisdiction
and not as descriptive of or relating to title or ownership.**
Moreover, a turnpike is generally considered as a ‘‘ high-
way.’’ This reasoning requires a municipal franchise as
a prerequisite to entry by an electric company upon a turn-
pike in such a city.**

Sec. 198. Rights Given by Franchise.

The acceptance and expenditure of money on the faith of
a franchise, not only confers contract rights on a public
service corporation which are protected by constitutional

ted powers on a highway does not’ travel, transportation or communi-

warrant the inference that legisla-
tive permission is necessary for the
individual to use the highway for any
of the purposes for which it was in-
tended.” State v. Weber, 88 Kan.
175, 179, 127 Pac. 536.

42. “The fact that the transmis-
sion of the electric current over wires
is a proper use and that an individ-
ual may use the highway for this
purpose without special authority
does not mean that he is privileged
to do it in a way that will unrea-
sonably interfere with the use of
the highway by other members of
the public. The highway belongs to
the public and all of the public is en-
titled to the use of it. However,
every one must use it in a reason-
able manner so as not to impede

cation, or interfere with its reason-
able use by other citizens, If the
methods of use adopted by appellants
should unreasonably incommode
others or render the proper use of
the highway by others dangerous, or
if the appliances used by them should
constitute a nuisance, the state, at
the instance of the attorney-general
or the county attorney, could, under
the general authority given them,
maintain an action to enjoin the un-
lawful use.” State v. Weber, 88
Kan. 175, 127 Pac. 536.

43. Patapasco Electric Co. v. City
of Baltimore, 110 Md. 306, 72 Atl.
1039.

44. Patapasco Elec. Co. v. City of
Baltimore, 110 Md. 306, 72 Atl. 1039.
FRANCHISES; IN GENERAL. 301
provisions,* but it gives to the grantee an easement in the
streets along which it is authorized to erect its appliances.”
In this respect a license, giving no interest in the soil, is
to be distinguished from a franchise. In some cases, but
not generally, it is granted a privilege exclusive of all other
persons or corporations.*” Every grant of franchises, if
ambiguous, is to be construed against the grantee, and in
favor of the public. This rule of construction is adopted
because an intention on the part of the government to grant
to private persons, or to a particular corporation, prop-
erty or rights in which the whole public is interested cannot
be presumed unless unequivocally expressed, or necessarily
to be implied in the terms of the grant; and because the
grant is supposed to be made at the solicitation of the
grantee, and to be drawn up by him or by his agents, and,
therefore, the words are to be treated as those of the
grantee.** The grant of a franchise carries with it the
power to do whatever is reasonably necessary for the
enjoyment of the franchise. Thus, the right to maintain
electric wires or an electric street railway along certain
streets gives the company the right to construct and oper-
ate a line from such streets to its power-house.*” But a

Cas. 1138, 79 N. E. 484; Beaumont
Tract. Co. v. Brock, 48 Tex. Civ. App.
41, 106 S. W. 460.

Street railway wires on electric

45. §§ 199 et seq.

46. Southern Telep. & Teleg. Co.
v. Mobile, 162 Fed. 523; affirmed
without opinion, 174 Fed. 1020, 98

C. C. A. 663; Cumberland Telep. &
Teleg. Co. v. City of Evansville, 127
Fed. 187; affirmed, 143 Fed. 238, 74
C. C. A. 368; Horner v. City of Eaton
Rapids, 122 Mich. 117, 80 N. W. 1012,
6 Det. Leg. N. 665; In re Anthony
Ave., 46 Misc. (N. Y.) 525, 95 N. Y.
Supp. 77; affirmed on opinion below,
124 App. Div. 940, 109 N. Y. Supp.
1123.

4%, §§ 219-222.

48. Edison Elec. Illum. Co. v.
Hooper, 85 Md. 110, 6 Am. Electl. Cas.
8, 36 Atl. 113.

49. Williams v. Old Colony St. Ry.
Co., 193 Mass. 305, 9 Am. Electl.

company’s poles.— Under a statute of
Pennsylvania (Act of March 19, 1903,
P. L. 34), an electric street railway
company has the right to string its
wires within the limits of a borough
upon the poles of an electric light,
heat and power company under a con-
tract with the latter although in so
doing its wires are located on streets
occupied by poles of light, heat and
power company but not a part of the
route of the railway company or occu-
pied by its tracks. Borough of Hous-
ton v. Washington, etc., Ry. Co., 234
Pa. St. 245, 83 Atl. 108.
302 Law or ELEscrricity.

permit from a city to a street railway company to string
electric wires along a street does not give it the right to
use such wires to distribute power to private consumers.”
Authority to erect and maintain poles in a street carries
with it the right to use at needful places suitable appli-
ances for such erections, though such appliances are likely
to frighten horses. Thus, the placing of a reel three feet
long and four feet in diameter with lead pipe coiled upon
it next to the sidewalk on the line of telephone poles for
the present purpose of stringing the pipe on the poles to
enclose telephone wires, and leaving ample room for the
travel along the street, is not an improper use of the
street." Power to ‘‘ break up, dig, and trench so much
and so many of the public streets, roads, squares, high-
ways, and other public places in any municipality * * *
as may be necessary or required for laying down or erect-
ing (or repairing) the mains, pipes or wires to conduct ’’
gas or electricity, has been construed to permit the erection
of poles and wires for the conveyance of electricity.” The
company is justified in using only so much of the street as
is necessary for the exercise of its franchise. If granted
the right to place an electric cable under a sidewalk, the
company is not thereby entitled to occupy permanently the
entire space under the walk, but only so much as is needed
for the cable and any device used to support it and to keep
persons from coming in contact with it.”

Sec. 199. Protection from Impairment; in General.

Where a person or corporation has been duly given the
right to maintain and operate an electric, telegraph, or tele-
phone line along or under highways or other public places,
and it has duly accepted such grant and expended money
on the faith thereof, in the absence of a reservation giving
the municipal or state officials the power so to do, the grant

50. Chicago Gen. St. Ry. Co. v. 52. Winnipeg Elec. Ry. Co. v. City
Elliott, 88 Fed. 941. of Winnipeg, 4 D. L. R. (Canada)
51. Simonds v. Maine Telep. & 116, [1912] A. C. 355.
Teleg. Co., 104 Me. 440, 72 Atl. 175, 58. Commonwealth Elec. Co. v. Mel-
28 L. R. A. (N. S.) 942. ville, 210 Ill. 70, 70 N. E. 1052.
FRANCHISES; IN GENERAL.

303

becomes a contract and a vested property right, which is
constitutionally protected, and it may not subsequently be

repealed or impaired.™

54, United States—— Old Colony T.
Co. v. City of Omaha, 230 U. 8S. 100,
33 8. Ct. 967; City of Owensboro v.
Cumberland Telep. & Teleg. Co., 230
U.S. 58, 33 S. Ct. 988; City of Louis-
ville v. Cumberland Telep. & Teleg.
Co., 224 U. S. 649, 32 8. Ct. 572, 56
L. Ed. 934; Saginaw Power Co. v.
City of Saginaw, 193 Fed. 1008; East
Tennessee Telep. Co. v. City of Frank-
fort, 190 Fed. 346; Monett Elec. L.,
P. & Ice Co. v. City of Monett, 186
Fed. 360; City of Owensboro v. Cum-
berland Telep. & Teleg. Co., 174 Fed.
739, 99 C. C. A. 1; Southern Bell
Telep. & Teleg. Co. v. City of Mobile,
162 Fed. 523; affirmed without
opinion, 174 Fed. 1020, 98 C. C. A.
663; Old Colony T. Co. v. City of
Wichita, 123 Fed. 762; modified, 132
Fed. 641, 66 C. C. A. 19; Board of
Mayor, ete., of City of Morristown
v. East Tennessee, 115 Fed. 304, 8
Am. Electl. Cas. 3, 53 C. C. A. 132;
Anoka Waterworks, Elec. L. & P.
Co. v. City of Anoka, 109 Fed. 580;
Pike’s Peak Power Co. v. City of Col-
orado Springs, 105 Fed. 1, 44 C.C. A.
333; Little Falls Elec. & Water Co.
v. City of Little Falls, 102 Fed. 663;
Michigan Telep. Co. v. Charlotte, 93
Fed. 11, 7 Am. Electl. Cas. 52.

Arkansas— Hot Springs Elec. L.
Co. v. City of Hot Springs, 70 Ark.
300, 67 S. W. 761.

California— Western Union Teleg.
Co. v. Hopkins, 160 Cal. 106, 116 Pac.
557; California State Teleg. Co. v.
Alta Teleg. Co., 22 Cal. 398. “The
grant of a franchiee is in the nature
of a vested right of property; sub-
ject, however, in most cases to the
performance of conditions and duties
on the part of the grantees. They
generally involve important duties of

Not only are such grants pro-

a public character, often onerous
upon the grantees. They are neces-
sarily exclusive in their character,
otherwise their value would be liable
to be destroyed, or seriously im-
paired. So long as the grantee ful-
fills the conditions and performs the
duties imposed upon him by the |
terms of the grant, he has a vested
right which can not be taken away,
or otherwise impaired by the govern-
ment, any more than other property.”
California State Teleg. Co. v. Alta
Teleg. Co., 22 Cal. 398.

Tlinois.— People v. Chicago Telep.
Co., 245 Ill. 121, 91 N. E. 1065; Vil-
lage of London Mills v. White, 208
Ill. 289, 70 N. E. 313; People v. Cen-
tral Union Telep. Co., 192 Ill. 307,
61 N. E. 428, 85 Am. St. Rep. 338;
City of Rock Island v. Central Union
Telep. Co., 132 Ill. App. 248; Village
of London Mills v. Fairview-London
Telep. Circuit, 105 Ill. App. 146; af-
firmed, 208 Ill. 289, 70 N. E. 313.

Kansas.— City of Baxter Springs
v. Baxter Springs L. & P. Co., 64
Kan. 591, 8 Am. Elect]. Cas. 125, 68
Pac. 63.

Louisiana.— City of New Orleans
v. Great So. Telep. & Teleg. Co., 40
La. Ann. 41, 2 Am. Electl. Cas. 122,
3 So. 533, 8 Am. St. Rep. 502.

Maryland.— Chesapeake & P.
Telep. Co. v. Baltimore, 89 Md. 689,
7 Am. Elect]. Cas. 135, 43 Atl. 784,
44 Atl. 1033.

Michigan.— Kibbie Telep. Co. v.
Landphere, 151 Mich. 309, 115 N. W.
244, 14 Det. Leg. N. 953, 16 L. R. A.
(N. S.) 689; Wyandotte Elec. L. Co.
v. City of Wyandotte, 124 Mich. 43,
7 Am. Electl. Cas. 43, 82 N. W. 821,
7 Det. Leg. N. 111; Michigan Telep.
Co. v. City of St. Joseph, 121 Mich.
304

Law or Evecratcrry.

tected by state constitutions, but an impairment thereof
violates the section of the Constitution of the United
States which prohibits the passage of a law impairing the
obligation of contracts and the Fourteenth Amendment for-
bidding the taking of property without due process of law.*

502, 7 Am. Elect]. Cas. 1, 80 N. W.
383, 6 Det. Leg. N. 566, 47 L. R. A.
87, 80 Am. St. Rep. 520.
Minnesota.— City of Duluth v. Du-
luth Telep. Co., 84 Minn. 486, 8 Am.
Elect]. Cas. 136, 87 N. W. 1127;
Northwestern Telep. Exch. Co. v.
City of Minneapolis, 81 Minn. 140,
7? Am. Elect]. Cas. 168, 179, 83 N. W.
527, 86 N. W. 69, 53 L. R. A. 175.
“That the effect of the first ordi-
nance, and the acceptance and ex-
penditures of large sums of money
by plaintiff in reliance thereon, es-
tablished such contractual rights be-
tween the parties, we have no right
to question either upon principle or
authority. An ordinance of a mu-
nicipality, surrendering a part of its
powers to a corporation to secure and
encourage works of improvement,
which require the outlay of money
and labor, to subserve the public in-
terests of its citizens, when accepted
and acted upon, becomes a contract
between the city and the corpora-
tion who relied upon it, and the
grantee cannot be arbitrarily de-
prived of the rights thus secured.
They are protected by the organic
law which forbids the impairment of
contracts or interference with vested
rights without due process of law.”
Northwestern Telep. Exch. Co. v.
City of Minneapolis, 81 Minn. 140, 7
Am. Elect]. Qas. 168, 179, 83 N. W.
527, 86 N. W. 69, 53 L. R. A. 175.
Nebraska.— City of Plattsmouth v.
Nebraska Telep. Co., 80 Neb. 460, 114
N. W. 588, 14 L. R. A. (N. 8.) 654.
New Jersey.— Phillipsburg Elec. L.,
Heating & P. Co. v. Inhabitants of

Town of Phillipsburg, 66 N. J. Law
505, 8 Am. Electl. Cas. 149, 49 Atl.
445; Inhabitants of East Orange Tp.
v. Suburban Elec. L. & P. Co., 59 N.
J. Eq. 563, 7 Am. Electl. Cas. 37, 44
Atl. 628; Hudson Telep. Co. v. Jer-
sey City, 49 N. J. L. 303, 2 Am.
Electl. Cas. 133, 8 Atl. 123.

New York.— Wakefield v. Village
of Theresa, 125 N. ¥. App. Div. 38,
109 N. Y. Supp. 414.

North Dakota. — Northwestern
Telep. Exch. Co. v. Anderson, 12 N.
Dak. 585, 98 N. W. 706, 65 L. R. A.
771, 102 Am. St. Rep. 580.

Ohio.— Newman v. Village of Avon-
dale, 31 Week. Law Bull. 123, 4 Am.
Elect]. Cas 82.

South Dakota— Missouri River
Telep. Co. v. City of Mitchell, 22 S.
Dak. 191, 116 N. W. 67.

Vermont.— Rutland Elec. L. Co. v.
Marble City Elec. L. Co., 65 Vt. 377,
4 Am. Electl. Cas. 256, 26 Atl. 635,
20 L, R. A. 821, 36 Am. St. Rep. 868.

Washington.— Commercial Elec. L.
& P. Co. v. Tacoma, 17 Wash. 661,
50 Pac. 592.

West Virginia— Clarksburg Elec.
L. Co. v. City of Clarksburg, 47 W.
Va. 739, 7 Am. Electl. Cas. 25, 35
8S. E. 994, 50 L. R A. 142.

Wisconsin.— State v. City of She-
boygan, 111 Wis. 23, 7 Am. Electl.
Cas. 109, 86 N. W. 657.

55. See the federal cases cited
above. “The Federal Constitution
(article 1, § 10) provides that ‘no
State shall * * * pass any law
impairing the obligation of contracts.’
It is beyond question that a grant
by a municipal corporation, under
FRANCHISES; IN GENERAL. 305

A municipal ordinance is a ‘‘ law ’’ within the meaning of
the federal Constitution, so that the company may have
relief in the federal courts if an ordinance is passed which
impairs its franchise rights.** Upon the question whether
a grant is impaired by a state law or by a municipal ordi-
nance, the federal courts are supreme; and, though the
company may be unsuccessful in the state courts, the case
may be decided by the United States courts irrespective
of the determination of the state courts.” Franchise or
property rights procured by assignment or by the con-
solidation of different corporations are protected to the
same extent as rights received directly from the state or

municipality, where the transfer is not unlawful.*

authority of the statute of a State,
to a private corporation to supply a
city or town with electricity for the
public use, or any similar franchise,
constitutes a contract, when accepted
and carried out by the corporation,
which is under the protection of both
the State and national constitutions.”
Clarksburg Elec. L. Co. v. City of
Clarksburg, 47 W. Va. 739, 7 Am.
Elect]. Cas. 25, 35 S. E. 994, 50
L. R. A. 142,

56. Old Colony T. Co. v. City of
Omaha, 230 U. S. 100, 33 S. Ct. 967;
City of Owensboro v. Cumberland
Telep & Teleg. Co., 230 U. S. 58, 33
S. Ct. 988; Anoka Waterworks, Elec.

L. & P. Co. v. City of Anoka, 109-

Fed. 580; Little Falls Elec. & Water
Co. v. City of Little Falls, 102 Fed.
663. See also, American Telep. &
Teleg. Co. of Alabama v. Town of
New Decatur, 176 Fed. 133.

Not passed under legislative au-
thority.— A municipal ordinance not
passed under legislative authority is
not a law of the state within the
meaning of the constitutional pro-
hibition against state laws impairing
the obligation of contracts. Hamilton
Gaslight & Coke Co. v. City of Ham-
ilton, 146 U. S. 258, 13 S. Ct. 90, 36
L. Ed. 963.

20

57. See Kast Tennessee Telep. Co. v.
City of Frankfort, 190 Fed. 346, ren-
dering of no avail a contrary decision
in East Tennessee Telep. Co. v. City
of Frankfort, 141 Ky. 586, 133 S. W.
564; rehearing denied, 143 Ky. 86, 136
S. W. 138.

A telephone company claiming that
its contract right to use streets is
violated by a subsequent municipal
ordinance, presents a federal ques-
tion. Michigan Telep. Co. v. Char-
lotte, 93 Fed. 11, 7 Am. Electl. Cas.
52.

The decision of the highest court
of a state as to the validity and ef-
fect of state action claimed to make
a contract, the obligation of which
is attempted to be impaired by sub-
sequent state action, raises a federal
question, and is not binding on fed-
eral courts, but it is the duty of the
latter when the question is properly
brought before them to determine it
by the exercise of independent judg-
ment. East Tenn. Telep. Co. v. City
of Frankfort, 190 Fed. 340.

58. City of Owensboro v. Cumber-
land Telep. & Teleg. Co., 230 U. S.
58, 33 S. Ct. 988; City of Louis-
ville v. Cumberland Telep. & Teleg.
Co., 224 U. S. 649, 32 S. Ct. 572, 56
L. Ed. 934.
306 Law oF ELEcTRICITY.
Sec. 200. Protection from Impairment; Regulation of
Company.

Public service corporations are subject to reasonable
regulation by the state and the municipal corporation in
which they are operating,” and regulation within reason-
able limits is not an impairment of their corporate priv-
ileges.°° While the precise boundary between lawful regu-
lation and unlawful imposition may be difficult to locate,
obviously there is an indefinite point where the require-
ments of state or municipal officials cease to be regulation
and constitute impairment of the corporations’ rights.*
The franchise of a public service corporation may not be
annulled under the guise of police regulation. Pretenses
on the part of public officers that requirements are made
by virtue of municipal police power will not be effectual
to prevent the courts from exposing their confiscatory

59. §§ 323-337.

60. Old Colony T. Co. v. City of
Omaha, 230 U. S. 100, 33 S. Ct. 967;
Michigan Telep. Co. v. City of Char-
lotte, 93 Fed. 11, 7 Am. Electl. Cas.
52; Northwestern Telep. Exch. Co.
v. City of Minneapolis, 81 Minn. 140,
7 Am. Electl. Cas. 168, 179, 83 N. W.
527, 86 N. W. 69, 53 L. R. A. 175.
“The city, being vested by the leg-
islature with the power of super-
vision and control of its streets in
the manner and to the extent in
which that power is given by its
charter, has the authority to make
such a requirement as it made by
the ordinance in question, provided
it was made in good faith, and can
fairly be seen to be directed to a
legitimate purpose falling within the
purposes of delegated authority. As
has been already said, if this action
of the common council was purely
arbitrary, and had no fair tendency
in the direction of the public safety,
the result would have been different.
If power exists, and the exercise of
it is not clearly in disregard of its

proper bounds, the court is not au-
thorized to determine the validity
thereof by its own sense of the wis-
dom or expediency of the action
taken, nor weigh in a nice balance
the question of its justice in a gen-
eral sense.” Michigan Telep. Co. v.
Charlotte, 93 Fed. 11, 7 Am. Electl.
Cas. 52.

61. “ This extensive power of reg-
ulation is not to be exercised at
mere whim or caprice. It should be
appropriate to and commensurate
with the public necessity for the
protection and promotion of public
morals, health, safety, necessity, or
convenience * * *; and the ap-
plication of the police power cannot
be extended by the authority which
is intrusted with such application to
an arbitrary misuse of private rights.
Any such unwarranted exercise of
authority is unconstitutional and
void. Northwestern Telep. Exch. Co.
v. City of Minneapolis, 81 Minn. 140,
7 Am. Elect]. Cas. 168, 179, 83 N. W.
527, 86 N. W. 69, 53 L. R. A. 175,
FRANCHISES; IN GENERAL. 307
nature.” Nor, where city regulations are essential to the
exercise of a telephone franchise, can the city nullify such
franchise by refusing to make regulations.“ In a subse-
-quent chapter the regulatory power of the state and its
municipal divisions is discussed at length.**

Sec. 201. Protection from Impairment; Discontinuance of
Highway.

Upon the discontinuance of a highway, the land, as a
general proposition, reverts to the former owner or passes
to the owner of adjoining lands. A grant to occupy certain
streets or highways with poles and wires or conduits does
not usually give the grantee any right to enjoy the grant
after the place where the lines are located ceases to be a
public street or highway. Nor can the franchise holder
complain that his rights have been impaired by the discon-
tinuance of the public way. It may be that, if a munici-
pality owns the fee to a street and grants an easement
therein to a public service corporation, such company
would acquire a property right not subject to annulment.
It may also be that, if all of the ways within a considerable
section were discontinued and no others laid out upon
which its franchise could be enjoyed, its constitutional
rights would be deemed violated. But a general abandon-
ment of streets and highways without the substitution of

62. City of Owensboro v. Cumber-
land Telep. & Telep. Co., 230 U. S.
58, 33 S. Ct. 988; Northwestern
Telep. Exch. Co. v. City of Minneapo-
lis, 81 Minn. 140, 7 Am. Electl. Cas.
168, 179, 83 N. W. 527, 86 N. W..69,
53 L. R. A. 175; City of Plattsmouth
v. Nebraska Telep. Co., 80 Neb. 460,
114 N. W. 588, 14 L. R. A. (N.S)
654; State v. City of Sheboygan, 111
Wis. 23, 7 Am. Electl. Cas, 109, 86
N. W. 657. “Neither the city nor
the State can destroy, or essentially
modify, corporate franchises, except
as the power is reserved in the orig-
inal grant or by the constitution.

They may regulate the mode of do-
ing business with reference to the
comfort, welfare, and safety of so-
ciety, but cannot, under the pretense
of regulating, take away any of the
essential rights and privileges which
the charter confers.” State v. City
of Sheboygan, 111 Wis. 23, 7 Am.
Electl. Cas. 109, 86 N. W. 657.

63. Michigan Telep. Co. v. City of
St. Joseph, 121 Mich. 502, 7 Am.
Electl. Cas. 1, 80 N. W. 383, 6 Det.
Leg. N. 566, 47 L. R. A. 87, 80 Am.
St. Rep. 520.

64. §§ 323-337.
308 Law or Evsctricity.

others is impossible. In one case where the legislature
authorized the discontinuance of city streets and the taking
thereof for a terminal station, it was held that electric and
telephone companies having conduits in such streets were
not entitled to compensation for the loss thereof.*

Sec. 202. Protection from Impairment; Taxation.

In the chapter on Taxation, it was shown that a fran-
chise is a property right which normally is subject to taxa-
tion in the same way as other property of the franchise
holder is taxed. It was also pointed out that it seems to
be beyond the power of a municipality, after granting the
right to use the streets without compensation, to require
the payment by the grantee of a license fee as a considera-
tion for such use; but that, under the police power of the
municipality, it can require the payment of such sums as
are necessary to reimburse it for the expense it has in-
curred or will incur in the supervision and inspection of
the appliances placed in the public highway.

Sec. 203. Protection from Impairment; Grant to Other
Companies.

Under certain circumstances, discussed in subsequent
sections, a franchise to place poles and wires in a public
highway may be exclusive so that a similar right may. not
be granted to another person or corporation. If a fran-
chise is of this special nature, it may not be violated by the
grant of similar rights to another. If the franchise is not

65. New England Teleg. & Telep.
Co. v. Boston Terminal Co., 182 Mass.
397, 8 Am. Electl. Cas. 132, 65 N. E.
835, wherein it was said: “ When
these places ceased to be public
streets, all rights of the public in
them came to an end, and they be-
came subject to the different kind of
public use to which they were appro-
priated by the statute. It is a fa-
miliar rule that the discontinuance
of a public way terminates the right

of travel of the public in it, and
leaves it for other uses. The action
taken by the respondent first worked
a discontinuance of the streets, and
then appropriated them to the public
use for a terminal station. The dam-
ages to be assessed were only for
rights of property in the real estate
at the time of the taking.”

66. § 99.

67. § 100.

68. §§ 219-222,
FRANCHISES; IN GENERAL. 309

exclusive, there is no reason why a franchise may not be
given to another; and the first company’s rights are not
constitutionally impaired though the competition thereby
created compels its dissolution. But, even if the franchise
is not exclusive, another franchise may not be enjoyed in
such a manner as to abrogate the rights of the earlier occu-
pant of the street.

Sec. 204. Protection from Impairment; Municipal Owner-
ship of System.

As has been stated in another place, a municipality may
construct and operate its own electric system though it has
previously granted a franchise to an electric company,
where such franchise is not exclusive.” Having, however,
granted an exclusive privilege, a municipality may not im-
pair the right granted either by granting a similar right
to another” or by entering upon the municipal ownership
of an electric plant.” Where the franchise is not exclusive,
though its rights may be indirectly abrogated by compe-
tition, the municipality cannot by direct action deprive the
franchise holder of its property rights.”

Sec. 205. Protection from Impairment; Injury to Appli-
ances from Moving Buildings Along Streets.

Tn another place in this work,” a discussion will be found
of the rights of persons moving buildings through streets
and of the owners of wires maintained along or across such
streets. The use of streets for the moving of buildings is
an extraordinary use and should not be permitted without
safeguarding the rights of the electric and other companies
having lines thereupon. The authorization of such use
of the highway without taking steps to protect the owner
of lines may, in some cases, constitute an impairment of

69. The question of interference 71. § 203.
between two companies upon the 72. § 156.
same highway is discussed at length 73. Wakefield v. Village of Theresa,
in a subsequent chapter. See §§349- 125 N. Y. App. Div. 38, 109 N. Y.
365. Supp. 414.

70. § 156. 74, §§ 369-376.
310 Law or Eectricity.

the constitutional rights of the owner.” A regulation
placing on the owner of wires the expense of moving them
in order to permit the passage of buildings through the
streets has been held to be a violation of the franchise
rights of the owner of the wires.” If permission is given
to move a building through the streets, a clause may not
be added to such permission whereby the house mover is
released from liability to the owners of wires lawfully
maintained along the streets.”

Sec. 206. Protection from Impairment; Grant not Utilized.

A franchise to place poles and wires along public ways
is not immune from attack until it has been acted upon.
The mere acceptance of the grant is not sufficient to bring
it within the constitutional protection, and it may be abro-
gated at any time before the grantee has acted upon the

same and spent money on the faith thereof.”

75. Edison Elec. L. & P. Co. of
St. Paul, 185 Fed. 615; Kibbie Telep.
Co. v. Landphere, 151 Mich. 309, 115
N. W. 244, 14 Det. Leg. N. 953, 16
L. R. A. (N. 8.) 689; Northwestern
Telep. Exch. Co. v. Anderson, 12
N. Dak. 585, 98 N. W. 706, 65 L. R.
A. 771, 102 Am. St. Rep. 580. “It
is true that the ordinance under
which the plaintiff is maintaining
this system was not repealed, but
the effect of granting the defendant
the right to move the building was
destructive of plaintiff’s property,
and therefore a violation of the
plaintiff's contractual rights under
the ordinance. Whether such con-
tractual rights could be relied on in
case of changes in the location of
poles or damage done to them by a
necessary and usual use of the
streets by the city, is not here pre-
sented. Whether the use of the
street in moving houses is inconsist-
ent with plaintiff's use of the street
under the ordinance, or impairs its

In this

right to use such streets, is the only
question passed on here.” Northwest-
ern Telep. Exch. Co. v. Anderson, 12
N. Dak. 585, 98 N. W. 706, 65 L.
R. A. 771, 102 Am. St. Rep. 580.

76, Edison Elec. L. & P., St. Paul
v. Bloomquist, 185 Fed. 615.

77. Northwestern Telep. Exch. Co.
v. Anderson, 12 N. Dak. 585, 98 N. W.
706, 65 L. R. A. 771, 102 Am. St.
Rep. 580.

78. Capital City L. & Fuel Co. v.
City of Tallahassee, 42 Fla. 462, 28
So. 810; affirmed, 186 U. S. 401, 22
8S. Ct. 866, 46 L. Ed. 1219; Matter
of New York Elec. Lines Co., 201
N. Y. 321, 94 N. E. 1056; People
ex rel. N. Y. Electric Lines Co. v.
Ellison, 115 N. Y. App. Div. 254,
101 N. Y. Supp. 55; affirmed, 188
N. Y. 523, 81 N. E. 447. “We are
aware that there are many cases in
which the granting of a franchise
and its acceptance is spoken of as
creating a right of property, but
generally in those cases there had
FRANCHISES; IN GENERAL. 311
respect it is not material that the grant purports to give
an exclusive right; if the privilege is not utilized, a similar
grant may be given to another corporation or the munici-
pality itself may construct and operate a municipal plant.”

Sec. 207. Protection from Impairment; Enforcement of
Conditions Annexed to Grant.

The construction of an electric system under a valid
franchise creates a contract which is binding on the elec-
tric company as well as the municipality. The company is
bound to carry out the conditions to be performed by it.
Where conditions are annexed to a franchise which a mu-
nicipality may lawfully annex, the enforcement of the per-
formance of such conditions cannot be deemed an impair-

ment of the company’s franchise.

been partial performance and the
question now presented. was not
raised.” Matter of New York Elec.
Lines Co., 201 N. Y. 321, 94 N. E.
1056.

“ Such grant [an electric franchise]
does not become a contract or a
vested right so as to be protected
by the constitution of the State or
of the United States, until the com-
pany has, to say the least, begun to
do the thing required by the charter
as a consideration for the grant of
such privilege.” Capital City Light
& Fuel Co. v. City of Tallahassee, 186
U. S. 401, 22 S. Ct. 866, 46 L. Ed.
1219.

The granting of a permit by a city
to a corporation to use the streets
for a purpose is a license merely,
revocable at the pleasure of the city,
unless it has been accepted and some
substantial part of the work contem-
plated by the permission and sufficient
to create a right of property and thus
form a consideration for the contract

has been performed. Matter of New
York Elec. Lines Co., 201 N. Y. 321,
94 N. E. 1056.

79. Even if a city has power to
grant the exclusive use of its streets
for erecting poles, wires and towers
for furnishing electric lights in the
city, and in pursuance of this power
grants such privilege by ordinance
with a provision therein that the
grantee shall not be required to fur-
nish such lights until such time as
it can make an annual profit of
eight per cent on its investment, such
ordinance does not become a contract,
the obligation of which is protected
from impairment by the contract
clause of the state and federal consti-
tution, so long as the guarantee fails
to begin preparations for, or make
expenditures toward erecting, a plant

' for furnishing electric lights. Capital

City L. & Fuel Co. v. City of Tal-
lahassee, 42 Fla. 462, 28 So. 810; af-
firmed, 186 U. S. 401, 22 S. Ct. 866,
46 L. Ed. 1219.
312 Law oF EILEcTRICITY.
Sec. 208. Protection from Impairment; Reservation of
Right to Revoke.

Where the right is given to an electric, telephone, or
telegraph company to use the highways for its poles, wires,
and other appliances, but the privilege is reserved to the
granting power to revoke or repeal such grant, the priv-
ilege is sometimes spoken of as a license, not a franchise.*°
Whether considered as a mere license or as a revocable
franchise, the result is the same, in so far as its protection
from impairment is concerned. Pursuant to the conditions
of the grant, the privilege may be taken away from the
company and the removal of its appliances from the high-
ways compelled.* A provision ina franchise-granting ordi-
nance, however, that ‘‘ the acts and doings of the company
under this ordinance shall be subject to any ordinance or
ordinances that may hereafter be passed by the city,’’ does
not convert the grant into a mere revocable permit. On
the contrary, it assumes that the ordinance is to continue
in full force and effect, and recognizes the right of the
grantee to do and act under and in accordance with it, and
subjects such ‘‘ acts and doings ”’ only to future municipal
regulations not inconsistent with the ordinance itself.”

80. See § 194.

81. Coverdale v. Edwards, 155 Ind.
374, 7 Am. Electl. Cas. 15, 58 N. E.
495. See also, Board of Mayor, etc.,
of City of Morristown v. East Ten-
nessee, 115 Fed. 304,.8 Am. Elect].
Cas 3, 53 C. C. A. 132. “A franchise,
if granted by the state with a res-
ervation of a right of repeal, must
be regarded as a mere privilege while
it is suffered to continue, and the leg-
islature 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. * * * 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.” Cincinnati
Inclined Plane Ry. Co. v. City and
Surb. Teleg. Assoc., 48 Oh. St. 390,
3 Am. Electl. Cas. 443, 29 Am. St.
Rep. 557, 27 N. E. 890, 30 Cent. L.
Jour. 218, 12 L. R. A. 534.

82. City of New Orleans v. Great
Southern Telep. & Teleg. Co., 40 La.
Ann. 41, 2 Am. Electl. Cas. 122, 3
So. 533, 8 Am. St. Rep. 502.
FRANCHISES; IN GENERAL. 313

Sec. 209. Transfer of Franchise; in General.

It is the duty of the grantee of a public service franchise
to exercise it for the benefit of the public —a duty which
the municipality may enforce.** The grantee may not dis-
able itself so that it cannot perform this duty unless author-
ized so to do by the legislative power of the state.** Thus,
as a technical proposition of law, it is no doubt true that
franchises empowering a corporation or person to place
poles and wires in highways may not be assigned to another
without legislative consent.*® As a practical proposition,
however, the statutes of the different states are generally
subject to a construction which permits the mortgage® or
transfer of franchises.*’ The modern tendency of the deci-
sions is to permit the free conveyance of franchises, so

long as the continuous exercise thereof is assured. Of

83. See § 38.

84. Weld v. Gas & Electric Light
Com’rs, 197 Mass. 556, 84 N. E. 101;
Matter of Long Acre Light & Power
Co., 117 N. Y. App. Div. 80, 102 N. Y.
Supp. 242; affirmed, 188 N. Y. 361, 9
Am. Electl. Cas. 1043, 80 N. E. 1101.

85. City of Louisville v. Cumber-
land Telep. & Teleg. Co., 224 U. S.
649, 32 S. Ct. 572, 56 L. Ed. 934;
Weld v. Gas & Electric Light Com’rs.,
197 Mass. 556, 84 N. E, 101; Matter
of Long Acre Light & Power Co., 117
N. Y. App. Div. 80, 102 N. Y. Supp.
242; affirmed, 188 N. Y. 361, 9 Am.
Electl. Cas. 1043, 80 N. E. 1101.

The reason for the rule against
the alienation of a public service
franchise is that, by divesting itself
of the franchise, the corporation
would disable itself from discharging
its public duties, and that, therefore,
the public is entitled to forbid the
transfer. Matter Long Acre L. & P.
Co., 117 N. Y. App. Div. 80, 102 N. Y.
Supp. 242; affirmed, 188 N. Y. 361, 9
Am. Elect]. Cas. 1043, 80 N. E. 1101.

86. § 33. ,

87. United States.— City of Owens-

boro v. Cumberland Telep. & Teleg.
Co., 230 U. S. 58, 33 S. Ct. 988; Old
Colony T. Co. v. City of Wichita, 123
Fed. 762; modified, 182 Fed. 641, 66
C. C. A. 19,

Michigan.— Michigan Telep. Co. v.
City of St. Joseph, 121 Mich. 502, 7
Am. Elect]. Cas. 1, 80 N. W. 383.

New Hampshire— American Loan
& Trust Co. v. General Elec. Co., 71
N. H. 192, 8 Am. Electl. Cas. 117, 51
Atl. 660.

New York.— Matter of Long Acre
L. & P. So., 51 Mise. (N. Y.) 407, 101
N. Y. Supp. 460; affirmed, 117 N. Y.
App. Div. 80, 102 N. Y. Supp. 242;
affirmed, 188 N. Y. 361, 9 Am. Electl.
Cas. 1043, 80 N. E. 1101.

Washington.— Commercial Elec. L.
& P. Co. v. Tacoma, 17 Wash. 661, 50
Pac. 592.

Wisconsin.— Badger Telep. & Wolf
River Telep. Co., 120 Wis. 169, 97 N.
W. 907.

88. Matter of Long Acre L. & P.
Co., 117 N. Y. App. Div. 80, 102 N. Y.
Supp. 242; affirmed, 188 N. Y. 361,
9 Am. Elect]. Cas. 1043, 80 N. E. 1101.
314 Law or ELectriciry.

course, the grantee must be a party with the capacity to
exercise the franchise. Authority to erect, maintain, and
operate a telephone system authorizes the purchase and
operation of a system already in existence. Even though
the transfer of the franchise is not authorized, it is not
malum in se, and its transferability, it has been held, may
not be questioned collaterally by another person or private
corporation, but may be attacked only by the state or a
municipality.”

The body granting the franchise has, to a certain extent,
power to control its assignability. For example, it may
require, as a condition for the granting thereof, that the
grant shall not be assigned to another person or corpora-
tion. Where, however, the right to transfer the franchise
is not negatived by the terms thereof, the fact that the
grant runs to the grantee and its ‘‘ assigns ’’ indicates an
intention to permit the conveyance of the privilege to
another; and, if such a grant is authorized, its assignability
is not open to question." An ordinance granting priv-
ileges, containing the word ‘‘ assigns ’’ in the title, but not
in the body of the ordinance, may be construed, in accord-
ance with manifest intention, to confer the rights men-
tioned in it upon the grantees: and their assigns and
licensees.” Similarly, the grant may be deemed assignable
where such word appears in the body of the ordinance,
though the title does not contain it.®

A statute prohibiting the transfer of a franchise by a
corporation without the consent of a state commission

89. Ebey and Smith v. City of La- Cumberland Telep. & Teleg. Co. v.

throp, 128 Mo. App. 315, 107 S. W.
410.

90. Matter Long Acre L. & P. Co.,
117 N. Y. App. Div. 80, 102 N. Y.
Supp. 242; affirmed, 188 N. Y. 361,
9 Am. Electl. Cas. 1043, 80 N. E.
1101.

A city granting a telephone fran-
chise has an interest therein which
entitles it to question the validity of
any transfer or attempted transfer
of the same by the grantee thereof.

City of Evansville, 127 Fed. 187; af-
firmed, 143 Fed. 238, 74 C. C. A.
368.

91. People v. Central Union Tel.
Co., 192 Tll. 307, 61 N. E. 428, 85 Am.
St. Rep. 338.

92. Newman v. Village of Avon-
dale, 31 Week. Law Bull. (Ohio)
123, 4 Am. Electl. Cas. 82.

93. Old Colony T. C. v. City of
Wichita, 123 Fed. 762; modified, 132
Fed. 641, 66 C. C. A. 19.
FRANCHISES; IN GENERAL. 315
may be construed so as not to prohibit a transfer by an
individual.”

Sec. 210. Transfer of Franchise; Ratification or Estoppel.

Even though the assignment of the franchise is without
authority, the state or municipality having the power to
grant the franchise in the first instance may ratify the
assignment.” Such ratification need not assume any par-
ticular form, and may be evidenced by acts which recog-
nize the validity of the assignment and which are incon-
sistent with any objection thereto. Thus, in one case,
where a franchise was conveyed by divers transfers until
it lodged in a corporation which erected and maintained
poles and wires along the streets of the municipality, the
acquiescence of the municipality in such construction and
operation was held to be prima facie a ratification of the
assignment of the franchise.*” Upon the same facts the
same result may be reached upon the theory that .the
municipal corporation is estopped to deny the assignability
of the franchise.* Permitting the transferee of a fran-
chise to act thereunder and expend large sums of money
and exacting from it a bond to comply with the conditions
of the franchise will operate to estop a municipality from
denying that the franchise was transferable and that the
transferee has succeeded to all the rights of the transfer-
ring corporation.”

94, Matter of Long Acre L. & P.
Co., 51 Mise. (N. Y.) 407, 101 N. Y.
Supp. 460; affirmed, 117 N. Y. App.
Div. 80, 102 N. Y. Supp. 242; af-
firmed, 188 N. Y. 361, 9 Am. Elect.
Cas. 1043, 80 N. E. 1101.

95. Matter Long Acre L. & P. Co.,
117 N. Y. App. Div. 80, 102 N. Y.
Supp. 242; affirmed, 188 N. Y. 361,
9 Am, Electl. Cas. 1043, 80 N. E. 1101.

96. Matter Long Acre L. & P. Co.,
117 'N. Y. App. Div. 80, 102 N. Y.
Supp. 242; affirmed, 188 N. ¥. 361,

9 Am. Elect]. Cas. 1043, 86 N. BE.
1101.

97. Matter Long Acre L. & P. Co.,
117 N. Y. App. Div. 80, 102 N. Y.
Supp. 242; affirmed, 188 N. Y. 361,
9 Am. Elect]. Cas. 1043, 80 N. E.
1101.

98. East Tennessee Telep. Co. v.
City of Frankfort, 141 Ky. 586, 133
S. W. 564; rehearing denied, 143 Ky.
86, 136 S. W. 138.

99. City of Louisville v. Cumber-
land Telep. & Teleg. Co., 224 U. S.
649, 32 S. Ct. 572, 56 L. Ed. 934.
316 Law oF ELEctriciry.
Sec. 211. Transfer of Franchise; Assignment of Part of
Franchise.

In the absence of legislative consent, a franchise may
not be divided and a portion thereof conveyed to another.
Thus, where a corporation has a grant authorizing it to
use city streets for an electric railway and also giving it
the privilege to erect poles and wires for electric lighting
purposes, the grant may not be divided so as to permit
an assignment -of the privilege of erecting electric light
wires and poles to one not owning or operating the rail-
way.’ If the latter company has a franchise authorizing
it to maintain poles and wires along the highways, a com-
pany already having a line of poles may permit it to attach
its wires to such poles.? But a company having a fran-
chise may not authorize the use of the highways by a com-
pany not having a grant from the state or municipality,
and it has been held that an attempt to do so will justify
the revocation of its franchise.*

Sec? 212. Transfer of Franchise; Mode of Transfer.

A franchise being considered as an easement in the high-
ways,‘ it would seem to be necessary that its assignment
be evidenced by a writing, sufficient to satisfy the require-
ments of the Statute of Frauds. However, such require-
ment is, generally, applicable only as between the parties
to the transfer; and the municipality granting the fran-
chise cannot attack an assignment thereof on the ground
that it was not evidenced by a written engagement.°

1. City of Carthage v. Carthage
Light Co., 97 Mo. App. 20, 8 Am.
Electl. Cas. 143, 70 S. W. 936.

2. See Newman v. Village of Avon-
dale, 31 Week. Law Bull. (Ohio) 123,
4 Am. Electl. Cas. 82.

3. Western Union Teleg. Co. v. City
of Toledo, 103 Fed. 746; affirmed, 107
Fed. 10, 46 C. C. A. 111, 52 L. R. A.
730.

4. See § 198.

5. Nebraska.— Telep. Co. v. City of

Fremont, 72 Neb. 25, 99 N. W. 811,
wherein it was said: “It is not
a matter of public concern whether
A conveys his land to B by deed
or by livery, or whether the former
permits the latter to enter and
acquire the estate by adverse pos-
session, without color of title or
consent. With all that neither
the public nor the grantor of A
has any concern. As respects this
phase of the controversy, the city
FRANCHISES; IN GENERAL. 317
Sec. 213. Transfer of Franchise; Rights of Parties After
Transfer. .

The assignment of a franchise conveys only the priv-
ileges owned by the assignor; if the franchise is without
force, an assignment cannot give it vitality.° The transfer
of a franchise will not save the life of a franchise which
was subject to forfeiture before such transfer.’ The trans-
fer carries with it all the conditions annexed to the original
grant; the assignee is deemed to have purchased the right
with full knowledge of all the conditions attached thereto,
and it is bound to comply with all such conditions. The
permitting of access to its service to the subscribers of the
original company by the purchasing company for a time
will imply a construction of the ordinance upon the part
of the latter company, to the effect that it was bound
thereby to furnish such service to the subscribers of the
original company, which construction cannot afterward be
repudiated; such subscribers may enforce their rights
against the purchasing company by mandamus.°

Sec. 214. Forfeiture of Franchise; in General.

A public utility franchise, as a general proposition to
which various exceptions might be suggested, is protected
by state and federal constitutions from arbitrary forfeit-

stands in the attitude of A’s grantor.
The latter may recover possession
from B if A has incurred forfeiture
by breach of a valid covenant against
alienation, but he cannot complain
that an attempted alienation was in-
effectual or void between the parties
to it. Such contention, if upheld,
would defeat his claim for forfeiture.
For the same reasons the city can
not complain that, as between the as-
sociation and the plaintiff, the at-
tempted transfer from the former to
the latter was lacking in essential
formalities. Statutes and legal rules
relative to the forms and instruments
requisite for the creation and transfer
of estates and interests in real prop-

erty were made for the regulation,
exclusively, of the rights and obliga-
tions of the parties to such transac-
tions, and of persons claiming through
or under them.”

6. Cumberland Telep. & Teleg. Co.
v. City of Mt. Vernon, 176 Ind. 177,
94 N. E. 714.

7. State ex rel. City of St. Louis
v. Light & Devel. Co. of St. Louis,
246 Mo. 618, 152 S. W. 67.

8. Mahan v. Michigan Telep. Co.,
132 Mich. 242, 8 Am. Electl. Cas. 38,
93 N. W. 629, 9 Det. Leg. N. 597.

9. Mahan v. Michigan Telep. Co.,
132 Mich. 242, 8 Am. Electl. Cas. 38,
93 N. W. 629, 9 Det. Leg. N. 597.
318 Law or Exzcrricrry.

ure.*° If, however, the franchise is granted upon the con-
‘dition that, upon certain contingencies, the franchise may
be forfeited by the granting power, the franchise is sub-
ject to forfeiture when such contingencies arise. In much
the same way, a franchise may be taken subject to statu-
tory enactments which provide for the forfeiture of fran-
chises under certain circumstances.’* Moreover, it seems
that the sovereignty has the power to forfeit franchises
when the holders are guilty of certain acts of omission or
commission. Thus, abandonment or wilful non-user of the
franchise gives a right of forfeiture.* In such a case the
intention possibly to resume the use at some uncertain day
cannot save the forfeiture.“ Nor does an attempt to revive
an abandoned and apparently forgotten franchise deprive
the sovereign power of the right of forfeiture which was
complete before such attempt is made, for there is no occa-
sion for the sovereign to insist upon its right of forfeiture
before an attempt is made to revive it.** A non-user of an
electric franchise for twenty years from the time of the
grant thereof is sufficient to work a forfeiture.** Wrongful
acts or abuse of the franchise may in some cases work a for-
feiture of the privilege. Thus, where a telegraph company
having secured the consent to use city streets attempted
to confer the right to use such streets upon’a company
having no franchise, it was thought that such attempt justi-
fied the city in revoking the privilege.” But the circum-
stances that the officers, managers, and stockholders of the
company are different individuals from those who were

10. § 199.

11. See §§ 229, 237.

12. State v. Cumberland Telep. &
Teleg. Co., 114 Tenn. 194, 86 S. W.
390.

13. State ex rel. City of St. Louis
v. Light & Devel. Co. of St. Louis,
246 Mo. 618, 152 S. W. 67; State ex
inf, Jones v. West End L. & P. Co.,
246 Mo. 653, 152 S. W. 76. See
also, Nebraska Telep. Co. v. City of
Fremont, 72 Neb. 25, 99 N. W. 811.

14. State ex rel. City of St. Louis
v. Light & Devel. Co. of St. Louis, 246
Mo. 618, 152 S. W. 67.

15. State ex rel. City of St. Louis
v. Light & Devel. Co. of St. Louis,
246 Mo. 618, 152 S. W. 67.

16. State ex inf. Jones v. West
End L. & P. Co., 246 Mo. 653, 152
S. W. 76.

17. Western Union Teleg. Co. v.
City of Toledo, 103 Fed. 746; af-
firmed, 107 Fed. 10, 46 C. C. A. 111,
52 L. R. A. 730.
FRANCHISES; IN GENERAL. 319
stockholders when the franchise was granted, gives no
right of forfeiture.* Though the holder of a franchise
be guilty of some act or omission whereby the forfeiture
of its franchise is warranted, it does not’ thereby forfeit
its title to its physical property, such as poles, wires, etc.’
In case of an alleged forfeiture of a franchise, whether the
privilege was granted by the state directly or by a munici-
pality, the state may proceed by quo warranto to determine
the warrant of authority in the party claiming and exer-
cising such right.”

Sec. 215. Waiver of Forfeiture.

It is clear that the forfeiture of a public utility franchise
may be waived by the authority which granted the priv-
ilege. Ag all franchises emanate from the state” and act
of the legislature may constitute a waiver. | Where the
franchise was granted by a municipality under state author-
ity, it has been held that the power to waive a forfeiture of
the grant is lodged in the state or in the legislative body of
the municipality which granted the franchise;” but that
the acts of administrative officials cannot effect a waiver.”
Under this rule, the acts of the city assessor in assessing
the franchise after the alleged forfeiture will not constitute
a waiver.* An ordinance may be passed by the municipal
legislative body expressly waiving the forfeiture, and the
passage thereof is not deemed the granting of a franchise.”
Where a public service corporation is permitted to con-
tinue to exercise its franchise without interference after
23. State ex inf. Jones v. West

End L. & P. Co., 246 Mo. 653, 152
S. W. 76; State ex rel. City of St.

18. Phillipsburg Elec. L. Heating
& P. Co. v. Inhabitants of Town of

Phillipsburg, 66 N. J. Law, 505, 8
Am. Electl. Cas. 149, 49 Atl. 445.

19. Saginaw P. Co. v. City of Sag-
inaw, 193 Fed. 1008.

20. State ex inf. Jones v. West
End. L. & P. Co., 246 Mo. 653, 152
8S. W. 76.

21. § 244.

22. State ex inf. Jones v. West End
L. & P. Co., 246 Mo. 653, 152 S. W.
76.

Louis v. Light & Devel. Co. of St.
Louis, 246 Mo. 618, 152 S. W. 67.

24. State ex rel. City of St. Louis
v. Light & Devel. Co. of St. Louis,
246 Mo. 618, 152 S. W. 67.

25. Cumberland Telep. & Teleg. Co.
v. City of Hickman, 129 Ky. 220, 33
Ky. Law Rep. 730, 111 8. W. 311.
320 Law or ELectriciry.

knowledge is acquired by the public officials of acts con-
stituting a forfeiture, the forfeiture may be deemed
waived.” Where, however, the forfeiture is the result of
non-user of the franchise, a long delay in the existing non-
user does not constitute a waiver; in such a case the waiver,
if any, could be shown by subsequent resumption without
objection.2”7 Where there has been no resumption of the
abandoned use of the franchise, and the attempt at resump-
tion resulted only in the institution of a suit by the state
to declare a forfeiture, the suit is not barred by laches,
but is timely.”

Sec. 216. Forfeiture of Franchise; Function of Court.

It is the function of the courts to declare and enforce
forfeitures of franchises. A municipality claiming that a
franchise has been forfeited cannot be a judge of its own
case and forcibly dispossess the property of the public
service corporation.” Where the franchise is constitution-
ally protected,®° and it is sought to forfeit the franchise
for non-user or mis-user, the company is entitled to notice
of the proceedings and an opportunity to be heard on the
question of forfeiture.*? Where the failure of a corpora-
tion to do an act required by statute is not declared by the
statute to be a cause of forfeiture of the corporation’s
franchise, and the violation of the statute by such failure
has not been flagrant and persistent, and there is no menace
to the public welfare, the court should refuse a judgment
of forfeiture, unless the public interest requires it.*? But

26. Commercial Elec. L. & P. Co. v.
Tacoma, 17 Wash. 661, 50 Pac. 592.

27. State ex rel. City of St. Louis
v. Light & Devel. Co. of St. Louis,
246 Mo. 618, 152 S. W. 67.

28. State ex rel. City of St. Louis
v. Light & Devel. Co. of St. Louis,
246 Mo, 618, 152 S. W. 67.

29. Nebraska Telep. Co. v. City of
Fremont, 72 Neb. 25, 99 N. W. 811.

30. §§ 199 et seq.

31. City of Passaic v. Public Serv-

vice Corporation of New Jersey, 75
N. J. Eq. 379, 73 Atl. 122; United
Elec. Co. v. City of Bayonne, 73 N. J.
L. 410, 63 Atl. 996; Phillipsburg Elee.
L. Heating & P. Co. v. Inhabitants
of Town of Phillipsburg, 66 N. J.
Law, 505, 8 Am. Elect]. Cas. 149, 49
Atl. 445,

32. State v. Cumberland Telep. &
Teleg. Co., 114 Tenn. 194, 86 S. W.
390.
FRANCHISES; IN GENERAL. 321

where a corporation is found guilty of an act of omission
or commission which is expressly declared by statute to be
a cause of forfeiture of its franchise, the court has no
jurisdiction to refuse a judgment of forfeiture; but it is
bound to award a judgment of ouster on demand of the
state, although the corporation’s default was the result of
mistake, and notwithstanding its subsequent good
behavior.**

Sec. 217. Surrender or Modification of Franchise.

By agreement between the state and the corporation, or
between a municipality having the power to grant and
modify franchises and such corporation, a franchise may
be surrendered and the corporation released from its obli-
gations thereunder. Thus, where a city and a telephone
company had been engaged in litigation for some time
until a stockholder of the company sought and obtained a
new franchise ordinance, and immediately thereafter the
company began to rebuild its exchange and system and the
litigation was allowed to lapse, it was held that the com-
pany had accepted the new franchise ordinance and had
surrendered its original franchise.** The parties to the
franchise may by agreement make a valid modification to
the original franchise.** The change in the franchise may
be without the consent of the customers of the company.
Thus, where a franchise contains a condition that the com-
pany shall furnish service at a specified rate, the company
and the municipality may subsequently modify the fran-
chise by changing such rate without the consent of the
patrons of the company.*” Where the agreement for a
modification or surrender of a franchise is made by a
municipality, not by the state, it is essential that it have

33. State v. Cumberland Telep. & 35. Saginaw Power Co. v. City of
Teleg. Co., 114 Tenn. 194, 86 8S. W. Saginaw, 193 Fed. 1008.
390. 36. People v. Chicago Telep. Co.,
34. Cumberland Telep. & Teleg. Co. 245 Ill. 121, 91 N. E, 1065.
v. City of Evansville, 143 Fed. 238, 37. Lutes v. Fayette Home Telep.
74.C.C. A. 368. Co., 155 Ky. 555, 160 S. W. 179.

21
322 Law oF BILEcTRICITY.
the power to grant franchise rights such as are given by
the franchise as amended.

Sec. 218. Duration of Franchise.

The duration of public utility franchises may be per-
petual or merely for a term of years. The power of a
municipal body to grant such franchises may be limited to
grants not to exceed a certain number of years ;** but, where
there is no such restriction, grants in perpetuity have been
sustained.*” Ifa municipality has the power to exclude a
public service corporation from its streets, it may, as a
condition for the granting of its permission, require that
the right granted shall extend not longer than a speci-
fied term, such as ten years.*° A franchise is not neces-
sarily limited to the term of the corporate life of the
grantee; where the grant to a corporation expressly enures
to the benefit of its ‘‘ grantees, assigns, and successors,’’

38. Twenty-one years—On April
22, 1886, the mayor and council of a
city of the second class in Kansas
could not bind the city in an ordi-
nance granting a franchise to an
electric light company to extend such
franchise beyond a period of twenty-
one years. City of Clay Center v.
Clay Center L. & P. Co., 78 Kan. 390,
97 Pac. 377.

In Indiana, it has been held that
statutory provisions do not prohibit
the grant of an electric franchise for
a term of fifty years. Hester v.
Town of Greenwood, 172 Ind. 279, 88
N. E. 498.

In Kentucky, certain franchises for
the use of the streets of a city are
limited by the provisions of the State
Constitutiom to a duration of twenty
years. Rural Home Telep. Co. v.
Kentucky, etc., Telep. Co., 128 Ky.
209, 32 Ky. Law Rep. 1068, 107 S. W.
787.

In the Province of Ontario, it has
been held that a municipality cannot

grant an exclusive telephone fran-
chise for five years. Matter of Robin-
son, 23 Ont. Rep. (Canada) 489.

39. Old Colony T. Co. v. City of
Omaha, 230 U. 8. 100, 33 S. Ct. 967;
City of Louisville v. Cumberland
Telep. & Teleg. Co., 224 U. S. 649,
32 S. Ct. 572, 56 L. Ed. 934.

Perpetual franchise may not be
granted—In Omaha Elec. L. & P.
Co. v. City of Omaha, 179 Fed. 455,
102 C. C. A. 601, the opinion was
expressed that a grant of power to
a@ municipality in general terms “to
provide for lighting the streets” or
“to care for and control the streets,”
will not warrant the grant of an
electric franchise in perpetuity. A
similar conclusion has been reached
in a casein Michigan. Horner v.
City of Eaton Rapids, 122 Mich. 117,
80 N. W. 1012, 6 Det. Leg. N. 665.

40. City of Vermillion v. North-
western Telep. Exch. Co., 189 Fed.
289.
FRANCHISES; IN GENERAL, 323
and the franchise is capable of being assigned by the
grantee,“ there is no reason why the grant should not have
a longer life than the corporate existence of the grantee.”
A provision in the ordinance that the grantee of the fran-
chise may be required to remove its appliances from the
streets when necessity demands, does not necessarily limit
the franchise to the corporate existence of the company.*
Where the grant is ambiguous as to its duration, the period
of life of the corporation may have some weight in deter-
mining the duration of the franchise.“* But a grant with
no statement of the term and with no words indicating that
it is to enure to others than the grantee, has been held to
be only for the period of the corporate life of the grantee.*
Upon the expiration of the franchise term, the company’s
rights in the streets cease.** It may be treated as a tres-
passer if it does not remove its appliances. It has been
held in Canada, where an electric company had a franchise
for a term of years but continued to exercise the same
rights in the streets for a period of eight years after the
expiration of the original grant, that the municipality was
not thereby estopped from asserting the expiration of the
term and compelling the removal of its lines.*” In this case

41. § 209.

42. City of Owensboro v, Cumber-
land Telep. & Teleg. Co., 230 U. 8.
58, 33 S. Ct. 988; Omaha Elec. L. &
P. Co. v. City of Omaha, 172 Fed.
494; affirmed, 179 Fed. 455, 102 C. C.
A. 601. A corporation is capable of
taking a grant, of street ,rights of
longer duration than its own corpo-
rate existence if the grant expressly
inures to the benefit of the grantees,
assigns and successors. City of
Owensboro v. Cumberland Telep. &
Teleg. Co., 230 U. 8. 58, 33 S. Ct. 988.

43. Old Colony T. Co. v. City of
Omaha, 230 U. S. 100, 33 S. Ct. 967.

44. Omaha Elec. L. & P. Co. v.
City of Ohama, 179 Fed. 455, 102
Cc. C. A. 601.

45. City of Rock Island v. Central
Union Telep. Co., 132 Ill. App. 248;

Wyandotte Elec. L. Co. v. City of
Wyandotte, 124 Mich. 43, 7 Am.
Electl. Cas, 43, 82 N. W. 821, 7
Det. Leg. N. 111.

46, State v. Central Union Teleg.
Co., 5 Ohio C. D. 311.

47. Town of Selkirk v. Selkirk
Elec. Co., 20 Manitoba 461, 15 W.L.
R. 708, wherein it was said: “The
company cannot complain if the town
has permitted them to continue for
a number of years after its rights
had ceased; the longer they were
permitted to transact business the
greater the advantage to them; and
no expenditure of any magnitude has
been made by the company, and none
of a stable or permanent character
other than necessary for its require-
ments in carrying on its business.”
324 Law oF ELectriciry.

the company had made no substantial expenditures after
the expiration of the term upon the faith of the continu-
ance of the franchise. It is possible that a different con-
clusion might be reached where considerable money has
been spent on the credit of the continuance of the grant.
If it is within the power of the municipality to renew the
franchise after the expiration of the term, such renewal
may be made by implication. Thus, where an electric light-
ing franchise was originally granted for five years with a
privilege of renewal unless the village should elect to pur-
chase the plant, the village, having allowed the owner of
the franchise and his assigns to avail themselves thereof
from year to year without formal renewal, cannot impeach
the validity of the franchise on the ground that it was not
formally renewed.** Where a municipality has the power
to grant a franchise for a certain number of years only,
it may not grant the right for such maximum term and also
stipulate that, at the end of such term, it will either extend
the privilege or purchase the company’s system.

Sec. 219. Exclusiveness of Franchise; in General.

While it is true that in some cases a franchise may be
granted to an electric company which will forbid a similar
grant to another for a similar purpose * and will bar the
city or village granting the franchise from the municipal
ownership of a plant for competing service, such an exclu-
sive grant receives the disfavor of the courts. A fran-

48, Wakefield v. Village of Theresa,
125 N. Y. App. Div. 38, 109 N. Y.
Supp. 414,

49. City of Clay Centre v. Clay
Centre L. & P. Co., 78 Kan. 390, 97
Pac. 377.

50. See California State Teleg. Co.
v. Alta Teleg. Co., 22 Cal. 398; Chi-
cago Telep. Co. v. Northwestern
Telep. Co., 199 Ill. 324, 8 Am. Electl.
Cas. 81, 65 N. E. 329.

Impairment of franchise The
question whether the granting of a
franchise constitutes an unlawful

impairment of an earlier franchise is
discussed in another section. See
§ 203.

The grant by a city to a gas com-
pany of the exclusive privilege of
lighting the city with gas does not
deprive the city of the power to con-
tract with an electric light company
for lighting the city with electric
lights. Parkersburg Gas Co. v. City
of Parkersburg, 30 W. Va. 435, 4
S. E. 650.

51. See § 156,
FRANCHISES; IN GENERAL.

325

chise to be exclusive must survive a series of tests.” In
the first place, the constitution must not forbid the grant-
ing of such a franchise.* Secondly, if granted by a munici-
pality (as most electric franchises are), the legislature
must have delegated to the municipal officers the power
to incorporate the exclusive feature in its grant.* Thirdly,

the grant, whether by the

52. Special constitutional provisions,
it is obvious, may eliminate one or
more of such tests. For example, it
is possible for an exclusive franchise
to be given directly by the constitu-
tion. A situation more probable is
that the power of granting such a
franchise by a municipality be con-
ferred directly by the constitution.
Under such a provision, the only
tests to be passed are the third and
fourth ones mentioned, the first and
second being automatically taken care
of by the constitution.

58. The legislature,’ in the absence
of constitutional provisions, may by
general law grant exclusive fran-
chises for the use of municipal
streets. May v. City of Gothenburg,
88 Neb. 772, 130 N. W. 566.

The refusal of municipal authori-
ties, empowered by statute to author-
ize or prohibit the use of electricity
in streets, to permit a certain com-
pany to erect wires in the streets
does not render exclusive the right,
previously given to another company,
and so is not obnoxious to a consti-
tutional provision prohibiting the
grant of such exclusive privileges.
State v. City of Spokane, 24 Wash.
53, 7 Am. Electl. Cas. 96, 63 Pac.
1116.

54, United States.— Water, Light
& Gas Co. v. City of Hutchinson, 207
U. S. 385, 28 S. Ct. 135, 52 L. Ed.
257; Nelson v. City of Murfreesboro,
179 Fed. 905; Water, Light & Gas
Co. v. City of Hutchinson, 144 Fed.
256, 9 Am, Electl. Cas. 931; affirmed,

legislature directly or by a

207 U. S. 385, 28 8. Ct. 135, 52 L. Ed.
257; Grand Rapids Elec., etc., Co. v.
Grand Rapids Edison, ete., Co., 33
Fed. 659, 2 Am. Elect]. Cas. 152.
“Tt is conceded that the Legislature
of Michigan, subject to the constitu-
tional reservation of the right to
amend, alter or repeal its charter,
could have directly conferred upon
the complainant the exclusive privi-
lege of occupying the streets of the
city for the distribution of electric
light for public and private use. It
is also conceded that the Legista-
ture, subject to the same constitu-
tional reservation, had the authority
to confer upon the common council
of Grand Rapids the power to grant
the same exclusive right; and the
question is, has it delegated such au-
thority to the city or its common
council in the powers with which it
has invested it or them?” Grand
Rapids Elec, etc, Co. v. Grand
Rapids, Edison, etc., Co., 33 Fed. 659,
2 Am. Electl. Cas. 152.

Florida— Capital City L. & Fuel
Co. v. City of Tallahassee, 42 Fla.
462, 28 So. 810; affirmed, 186 U. S.
401, 22 S. Ct. 866, 46 L, Ed. 1219.

Illinois.— Chicago Telep. Co. v.
Northwestern Telep. Co., 199 Ill. 324,
8 Am. Electl. Cas. 81, 65 N. E. 329.

Indiana.— Crowder v. Town of Sul-
livan, 128 Ind. 486, 3 Am. Electl.
Cas. 72, 28 N. HE. 94.

Nebraska.—May v. City of Gothen-
burg, 88 Neb. 772, 130 N. W. 566.

New York.— Empire City Subway
Co. v. Broadway & %th Ave. R. Co.,
326 Law or ELEcrricity.

municipal division, must in terms purport to be exclusive.
A grant to one company does not import the exclusion of
all others;** and, though it have the power to grant an
exclusive privilege, it need not necessarily do so. Fourthly,
and of minor legal importance, the grantee must have the
capacity to take an exclusive franchise. Through all these
tests it is to be remembered that exclusive franchises are
not favored, and that all grants of power are strictly con-
strued to the end that the privilege may be held not exclu-

sive.*”

A municipal corporation will not be deemed to

have the authority to give an exclusive franchise, unless

87 Hun 279, 5 Am. Electl. Cas. 66,
33 N. Y. Supp. 1055, 67 N. Y. St.
Rep. 741; affirmed without opinion,
159 N. Y. 555, 54 N. E. 1092.

Oklahoma.— Territory v. De Wolfe,
13 Okl. 454, 74 Pac. 98; dismissed,
without opinion, 196 U. S. 643, 25
S. Ct. 794, 49 L, Ed. 632.

Texas— Joy v. City of Terrell,
(Civ. App.) 138 S. W. 213; Crouch
v. City of McKinney, 47 Tex. Civ.
App. 54, 9 Am. Electl. Cas. 1087,
104 S. W. 518.

West Virginia— Clarksburg Elec.
Co. v. City of Clarksburg, 47 W. Va.
739, 7 Am. Electl. Cas. 25, 35 S. E.
994, 50 L. R. A. 142.

Canada.— Robinson v. City of St.
Thomas, 23 Ont. Rep. 489.

55. United States.— City of Joplin
v. Southwest Missouri L. Co., 191
U. S. 150, 8 Am. Electl. Cas. 66, 24
S. Ct. 43, 48 L. Ed. 127; reversing
113 Fed. 817; Cunningham v. City
of Cleveland, 98 Fed. 657, 39 C.C. A.
211.

California— Clark v. City of Los
Angeles, 160 Cal. 30, 116 Pac. 722.

Indiana.— Crowder v. Town of Sul-
livan, 128 Ind. 486, 3 Am. Electl.
Cas. 72, 28 N. E. 94.

Kentucky.— People’s Elec. L. & P.
Co. v. Capital Gas & Elec. Co., 116
Ky. 76, 8 Am. Electl. Cas. 71, 25
Ky. Law Rep. 327, 75 S. W. 280.

New York.— Empire City Subway

‘Am. St. Rep. 79.

Co. v. Broadway & 7th Ave. R. Co.,
87 Hun 279, 5 Am. Elect]. Cas. 66,
33 N. Y. Supp. 1055, 67 N. Y. St.
Rep. 741; affirmed without opinion,
159 N. Y. 555, 54 N. E. 1092.

Pennsylvania.— Titusville L. & P.
Co. v. City of Titusville, 196 Pa. St.
3, 46 Atl. 195.

Texas.— Joy v. City of Terrell,
(Civ. App.) 138 S. W. 213.

Washington.— State ex rel. Pros.
ser, etc., Co. v. Taylor, 36 Wash. 607,
9 Am. Elect]. Cas. 610, 79 Pac. 286.

An exclusive right must be given
by clear, explicit and unmistakable
terms. Scranton Elec. L. & H. Co.
v. Scranton, etc., Power Co., 4 C, P.
(Pa.) 18, 3 Pa. Co. Ct.. 628.

A statutory grant of exclusive priv-
ileges to furnish a city with gas or
a supply of light or heat “by any
other means” does not give an ex-
clusive right to supply electricity.
Appeal of Scranton Elec. L. & H. Co.,
122 Pa. St. 154, 3 Am. Electl. Cas.
499, 15 Atl. 446, 1 L. R. A. 285, 9
See also, Wilkes-
barre Elec. L. Co. v. Wilkesbarre
L. H. & P. Co., 4 Kulp (Pa.) 47.

56. Crowder v. Town of Sullivan,
128 Ind. 486, 3 Am. Elect]. Cas. 72,
28 N. E. 94; Houma L. & Ice Co. v.
Town of Houma, 127 La. 726, 53 So.
970.

57. Water, Light & Gas Co. v. City
of Hutchinson, 207 U. S 385, 28 S.
FRANCHISES; IN GENERAL,

327

such power is expressly given; or, if inferred from other
powers, it must be indispensable, not merely convenient,
to them. Where the municipality did not have the power
to grant the exclusive feature, by no act of itself or of its

Ct. 135, 52 L. Ed. 257; City of Jop-
lin v. Southwest Missouri Light Co.,
191 U. S. 150, 24 S. Ct. 43, 8 Am.
Elect]. Cas. 66, 48 L. Ed. 127, re-
versing, 113 Fed. 817; Clark v. City
of Los Angeles, 160 Cal: 30, 116 Pac.
722; Appeal of Scranton Elec. L. &
H. Co., 122 Pa. St. 154, 3 Am. Electl.
Cas. 499, 15 Atl. 446, 1 L. R. A. 285,
9 Am. St. Rep. 79. “I can safely
say that under multitudinous au-
thorities the courts lean against con-
struing statutes so as to grant, or
to authorize municipal corporations
to grant, such exclusive franchises.
Such franchises constitute monopo-
lies, which the law has through ages
condemned, because they tie down
and restrain and cripple the public
right and interest, and sacrifice great
public interests to the benefit and
aggrandizement of the few. Still,
where such rights are valid and law-
ful, the courts must and do protect
them. I state the proposition, as
sustained by authorities in all quar-
ters, that to authorize such exclusive
franchise the statute must admit of
no other reasonable construction.”
Clarksburg Elec. L. Co. v. City of
Clarksburg, 47 W. Va. 739, 7 Am.
Blectl. Cas. 25, 35 S. E. 994, 50
L. R. A. 142.

A grant of exclusive privileges,
the possession of which will enable the
grantee to obtain a practical monop-
oly for a limited time of a business
affecting the public interest and con-
venience, must be strictly construed
against the grantee; and nothing
passes thereby but such as is clearly
intended. Capital City L. & Fuel Co.
v. City of Tallahassee, 42 Fla, 462,
28 So. 810; affirmed, 186 U. S. 401,

22 S. Ct. 866, 46 L. Ed. 1219. “A
legislative grant to a corporation of
exclusive privileges is, as said by
Mr. Justice Green, in Emerson v.
The Commonwealth, 108 Pa. 111, to
be construed most strictly, and we
may add, that every intendment not
obviously in favor of the grant must
be construed against it. Monopolies
are favorites neither with courts nor
people. They operate in restraint of
competition, and are hence, as a rule,
detrimental to the public welfare;
nor are they at all allowable except
where the resultant advantage is in
favor of the public, as, for instance,
where a water or gas company could
not exist except as a monopoly.” Ap-
peal of Scranton Elec. L. & H. Co.,,
122 Pa. St. 154, 3 Am. Elect.- Cas.
499, 15 Atl. 446, 1 L. R. A. 285, 9
Am. St. Rep. 79.

“Vested rights, properly so-called,
are respected in judicial administra-
tion; but no one, under ordinary cir-
cumstances, can assert and maintain
a vested right to the exclusive enjoy-
ment of a public street. Monopolies
are not favorites of the law, and
if a street have sufficient width and
capacity to admit of more than one
public enterprise, without unduly ob-
structing it as a highway an exclu-
sive right should not be granted to
one company; and if granted except
under peculiar circumstances it may
and should be revoked.” Consoli-
dated Elec. L. Co. v: People’s Elec.
L. & Gas Co., 94 Ala. 372, 4 Am.
Electl. Cas. 250, 10 So. 440.

58. Water, Light & Gas Co. v. City
of Hutchinson, 207 U. S. 385, 28 S.
Ct. 135, 52 L. Ed. 257; Nelson v. City
of Murfreesboro, 179 Fed. 905; Water,
328

Law oF Hecrriciry.

officers can the franchise become exclusive. Although it
has attempted to grant an exclusive privilege, a munici-
pality is not thereby estopped from asserting its want of

power to grant the right.

Telegraph and Telephone Companies.— Telephone com-
panies by reason of their interstate commerce character
and telegraph companies by reason of such character and
the Post Roads Act, cannot acquire exclusive rights with
the freedom that electric companies may.™

Light & Gas Co. v. City of Hutchin-
son, 144 Fed. 256, 9 Am. Electl. Cas.
931; affirmed, 207 U. S. 385, 28 S.
Ct. 135, 52 L. Ed. 257. “It is con-
ceded that in the charter of Grand
Rapids, in force when said ordinance
of 1880 was passed, there is no ex-
press power or authority conferred
upon the common council to make
such a grant of exclusive rights and
privileges in, to, or over the streets
of the city. The authority for the
making of this exclusive grant must,
therefore, as complainant’s counsel
properly admit, be found and sus-
tained, if at all, upon what are called
the implied powers of the common
council. It is too well settled to need
the citation of authorities in its sup-
port that municipal corporations,
which are mere political agencies of
the government, forming but par+s of
the machinery employed in carrying
on the affairs of the State, possess
and can exercise only such powers as
are ‘granted in express words, or
those necessarily or fairly implied
in or incident to the powers ex-
pressly conferred, or those essential
to the declared objects and purposes
of the corporation, not simply con-
venient, but indispensable.” Grand
Rapids Elec., ete., Co. v. Grand Rapids
Edison, ete., Co., 33 Fed. 659, 2 Am.
Electl. Cas. 152.

59. Clarksburg Elec. L. Co. v. City
of Clarksburg, 47 W. Va. 739, 7 Am.
Electl. Cas. 25, 35 S. E. 994, 50 L.

R. A. 142, wherein it was said: “As
to the claim that Clarksburg has rati-
fied and confirmed this void exclusive
feature in the franchise of the elec-
tric company by buying from it elec-
tricity to light the streets. This is
strange doctrine. A void contract
cannot be so ratified by mere impli-
cation. If the council was without
power to expressly grant such ex-
clusive right, it is illogical to say
that it can confirm and make it good
ab initio by mere implication from
its dealing with it. Of course, the
entire grant is not void, but only
the exclusive clause, and the mere
purchase by the city from the com-
pany of electricity would not ratify
the void clause anyhow, because it
could purchase under the general
power of the company, without refer-
ence to that void clause. Ratification
and acquiescence cannot be invoked
to legalize contracts of a municipality
made by its officers in excess of au-
thority, even though the contract has
been performed by one of its parties.”

60. May v. City of Gothenburg, 88
Neb. 772, 130 N. W. 566; Clarksburg
Elec. L. Co. v. City of Clarksburg,
47 W. Va. 739, 7 Am Electl. Cas. 25,
35 S. E. 994, 50 L. R. A. 142.

61. Muskogee Nat. Telep. Co. v.
Hall, 118 Fed. 382, 8 Am. Electl. Cas.
64, 55 C. C. A. 208.

Post-roads Act.— As to the Post-
roads Act, see §§ 176-186.
FRANCHISES; IN GENERAL.

Sec. 220. Exclusiveness of Franchise;

329

Implication of

Power to Grant Exclusive Franchise from Control of

Streets.

Under its power to contract for the electric lighting of
its streets, a city does not have authority to grant an exclu-
sive franchise to an electric company.” Powers granted

62. Grand Rapids Elec., ete., Co. v.
Grand Rapids Edison, ete., Co., 33
Fed. 659, 2 Am. Elect. Cas. 152. “It
is obvious that if the city council,
as an incident to its express power
to make a contract for lighting the
streets of the city, could incorporate
as a term of the contract an ex-
elusive franchise for furnishing gas
and electricity for heat, light, and
power to the inhabitants of the city,
because it believed this to be neces-
sary and proper in order to obtain
a satisfactory contract for lighting
the streets, it could likewise, by par-
ity of reasoning, give, as a part of
the consideration, an exclusive fran-
chise for a waterworks or for a street
railway system, or incorporate into
the contract for street lighting any
other exclusive franchise of a public
character which it might deem neces-
sary and proper in order to obtain a
satisfactory contract for street light-
ing. None of such separate ,fran-
chises, however, in my opinion, are
authorized under the power to make
necessary and proper contracts in ref-
erence to street lighting, which must
be limited in its terms, in so far as
it is sought to confer rights in the
streets of the city, to the direct mat-
ter of street lighting, and in which
the city council may in its discretion
make the direct compensation to be
paid large enough in every case to
obtain a necessary and proper con-
tract without incorporating as a part
of the consideration an independent
and unauthorized privilege in refer-
ence to an entirely different matter.”

Nelson v. City of Murfreesboro, 179
Fed. 905.

In Grand Rapids Elec., etc., “Co. v.
Grand Rapids Edison, etc. Co., 33
Fed. 659, 2 Am. Elect]. Cas. 152, the
court, discussing this question, said:
“Tt is urged on behalf of complain-
ant, that to enable the city to execute
and carry into effect this authority
conferred and duty imposed upon it,
of providing for and regulating the
lighting of the streets and public
lamps, there should be implied the
power and right of so using the
streets as to secure that important
object, and that if the grant of the
exclusive privilege of using the
streets is necessary to obtain the
benefit, convenience and advantage of
an improved system of lighting, such
as electric lights afford, the common
council could lawfully confer such ex-
elusive right; or, to state the proposi-
tion in another form, it is this, that
under its powers upon the subject of
lights, the city or common council
could adopt a system of electric lights
for the streets and public lamps, and
having so determined, if it became
necessary, in order to secure such
improved light, to grant the exclusive
privilege of using the public streets
to the party who is to supply the
same, the common council would have
the implied power of conferring such
exclusive right. This presents a new
and rather novel way of enlarging
the power of municipal corporations,
and of securing for them the preroga-
tives of sovereignty. First, imply
from the powers granted the right to
330

Law or ELecrrictry.

cities and towns ‘‘ to provide for the lighting of the streets
of the city or town,’’ and ‘‘to regulate, improve, alter,
extend, and open streets, lanes, and avenues, and to cause
encroachments and obstructions, decayed buildings, and
ruins to be removed,’’ do not authorize a city to grant an
exclusive privilege to use the streets, lanes, and alleys
thereof for the purpose of erecting poles, wires, and towers
thereon for supplying electricity to the city or its
inhabitants.

A contrary view seems to have been accepted by the
courts of Pennsylvania. It has been there held that, under
a statute giving a municipality the power to contract for
lighting the streets with electricity and to manufacture
electricity for commercial purposes for the supply and use
of inhabitants, the municipality has the right to make a
contract with an electric company giving such company an
exclusive franchise for a period of ten years, with the
right reserved to the city to purchase the plant at the end
of that term, or, failing that, to renew the term for another
ten years.“

Sec. 221. Exclusiveness of Franchise; Exclusive Feature
Does Not Render Entire Franchise Void.

Where a municipality has the power to grant a franchise
to a public service corporation for the use of the municipal
streets but has not the authority to make such franchise
exclusive, an ordinance giving the company a grant pur-

adopt a new system of lighting the
city’s streets (which may be a proper
and legitimate implication), then,
when the common council has deter-
mined to procure such improved sys-
tem, if difficulties arise, such as a
demand for exclusive rights and priv-
ileges on the part of the company
controlling the system, make another
implication, from what is called the
necessity of the case, and assume the
right to confer sovereign franchises.
The proposition is not only unsound,
but dangerous in the extreme, and

wholly unsupported by authority.
Obstacles and difficulties in the way
of exercising powers fairly and rea-
sonably implied from those expressly
granted can never operate to enlarge
the original grant of authority.”

68. Capital City L. & Fuel Co. v.
City of Tallhassee, 42 Fla. 462, 28 So.
810; affirmed, 186 U.S. 401, 22 S. Ct.
866, 46 L. Ed. 1219.

64. Muncy Electric Light, Heat &
Power Co. v. People’s Electric Light,
Heat & Power Co., 218 Pa. St. 636,
67 Atl. 956.
FRANCHISES; IN GENERAL. 331

porting to be exclusive is not necessarily void. It will be
held valid so far as giving the company the right to use
the streets, but is subject to the right to grant similar privi-
leges to others.®

Sec. 222. Exclusiveness of Franchise; Exclusive as agains
One Not Having a Franchise.

The rule has been laid down that an ordinance of a
municipal corporation granting to a corporation authority
to use the streets, alleys, and public grounds of a city for
the purpose of constructing and operating an electric light
and power plant to furnish light and power to a city and
its inhabitants confers privileges which are exclusive in
their nature against all persons upon whom similar rights
have not been conferred; and any person or corporation
attempting to exercise such right, without legislative
authority or sanction, invades the private property rights
of the corporation to whom such franchise has been
granted, and may be restrained at the instance of the
owner of the franchise. This proposition does not seem
to have any connection with the exclusiveness of municipal
franchises, but rather relates to the remedy which a fran-
chise owner has against a person who is injuring his busi-
ness by illegal competition. The right of a franchise holder
to attack the franchise granted to a rival company is dis-
cussed in another place.*” However, the proposition above
declared pertains, not to an attack upon a vulnerable fran-
chise, but to an attack upon a person or corporation who is
operating without even an invalid grant.

’

65. Thomson-Houston Elec. L. Co. see Telep. Co., 115 Fed. 304, 8 Am,
v. City of Newton, 42 Fed. 723,3 Am. Electl. Cas. 3, 53 C. C. A, 132.
Electl. Cas. 507; Zimmerer v. Stuart, 66. Millville Gas-Light Co. v. Vine-
88 Neb. 530, 130 N. W. 300; Clarks- land L. & P. Co. 72 N. J. Eq. 305,
burg Elec. L. Co. v. City of Clarks- 65 Atl. 504; Bartlesville Elec. L. &
burg, 47 W. Va. 739, 7 Am. Elect]. P. Co. v. Bartlesville Interurban Ry.
Cas. 25, 35 S. E. 994, 50 L. R. A. 142. Oo., 26 Okla. 453, 109 Pac. 228, 29
See also, Morristown v. East Tennes- L. R. A. (N. 8S.) 77.

67. § 240.
332

Law oF Eecrriciry.

Sec. 223, Conditions Annexed to Franchise; in General.

Questions arising out of the conditions which may be
annexed to the grant of a privilege to use highways for
lines of poles and wires are in some respects analagous to
questions arising out of the power to regulate the com-
panies exercising such a grant. However, the matter of
regulation, which is discussed in a subsequent chapter,*
pertains to requirements which may be imposed on -the
company after the granting of the privilege, or at the same
time if not made conditions thereof. In this chapter is dis-
cussed the requirements to be performed by the company
which are conditions of the grant. If a municipality, hav-
ing granted a public service franchise with no conditions
annexed thereto, may subsequently require the company to
obey certain regulations, it is clear that the same regula-
tions may be required as a condition of the grant. Subse-
quent regulations to be valid must be reasonable;® but
conditions attached to a franchise, when the ordinance is
accepted by the company, become matters of contract, and
the company may be compelled to perform though their
reasonableness may be a matter of dispute.”” Inasmuch as
all franchises emanate from the sovereign power,” if such
power grants a franchise to a public service corporation, a
municipality in which it operates has no authority to annex
conditions to the grant; the utmost within the power of the
municipal officials is the subsequent regulation of the com-
pany.” But if the municipal corporation has discretionary

68. §§ 323-338.

69. § 324.

70. Moberly v. Richmond Telep. Co.,
126 Ky. 369, 31 Ky. Law Rep. 783,
103 S. W. 714.

71. § 244.

72. Inhabitants of Summit Tp. v.
New York & New Jersey Telep. Co.,
57 N. J. Eq. 123, 7 Am. Electl. Cas.
58, 41 Atl. 146; Wright v. Glen
Telep. Co, 112 N. Y. App. Div.
745, 99 N. Y. Supp. 85; New Union
Telep. Co. v. Marsh, 96 N. Y.
App. Div. 122, 89 N. Y. Supp. 79;

People’s Home Telep. Co. v. City
of Gainesville, (Tex. Civ. App.) 141
8. W. 1044; City of Kenosha v. Keno-
sha Home Telep. Co., 149 Wis. 338,
135 N. W. 848; State v. Milwaukee
Independent Telep. Co., 133 Wis. 588,
114 N. W. 108, 315; State v. City of
Sheboygan, 111 Wis. 23, 7 Am. Elect}.
Cas. 109, 86 N. W. 657.

The board of public improvements,
a ministerial board of the city of St.
Louis, having no legislative power
further than to make regulations for
its own business and government, not
FRANCHISES; IN GENERAL. 333
power to grant or to refuse to grant permission to an elec-
tric, telegraph, or telephone company to occupy the streets
with its appliances, it may impose conditions as a consid-
eration of such permission.” This is true where the fran-
chise is given by the state, but it is required that consent
of the municipality be obtained before poles and wires
shall be erected within incorporated cities or villages.”
Similarly, where the franchise is given directly by the
state, but municipalities are empowered to designate the
location of poles, it has been held that reasonable con-
ditions may be imposed upon the designation of places for
the poles.”*> This question may be solved on the theory of
consideration. If the municipality has no rights which it
can grant, there is no consideration for a condition to be
performed by the company for the benefit of the munici-
pality. If, however, the municipality has a discretion as
to whether permission shall be given to the company to
place its poles and lines in the streets or gives additional

inconsistent with the ordinances of
the city, undertook, without au-
thority of the city, to impose upon

a telephone company (which had by |

law the right to erect poles and string
wires in streets, subject only to the
power of the city to designate the
location and kind of poles and height
of wires), as conditions of permission
to erect poles, (1) that it would per-
mit other companies requiring electric
wires to string them upon its poles,
at a fixed rental, and (2) that it
would maintain on its poles no more
wires than were necessary for its
business. Held, that it had no such
power; and as the refusal of the com-
pany to accept such conditions was
made the sole ground for refusing
the permits, held that a judgment
awarding a peremptory writ of man-
damus was proper. State ex rel. Bell
Telep. Co. v. Flad, 23 Mo. App. 185,
2 Am. Electl. Cas. 128.

73. Moberly v. Richmond Telep. Co.,

126 Ky. 369, 31 Ky. Law Rep. 783,
103 S. W. 714; City of Lancaster v.
Briggs, 118 Mo. App. 570, 96 S. W.
314; Rochester Telep. Co. v. Ross, 125
N. Y. App. Div. 76, 109 N. Y. Supp.
381; affirmed, 195 N. Y. 429, 88 N. E.
793; City of Jamestown v. Home
Telep. Co., 125 N. Y. App. Div. 1,
109 N. Y. Supp. 297; City of Salem v.
Anson, 40 Oreg. 339, 8 Am. Electl.
Cas, 44, 67 Pac. 190, 56 L. R. A. 169,
91 Am. St. Rep. 485; City of Mitchell
v. Dakota Cent. Telep. Co., 25 8. Dak.
409, 127 N. W. 582.

74. City of Vermillion v. North-
western Telep. Exch. Co., 189 Fed.
289; Southern Bell Telep. Co. v. City
of Richmond, 103 Fed. 31, 7 Am.
Elect]. Cas. 83, 44 C. C. A. 147; State
v. Murphy, 134 Mo. 548, 31 8S. W.
784, 34S. W. 51, 35 S. W. 1132, 34
L. R. A. 369, 56 Am. St. Rep. 515.

75. Hudson & M. Telep. & Teleg.
Co. v. Linden Tp. 80 N. J. L. 158, 76
Atl. 444.
334 Law or HLEcTRICITY.
privileges to the company, the grant forms a good consid-
eration for the conditions annexed thereto.”

Acceptance of Franchise— Where an ordinance granting
a franchise is not accepted by the company, it is not bound
to perform conditions annexed thereto.” The company,
instead of accepting the grant of the municipality with its
attendant conditions, may procure a grant directly from
the state and thus avoid the burdens of the conditions
sought to be imposed by the municipality. But if the com-
pany without qualification accepts the franchise it is
estopped, after availing itself of the benefits thereof, to
repudiate the conditions annexed thereto.”* The conditions
become a part of the franchise contract; and, if the munici-
pality insists upon compliance therewith, the company is
required to perform even if a loss of profits thereby
results.”

Not to Engage in Lighting.— When granting a franchise
to an electric company to maintain its appliances in the
street for supplying the inhabitants of the municipality
with heat and power, a condition may be annexed to the

76. Wright v. Glen Telep. Co., 48
Mise. (N. Y.) 192, 95 N. Y. Supp.
101; affirmed, 112 N. Y. App. Div.
745, 99 N. Y. Supp. 85; People’s
Home Telep. Co. v. City of Gaines-
ville, (Tex. Civ. App.) 141 S. W.
1044; City of Kenosha v. Kenosha
Home Telep. Co., 149 Wis. 338, 135
N. W. 848.

Parks, public squares, etc—In a
state, where the franchise of a tele-
phone company to maintain and oper-
ate its lines on the public highways
of the State comes directly by statute
from the State independent of any
municipal grant, if the municipality,
on granting a franchise to such a
company, also confers rights in, over
and under the squares, parks, aque-
ducts and public places of the city,
and authorizes the construction of

conduits, subways, and manholes
therein, the additional rights so given
form a good consideration for a con-
tract by the telephone company for
fixing maximum rates for service.
Rochester Telep. Co. v. Ross, 125
N. Y. App. Div. 76, 109 N. Y. Supp.
381; affirmed, 195'N. Y. 429, 88 N. E.
793.

77, Mackay Teleg. & Cable Co. v.
City of Texarkana, 199 Fed. 347; City
of St. Louis v. Laclede Gas L. Co.,
155 Mo. 1, 55 S. W. 1003.

78. Commonwealth Elec. Co. v.
Rose, 214 Ill. 545, 9 Am. Eleetl. Cas.
381, 73 N. E. 780. See also, § 226,

79. City of Louisville v. Louisville
Home Telep. Co., 149 Ky. 234, 148
S. W. 13; City of Jamestown v.
Home Telep. Co., 125 N. Y. App. Div.
1, 109 N. Y. Supp. 297.
FRANCHISES; IN GENERAL. 335
franchise that the company shall not furnish electricity for
lighting.®°

Sec. 224. Conditions Annexed to Franchise; Duty of
Imposing Conditions.

As a general proposition, the annexation of conditions
to a municipal franchise is a right which may be exercised
by the municipality, not a duty which it is required to per-
form." But, where a telephone company was granted the
right to erect its poles and wires in the parks and public.
places of the city, it was said that, ‘‘ It is not only its right
but its duty to require that the citizens shall all be treated
alike in the service to be rendered and that they shall
receive service at the same reasonable rates that is fur-
nished in rival cities.’’*? A statement of this nature should
be construed as referring to the moral, not the legal, duty
of the municipal officers. Legally, they may grant the
franchise without requiring any conditions to be performed
by the company; morally, the duty of the local officials is
to make the best possible bargain with a company applying
for a franchise. In a Missouri case, however, it was
thought that an ordinance which granted to a private cor-
poration the right to occupy the streets by subways and
equipments necessary to conduct electricity without requir-
ing them to be used for the benefit of the public, and with-
out reserving any right of control over the works or busi-
ness of said company, except in the mere approval of the
plans it may adopt for making the subways and the manner

of executing the work, was void.®

80. Tacoma Ry & Power Co. v. City
of Tacoma, (Wash.) 140 Pac. 565.

81. A town ordinance, contractual
in character, granting a franchise to
use the municipal streets for the
purpose of supplying water and light,
which provides regulations with re-
gard to the public safety and con-
venience in connection with the con-
struction and maintenance of the
works, and fixes the maximum rates
to be charged, is not void for failure

But, in a subsequent

to prescribe the terms and conditions
of service. Hester v. Town of Green-
wood, 172 Ind. 279, 88 N. E. 498.

82. Wright v. Glen Telep. Co., 48
Mise. (N. Y.) 192, 95 N. Y¥. Supp.
101; affirmed, 112 N. Y¥. App. Div.
745, 99 N. Y. Supp. 85.

83. State v. Murphy, 134 Mo. 548,
31S. W. 784, 34 8S. W. 51, 35 S. W.
1132, 34 L. R. A. 369, 56 Am. St. Rep.
515.
336 Law or Evecrriciry.

decision involving the same grant, it was held that it
was not beyond the power of a municipal corporation
empowered by its charter to regulate the use of the streets
to enact an ordinance giving a private corporation the right
to occupy the streets by subways and electrical apparatus
without requiring that all the public be permitted to use the
subways, and without reserving to the municipal authori-
ites the right of supervision or control.** The latter view
is more in accord with reason, for the municipality under
its general police powers and control of the streets may at
any time regulate the use of such subways, though the
right to do so is not reserved in the franchise grant.*

Sec. 225. Conditions Annexed to Franchise; Waiver of
Conditions.

Where municipal officials have discretionary power as to
the conditions to be annexed to a franchise, they have the
authority subsequently to waive the conditions which they
impose.* A waiver may be made by express contract
between the franchise owner and the municipality;*’ in
such a case the agreement may be considered as a modifi-
cation of the original grant.** A waiver may also arise
from implication or conduct of the parties. Thus, where a
franchise contains a condition requiring the erection of
poles and wires within a certain time and also requiring
the company to furnish a bond, by objecting to the failure
of the company to give the bond and not insisting upon a
strict compliance with the time limit, a municipality may
be deemed to have waived the latter requirement.*

84. State ex rel. National Subway
Co. v. City of St. Louis, 145 Mo. 551,
7 Am. Electl. Cas. 195, 46 S. W. 981,
42 L, RB. A, 118. .

85. § 327.

86. Gathright v. H. M. Byllesby &
Co., 154 Ky. 106, 157 S. W. 45.

Waiver of forfeiture— In a preced-
ing section was discussed the waiver

of a forfeiture of a municipal fran-
chise. See § 215.

87. Gathright v. H. M. Byllesby &
Co., 154 Ky. 106, 157 S. W. 45; Cum-
berland Telep. & Teleg. Co. v. City
of Hickman, 129 Ky. 220, 33 Ky. Law
Rep. 730, 111 S. W. 311.

88. See § 217.

89. United Electric L. Co. v. East
337

FRANCHISHS; IN GENERAL.

Sec. 226. Conditions Annexed to Franhise; Estoppel.

Where a municipality passes an ordinance granting upon
conditions a franchise to a public service corporation, the
benefits whereof are accepted and enjoyed by such corpo-
ration, it cannot subsequently claim that the municipality
had no power to annex the conditions to the grant. On
the other hand, it has been held that a telephone company
obtaining a grant from the state of the right to place poles
and wires along municipal streets is not estopped to deny
that there is no consideration for a grant by the munici-
pality of the same right." Regarding the municipal grant
as a contract and the lack of power of the municipality as a
failure of consideration, this latter view seems sound, for
a party entering into an engagement is not, as a general
proposition, estopped thereby from claiming that the
alleged contract is without legal consideration. This view,
however, is applicable only when the municipality attempts
to confer a franchise which has already been granted to
the company by a higher power; if the municipality has
the power to grant rights to a company which it cannot
otherwise obtain, it may be that the company after the
acceptance of the grant would be estopped from asserting
the municipality’s lack of authority to require the particu-
lar conditions. Thus, it has been held that a telephone
company which has accepted a franchise requiring it to pay
a percentage of its proceeds to the municipality is estopped
to plead that such requirement was ultra vires.”

Sec. 227. Conditions Annexed to Franchise; Enforcemert
of Conditions.

After an electric or a telephone system has been put in

operation within the limits of a municipality under a fran-

Pittsburgh Borough, 230 Pa. St. 65,
79 Atl. 229.

90. Commonwealth Elec. Co. v.
Rose, 214 Ill. 545, 9 Am. Elect]. Cas.
381, 73 N. E. 780.

91. Wright v. Glen Telep. Co., 112
N. Y. App. Div. 745, 99 N. Y. Supp.
85. Obiter to the contrary may be

22

found in a subsequent decision in the
same jurisdiction. Rochester Telep.
Co. v. Ross, 125 N. Y. App. Div. 76,
109 N. Y. Supp. 381; affirmed, 195
N. Y. 429, 88 N. E. 793.

92. City of Mitchell v. Dakota
Cent. Telep. Co., 25 S. Dak. 409, 127
N. W. 582.
338 Law oF ELEcTRICITY.

chise reserving benefits to the patrons thereof, such
patrons may enforce the conditions annexed to the grant.
For example, if the franchise provides that the company
shall furnish service at not to exceed a certain rate, a cus-
tomer may compel the company to comply with such pro-
vision. But, it has been held that the municipality and
the company may make a valid modification of the pro-
vision in the franchise concerning the rates, and after such
a modification the consumer cannot insist upon service at
the original rate.** Where the requirement is a condition
precedent to the right to use the streets, for example, a
condition requiring the construction of the system within
a certain time and the condition is not complied with, the
municipality may require the company to vacate the street
and remove therefrom such appliances as have been
erected.** Where the requirement is a condition precedent,
and the company fails to perform the condition, it has no
rights in the streets, and its appliances may be treated as
a nuisance. In such a case it is not material that the com-
pany has given a bond to construct the system within the
time mentioned or forfeit to the municipality a certain
sum: the forfeiture of the sum mentioned in the bond is
not the sole remedy of the municipality.”

93. Lutes v. Fayette Home Telep.
Co., 155 Ky. 555, 160 S. W. 179;
Rochester Telep. Co. v. Ross, 125
N. Y. App. Div. 76, 109 N. Y. Supp.
381; affirmed, 195 N. Y. 429, 88N.E.
793.

94. Lutes v. Fayette Home Telep.
Co., 155 Ky. 555, 160 S, W. 179.

95. Keystone State Telep. & Teleg.
Co. v. Borough of Ridley Park, 28 Pa.
Super. Ct. 635.

Rival company.— In an action in-
volving the interference of two tele-
phone systems, it has been held that
one company cannot raise the ques-
tion that its rival has not complied
with all the conditions of its fran-
chise. Mt. Pleasant Telep. Co. v.
Ohio, ete., Telep. Co., 140 Ill. App.

27; Hook v. Bowden, 144 Mo. App.
331, 128 S. W. 261.

A corporation which has availed it-
self of municipal permission to place
and operate an electric light plant in
a highway, upon its express agree-
ment to furnish light to the munici-
pality, cannot lawfully insist on
maintaining its structures after it
has refused to perform its contract.
Under such circumstances the dis-
used fixtures are unlawful obstruc-
tions which it is the duty of the
corporation to remove. Village of
Hempstead v. Ball Electrie L. Co., 9
N. Y. App. Div. 48, 6 Am. Electl.
Cas. 38, 41 N. Y. Supp. 126, 75 N. Y.
St. Rep. 582.

96. Keystone State Telep. & Teleg.
FRANCHISES; IN GENERAL. 339

Sec. 228. Conditions Annexed to Franchise; Bond.

One of the conditions of a franchise may be that the
company shall give a bond to secure the performance of
other conditions of the grant, or to indemnify the munici-
pality from damages arising from the exercise thereof.
Thus, a bond may be required conditioned for the comple-
tion of the work within a specified time.” The giving of
the bond may be, depending on the wording of the ordi-
nance, a condition precedent to the construction or opera-
tion of the system. In one case it was held that, if the
company had in good faith made an effort to furnish a
bond satisfactory to the municipal officers, the municipality
would be restrained from removing the company’s appli-
ances from the streets, but the company would be ordered
to furnish the bond within a certain time.** Where a city
ordinance grants a franchise to an electric company and
also provides for the lighting of public places at a stipu-
lated price, the failure of the company to furnish a bond,
as required by the ordinance to indemnify the city from
all damages arising from an exercise of the franchise and
for its faithful compliance with the terms of the ordinance,
is no defense to an action against the city for lights fur-
nished under the contract, where the sole demand was for
a bond to indemnify the city from damages caused by
privileges granted under the franchise. A bond given pur-
suant to this demand would have no bearing upon the
question of damages arising from a breach of the lighting
contract.:. The amount specified in a bond may be consid-

Co. v. Borough of Ridley Park, 28 Pa.
Super. Ct. 635.

Oreg. 339, 8 Am. Electl. Cas. 44, 67
Pac. 190, 56 L. R. A. 169, 91 Am. St.

Liquidated damages.—A sum speci-
fied in a bond given to secure the
performance of conditions in a fran-
chise, may be considered as _ liqui-
dated damages, and may be recovered
as such. City of Salem v. Anson, 40
Oreg. 339, 8 Am. Elect]. Cas. 44, 67
Pac. 190, 56 L. R. A. 169, 91 Am.
St. Rep. 485.

97. City of Salem v. Anson, 40

Rep. 485.

98. United Elec. Co. v. Pittsburg,
57 Pitts. L. Jour. 353.

99. United Elec. L. Co. v. East
Pittsburgh Borough, 230 Pa. St. 65,
79 Atl. 229,

1. Kaukauna Elec. L. Co. v. City of
Kaukauna, 114 Wis. 327, 8 Am.
Electl. Cas. 348, 89 N. W. 592.
340 Law or ELectricity.

ered as liquidated damages and recoverable as such,’ but
the recovery of such damages is not necessarily the sole
remedy of the city or village granting the franchise.*

Sec. 229. Conditions Annexed to Franchise; Duration of
Franchise.

Where a constitutional provision provides that no tele-
phone line shall be constructed within the limits of any city
without the consent of the local authorities, it has been held
that a city may grant its consent to the construction of
such a line on such terms and conditions as it chooses to
impose, including a limitation of the term of the franchise.*
Generally, a provision in a franchise as to its duration is
to be considered as a limitation upon the privilege, not as
a condition thereof.

Sec. 230. Conditions Annexed to Franchise; Free Service
to Municipality.

As a condition for the granting of a franchise to an
electric company, a municipality may require the company
to light the public buildings without charge. Where the
franchise ordinance provides that the company shall light
all city buildings used as police and fire stations within a
certain territory, it has been thought that the company
may be required to light a new building erected in the
vicinity of an old one as a substitute for the old one.’ If
the company’s franchise comes directly from the state, a
grant by a municipal division conditioned upon free service
does not convey any rights which can form a consideration
for the free service.° In such a case the only power the
municipality has is the right of reasonable regulation;

2. City of Salem v. Anson, 40 western Telep. Exch. Co., 189 Fed.
Oreg. 339, 8 Am. Electl. Cas. 44, 67 289.

Pac. 190, 56 L. R. A. 169, 91 Am. St. 5. Kensington Elec. Co. v. Phila-
Rep. 485. delphia, 187 Pa. St. 446, 41 Atl. 309,
8. See § 227. 43 W.N. C. 186.

4, City of Vermillion v. North- 6. See § 223.
FRANCHISES; IN GENERAL. 341

this power it may not convey to the company for free elec-
tric or free telephone service.’

Sec. 231. Conditions Annexed to Franchise; Liability for
Damages.

The poles and wires of electric, telephone, and telegraph
companies along the public highways frequently cause
injuries to travelers; and, in some cases, the municipality
is liable therefor upon the theory that it has authorized
an illegal obstruction in the highways.® It is, therefore,
proper for municipal officers to insert a condition in a
franchise to use the highways for such purposes that the
company shall indemnify the municipality for all damages
it may be required to pay by reason of such appliances. A
state statute providing that ‘‘ whenever injury shall be
done to any person or to the buildings or other property
of any person or corporation by the posts or other appara-
tus of any telegraph line, the company, or individual, being
proprietor of the same, shall be held responsible in dam-
ages to the person or corporation so injured, ‘‘ has been
held to indicate an intention on the part of the legislature
to require the company to pay for all injuries sustained by
reason of the presence of such poles, whether the injuries
were caused by negligence or accident.®

Sec. 232. Conditions Annexed to Franchise; Poles.

A reservation in a franhise of a right to control the
location of the poles which may be erected in municipal
streets, is of but little value. The right to control such a
matter seems to be within the police power of the munici-
pality,° and thus may be effected without the agreement
or consent of the company. Such a provision, as a general
rule, increases neither the power of the municipality nor
the burdens of the company. Practically the only effeet

7% See City of Kenosha v. Keno- Telep. Co, 184 Mass. 150, 8 Am.
sha Home Telep. Co., 149 Wis. 338, Electl. Cas. 438, 68 N. E. 17. (But
135 N. W. 848. holding that contributory negligence

8. § 427. of person injured is a defense.)

9. Riley v. New England Teleg. & 10.. § 332.
342 Law or ELectricity.

of the condition is to save the municipality the effort of
passing an ordinance. dealing specifically with the matter.
However this may be, there can be no objection to a con-
dition that some official of the municipality may direct the
location of the poles. Likewise, the municipality may
require the painting of the poles." The company may also
be required to permit the municipality to use such poles
for its municipal lines, or to permit other companies to
use the poles upon payment of a reasonable compensation
for such use. Provision is sometimes made for an arbitra-
tion as to the compensation to be paid for the use in case
the companies are unable to agree.*®? In case the munici-
pality reserves the right to place its wires upon the com-
pany’s poles, it does not thereby become a lessee of the
company, and such company is not liable for an injury
resulting from a falling wire owned and controlled by the
city. Where the municipality has the power to permit a
company to use the wires of another company upon pay-
ment of compensation, the permission must be accom-
panied by such regulations and limitations as to the man-
ner of use as will protect the owner of the poles, the

11. City of St. Paul v. Freedy, 86
Minn. 350, 8 Am. Electl. Cas. 29, 90
N. W. 781.

Notice to move poles—If the mu-
nicipality has reserved the right to
compel the company to move its
poles from one location to another, a
notice for a change in location must
designate particularly the place to
which, and from which the change is
to be made. Town of New Mar-
tinsville v. Enterprise Telep. Co., 68
W. Va. 726, 70 8. E. 700.

12. A portion of an ordinance,
granting an electric franchise and
constituting a contract to pay for
public lighting, pertaining to the
painting of poles by the company
has no relation to the contract for
public lighting, and the failure of the
company to paint the poles is not

a defense in an action by the com-
pany for electricity furnished to the
municipality. Kaukauna Elec. Co. v.
City of Kaukauna, 114 Wis. 327, 8
Am. Electl. Cas. 348, 89 N. W. 542.

13. Where two electric light com-
panies accept franchises from a city
and agree that the city may regulate
the use of poles and compensation
therefor between the companies, such
companies are in duty bound to either
agree on the compensation or accept
the arbitrament of the city elec-
trician, unless shown to be arbitrary
or the result of corruption. Mont-
gomery Light & Water Co. v. Citi-
zens L., H. & P. Co., 147 Ala. 359, 9
Am. Elect]. Cas. 776, 40 So. 981.

14. Chicago Telep. Co. v. Hayes,
121 Ill. App. 313.
FRANCHISES; IN GENERAL. 343
employees of both parties, and the public. A resolution
granting such permission without regulations of this nature
is unreasonable and void.*®

Sec. 233. Conditions Annexed to Franchise; Party Lines.

It has beén held that, where a telephone company accepts
a telephone franchise with the condition that it shall not
use ‘‘ party ’’ lines within the city limits, the company will
be prohibited from using such lines, though they would
cause no injury to its customers and though compliance
with the condition -will cause a loss of profit to the
company.**

Sec. 234. Conditions Annexed to Franchise; Percentage of
Proceeds.

The conditions annexed to a franchise to use public
streets may be of a pecuniary nature; as, for example, that
a percentage of the earnings of the company be paid to the
municipality granting the franchise.” To enable the mu-
nicipality to determine the amount to be paid to it, the
ordinance granting the franchise may require the render-
ing at certain intervals of statements showing the income

15. Citizens Elec. L. & P. Co. v.
Sands, 95 Mich. 551, 4 Am. Electl. |
Cas. 58, 55 N. W. 452, 20 L. R. A.
411.

16. City of Louisville v. Louisville
Home Telep. Co., 149 Ky. 234, 148
S. W. 13.

17. City of Chicago v. Chicago
Telep. Co., 230 Il. 157, 82 N. E. 607,
13 L. R. A. (N. S.) 1084, 12 Ann.
Cas. 109; City of Lancaster v. Briggs,
118 Mo. App. 570, 96 S. W. 314; City
of Jamestown v. Home Telep. Co., 125
N. Y. App. Div. 1, 109 N. Y. Supp.
297; Columbus Citizen’s Telep. Co. v.
City cf Columbus, (Ohio) 104 N. E.
534; City of Mitchell v. Dakota
Cent. Telep. Co., 25 S. Dak. 409, 127
N. W. 6582. See also, City of La-

Crosse v. LaCrosse Gas & Elec. Co.,
145 Wis. 408, 130 N. W. 530. “Con-
ditions prescribed in ordinances
granting the privilege or franchise to
telephone companies subject to the
condition of the payment of a por-
tion of its proceeds as compensation
for the use of its’ streets and alleys
for telephone purposes are generally
upheld by the courts. And when
the terms are accepted and acted
upon, it becomes a contract binding
upon the parties, and the party re-
ceiving the benefit of the grant is
estopped from pleading that the con-
ditions were ultra vires.” City of
Mitchell v. Dakota Cent. Telep Co.,
25 S. Dak. 409, 127 N. W. 582.
344. Law or ELeEcrricity,

of the company."* A condition of this nature is anenforce-
able where the company derives its franchise directly from
the state, and acquires no privileges under the municipal
grant containing the condition.*® In one case,” a condition
requiring the payment of two per cent. of the gross receipts
of a telephone system was construed and it was held that
the company was not required to pay a percentage of the
earnings of its system outside of the city limits; that it
was liable to pay a percentage of earnings from all sources
of the system within the city including the rentals of the
telephone instruments and the percentage received by the
company of the proceeds of toll line business that required
service within the city; and that it was liable to pay a
percentage of the reasonable value of the services rendered.
by the exchange for the transmission of long distance
business.

Sec. 235. Conditions Annexed to Franchise; Power Plant.

Where a city ordinance, granting a franchise to an elec-
tric company for twenty-five years, provided that at the
commencement of each five-year period the city might
require the machinery and appurtenances to be in good
condition, and the electric company agreed to give the city
the advantages of all improvements in the production of
electricity, it’ was held that it was very improbable that
either. the city or the electric company contemplated that
demands. might be made at the beginning of each five-year
period which would require an entire change of machinery
and appurtenances.”

Sec. 236. Conditions Annexed to Franchise; Rates for
Service.

Where a municipal corporation has the power to permit
or refuse to permit a publie service corporation to place

18. City: of Chicago v. Chicago 20. City of Lancaster v. Briggs,
Telep, Co., 230. Ill. 157, 82 N. E. 607, 118 Mo. App. 570, 96 S. W. 314.
13 L, R. A. (N. 8S.) 1084, 12 Ann. Cas. 21. Davenport Gas & Elec. Co.. v.
109. City of. Davenport, 124 Iowa 22, 9
19. § 223. Am. Electl. Cas, 72, 98 N. W. 892.
FRANCHISES; IN GENERAL. 345
its poles and wires in the municipal streets, it is competent
for it to require, as a condition for the granting of the
privilege, that the company shall not charge more than
stated rates for service to the inhabitants of the munici-
pality.2. These rates, as has been stated above,” may be
enforced by the customers of the company. A condition of
this nature in a telephone franchise may not prohibit the
company charging an extra rate for a, connection outside
of the city limits.* Where the franchise contained a con-
dition that the rates should be fixed every five years by
arbitration on the basis of current rates in the same section.
of the state, and the arbitrators fixed a rate at.a stated
price per kilowatt, but made no finding as to a minimum
rate, it was held that the company could not charge a mini-
mum rate, though such a rate was charged in neighboring
cities.”*

Sec. 237. Conditions Annexed to Franchise; Revocation of
Right.

Among the provisions which are sometimes attached to

public service franchises is the right. to revoke the grant.”

22. Cumberland. Telep. & Teleg. Co.

v. City of Hickman, 129 Ky. 220,

33 Ky. Law Rep. 730, 111 S. W. 311;

Moberly v. Richmond Telep. Co., 126.

Ky. 369, 31 Ky. Law. Rep. 783,. 103
S. W. 714; State ex rel. Jacobs v.

Water, Light. & Transit. Co.. (Mo.)-
155 S.. W. 826; Rochester Telep. Co..

v. Ross, 125.N. Y. App. Div. 76, 109
N. Y. Supp. 381; affirmed, 195. N. Y.
429, 88 N. E. 793;. Wright v. Glen
Telep. Co., 48 Mise. (N. Y.) 192, 95

N. Y¥. Supp. 101; affirmed, 112 N. Y..

App. Div. 745, 99 N. Y. Supp. 85.

See also, Gathright v. H. M. Byllesby:

& Co., 154 Ky. 106, 157 S. W. 45.
23. § 227.

24, Moberly v. Richmond Telep..
Co., 126 Ky. 369, 31 Ky. Law Rep..

783, 103 S. W. 714.

A city telephone franchise: provid-.

ing that the grantee should connect

the. central exchange,, and thereby
each. subscriber’s instrument with
other specified towns and. cities, and
specifying monthly rates of $1.50 and
$2.50 for residence and business.
phones, respectively, does not entitle
subscribers to. service to such other
towns. and: cities; without additional.
charge, but merely gives them the
privilege of using long-distance con-
nections: from their phones. Cum-
berland Telep. & Teleg, Co. v. City
of, Hickman, 129 Ky. 220, 22 Ky..
Law. Rep. 730, 111 8S. W. 311

25. State ex. rel. Jacobs v. Water,
Light &. Transit.Co., (Mo.) 155 8S. W.
826..

26..City of Owensboro. v. Cumber-
land. Telep. & Teleg, Co., 230 U. S. 58,
33.8.. Ct. 988; Southern Bell Telep.
Co. v. City. of Richmond, 103 Fed.
31, 7 Am. Hlectl. Cas. 83, 44 ©. C. A.
346 Law or ELecrricity.

Such a condition may authorize revocation at the pleasure
of the municipal authorities. A condition of this character
must be clear and explicit. The reservation of the right
to alter or amend a franchise ordinance, as the necessities
of the city may demand, is construed simply as a reserva-
tion of police power and does not allow a repeal or revo-
cation of the ordinance.”” In the absence of such a reserva-
tion, the privilege is, as a general proposition, constitution-
ally protected from revocation.”*

Sec. 238. Conditions Annexed to Franchise; Time Limit
for Construction of System.

A municipality, in granting a franchise to a public utility
corporation, may require the construction of its system
within a stated time.”? Such a requirement may be a con-
dition precedent to the exercise of the franchise; and, if
the company fails to conform to the time limit, the poles
and wires placed upon the streets may be treated as a

147; Coverdale v. Edwards, 155 Ind.
374, 7 Am. Electl. Cas. 15, 58 N. E.
495.

27. City of Owensboro v. Cumber-
land Telep. & Teleg. Co., 230 U. S.
58, 33 S. Ct. 988. See also, Old
Colony T. Co. v. City of Omaha, 230
U. S. 100, 33 S. Ct. 967.

28. § 199.

29. City of Salem v. Anson, 40
Oreg. 339, 3 Am. Electl. Cas. 44, 67
Pac. 190, 56 L. R. A. 169, 91 Am. St.
Rep. 485; United Elec. L. Co. v. East
Pittsburgh Borough, 230 Pa. St. 65, 79
“Atl. 239; Keystone State Telep. &
Teleg. Co. v. Borough of Ridley Park,
28 Pa. Super. Ct. 635. See also Com-
mercial Elec. L. & P. Co. v. City of
Tacoma, 17 Wash. 661, 50 Pac. 592.
“Tt is admitted that the legislature
may, by virture of its paramont au-
thority, require bonds or undertak-
ings of the grantees of such privi-
leges, conditioned that they will con-

struct their works within a specified
time, or that they will otherwise
comply with the terms of their grant,
and a municipal corporation to which
the exclusive power over the subject
has been delegated may exercise the
same right. There is no express pro-
vision in the charter of Salem au-
thorizing the council, upon granting
the privilege to use the streets, to
require that the work shall be done
within a specified time; nor is it
necessary. It is given the exclusive
power to make the grant “ upon such
terms and conditions” as it may pre-
scribe, which necessarily authorizes
it to impose such reasonable condi-
tions precedent or subsequent to the
granting or exercise of the franchise
as may be deemed necessary or
proper.” City of Salem v. Anson, 40
Oreg. 339, 8 Am. Electl. Cas. 44, 67
Pac. 190, 56 L. R. A. 169, 91 Am. St.
Rep. 485.
FRANCHISES; IN GENERAL. 347
nuisance and removed.*® The failure of the company to
complete the system within the time limit is a matter that
can be taken advantage of only by the municipality which
can enforce or waive the condition; the owner of a rival
franchise cannot enjoin the completion of the work.”
Where, the franchise comes directly from the state, the
fact that an alleged consent by municipal authorities
requires the completion within a certain time, does not
affect the right of the company to continue the construc-
tion of its system after the expiration of such period.

Sec. 239. Conditions Annexed to Franchise; Wires.

As a condition of the granting of a franchise, an electric
company may be required to place its wires underground.
So too, the company may be required to install guard
wires.**= Where an ordinance, not only gives a franchise
to an electric company, but evidences a contract for public
lighting, a provision requiring the company to place its

_ wires underground relates to the franchise, not to the con-
tract for lighting, and a failure to so place its wires is
not a defense in an action by the company against the city
for electricity furnished under the contract.*

Sec. 240. Remedies;** Franchise Holder.

Where a corporation is using the streets and highways
without any franchise grant, a company having a franchise
to maintain poles and wires in such places may be
aggrieved by the unlawful use of its rival, and may require
the removal of its appliances. The franchise of a company
is exclusive as against a person or company having abso-

30. Keystone State Telep. & Teleg.

Co. v. Borough of Ridley, 28 Pa.
Super. Ct. 635.

31. Hook v. Bowden, 144 Mo. App.
331, 128 S. W. 261.

82. New Union Telep. Co. v. Marsh,
96 N. Y. App. Div. 122, 89 N. Y.
Supp. 79.

83. Conrad v. Springfield Consol.
Ry. Co., 240 Ill. 12, 88 N. E. 180.

34, Kaukauna Elec. L. Co. v. City
of Kaukauna, 114 Wis. 327, 8 Am.
Elect]. Cas. 348, 89 N. W. 592.

35. Abutting owners. The right
of an abutting owner to attack a
public utility franchise under which
a company is using the public high-
way is -discussed in a subsequent
chapter. See § 290.
348

Law or Evectricity.

lutely no rights in the streets.** But, if the rival company
has what purports to be a franchise entitling it to use the
public highways for its appliances, a critical examination
of the validity of its grant will not generally be made
merely so that competition may thereby be stifled.” Though
the unlawful maintenance of the appliances may be a
nuisance, loss from competition is not considered the result
of the maintenance of the nuisance.*® On the other hand,
if the maintenance of more than one system in the high-:
ways causes a direct physical injury to the lines of each
other, it is reasonable to permit either company to attack
the right of the other to maintain its appliances in the
streets. A public service corporation using the highways.
for its poles and wires cannot attack the franchise of a
rival company on the ground that the latter has not per-
formed all the conditions of its franchise; the power to.
take advantage of failure to perform conditions is in the

36. Millville Gas-Light Co. v. Vine-
land L. & P. Co., 72 N. J. Eq. 305,
65 Atl. 504; Bartlesville Elec. L. &
P. Co. v. Bartlesville Interurban Ry.
Co., 26 Okla. 453, 109 Pac. 228, 29
L. R. A. (N. S.) 77. “ When plain-
tiff accepted its franchise, it did so
subject to the power of the munici-
pality to grant to other persons or
corporations similar franchises, and
with the knowledge that it might be
compelled to exercise its rights un-
der its franchise with others exercis-
ing similar rights. If, by the com-
petition of rival companies to whom
the use of the streets and public
grounds has been granted by the mu-
nicipality, plaintiff is rendered unable
to discharge the obligations of its
contract to furnish the city and its
inhabitants with light and power at
stipulated prices, except at a finan-
cial loss to it, plaintiff cannot com-
plain, for it must: be held to have
contemplated such condition might
arise and to have agreed thereto,

when it accepted the franchise; but
such cannot be said of the defendant ~
who unlawfully occupies the streets
and public grounds of the city in
competition with plaintiff.” Bartles-
ville Elec. L. & P. Co. v. Bartlesville
Interurban Ry. Co., 26 Okla. 453, 109
Pac. 228, 29 L. R. A. (N. S.) 77.

37. Chicago Telep. Co. v. North-
western Telep. Co., 199 Ill. 324, 8 Am,
Electl. Cas. 81, 65 N. E. 329; Fulton
L. H. & P. Co. v. Oswego River P.
Transmission Co., 128 N. Y. Supp.
290. “The ordinance making the
grant to appellee, having been ac-
cepted and acted upon by appellee,
has become a contract between itself
and the city; and appellant, not be-
ing a party to that contract, has no
right to question its validity.” Chi-
cago Telep. Co. v. Northwestern
Telep. Co., 199 Ill. 324, 8 Am. Elect].
Cas. 81, 65 N. E. 329.

38. Fulton L., H. & P. Co. v. Os-
wego River P. Transmission Co., 128
N. ¥. Supp. 290.,
FRANCHISES; IN GENERAL. 349
state or municipality granting the franchise.” Sv, too,
an electric company having a franchise, not exclusive, is
not entitled to an injunction restraining a similar corpora-
tion from invading its territory on the ground that the
latter has not obtained the consent of the public service
commission as required by law.*° Nor can one company, in
a direct action against a competing company, question the
regularity of the latter’s incorporation.“ A company hav-
ing an exclusive franchise may enjoin another company
from operating under an alleged grant of the use of the
highways for its appliances. Similarly it has been held
that a subsequent company may enjoin a former company
from asserting the exclusiveness of its franchise to the
detriment of the subsequent company.*

In Kentucky one company is permitted to attack the
franchise of another if the required formalities for its
grant are not complied with.** Similarly, when one com-
pany sues another for interference with its lines and elec-
tric currents, the defendant may assert the invalidity of

39. Mt. Pleasant Telep. Co. v. Ohio,
etc., Telep. Co., 140 Ill. App. 27;
Hook v. Bowden, 144 Mo. App. 331,
128 S. W. 261.

40. North Shore Elec. L. & P. Co.
v. Port Jefferson Elec. L. Co., 151
N. Y. App. Div. 63, 135 N. Y. Supp.
824,

41. “It seems to me clear that
such question should not be left to
warring competitors, but that if an
alleged corporation is seeking to ex-
ercise corporate rights in violation
of law, in the first instance the Attor-
ney-General of the State should be
asked to take proceedings to pre-
vent the exercise of such alleged
power. If the contention of the
plaintiff should prevail, it would
be competent for every corporation
to bring suit against every other
alleged corporation competing with
it, because of the fact, as alleged,

that it had not fully complied with
the provisions of law respecting its
incorporation. It seems to me that
it is the most sensible rule to hold
that such action cannot be main-
tained because of the fact that an
alleged competitor may not have been
organized in accordance with the pro-
visions of law.” Geneva-Seneca Blec.
Co. v. Economic Power Const. Co., 136
N. Y. App. Div. 219, 120 N. Y. Supp.
926. :

42. Muncy Electric Light, Heat &
Power Co. v. People’s Electric Light,
Heat & Power Co., 218 Pa. St. 636,
67 Atl. 956.

43. People’s Elec. L. & P. Co. v.
Capital Gas & Elec. Co., 116 Ky. 76,
8 Am. Electl. Cas. 71, 25 Ky. L. Rep.
327, 75 S. W. 280.

44. Maraman v. Ohio Valley Telep.
Co., 25 Ky. Law Rep. 784, 76 S. W.
398.
350 Law or ELrEctriciry.

the plaintiff’s franchise.*® In such a case, though the
plaintiff may fail to avoid the grant of the defendant when
it sues as the holder of a rival franchise, it may, neverthe-
less, when suing as a taxpayer, succeed in ousting the
defendant from the streets.“ Where an existing telephone
company has sued out an injunction to restrain a like com-
pany from erecting its poles and apparatus in the streets
of a city, and its petition has been dismissed on the ground
that its franchise is void, an action will not lie on behalf
of the latter company, whose franchise also is invalid, to
recover damages because it has been prevented by injunc-
tion from doing that which it has no right to do.

Injunction.— Where a municipality or a competing cor-
poration is injuring or threatening to injure the property
of a company, injunction is the appropriate remedy to
restrain the injury.** Thus, if the municipality is illegally
revoking the franchise of a public service corporation, or
is removing its appliances from the public streets, an
injunction to restrain such acts may be had.*

Expiration of Franchise— Upon the expiration of the
rights of a public service corporation to maintain its poles

45. Watson v. City of Moreland,
125 S. W. 724. “A mere trespasser
can not complain that he is prevented
from continuing his wrongful act.
No injury is claimed to the corporal
property of appellee. The sole in-
jury is the prevention of the full ex-
ercise of its invalid claim of a fran-

47. East Tennessee Telep. Co. v.
Anderson County Telep. Co., 115 Ky.
488, 8 Am. Electl. Cas. 19, 24 Ky.
Law Rep. 2358, 74 S. W. 218.

48. Cumberland Telep. & Teleg. Co.
v. Louisville Home Telep. Co., 114
Ky. 892, 24 Ky. Law Rep. 1676, 72 S.
W. 4; Muncy Electric Light, Heat

chise in the streets of the city. It
follows, therefore, under the authori-
ties cited, that, as it has no such
franchise, it can have received no in-
jury of which equity will take cog-
nizance.” Rough River Telep. Co. v.
Cumberland Telep. & Teleg. Co., 119
Ky. 470, 84 S. W. 517, 27 Ky. Law.
Rep. 32.

46. Merchants’ Police & Dist.
Teleg. Co. v. Citizens’ Telep. Co., 123
Ky. 90, 29 Ky. Law Rep. 512, 93
S. W. 642.

& Power Co. v. People’s Electric
Light, Heat & Power Co., 218 Pa. St.
636, 67 Atl. 956.

49. Southern Bell Telep. & Teleg.
Co. v. City of Mobile, 162 Fed. 523;
affirmed without opinion, 174 Fed.
1020, 98 C. C. A. 663; Old Colony T.
Co. v. City of Wichita, 123 Fed. 762;
modified, 132 Fed. 641, 66 C.C. A. 19;
Anoka Water Works, Elec. L. & P.
Co. v. City of Anoka, 109 Fed. 580;
City of Rock Island v. Central Un-
ion Telephone Co., 132 Ill. App. 248;
FRANCHISES; IN GENERAL. 351
and wires in municipal streets, if such appliances are there-
upon removed by the city officials, the company has no
remedy against such officials if the removal is done with-
out unnecessary damage; but it may recover from such
officials the difference in value between the appliances
as removed and their value after an improper removal
thereof.*°

Sec. 241. Remedies; State.

As to franchises granted, either directly by the state or
indirectly through the agency of a municipal corporation,
the state may, in an action of quo warranto, inquire into
the validity of the grant." So, too, quo warranto is the
appropriate remedy to enforce a forfeiture of a franchise,”
or to attack the regularity of the incorporation of a com-
pany assuming to exercise a franchise.”

Sec. 242. Remedies; Municipality.

Where a municipal corporation, which has assumed to
grant a public service franchise, later seeks to avoid the
grant, the question at once arises whether it is estopped
from asserting its lack of power to grant the franchise
or its failure to comply with all the formalities necessary
for the granting of the privilege. It has been held, where
the franchise was granted without an advertisement for
proposals as required by the municipal charter, that the
city was not estopped from questioning the validity of the

Wakefield v. Village of Theresa, 125 50. Coverdale v. Edwards, 155 Ind.

N. Y. App. Div. 38, 109 N. Y. Supp.
414; Newman v. Village of Avon-
dale, 31 Week. Law Bull. (Ohio) 123,
4 Am. Electl. Cas. 82.

Invalid ordinance.— Injunction is
the proper remedy to prevent the en-
forcement of invalid municipal ordi-
nances. Chesapeake, etc., Telep. Co.
v. Baltimore, 89 Md. 689, 7 Am.
Elect]. Cas. 185, 43 Atl. 784, 44 Atl.
1033.

374, 7 Am. Elect]. Cas. 15, 58 N. E.
495.

51. People v. Chicago Telep. Co.,
220 Tl. 238, 77 N. E. 245.

52. State ex inf. Jones v. West
End L. P. Co., 246 Mo. 653, 152 8. W.
76.

53. See Geneva-Seneca Elec. Co. v.
Economic Power & Constr. Co., 136
N. ¥. App. Div. 219, 120 N. Y. Supp.
926.
352 Law oF ELEcrricity.

grant.“ A similar result has been reached where the ordi-
nance was not valid on account of a failure of the municipal
officers to comply with a charter provision requiring the
recordation of the ayes and noes upon the passage of an
ordinance granting a franchise. On the other hand, it
has been held that a village could not claim that permission
to erect a telephone line along the village streets should
have been given by ordinance, not by resolution. Like-
wise, where a municipality has granted to an electric light
company the right to erect and maintain poles and wires
in its' streets, and the company has operated under such
franchise for several years, the municipality is: estopped
from revoking its franchise on the ground that the com-
pany was not incorporated under the proper statute and
that the municipality had no power to grant the franchise
originally.”

Injunction.— A municipal corporation has such an inter-
est in the streets within its bounds that it may enjoin the
erection of a system of poles and wires along the same,
where the company has not procured the consent of proper

officials.

54. Tri-State Telep. & Teleg. Co. v.
City of Thief River Falls, 183 Fed.
854.

55. Monett Elec. L., P. & Ice Co. v.
City of Monett, 186 Fed. 360; Far-
mers’ Telep Co. of Quimby v. Town
of Wichita, (Iowa) 133 N. W. 361.

56. Village of London Mills v.
White, 208 Ill. 289, 70 N. E. 313.

57. Wyandotte Elec. L. Co. v. City
of Wyandotte, 124 Mich. 43, 7 Am.
Electl. Cas. 43, 82 N. W. 821, 7 Det.
Leg. N. 111.

58. Patapasco Electric Co. v. City
of Baltimore, 110 Md. 306, 72 Atl.
1039.

Laches.—Where a city permits a
telephone company to erect and
maintain poles and wires on its
streets without protest or objection
for a period of more than twenty-
one years, during which time the
company had expended large amounts

in the maintenance of such poles, and
the city had received valuable con-
sideration in the use of such poles
for the carrying of the wires of its
fire alarm service; had received and
duly receipted for license and pole
taxes assessed against the company,
and had used telephone instruments
furnished by the company down to
the date of the hearing; it was held
that the municipality was guilty of
laches, and that its bill requesting
that the defendants be restrained
from erecting new poles or stringing
new wires upon the streets of the
municipality, and that they be re-
quired to remove the poles, wires and
cables in place or erected by them,
was properly dismissed. City of
Bradford v. N. Y. & P. Telep. &
Teleg. Co., 8 Am. Electl. Cas. 151,
206 Pa. 582, 56 Atl. 41.
FRANCHISES; IN GENERAL. 303

Summary Proceedings.— It has been held that, after the
expiration of the right to maintain electric light appliances
in a municipal street, the municipality may summarily pro-
ceed to remove them without resort to legal proceedings.”

Sec. 243. Remedies; Taxpayers.

Within recent years the right of taxpayers of a city or
village to question the acts of the public officials has in
most states been materially enlarged. Generally speaking,
they have the power to attack illegal or fraudulent acts of
the municipal officers.°° Thus, it has been held that resi-
dent taxpayers of a municipal corporation may maintain
a suit to enjoin the carrying out of an invalid franchise
ordinance, although it is apparent that the interest of such
taxpayers is not different from that of the public in general
within the corporate limits.“ In one jurisdiction it has
been held that the action must fail unless it is shown that
the acts of the municipal officers will result in the waste
or injury of the property of the municipality.” The officers
granting the franchise are not necessary parties in an

action to have the franchise declared void.

59. Coverdale v. Edwards, 155 Ind.
374, 7 Am. Electl. Cas. 15, 58 N. E.
495.

60. Merchants’ Police & Dist. Teleg.
Co. v. Citizens’ Telep. Co., 123 Ky.
90, 29 Ky. Law Rep. 512, 93 S. W.
642.

Citizens and taxpayers, as such,
cannot maintain a suit to test the
validity of an ordinance because they
may conceive it to be void as grant-
ing an exclusive franchise contrary
to the public good and sound policy.
The advisability of granting an ex-
clusive franchise is one for the city
authorities. The validity of such an
ordinance can be questioned on the
ground of its exclusiveness only by
the claimant of a conflicting inter-
est. Patten v. City of Chattanooga,
108 Tenn. 197, 65 S. W. 414.

A bill in equity by an electric

23

lighting company against the Dis.
trict of Columbia and others for an
injunction against the construction
of certain conduits for electric light-
ing, power and steam heating service,
in a public alley under a permit
granted by the Commissioners, will
not lie upon the ground that the com-
plainant is a taxpayer, in the ab-
sence of anything to show that by
reason of the granting and execu-
tion of the permit, the complainant
will be injured or wronged in its
character as a taxpayer. Dewey Ho-
tel Co. v. U. S. Elec. Lighting Co.,
17 App. D. C. 356.

61. Meyer v. Town of Boonville,
162 Ind. 165, 70 N. E. 146.

62. Sheehy v. Clausen, 26 Misc. (N.
Y.) 269, 55 N. Y. Supp. 100.

63. Hester v. Town of Greenwood,
172 Ind. 279, 88 N. E. 498.
304

Law or ELectricity.

CHAPTER XI.

FRANCHISES; GRANTS BY STATE.

Section 244. Franchises Emanate from Sovereign Power.
245. —— Permission of State Board.

246.

 

Franchise Granted by Constitution.

247. Statutes Giving General Right to Use of Highways.

248. —— Application of Such Statutes to City Streets.
249. ——-Grant Not to Incommode Public Use of Highway.
250. Statutes Giving Right along Streets.

251. Statutes Giving Right Outside of Municipality.
252. Legislative Grant Subject to Control of Municipal Officers; In

General.
253. —— Municipal Regulation of Poles and Wires.
254, —_- Municipal Designation of Location.

255. Special Charter Provisions in Particular Municipalities.
256. Legislative Grant Subject to Consent of Abutting Owner.

257. Grant by Court.

Sec. 244. Franchises Emanate from Sovereign Power.
Primarily the control of all highways within a state,
including the streets within the limits of municipal corpo-

rations, is lodged in the legislature of the state.

The legis-

lature may, however, delegate to municipalities the control
of such streets or highways as are within the municipal

bounds.

1, California——Western Union Teleg.
Co. v. Hopkins, 160 Cal. 106, 116
Pac. 557.

Illinois.— People v. Chicago -Telep.
Co., 245 Ill. 121, 91 N. E. 1065.

Indiana. Coverdale v. Edwards,
155 Ind. 374, 7 Am. Electl. Cas. 15,
58 N. E. 495. :

Iowa.— Chamberlain v. Iowa Telep.
Co., 119 Iowa 619, 8 Am. Electl. Cas.
11, 93 N. W. 596.

Kansas.— State v. Weber, 88 Kan.
175, 127 Pac. 536.

Michigan.—Horner v. City of Eaton
Rapids, 122 Mich. 117, 80 N. W. 1012,
6 Det. Leg. N. 665.

New Jersey.— State ex rel. Domes-
tic Teleg. & Telep. Co. v. City of

After a delegation of the control of streets to

Newark, 49 N. J. L. 344, 2 Am.
Elect]. Cas. 141, 8 Atl. 128.

New York.— Matter of New York
Elec. Lines Co., 201 N. Y. 321, 94
N. E. 1056; Barhite v. Home Telep.
Co., 50 N. Y. App. Div. 25, 7 Am.
Elect]. Cas. 75, 63 N. Y. Supp. 659.

Oregon.— City of Salem v. Anson,
40 Oreg. 339, 8 Am. Electl. Cas. 44,
67 Pac. 190, 56 L. R. A. 169, 91
Am. St. Rep. 485.

Texas.—City of Texarkana v.
Southwestern Teleg. & Telep. Co., 48
Tex. Civ. App. 16, 106 S. W. 915.

Wisconsin.— Allen v. Clausen, 114
Wis. 244, 90 N. W. 181.

“The paramount authority over
streets and highways is vested in the
FrancHises; Grants py STATE. 355
a municipality, the state may at any time resume its con-
trol, saving, of course, to third parties constitutional rights
duly acquired from the municipality while the latter had
control of the streets. The privilege of placing poles and
wires along the streets and highways and operating an
electric system or a telegraph or telephone system within
the boundaries of a state, whether within or without the
limits of a municipal corporation, is a privilege which is
granted only by the sovereign power. It may be that the
right to construct the system within a particular munici-
pality depends upon the will of such municipality; but,
if so, such a condition is merely the result of power dele-

legislature as the representative of
the entire people. It may, however,
delegate to municipial corporations
such a measure of its power as it
may deem expedient.” City of Salem
v. Anson, 40 Oreg. 339, 8 Am. Electl.
Cas. 44, 67 Pac. 190, 56 L. R, A. 169,
91 Am. St. Rep. 485.

“The control of the public high-
ways is in the State, and not in the
municipalities. Municipalities have
only such control over the streets
and highways as is conferred upon
them by the legislature, either by
express enactment or by necessary im-
plication.” Horner v. City of Eaton
Rapids, 122 Mich. 117, 80 N. W.
1012, 6 Det. Leg. N. 665.

Primarily the general assembly,
representing the people at large, ‘pos-
sesses full and paramount power over
all highways, streets, and alleys in
‘the state. In the distribution of gov-
ernmental powers it has, however,
delegated to municipalities the power
to regulate and control the use of the
streets and alleys within their re-
spective limits, and municipal author-
ities, when exercising the power thus
delegated, are acting in behalf of the
state for the benefit of the people.
People v. Chicago Telep. Co., 245 Ill.
121, 91 N. E. 1065.

“The control of streets, as well ag
of all other public highways, is pri-

marily in the legislature. But the
legislature has delegated* to munici-
palities the exclusive control of their
streets and. alleys.” Coverdale v. Ed-
wards, 155 Ind. 374, 7 Am. Electl.
Cas. 15, 58 N. E, 495.

A municipality has no property
right or title to the streets within
its boundaries. Their complete con-
trol is in the legislature, and if the
legislature chooses to authorize their
use for any public purpose, in the
absence of a constitutional provision,
the consent of the municipality is not
required. Village of Carthage v. Cen-
tral New York Telep. & Teleg. Co.,
48 Mise. (N. Y.) 423, 96 N. Y. Supp.
917; affirmed, 185 N. Y. 448, 78
N. E. 165, 113 Am. St. Rep. 932.

2. New England Teleg. & Telep. Co.
v. Boston Terminal Co., 182 Mass.
397, 8 Am. Elect]. Cas. 132, 65 N. E.
835.

A statute authorizing telephone
companies to use streets for their
wires and appliances, not interfering
injuriously with other public uses,
will not ‘be regarded as repealed or
modified by implication by a later
city charter which clothes the city
council with power to regulate or
prohibit, among other things, tele-
phone lines in streets. Michigan
Telep. Co. v. City of Benton Harbor,
121 Mich. 512, 7 Am. Electl. Cas. 9,
306 Law or Execrriciry.

gated by the sovereignty to such municipality. The fran-
chise emanates, either directly or indirectly, from the state.’
It may, in its discretion, reserve to itself the right to grant
franchises within municipalities or it may—as is more
frequently the case— delegate to local officials the power
of granting the privilege.*

Electric Plant Owned by Municipality Where a munici-
pality is authorized by the legislature to construct and
operate a plant for electric lighting, by necessary implica-
tion, it is vested with full authority to use the municipal
streets for that purpose.® :

Sec. 245. Franchises Emanate from Sovereign Power;
Permission of State Board.

As a general proposition electric franchises are granted

either by the legislative body or by municipal authorities,

80 N. W. 386, 6 Det. Leg. N. 566,
47 L, R. A. 104, 80 Am. St. Rep. 520.

3. California— California State
Teleg. Co. v. Alta Teleg. Co., 22 Cal.
398.

Illinois.— City of Springfield v.
Postal Teleg. Cable Co., 253 Ill. 346,
97 N. E. 672; People v. ‘Chicago
Telep. Co., 245 Ill. 121, 91 N. E.
1065; City of Chicago v. Chicago
Telep. Co., 230 Ill. 157, 82 N. E.
607, 13 L. R. A. (N. S.) 1084, 12
Ann. Cas. 109.

Maine.— Readfield Telep. & Teleg.
Co. v. Cyr, 95 Me. 287, 7 Am. Electl.
Cas. 820, 49 Atl. 1047.

New Jersey.— State ex rel. Domes-
tic Teleg. & Telep. Co. v. City of
Newark, 49 N. J. L. 344, 2 Am,
Elect]. Cas. 141, 8 Atl. 128.

Ohio.— State v. Central
Teleg. Co., 5 Ohio C. D. 311.

Oklahoma.— South McAlester-Eu-
faula Telep. Co. v. State, 25 Okla.
524, 106 Pac. 962.

Oregon.— City of Salem v. Anson,
40 Oreg. 339, 8 Am. Elect]. Cas. 44,
67 Pac. 190, 56 L. R. A. 169, 91 Am.
St. Rep. 485.

Union

Wisconsin— Allen v. Clausen, 114
Wis. 244, 90 N. W. 181.

“ The right to use the street by the
company for telephone purposes is a
franchise, and as such can only ema-
nate directly or indirectly from the
sovereign power of the State.” State
v. Central Union Telep. Co., 5 Ohio
C. D. 311: “That the highways of
the state are under the control of the
general state government, and that
the right to use the same for tele-
graphs, telephones, water pipes, or
street railways is by franchise ema-
nating from the state, is declared in
many of the foregoing decisions.” Al-
len v. Clausen, 114 Wis. 244, 90 N. W.
181.

4. “The authority to consent to
the use of the streets of a city by a
telephone company resides primarily
in the Legislature of the State, but
may be delegated to the municipality
directly concerned.” Southern Bell
Telep. & Teleg. Co. v. City of Mobile,
162 Fed. 523; affirmed, 174 Fed.
1020, 98 C. C. A. 663.

5. Neacy v. City of Milwaukee, 151
Wis. 504, 139 N. W. 409.
Francuises; Grants By Stats, 357

and no board or commission of the state government has
_any powers in connection therewith. The power of the
legislature to delegate to a state board or commission the
power of granting or withholding franchises may be ques-
tioned, but the legislature may provide that where one
electric company is permitted to operate within a munici-
pality, another may not be granted a franchise by such
municipality without first securing from a commission of
public utilities a declaration, after a public hearing of all
parties interested, that public convenience and necessity
require the second electric company.®

Sec. 246. Franchises Emanate from Sovereign Power;
Franchise Granted by Constitution.

Though the grant of a public utility franchise is gener-
ally a legislative matter, such a franchise may be the sub-
ject of a constitutional grant. For example, the Constitu-
tion of Califorma contains a provision providing that in
any city where there is no municipal water or lighting
plant, any one, subject to certain restrictions, may use the
city streets to lay. conduits for the service of the city and
its inhabitants." The franchise granted by such a con-
stitutional provision is not to be construed as an exclusive
right which would preclude a city, where a private plant
has been established, from establishing a municipal electric
light plant.* A constitutional provision which grants to any
person or corporation the right to construct and maintain
telegraph and telephone lines within the state and provides
that the legislature shall by general law enact reasonable
regulations to give full effect to such grant, is not self-
executing.» Not being self-executing, in the absence of
valid legislation on the subject, no person or corporation
can place its poles and wires in the public highways.° A

6. State v. Kenosha Elec. Ry. Co., 9. State v. City of Helena, 34

145 Wis. 337, 129 N. W. 600. Mont. 67, 85 Pac. 744; State v. City
7. Clark v. City of Los Angeles, of Spokane, 24 Wash. 53, 7 Am.
160 Cal. 30, 116 Pac. 722. Electl. Cas. 96, 63 Pac. 1116.

8. Clark v. City of Los Angeles, 10. State v. City of Helena, 34
160 Cal. 30, 116 Pac. 722. Mont. 67, 85 Pac. 744; State v. City
358 Law or ELEctricity.

legislative act pursuant to such a constitutional provision
must be not only a general act of uniform operation, but
one which gives full, not partial, effect to the constitutional
provision;“ and, if an act is passed which gives to any
person desirous of engaging in the telegraph, telephone,
electric light and power business the right to use the public
highways for their lines, but provides that the act shall
not apply to public roads and highways within the limits of
incorporated cities or towns, it has been held that the latter
clause is contrary to the constitution and void.”

Sec. 247. Statute Giving General Right to Use of High-
ways.

In many states, statutes have been passed giving to cer-
tain companies the right to construct and maintain lines
of poles and wires along the public highways. As a general
proposition, these statutes refer only to telegraph and
telephone companies.** But such statutes may apply to
electric companies, or similar statutes be passed giving to
such companies the privilege of using highways for elec-

of Spokane, 24 Wash. 53, 7 Am.
Electl. Cas. 96, 63 Pac. 1116.

11. State v. City of Helena, 34
Mont. 67, 85 Pac. 744,

12. State v. City of Helena, 34
Mont. 67, 85 Pac. 744.

13. Alabama.— Southern Bell Telep.
& Teleg. Co. v. City of Mobile, 162
Fed. 523; affirmed, 174 Fed. 1020, 98
C. C. A. 663 (construing the Ala-
bama statute).

California.—Postal Teleg. Cable Co.
v. City of ‘Los Angeles, 164 Cal. 156,
128 Pac. 19; Western Union Teleg.
Co. v. Hopkins, 160 Cal. 106, 116
Pac. 557; Sunset Telep. & Teleg. Co.
v. City of Pomona, 164 Fed. 561;
reversed on other grounds, 172 Fed.
829, 97 C. C. A. 251; reversed, 224
U. 8. 330, 32 S. Ct. 477, 56 L. Ed.
788 (construing California statute).

Iowa.— East Boyer Telep. Co. v.

Town of Vail, 136 N. W. 120; zevers-
ing 129 N. W. 298.

Kansas.— New Hope“Telep. Co. v.
City of Concordia, 81 Kan. 514, 106
Pace. 35; City of Wichita v. Missouri,
ete., Telep. Co., 70 Kan. 441, 78 Pac.
886, &

Michigan.— Michigan Telep. Co. v.
City of Benton Harbor, 121 Mich.
512, 7 Am. Electl. Cas. 9, 80 N. W.
386, 6 Det. Leg. N.'566, 47 L. R. A,
104, 80 Am. St. Rep. 520.

Minnesota.— City of Duluth v. Du-
luth Telep. Co., 84 Minn. 486, 8 Am.
Electl. Cas. 136,'87 N. W. 1127;
Northwestern Telep. Exch. Co. v. City
of Minneapolis, 81 Minn. 140, 7 Am.
Elect]. Cas. 168, 83 N. W. 527, 86
N. W. 69, 53 L. R.A, 175,

Montana.— State v. City of Red
Lodge, 30 Mont. 338, 76 Pac. 758.

Texas.— City of Brownwood v.
Francuises; Grants By State, 359
tric lines.* If the grant of a right to electric companies
contains no mention of telegraph or telephone companies,
the latter companies can acquire no rights under the stat-
ute. They may apply to foreign as well as domestic cor-
porations.° So far as statutes of this nature apply, no
other authority is required to enable the company to main-
tain its lines along such highways.” If applicable to mu-
nicipal streets** as well as rural highways, unless there is
special provision to the contrary, no franchise from munici-
pal officers is required.

Sec. 248. Statutes Giving General Right to Use of High-
ways; Application of Such Statutes to City Streets.
The term ‘‘ highways’’ or ‘‘ public roads,’’ as used in
statutes granting the right to maintain lines of poles and
wires along ways of the state, unless the statute or other
statutes indicate a contrary legislative intention, includes

both rural highways and city streets.’

Brown*Teleg. & Telep. Co., 157 S. W.
1163; People’s Home Telep. Co. v.
City of Gainesville, (Civ. App.) 141
S. W. 1044.

Wisconsin.— State v. City of She-
boygan, 111 Wis. 23, 7 Am. Electl.
Cas. 109, 86 N. W. 657.

The land of the state, though ap-
propriated to the use of a canal, may,
under Statute 124 of the Laws of
1880, be used by a telephone com-
pany; provided, the ordinary use of
the company does not interfere in any
manner, or in the least obstruct the
use of the State. State v. Cumber-
land Telep. & Teleg. Co., 52 “La. Ann.
1411, 27 So. 795.

14. State v. Weber, 88 Kan. 175,
127 Pac. 536.

An electric line may be maintained
on a rural highway of Kansas with-
out obtaining a franchise or special
license from any officer providing it

is done in a way that will not seri-.

ously’ impede or endanger public

travel or unnecessarily interfere with
the reasonable use of the highway by
other members of the public and there
is no invasion of the rights of the
owners of abutting ‘lands. State v.
Weber, 88 Kan. 175, 127 Pac. 536.

15. Alt v. State, 88 Neb. 259, 129
N. W. 432, 35 L. R. A. (N. S.) 1212.

16. State v. ‘City of Red Lodge, 30
Mont. 338, 76 Pac. 758.

17. State v. Weber, 88 Kan. 175,
127 Pac. 536.

18. § 248.

19. Alabama.—Southern Bell Telep.
& Teleg. Co. v. City of Mobile, 162
Fed. 523; affirmed, 174 Fed. 1020, 98
C. C. A. 663 (construing the Ala-
bama Statute). ;

California—Postal Teleg. Cable Co.
v. City of Los Angeles, 164 Cal. 156,
128 Pac. 19; Western Union Teleg.
Co. v. Hopkins, 160 Cal. 106, 116
Pac. 557; Sunset Telep. & Teleg. Co.
v. City of Pomona, 164 Fed. 561; re-
versed on other grounds, 172 Fed.
360

Law oF ELECTRICITY.

Contrary View.— Whether a municipal street is a ‘‘ high-
way’’ within the meaning of such statutes depends, of
course, upon the intention of the legislature as evinced by
the particular statute in question and other statutory
enactments. It is, therefore, natural that such statutes in
some states should receive a contrary construction, to the

829, 97 C. C. A. 251; reversed, 224
U. S. 330, 32 S. Ct. 477, 56 L. Ed.
788 (construing California statute).

Kansas.— New Hope Telep. Co. v.
City of Concordia, 81 Kan. 514, 106
Pac. 35; City of Wichita v. Mis-
souri, etc., Telep. Co., 70 Kan. 441,
78 Pac. 886.

Michigan.— Michigan Telep. Co. v.
City of Benton Harbor, 121 Mich.
512, 7 Am. Electl. Cas. 9, 80 N. W.
386, 6 Det. Leg. N. 566, 47 L. R, A.
104, 80 Am. St. Rep. 520.

Minnesota.— City of Duluth v. Du-
luth Telep. Co., 84 Minn. 486, 8 Am.
Electl. Cas. 136, 87 N. W. (1127;
Northwestern Telep. Exch. Co. v. City
of Minneapolis, 81 Minn. 140, 7 Am.
Elect]. Cas. 168, 83 N. W. 527, 86
N. W. 69, 53 L. R. A. 175.

Montana.— State v. City of Red
Lodge, 30 Mont. 338, 76 Pac. 758.

Texas.— City of Brownwood v.
Brown Teleg. & Telep. Co., 157 S. W.
1163; People’s Home Telep. Co. v.
City of Gainesville (Civ. App.) 141
S. W. 1044.

West Virginia—‘“We are aware
that some authorities make a distinc-
tion here between a street of a town
or city and a county road in the
country, but we see no sound reason
for the distinction.’ Lowther v.
Bridgeman, 57 W. Va. 306, 50 8. E,
410.

Wisconsin.— State v. City of She-
boygan, 111 Wis. 23, 7 Am. Electl.
Cas. 109, 86 N. W. 657.

“Section 4971 is to the effect that
in the construction of statutes the
word ‘highway’ may be construed

to include any road laid out by the
authority of any town, city, or vil-
lage. In view of the course of deci-
sions and the importance of the rights
involved, we see no good reason for
turning from the position tacitly as-
sumed in the cases noted. We there-
fore hold that the word ‘highway,’
as used in section 1778, covers the
streets and ways of w city, as well as
rural highways. We find support in
this conclusion in a recent case in
the Federal court, construing a some-
what similar statute of ‘Minnesota.
Abbott v. City of Duluth, (C. C.) 104
Fed. 833. <A still more recent and
extended discussion of the same stat-
ute by the Supreme Court of that
State may be found in Northwestern
Teleph. Exch. Co. v. City of Minne-
apolis, 86 N. W. 69, where the same
conclusion is reached. The right to
construct and maintain poles in city
streets is as ample and positive as
to build in the country highways, ex-
cept that it may be subject to stricter
police regulation, as will be more
fully discussed in a subsequent por-
tion of this opinion.” State v. City
of Sheboygan, 111 Wis. 23, 7 Am.
Electl. Cas. 109, 86 N. W. 657.

“ Telephone ” as a “ Telegraph.”—If
a statute giving rights to maintain
poles and wires along a public high-
way, by its express terms, applies
only to “telegraph” companies, it
may in some cases be construed as
granting rights to telephone com-
panies upon the theory that a “ tele-
phone” is a “telegraph.” See § 11.
FRANCHISES; Grants BY STATE, 361
effect that they are not applicable to municipal streets.”
In the same way, the term ‘‘ public roads ’’ has been con-
strued to refer only to rural roads outside of incorporated
municipalities.”

Sec. 249. Statutes Giving General Right to Use of High-
ways; Grant not to ‘‘Incommode’’ the Public Use of"
Highway.

In statutory provisions giving to persons or corporations
the right to maintain their poles and wires along the public
highways, it is customary to insert a clause that such lines
shall be located and maintained so as not to ‘‘ incommode ”’
the public use of the highway. The term ‘‘ incommode ’’
refers, not to the damages arising from the subsequent
transmission of power along the line, but to the incon-
veniences in the actual placing of the lines in the public
places.” Such a statute does not limit the size of the poles
to such as are absolutely necessary, but such poles may be
erected as are reasonably sufficient and properly adapted

for its business.”

20. East Boyer Telep. Co. v. Town
of Vail, (Iowa) 136 N. W. 120; re-
versing 129 N. W. 298. Contra,
State v. Nebraska Telep. Co., 127
Iowa 194, 103 N. W. 120; Chamber-
lain v. Iowa Telep. Co., 119 Iowa 619,
8 Am. Electl. Cas. 11, 93 N. W. 596.

21. Nebraska Telep. Co. v. Western
Ind. Long Dist. Telep. Co., 68 Neb.
772, 8 Am. Elect]. Cas. 32, 95 N. W.
18, wherein it was said: “The ques-
tion is one of legislative intent, that
is, did the Legislature use the term
“public roads’ in the most compre-
hensive sense, intending thereby to
include the streets and alleys of mu-
nicipal corporations, or did it use it
in the more restricted sense, intend-
ing to include only rural highways.
* * * Whatever may be the usage
in other jurisdictions, we think it is
safe to say that in this State the

If the poles are beyond the lawful size

term “public road” is commonly
understood and recognized to apply
exclusively to rural highways. It is
thus understood and used by the peo-
ple of the State generally, and it is
doubtful whether, in the ordinary
affairs of life and common conversa-
tion, it is ever used or understood to
convey the idea of a street or alley of
a city or village. This is a matter
of common knowledge, and of which
this court must take judicial notice.
There is nothing in the act itself, nor
in the legislative history of the State,
that suggests that the Legislature
used the term in any other sense than
that in which it is commonly used by
the people of the State.”

22. Toronto & Niagara Power Co.
v. Town of North Toronto, 24 Ont.
L. R. (Canada) 537.

23. People v. Metropolitan Telep.
362 Law or Eectriciry.

or so placed as to incommode the public, they constitute
a prepresture, and an equitable action for their restraint
may properly be brought in the name of the people.*
Whether the use of the highway operates to ‘‘ incommode ”’
the traveling public is a question which generally arises
only after injury to person or property has been caused
by reason of the presence of the appliance in proximity to
the used portion of the highway. Inconnection with inju-
ries so received, this question is further pursued.”

Sec. 250. Statutes Giving Right Along Streets.

In some jurisdictions the right is expressly given to cer-
tain corporations to run lines of poles and wires along
streets as well as highways.” This gives a right along
the streets of an incorporated village or city.”” The statute
may make a distinction between overhead wires and con-
duits; in the case of the latter it may require the consent
of municipal authorities as a prerequisite, though permit-
ting overhead wires without the consent of the local

officers.”*

& Teleg. Co., 31 Hun (N. Y.) 596, 1
Am. Elect]. Cas. 604, 11 Abb. N. C.
304, 64 How. Pr. 66.

24. People v. Metropolitan Telep.
& Teleg. Co., 31 Hun (N. Y.) 596, 1
Am. Electl. Cas. 604, 11 Abb. N. C.
304, 64 How. Pr. 66,

25. § 487.

26. State Line Telep. Co. v. Ellison,
121 N. Y. App. Div. 499, 106 N. Y.
Supp. 130.

Railroads.— Railroads are not
“public roads” within the meaning
of a statute granting the right to
maintain telegraph lines along “ pub-
lie roads.” New York City, etc. R.
Co. v. Central Union Teleg. Co., 21
Hun (N. Y.) 261, 1 Am. Electl. Cas.
315.

Highways connected with munici-
pal water supply.— A telephone com-
pany authorized by statute to con-
struct lines over or under any of the

To enter upon the public places of the munici-

public roads, streets or highways, is
entitled to erect its poles on high-
ways acquired by a municipality in
connection with its water supply,
without compensation to such munic-
ipality. State Line Telep. Co. v.
Ellison, 121 N. Y. App. Div. 499, 106
N. Y. Supp. 130.

27. Village of Carthage v. Central
New York Telep. & Teleg. Co., 185
N. Y. 448, 78 N. E. 165, 113 Am. St.
Rep. 932; New Union Telep. Co. v.
Marsh, 96 N. Y. App. Div. 122, 89
N. Y. Supp. 79; Barhite v. Home
Telep. Co., 50 N. Y. App. Div. 25, 7
Am. Electl. Cas. 75, 63 N. Y. Rupp.
659; Gannett v. Independent Telep.
Co. of Syracuse, 55 Misc. (N. Y.) 555,
106 N. Y. Supp. 3.

28. Matter of Independent Telep.
Co., 133 N. Y. App. Div. 635, 118 N. Y.
Supp. 290; affirmed on opinion below,
200 N. Y. 527, 93 N. E. 1126.
FRrancHises; Grants py State, 363
pality other than its streets; as, for example, its parks or
public squares, consent is not customarily given by the
general law, but must be obtained from the municipal
officers.”°

Sec. 251. Statutes Giving Right Outside of Municipalities.

In many jurisdictions, statutory provisions giving to
telephone or telegraph or other companies rights in the
public highways exclude from the operation thereof high-
ways within the limits of incorporated cities or villages.*°

By the same or other enactments, municipalities are em-
powered to grant franchises to such companies as to the
highways within their limits. As, in almost every case,
such a company is desirous of extending its lines into incor-
porated municipalities, it is readily seen that the statutory
grant is of doubtful value unless the company is able to
get the required permission of the municipal authorities.
But, having the municipal franchise, the statutory grant
operates as a supplement thereto, and enables the company
to extend its lines from one municipality to another.

Incorporation Subsequent to Placing of Poles.— Where
an electric company is authorized by statute to use the
public highways for its poles, but such statute provides
that no pole shall be erected in a street of an incorporated
city or town without designation by the city or town of
the street in which it shall be placed being first obtained,
and after the placing of poles upon a highway outside of
an incorporated city or village a new municipality is incor-
porated or an old municipality extended so that certain

29. Rochester Telep. Co. v. Ross,
125 N. Y. App. Div. 76, 109 N. Y.

phone companies, operating outside
of cities and towns, the free use of

Supp. 381; affirmed, 195 N. Y. 429,
88 N. E. 793; Wright v. Glen Telep.
Co., 48 Misc. (N. Y.) 192, 95 N. Y.
Supp. 101; affirmed, 112 N. Y. App.
Div. 745, 99 N. Y. Supp. 85.

80. State v. Cadwallader, 172 Ind.
619, 87 N. E. 644, 89 N. E. 319.

Gives no right to invade private
property.— A statute giving tele-

the highways and providing that they
shall not obstruct passage to and
from any premises, does not author-
ize such a company to invade private
property for the purpose of stretch-
ing wires over it. Majenica Telep.
Co. v. Rogers, 43 Ind. App. 306, 87
N. E. 165.

.
364 Law or ELEcTRICITY.

highways used by an electric company come within munici-
pal boundaries, the proviso in the. statute does not affect
poles placed in the highway before incorporation, but
others may not be so placed without the designation by the
local authorities." This doctrine is analogous to the right
of a municipal corporation to forbid the construction of
lines within its bounds, where the company originally had
a statutory grant to enter the municipality, but thereafter
the statute was amended so as to require a municipal fran-
chise for such entry.”

Sec. 252. Legislative Grant Subject to Control of Munici-
pal Officers; in General.

To a limited extent every franchise granted by the state
or by an agency thereof is subject to control by the munici-
pal corporation in which it is enjoyed. By virtue of the
police power inherent in every municipal corporation, it
may subject electric companies and telephone and tele-
graph companies to reasonable regulations as to the con-
struction and maintenance of their lines.** This section
does not treat of such regulation; nor does it discuss fran-
chises granted by municipalities. The subject of discus-
sion here is franchises which require for their granting the
combined action of the legislature and the municipality.
Constitutional or statutory provisions may require the con-
sent of a municipality as a prerequisite of the right to
maintain poles and wires therein.** The required consent,

81. Public Service Corp. v. Town
of Westfield, 80 N. J. Eq. 295, 84 Atl.
718. “As to the lines of poles al-
ready existing at the time of the
subsequent incorporation of a town
and their maintenance, such incorpo-
ration of the town is subject to the
previous location of the poles made
under direct legislative grant which
has been acted on, and as to these
the town has no power to revoke or
control the location.” Public Serv-
ice Corp. v. Town of Westfield, 80
N, J. Eq. 295, 84 Atl. 718.

32. § 266.

33. §§ 327-330.

34. City of Vermillion v. North-
western Telep. Exch. Co., 189 Fed.
289; Dakota Central Telep. Co. v.
City of Huron, 165 Fed. 226; Southern
Bell Telep. Co. v. City of Richmond,
103 Fed. 31, 7 Am. Elect]. Cas. 83,
44 C. C. A. 147; Wyandotte Elec.
L. Co. v. City of Wyandotte, 124
Mich. 43, 7 Am. Elect]. Cas. 43, 82
N. W. 821, 7 Det. Leg. N. 111; City
of Mitchell v. Dakota Cent. Telep.
Co., 25 S. Dak. 409, 127 N. W. 582;
Francuises; Grants py Sate, 365
even if indispensable, is not generally called a franchise;
it is a mere permit or license,** but if the company has
expended money on the faith of it, it may be a contract
right constitutionally protected.**

In Ohio, in the construction of an electric line or a tele-
graph or telephone line along the streets of a municipality,
the statute requires that the mode of the use shall be agreed
upon by the municipal authorities and the company; and,
if they cannot agree or if the municipal authorities unrea-
sonably delay to enter in to any agreement, the Probate
Court of the county, ina proceeding instituted for that pur-
pose, shall direct in what mode such line shall be con-
structed.*” While the municipal authorities have the power
to agree as to the mode of use of the streets, not beyond
what may be necessary to restore the streets to the former
state of usefulness, they have not the power to exact or
receive compensation by way of free telephone service or

to fix rates.**

State v. City of Spokane, 24 Wash.
53, 7 Am. Electl. Cas. 96, 63 Pac.
1116.

A Virginia statute (Code 1887,
1287-1290), which authorizes tele-
graph and telephone companies to
construct and maintain their lines
“along or over the streets of any
city or town with the assent of the
council thereof,” but does not define
the conditions of such occupation,
requires the municipal consent to
both construction and maintenance.
Southern Bell Telep. Co. v. City of
Richmond, 103 Fed. 31, 7 Am. Electl.
Cas. 83, 44 ©. C. A. 147.

85. Dakota Ceneral Telep. Co. v.
City of Huron, 165 Fed. 226.

“A franchise emanates from the
government or sovereign power, and
where a corporation is created by
law, with power to use the streets
of the city, upon the consent of the
city, under such conditions as may
be imposed, and by ordinance such

Where an agreement between a city and a

consent is prescribed or privilege
granted, the grant by the city is a
license and not a franchise. City of
Chicago v. Chicago Telep. Co., 230 Ill.
157, 82 N. E. 607, 13 L. R. A. (N. 8.)
1084, 12 Ann. Cas. 109.

36. § 199.

37. Farmer v. Columbiana County
Telep. Co., 72 Oh. St. 526, 74 N. E.
1078; Hauss Elec. L. P. Co. v. Jones
Bros. Elec. Co., 10 Ohio Dec. 709, 3
Am. Elect]. Cas. 75, 23 Week. Law
Bull. 137.

38. Farmer v. Columbiana County
Telep. Co., 72 Oh. St. 526, 74 N. E.
1078. “A telephone company gets its
right to go upon the streets, with its
poles, wires, etc., from the state (sec-
tions 3454 to 3471-8 inclusive), and
the power of the municipal authori-
ties in the premises is to agree upon,
not the right to use, but the mode of
use, and if no agreement as to mode
shall be made within a reasonable
time, the company may apply to the
366 Law or Eecrrictry..

telephone company as to the mode of use of its streets has
expired by limitation, the city cannot oust the company
from the use and occupancy of the streets until it is made
to appear that no agreement can be made, and that the com-
pany, after such failure to agree, delays unreasonably to
apply to the Probate Court to fix the mode of use as pre-
scribed by law.*® The municipality and the Probate Court
have concurrent power in the matter, and the municipality
can authorize a subsequent electric company to use the
poles of the former company only as to the poles authorized
by the municipality; permission to use the poles authorized
by the Probate Court must be obtained as prescribed by
its decree.*° The powers of the Probate Court are dis-
cussed in another section.

Sec. 253. Legislative Grant Subject to Control of Munici-

pal Officers; Municipal Regulation of Poles and Wires.
When authority is given by state statute to a public
service corporation to maintain its poles and wires in city

probate court, which court shall di-
rect in what mode the line shall be
constructed so as not to incommode
the public in the use of the streets,
ete. In other words, municipal au-
thorities may do what the probate
court may do when a proper case is
presented, and no other or different
thing. One is a substitute in all re-
spects for the other. Beyond this, the
municipality is not permitted to de-
mand or receive any compensation be-
yond what may be necessary to re-
store the streets to their former state
of usefulness. In short, the right of
the public to the free use of the
streets, alleys, etc., is to be main-
tained and the general duty of the
municipal authorities to keep the
streets, etc., open, in repair and free
from nuisance is to be performed.
It follows that the council had no
power to make an effective arrange-
ment ag to rates.” Farmer v. Colum-

biana County Telep. Co., 72 Ohio St.
526, 74 N. E. 1078.

Fixing rates—A city cannot, in
making an agreement as to the mode
of use of its streets, fix the rentals to
be charged the patrons of a telephone
company for the use of its instru-
ments; and a refusal by the telephone
company to assent to such agreement
is justifiable; such an illegal exac-
tion the city cannot lawfully insist
upon; therefore the refusal of the
telephone company to assent thereto,
is not a failure to agree within the
intent of the statute. State v. Cen-
tral Union Telep. Co., 14 Ohio Cir.
Ct. 273, 7 O. C. D. 536.

39. State v. Central Union Telep.
Co., 14 Oh. Cir. Ct. 273, 7 0. C. D. 536.

40. Hauss Elec. L. P. Co. v. Jones
Bros. Elee. Co., 10 Ohio Dec. 709, 3
Am. Electl. Cas. 75, 23 Week. Law
Bull. 137.

41. § 257,
Franouises; Grants sy Srarte, 367
streets, the police power of regulation lodged in a munici-
pal corporation” does not authorize the municipal authori-
ties to require its consent to the maintenance of such poles
or wires in the streets.** The same result is reached where
the right to maintain the lines in the municipality is
expressly made subject to such regulations and restrictions
as may be imposed by the corporate authorities of the
municipality; the municipality under such a provision
cannot require its consent to the maintenance of the
appliances.**

Sec. 254. Legislative Grant Subject to Control of Munici-
pal Officers; Municipal Designation of Location.

In some states, the right is granted to electric or other
corporations to run lines of wires along streets within
municipal boundaries, but the duty is imposed on, or the
power granted to, the local officers to designate the par-

ticular location thereof.*

42. § 327.

43. Michigan Telep. Co. v. City of
Benton Harbor, 121 Mich. 512, 7 Am.
Electl. Cas. 9, 80 N. W. 386, 6 Det.
Leg. N. 566, 47 L. R. A. 104, 80 Am.
St. Rep. 520; City of Duluth v. Du-
luth Telep. Co., 84 Minn. 486, 8 Am.
Electl. Cas. 136, 87 N. W. 1127.

44, City of Wichita v. Old Colony
T. Co., 132 Fed. 641, 66 C. C. A. 19;
State v. City of Red Lodge, 30 Mont.
338, 76 Pac. 758; New York & New
Jersey Telep. Co. v. Borough of Bound
Brook, 66 N. J. L. 168, 7 Am. Electl.
Cas. 65, 48 Atl. 1022; Inhabitants of
Summit Tp. v. New York & New Jer-
sey Telep. Co., 57 N. J. Eq. 123, 7 Am.
Electl. Cas. 58, 41 Atl. 146; Village
of Carthage v. Central New York
Telep. & Teleg. Co., 185 N. Y. 448,
78 N. E, 165, 113 Am. St. Rep. 932;
Barhite v. Home Telep. Co., 50 N. Y.
App. Div. 25, 7 Am. Electl. Cas. 75,
63 N. Y. Supp. 659; Bishop v. Rid-
dle, 51 Tex. Civ. App. 317, 113 S. W.

If such is the condition of stat-

151; City of Texarkana v. Southwest-
ern Teleg. & Telep. Co., 48 Tex. Civ.
App. 16, 106 S. W. 915.

45. Stringing of wires only.—
Where only the stringing of wires
is required, the ordinance designating
the streets need not specify the erec-
tion of poles. Inhabitants of East
Orange Tp. v. Suburban Elec. L. & P.
Co., 59 N. J. Eq. 563, 7 Am. Elect.
Cas. 37, 44 Atl 628. ‘Where the
poles are erected upon private prop-
erty and the company proposes to
use the highways only for stringing
wires across the same, the provision
Telative to designation has no appli-
cation. American Union Teleg. Co.
v. Town of Harrison, 31 N. J. Eq.
627, 1 Am. Elect]. Cas. 291.

Local system of lines.— It has been
held in New Jersey that the duty
imposed upon municipal bodies by the
act of April 27, 1888, to designate
the streets and highways on which a
telegraph or telephone line may be
368

Law oF Evecrricity.

ute law, the company generally has no right to enter upon
the municipal streets until the proper designation is made
by the municipal officials charged with that power or duty.**
In such cases there seems to be a dispute whether the mak-
ing of a designation is a duty which the officers of the city
or village may be required to perform,*’ or whether it is
a power vested in the municipality, the performance of

constructed, exists only for the con-
struction of such line through the
municipality, and does not arise with
respect to the construction of a local
system of lines within the munici-
pality. Home Telep. Co. v. Common
Council of New Brunswick, 62 N. J.
L. 172, 40 Atl. 628.

46. Myers v. Hudson Co. Elec. Co.,
63 N. J. L. 573, 44 Atl. 713.

A telephone company is forbidden
by statute in New Jersey to erect
poles in the streets of incorporated
towns without first obtaining from
the municipal authorities direction as
to the location and manner of erec-
tion. There being doubt as to
whether the defendant was an incor-
porated town, and so as to whether
said statute would apply, held, that
the authorities would not be re-
strained by preliminary injunction
from removing telephone poles erected
without designation. New York &
New Jersey Telep. Co. v. East Orange
Tp., 42 N. J. Eq. 490, 2 Am. Elect.
Cas. 138, 8 Atl. 289.

Application of statute to boroughs.
— The proviso of a statute declaring
that no poles shall be erected in any
city or town without first obtaining
a designation of the street in which
the same may be placed, and the
manner of placing the same, does not
extend to boroughs. Point Pleasant
Elec. L. & P. Co., 62 N. J. Eq. 296,
8 Am. Elect!. Cas. 230, 49 Atl. 1108.

47. State v. City of Red Lodge, 30
Mont. 338, 76 Pac. 758; Public Serv-
ice Corp. v. Town of Westfield, 80

N. J. Eq. 295, 84 Atl. 718; New York
& New Jersey Telep. Co. v. Borough
of Bound Brook, 66 N. J. L. 168, 7
Am. Elect]. Cas. 65 48 Atl. 1022.

“No company should undertake to
enter a city and erect poles and string
wires over or along streets, alleys or
public grounds without making appli-
cation and a proper effort to procure
the passage of an ordinance defining
the manner and place of construction
of the contemplated lines. Such an
application the council may not deny.
It may regulate, but not exclude.
The city may prescribe terms and
conditions upon which the right
granted by the state shall be exer-
cised, but it has no power to annul
the right granted by the higher au-
thority.” New Hope Telep. Co. v.
City of Concordia, 81 Kan. 514, 106
Pac. 35.

Matter of right— Under the stat-
utes of this state, relating to tele-
phone companies, such a company
operating or desiring to construct a
through line is entitled to a designa-
tion by the governing body of a mu-
nicipality, of a route for its poles
and wires and the manner of placing
the same, as a matter of right. Hud-
son & M. Telep. & Teleg. Co. v. Lin-
den Tp., 80 N. J. L. 158, 76 Atl.
444,

It is the duty of a telephone com-
pany contemplating the exercise of
the right granted by the state to ask
the mayor and council to prescribe
reasonable regulations for the exer-
cise of the right before placing any
FRANCHISES; GRANTS BY STATE, 369
which is a matter of choice.** In the latter alternative, it
may exclude a company from its streets; and its consent
to entry, therefore, practically amounts to a franchise.
As to electric companies, there are substantial reasons, in-
applicable to other companies, why such provisions should
give the municipality an arbitrary right of exclusion.”
The danger of the current to the inhabitants and travelers
upon the highway, the possible municipal liability there-
from, and the circumstance that electric companies do not
generally operate beyond the bounds of a single munici-
pality, afford substantial reasons for giving such mu-

of their poles and structures on the
streets and other public grounds of
the city; but if the mayor and coun-
cil refuse to prescribe such regula-
tions upon application the company
may build ita lines upon the streets
and alleys so occupied, and the city
authorities are not at liberty to treat
the structures so erected as a nui-
sance. New Hope Telep. Co. v. City
of Concordia, 81 Kan. 514, 106 Pace.
35.

48. Suburban L. & P. Co. v. Alder-
men of City of Boston, 153 Mass. 200,
3 Am. Electl. Cas. 80, 26 N. E. 447,
10 L. R. A. 497.

Under statutes (1) permitting tele-
graph companies to erect and main-
tain their lines upon highways in
such manner as not to incommode the
public use; (2) providing that the
authorities of a place through which
telegraph lines are to pass shall make
a written designation of locations and
kind of poles and wires; and (3) a
later statute extending the same pro-
visions to electric lighting companies
“so far as applicable.” Held, that
the word “shall” is not mandatory,
at least as to electric light com-
panies; that a board of aldermen have
diseretionary power, even to the ex-
tent of withholding any designation
whatever for electric light fixtures.
Suburban L. & P. Co. v. Aldermen of

24

City of Boston, 153 Mass. 200, 3 Am.
Elect]. Cas. 80, 26 N. E. 447, 10
L. R. A. 497.

49. “It can not, we think, be in-
ferred, as the plaintiff urges, that
it was intended that it was not to be.
in the power of local boards to de-
feat the operation of electric lighting
companies, the organization of which
was authorized by statute. When we
observe how many considerations, so
far as the public is concerned, enter
into the question whether the streets
shall be used for electric lighting com-
panies of a local character, the lia-
bilities of the cities or towns which
may be involved, the danger to their
inhabitants and to travelers, the other
demands for the use of the streets,
the necessity or otherwise of any
use of the streets by any such com-
panies, the expenses which must be
incurred, the character for responsi-
bility of the particular company peti-
tioning, it is not readily supposable
that in regard to companies whose
operations were confined to a single
town all that was intended to be left
to the board of aldermen or select-
men were questions of detail only.”
Suburban Light & P. Co. v. Board of
Aldermen, 153 Mass. 200, 3 Am.
Elect]. Cas. 80, 26 N. E. 447, 10
L, R. A. 497%.
370 Law oF BELEcTRICITY.

nicipality the absolute right to determine what electric
companies shall operate therein.

Revocation of Designation— A designation duly made
may not be revoked by the municipal authorities, where
the company has conformed to the conditions upon which
the designation was made, and has expended money in
placing poles upon the designated streets.*° The designa-
tion is an essential ingredient of the franchise and seems
to be protected against impairment to the same extent as
the franchise, as a whole, is protected.

Public Lighting.— Whether the statute requiring a desig-
nation of the location for the poles applies to poles used
in public lighting as well as those used in private lighting,
depends upon the construction to be given the particular
statute. In New Jersey, a statute of this nature has been
construed as applicable to the erection of poles for private
lighting, but not requiring such designation for poles used

in public lighting.”

Designation of Streets or Location of Appliances.— It
seems that a statute of the nature discussed in this section

50. Hudson Telep. Co. v. Jersey
City, 49 N. J. L. 303, 2 Am. Electl.
Cas. 133, 8 Atl. 123, wherein it was
said: “I am of the opinion that,
as a general rule, a designation of
streets by a city gives the company
an irrevocable right to use the streets
so designated for the purposes indi-
cated in the statute. Certainly, after
the expenditure of money in the erec-
tion of poles made in reliance upon
the municipal designation, the com-
pany obtains a vested right of which
they cannot be stripped by a subse-
quent revocation of such designation.
The notion that a corporation which
under provisions similar to the pres-
ent act has, upon the strength of a
permission to use a certain route,
spent thousands of dollars in laying
railway tracks or subterranean cables,
or in erecting posts and stretching

wires, is at the mercy of the city
authorities continually and entirely,
is not to be entertained for a mo-
ment.”

51. Taylor v. Public Service Cor-
poration of New Jersey, 75 N. J. Eq.
371, 73 Atl. 118; affirmed, 78 N. J.
Eq. 300, 81 Atl. 1134; Myers v. Hud-
son Co. Elec. Co., 63 N. J. L. 573, 44
Atl. 713; reversing 60 N. J. L. 350,
7 Am. Electl. Cas. 49, 37 Atl. 613.
“Tf, therefore, the defendants, by vir-
tue of their contract and the proceed-
ings of the municipality, had a right,
as against the municipality, to erect
these poles for the purposes of public
lighting, the complainant, or any
landowner similarly situated, could
not prevent the placing of the poles,
or their being used, for the purposes
of public lighting. But if the com-
pany was in this position, and used
FRANCHISES; Grants BY STaTE. 371
may, by language quite similar, refer either to a designa-
tion of the streets or a designation of the particular loca-
tion in the streets where poles and wires are to be erected.
Under the statute of some jurisdictions, the designation is
sufficient if it refers to the streets which the company may
enter without attempting to describe in greater detail the
location of its fixtures.” In other jurisdictions the statute
is construed to require a designation of the places where
poles may be erected; and, in such jurisdictions a designa-
tion merely of streets is without force.

Court Designation upon Failure of Municipality to Act.—
It has been held that a delegation by the legislature to a
court to designate a route for a telephone line through a
municipality, in case the municipal authorities do not upon
application make the designation within fifty days, is im-

the poles for stringing wires for pri-
vate lighting, the landowner, with re-
spect to whose land no consent in
writing had been given, had the right,
by ejectment or by resort to equity,
to restrain such misuse.” Taylor v.
Public Service Corporation of New
Jersey, 75 N. J. Eq. 371, 73 Atl. 118;
affirmed, 78 N. J. Eq. 300, 81 AtL
1134.

52. Myers v. Hudson Co. Elec. Co.,
63 N. J. L. 573, 44 Atl. 713; reversing
60 N. J. L. 350, 7 Am. Electl. Cas
49, 37 Atl. 618; State v. City of
Bayonne, 59 N. J. L. 101, 6 Am.
Electl. Cas. 118, 34 Atl. 1080.

It is not necessary for a common
council, in designating the several
streets through which a telephone
company shall construct its line, to
specify the precise place in the street
where each pole shall be located.
State v. City of Bayonne, 59 N. J. L.
101, 6 Am. Electl. Cas. 118, 34 Atl.
1080.

Such designation must be of a rea-
sonably practicable route, and is not
legally made when the prescribed
route is already so occupied by other

poles and wires as substantially to
prohibit any further erections of that
character. A township has no right
to designate for such route a county
road over which it has no control.
Hudson & M. Telep. & Teleg. Co. v.
Linden Tp., 80 N. J. L. 158, 76 Atl.
444,

53. Designation of streets— The
statute contemplates the designation
of particular places in the streets,
not the designation of streets, and
mandamus will not lie to compel the
municipality to designate the streets,
avenues and alleys upon which a tele-
phone company may place its neces-
sary appliances. State v. City of Red
Lodge, 33 Mont. 345, 83 Pac. 642,
wherein the court said: “The term
‘designate’ is defined as follows:
‘To mark out and make known; to
point out, to name; to indicate; to
show; to distinguish by mark or de-
scription; to specify; to call by a
distinctive title; to indicate or set
apart for a purpose or duty.’ (Web-
ster’s International Dictionary). Now,
what would this company have the
city of Red Lodge do? Name its
372 Law or ELEctRIciIty.

proper and void.* But such a statute would probably be
sustained in Ohio, where it is held proper to permit electric
and other companies to use municipal streets upon agree-
ment with the municipality as to the ‘‘ mode of use,’’ and
in case of failure to agree as to such use, the Probate Court
shall direct in what mode their lines shall be constructed.”

Location Pursuant to Designation is Proper Location.—
When the municipal authorities have duly made the desig-
nation required by the statute and the poles and wires are
located in accord with the designation, it has been held that
the designation is conclusive on the rightfulness of the
erection of the lines, so far as the removal thereof by the
municipality or its officers or their treatment as a public
nuisance is concerned.* This doctrine assumes that the
company is one entitled to have a designation under the
statute; if the contrary is the case, the poles and wires may
be a nuisance.”

Imposition of Conditions upon Designation.— Under a
statute authorizing a municipality, in certain cases, upon
designating the streets to be used for a through telephone
line, to make the designation subject to such police and
other regulations and restrictions as may be deemed for
the best interests of such municipality, the following re-
quirements are not justified: (a) That the original con-
sents of property owners be filed with the map of the route;
(b) that a bond be given for the performance of the require-

streets? Point out their boundaries? But the city cannot be coerced into

Or furnish an officer to show the
agents of the company where a par-
ticular street or alley is located?
Or would it have the city give it
permission to do business? How-
ever convenient it might be to have
these things done, the city does not
owe this company the duty of doing
any of them. * * * Had _ the
company asked the city to designate
places in the streets, alleys and ave-
nues where its poles, abutments, etc.,
might be placed, we must presume
that the city would have complied.

doing an idle thing; for had it fully
complied with the demand pleaded in
the petition, the telephone company
would have been no better off than
before.”

54. New York & New Jersey Telep.
Co. v. Borough of Bound Brook, 66
N. J. L. 168, 7 Am. Electl. Cas. 65,
48 Atl. 1022.

55. § 252.

56. Commonwealth v. City of Bos-
ton, 97 Mass. 555.

57. Commonwealth v. City of Bos-
ton, 97 Mass. 555. See also, § 430.
FrancHises; Grants By STATE. 373
ments imposed by the municipality; (c) prohibiting the
sale or transfer or rental to other parties without permis-
sion; (d) that municipal fire and police wires be carried
on the poles free of charge; (e) that ownership of poles
and wires shall vest in the municipality in case of abandon-
ment or non-user. But reasonable provisions for removal
of poles and wires in such last case, and for temporary
removal to permit moving of houses, and forbidding trim-
ming of trees without consent, are unobjectionable.*

Sec. 255. Special Charter Provisions in Particular Munici-
palities.

Even where general statutes purport to give the right to
electric or telephone or telegraph companies to maintain
their poles and wires without the consent of municipalities
of the state, special provisions in city or village charters
may give such municipalities greater rights than are
enjoyed by others.” Hence it may be that a municipal
franchise is essential to a corporation desirous of extend-
ing its lines within a particular municipality, though it
may enter other municipalities in the same state against
the will of the local authorities. Special and local laws are
not deemed to be repealed by general legislation unless the
intent to do soisclear. Therefore it is not generally mate-
rial that the general act was passed or reénacted subse-
quent to the approval of the municipal charter.

Sec. 256. Legislative Grant Subject to Consent of Abut-
ting Owners.

If the operation of an electric or telegraph or telephone
along a street highway constitutes an additional servitude
upon the land of abutting owners—a question which is
discussed in another place**—the line may not be so main-

58. Hudson & M. Telep. & Teleg.
Co. v. Linden Tp., 80 N. J. L. 158,
76 Atl. 444.

59. Matter of Independent Telep.

" Co. 1833 N. Y. App. Div. 635, 118

N. Y. Supp. 290; affirmed on opinion
below, 200 N. Y. 527, 93 N. E, 1126,

See also, City of Wichita v. Old Col-
ony T. Co., 132 Fed. 641, 66 C. C. A.
19.

60. City of Jamestown v. Home
Telep. Co., 125 N. Y. App. Div. 1, 109
N. Y. Supp. 297.

61. §§ 277 et seq.
374 Law or ELectricity.

tained without the consent of such abutting owner or the
condemnation of his rights. But in at least one jurisdic-
tion, regardless of whether the use of the highway consti-
tutes an additional servitude, the right to construct and
maintain a line of poles and wires is, by statute, made to
depend on the consent of the adjoining owners.” The
franchise to use the highway is granted by the state, but
the company is required to obtain the written consent of
the abutting owners before entering upon the highway. If
a company erects or threatens to erect a line along the
highway without the procurement of the abutting owner’s
consent or the condemnation of his rights, he may have an
injunction restraining the erection of other poles and re-

straining the maintenance of those already erected.®

62. Blanchard v. Eastern Pennsyl-
vania P. Co., 80 N. J. Eq. 10, 83
Atl. 505; Point Pleasant Elec. L. & P.
Co. v. Borough of Bay Head, 62 N. J.
Eq. 296, 8 Am. Electl. Cas. 230, 49
Atl. 1108; Broome v. New York &
New Jersey Telep. Co., 42 N. J. Eq.
141, 2 Am. Electl. Cas. 259, 7 Atl.
851; State v. City of Bayonne, 59
N. J. L. 101, 6 Am. Electl. Cas. 118,
34 Atl. 1080.

In Connecticut, a statute provided
that no electric wires or fixtures
should be erected on or over any
highway, without the consent of the
adjoining proprietors or of two of
the county commissioners, and an-
other statute provided that the com-
mon council of any city should have,
subject to the provisions of the for-
mer statute, full direction and con-
trol over the location and erection
of such wires and fixtures in the
city, with the right to make all orders
necessary to the exercise of such con-
trol; and it was held that the con-
sent of the adjoining proprietors was
not a condition precedent to the exer-
cise of the power of control vested in
the common council. Norwalk, etc.,

Elec. L. Co. v. South Norwalk, 71
Conn. 381, 42 Atl. 82.

Applies to private lighting only.—
The statutes of New Jersey relative
to the consents of abutting owners
for the construction of an electric
line along a highway apply to lines
used for private lighting, but not to
lines used for public lighting. Myers
v. Hudson Co. Elec. Co., 63 N. J. L.
575, 44 Atl. 713.

Acts of common council.—“ The
Legislature itself has declared that
no telephone pole shall be erected in
any of the streets or highways of this
State except with the written consent
of the owner of the soil. Revision,
p. 1175, § 8. Any attempt on the
part of a common council to modify
this condition imposed by the Legis-
lature would be void, and a reitera-
tion of it by ordinance would be en-
tirely without force.” State v. City
of Bayonne, 59 N. J. L. 101, 6 Am.
Elect]. Cas. 118, 34 Atl. 1080.

68. Broome v. New York & New
Jersey Telep. Co., 42 N. J. Eq. 141,
2 Am. Elect]. Cas. 259, 7 Atl. 851.
See also, Blanchard v. Eastern Penn-
sylvania P. Co., 80 N. J. Eq. 10, 83
Atl. 505,
Francuises; Grants By STATE. 375

Sec. 257. Grant by Court.

As a general proposition, the granting of franchises is
a legislative matter, exercised directly by the legislature
or indirectly by legislative agencies; and the courts have
no power in the granting of such franchises except to
determine the validity or construction of the legislative
acts.** In New Jersey the courts have gone so far as to
hold that the legislature cannot delegate to the Circuit
Court the power to designate a route for a telephone line
through a municipality in case the municipal authorities
do not, upon application, make the designation within fifty
days. But, in Ohio, it is held that Probate Courts may
properly be given the right to prescribe the ‘‘ mode of
use ’’ of municipal streets, where the company wishing to
maintain lines of poles and wires thereon and the munici-

pality fail to agree as to such ‘‘ mode of use.’’ *

64, City of Salem v. Anson, 40
Oreg. 339, 8 Am. Elect]. Cas. 44, 67

Pac. 190, 56 L. R. A. 169, 91 Am.

St. Rep. 485.

65. New York & New Jersey Telep.
‘Co. v. Borough of Bound Brook, 66
N. J. L. 168, 7 Am. Electl. Cas. 65,
48 Atl. 1022.

66. City of Zanesville v. Zanes-
ville Teleg. & Telep. Co., 64 Oh. St.
67, 59 N. E. 781, 52 L. R. A. 150, 83
Am, St. Rep. 725. See also, § 252.

While all the streets of a munici-
pality may be subjected to the use of
telephone lines by the probate court
under favor of Lan. R. L. 5587 (RB. 8.
3461), nevertheless the statute does
not contemplate that the court shall
make general regulations as to all
the streets, but on the contrary each
street must be separately taken into
consideration, and a definite order
made with respect to its particular
use. The judgment of the court must
be a judicial determination according
to established rules and practice, and
not a general grant as to the use of
all the streets, because the latter

Under

would be legislative in character, and
beyond the constitutional power of
the court. Queen City Telep. Co. v.
City of Cincinnati, 27 Oh. Cir. Ct. R.
385; affirmed, 73 Oh. St. 64, 76 N. E.
392.

Conduits.— The statutes of Ohio do
not confer power on the Probate
Court to grant to a telephone com-
pany the right to put its wires and
apparatus in conduits under the
streets of a city in the absence of
consent by the municipal authorities.
Queen City Telep. Co. v. City of Cin-
cinnati, 73 Oh. St. 64, 76 N. E. 392,

Proof of incorporation.— In an ac-
tion in the probate court by a tele-
phone company against a city asking
that the court direct in what mode
plaintiff may construct its telephone
line along the streets of such city, it
is incumbent upon the company, as
an incident to action by the court in
its favor, to prove its incorporation
according to law, including the due
and legal election of directors; and,
upon a plea of the general issue of
the defendant, the burden is upon the
376 Law or Execrriciry.

the Ohio statute the court may not prescribe or determine
the rates which the inhabitants shall pay for service.” A
provision in the decree fixing the rate for service is void,
and the company is not estopped to assert its invalidity.”
In other jurisdictions the courts are empowered to grant
the use of highways for telephone purposes. ‘Thus, in
West Virginia, the county courts may consent to the placing
of poles and wires by telephone companies or individuals
along country roads. In Kentucky the county courts have
no jurisdiction” to grant permits to telephone companies
to construct their poles and wires along the public high-
ways, but application for such permits may be made to the

fiseal courts.”

company to establish such claim.
Queen City Telep. Co. v. City of Cin-
cinnati, 73 Oh. St. 64, 76 N. HE. 392.

A petition in such case which shows
no specific questions of difference be-
tween the corporation and the mu-
nicipal authorities, but alleges only
in that behalf that they have failed
to agree on the mode of use of the
streets, and prays for a general judg-
ment directing in what mode the
plaintiff may construct its telephone
lines along the streets, does not state
facts justifying any order or judg-
ment in its favor. Queen City Telep.
Co. v. City of Cincinnati, 73 Oh. St.
64, 76 N. E. 392.

67. Farmer v. Columbiana County
Telep. Co., 72 Oh. St. 526, 74 N. E.
1078; City of Toledo v. Home Telep.
Co., 72 Oh. St. 60, 74 N. E. 162.

68. City of Toledo v. Home Telep.
Co., 72 Oh. St. 60, 74 N. E, 162,

69. Lowther v. Bridgeman, 57
W. Va. 306, 50 S. E. 410.

70. Bevis v. Vanceburg Telep. Co.,
121 Ky. 177, 28 Ky. Law Rep. 142,
89 S. W. 126.

71. Jackson-Hazard Telep. Co. v.
Holliday’s Adm’r, 143 Ky. 149, 136
5. W. 135; Bevis v. Vanceburg Telep.
Co., 121 Ky. 177, 28 Ky. Law Rep.
142, 89 S. W. 126.
Francuises; Municipan Grants. 317

CHAPTER XII.
FRANCHISES; MUNICIPAL GRANTS.

SEcTION 258. Scope of Discussion.
259. Grant of Franchise, a Legislative, Not Proprietary Act.
260. Right to Grant Depends upon Delegation of Sovereign Power;

in Géneral.
261. —— What Constitutes Delegation of Power.
262. ——- Municipal Power Subject to Consent of Abutting Owners.
263. —— ‘Subsequent Grant of Authority as Ratification of Prior
Grant.

 

264, Modern Tendency of “ Home Rule.”

265. Grant to Corporation Not Organized.

266. Power Conferred on Municipality after Acceptance by Company
of Statutory Grant.

267. Effect of Annexation of One Municipality to Another.

268. Necessity of Designating Location of Poles.

269. Body or Officials Authorized to Make Grant.

270. —— Delegation by Municipality.

271. Procedure for Granting Franchise; in General.

272. —— Sufficiency of Resolution.

273. —— Approval of Board of Estimate.
274. —— Approval of Inhabitants.

275. ——Sale of Franchise.

276. Proof of Franchise.

Sec. 258. Scope of Discussion.

In the chapters immediately preceding, the subject of
franchises empowering public service corporations to
maintain their structures and appliances in public high-
ways is discussed. It will be noted that Chapter X includes
general principles relating to all franchise grants, both
those from the state and those from municipal divisions
thereof. Chapter XI covers those questions which arise
with reference to grants by the state. This chapter, on
the other hand, treats of the problems arising out of mu-
nicipal grants.

Sec. 259. Grant of Franchise, a Legislative, not Proprie-
tary Act.

Although the acts of a municipality in engaging in the

municipal ownership of an electric plant, or in contracting
.

378 Law oF ELEcTRICITY.

for a supply of electricity, are performed in its proprie-
tary capacity and not in its governmental or legislative
capacity, the reverse is true of its acts in granting fran-
chises to electric and other public service corporations for
the use of the municipal streets. The granting of an elec-
tric or telephone or telegraph franchise is made by virtue
of legislative powers delegated by the sovereignty to the
municipality.2 From its legislative character, it follows,
as has been held, that the franchise may not be attacked
collaterally,? and it is in effect a grant from the state, the
right of recall of which may not be waived by the municipal
officials. An ordinance requiring the removal of poles
and wires of an electric company has, likewise, been con-
sidered as legislative in character.» Where, however, a
municipality constructs a bridge for the use of its citizens
—an act in its proprietary capacity — permission subse-
quently given to an electric company to maintain high
tension wires upon the same has been considered an act in

its proprietary capacity.°

1. § 127.

2. People v. Chicago Telep. Co.,
245 Ill, 121, 91 N. E. 1065; State ex
rel. City of St. Louis v. Light &
Devel. Co. of St. Louis, 246 Mo. 618,
152 8. W. 67; Consumers’ Gas & Elec.
L. Co. v. Congress Spring Co., 61 Hun
(N. Y.) 133, 3 Am. Electl. Cas. 211,
15 N. Y. Supp. 624, 39 N. Y. St. Rep.
703; State v. Milwaukee Independ-
ent Telep. Co., 133 Wis. 588, 114
N. W. 108, 315.

3. Consumers’ Gas & Elec. L. Co.
v. Congress Spring Co, 61 Hun
(N. Y.) 133, 3 Am. Elect]. Cas. 211,
15 N. Y. Supp. 624, 39 N. Y. St. Rep.
703.

4, State ex rel. City of St. Louis
v. Light & Devel. Co. of St. Louis,
246 Mo. 618, 152 S. W. 67.

5. Greenville Gas, Elec. L., P. &
Fuel Co, v. City of Greenville, 165
Mich, 135, 130 N. W. 333, 18 Det.
Leg. N. 26.

4. Hoppe v. City of Winona, 113

The same conclusion has been

Minn. 252, 129 N. W. 577, 33 L. R.A.
(N..8.) 449, (1912 A) Ann. Cas. 247,
wherein the court said: ‘We shall
not attempt to mark the line be-
tween governmental and municipal.
functions. The former concern the
administration of the law by an
agency of the state government; the
latter, the internal affairs of the
municipality. And whether the
bridge and its maintenance be con-
strued as a private enterprise
entered upon by special legislative
authority, or as a quasi public high-
way, it is clear that the govern-
mental functions of the city are in
no way involved therein, and that
the control of the bridge springs from
its municipal or proprietary powers.
From which it logically follows that
the right granted the power company
to string its wires thereon was not
an exercise of governmental func-
tions.”
FrancuHises; Municrpan Grants. 379
reached as to the granting of permission to construct and
maintain conduits within a city.’

Sec. 260. Right to Grant Depends upon Delegation of
Sovereign Power; in General.

As was stated in the preceding chapter,’ franchises per-
mitting electric companies or telegraph or telephone corpo-
rations to use the streets and highways for their lines
emanate either directly or indirectly from the sovereign
power. A direct grant is in the form of a constitutional
or statutory provision permitting the company to so use
the public places.® An indirect grant is made when the
legislature authorizes a municipal corporation to permit
such use of the highways. ‘Therefore the right of a
municipal corporation to grant a public utility franchise
to electric, telegraph, or telephone companies depends
upon the power delegated by the sovereign authority;
if the power is delegated, it may be granted; if not dele-
gated, it still remains lodged in the sovereignty and can-
not be granted by the municipality.*° A delegation of
the power may be found either in general statutes,” or in

special charter provisions.”

7. State ex rel. National Subway
Co. v. City of St. Louis, 145 Mo.
551, 7 Am. Electh. Cas. 195, 46 S. W.
981, 42 L. R, A. 113.

8. § 244.

9. See the preceding chapter.

10. ‘State ex rel. Domestic Teleg.
Co. v. City of Newark, 49 N. J. L.
344, 2 Am. Elect]. Cas. 141, 8 Atl.
128; Brush Elec. Co. v. Jones Bros.
Elec. Co., 5 Ohio Cir. Ct. 340.

11. People v. Chicago Telep. Co.,
245 Ill. 121, 91 N. E. 1065.

12. City of Owensboro v. Cumber-
land Telep. & Teleg. Co., 174 Fed.
739, 99 C. C. A. 1; Cunningham v.
City of Cleveland, 98 Fed. 657, 39
C. C. A. 211; City of Jamestown v.
Home Telep. Co., 125 N. Y. App. Div.
1, 109 N. Y. Supp. 297.

Cities," villages,* counties,"
? ? ?

13. City of Owensboro v. Cumber-
land Telep & Teleg. Co., 174 Fed. 739,
99 C. C. A. 1; Cunningham vy. City
of Cleveland, 98 Fed. 657, 39 C. C. A.
211; MeWethy v. Aurora El. L. Co.,
202 Ill, 218, 8 Am. Electl. Cas. 220,
67 N. E. 9; Strohmeyer v. Consumers’
Elec. Co., 111 La. 506, 35 So. 723;
City of Plattsmouth v. Nebraska
Telep. Co., 80 Neb. 460, 114 N. W.
588, 14 L. R. A. (N. 8.) 654; State
v. Taylor, 36 Wash. 607, 79 Pac. 286.

14, Village of London Mills v.
White, 208 Ill. 289, 70 N. E. 313;
Wakefield v. Village of Theresa, 125
N. Y. App. Div. 38, 109 N. Y. Supp.
414,

15. Gurnsey v. Northern California
Power Co., 160 Cal. 699, 117 Pac.
906, 36 L. R. A. (N. S.) 185,
380 Law or Exscrricity. :
towns,** and boroughs” may be empowered to grant fran-
chises to electric, telephone, or telegraph companies.

Sec. 261. Right to Grant Depends upon Delegation of
Sovereign Power; What Constitutes Delegation of
Power.

The granting of franchises is, in the first instance, a
power lodged in the sovereignty — generally in the legis-
lative body thereof.1® Whether granted directly by the
state or indirectly by a municipal division thereof, the state
or municipality acts in its legislative rather than proprie-
tary capacity.° Grants of legislative power to municipal
corporations are strictly construed; and, if there is a
reasonable doubt of the existence of the power to grant a
municipal franchise, it will be held not to have been

granted.”

The board of supervisors of a
county may justify the use of a
highway for any useful purpose
which does not trespass upon the
rights of the owner of the soil, but
it can not grant a general franchise
to erect poles and wires over all the
roads of the county for the purpose
of conducting and transmitting elec-
tric current for power, light, and
other necessary and useful purposes.
Gurnsey v. Northern California Power
Co., 160 Cal. 699, 117 Pac. 906, 36
L. R. A. (N. 8.) 185.

16. People v. Chicago Telep. Co.,
245 Til. 121, 91 N. E, 1065; City of
Plattsmouth v. Nebraska Telep. Co.,
80 Neb. 460, 114 N. W. 588, 14
L. R. A. (N. S.) 654; VanSiclen v.
Jamaica Elec. L. Co., 45 N. Y. App.
Div. 1, 7 Am. Electl. Cas. 307, 61
N. Y. Supp. 210; affirmed without
opinion, 168 N. Y. 650, 61 N. BE. 1135;
Olarksburg Elec. Co. v. City of
Clarksburg, 47 W. Va. 739, 7 Am.
Elect]. Cas. 25, 35 S HE. 994, 50
L. R. A. 142.

17. Keystone State Telep, & Teleg.

Thus, it is held that a statute, passed before

Co. v. Borough of Ridley Park, 28 Pa.
Super. Ct. 635.

18. § 244.

19. § 259.

20. Water, Light & Gas Co. v. City
of Hutchinson, 207 U. S. 385, 28
S. Ct. 135, 52 L. Ed. 257; Omaha
Elec. L. & P. Co. v. City of Omaha,
179 Fed. 455, 102 C. C. A. 601.

21. City of Carthage v. Carthage
Light Co., 97 Mo. App. 20, 8 Am.
Electl. Cas. 148, 70 S. W. 936.
“That the legislature has, in the ab-
sence of constitutional] restraint, full
and paramount authority over all
public ways, whether urban or rural,
is well settled and conceded. It is
also conceded that a city cannot,
without express statutory authority,
authorize the use of its streets by
private persons.” Chamberlain v.
Iowa Telep. Co., 119 Iowa 619, 8
Am. Elect]. Cas. 11, 93 N. W. 596.

Authority on the part of an in-
corporated city or town to grant to
any person, natural or artificial, a
right to erect telephone or telegraph
poles in the public streets can only be
Francuises; Municrpan GRANTS. 381
the use of electricity for public lighting was contemplated,
which authorizes a city council to enact ordinances grant-
ing privileges to use the streets of the city, to provide the
city with water and light and to erect gas works and lay
down pipes for the use of the city and its inhabitants, is
not sufficient to authorize a grant of a franchise to an elec-
tric light company for the occupation of the streets by its
wires and poles.” But if a city has the power to contract
for a supply of electric current, it may grant to the electric
company the right to use the city streets, at least to the
extent necessary to carry out the contract. This power,
however, does not necessarily give the city the right to
grant an exclusive* or perpetual’ franchise, or the right
to use the streets for private lighting.

Power to ‘‘ Regulate’’ Streets Implies Power to Grant
Franchise.— In another section it is shown that, where the
sovereignty grants to a public service corporation the right
to use the streets and highways for its poles and wires, but
gives the municipalities through which such lines are ex-
tended the right to ‘‘ regulate ’’ such lines, the municipali-
ties can not exclude a company from the occupation of the
municipal streets.** The municipality, in such a case, is
permitted to ‘‘ regulate ’’ the lines, but ‘‘ regulation ’’ does
not include ‘‘ prohibition.’’ But it is obvious that a differ-
ent situation exists where there is no grant of any fran-
chise rights to the company directly from the state. If
there is no direct authority given by the state to the com-

derived from the supreme legislature,
by express grant, or by necessary
implication from powers expressly
granted. South McAlester-Eufaulo
Telep. Co. v. State, 25 Okl. 524, 106
Pac. 962.

22. City of Carthage v. Carthage
Light Co., 97 Mo. App. 20, 8 Am.
Electl. Cas. 143, 70 S. W. 936.

23. Little Falls Elec. & Water Co.
v. City of Little Falls, 102 Fed. 663.

24. Nelson v. City of Murfresboro,
179 Fed. 905.

25. Horner v. City of Eaton Rapids,

122 Mich. 117, 80 N. W. 1012, 6 Det.
Leg. N. 665.

A charter provision giving to the
common council of a city the right to
provide for the publie lighting of
the streets confers no power on the
council to grant a perpetual easement
in the streets for the maintenance of
poles and wires for use in private
lighting. Horner v. City of Eaton
Rapids, 122 Mich, 117, 80 N. W. 1012,
6 Det. Leg. N. 665.

26. § 253.
382 Law or ELEcTRICITY.

pany, but the municipality is authorized to ‘‘ regulate ”’
the municipal streets, it is held that the municipality may
grant a franchise to the company to occupy its streets with
poles and wires.” Likewise, the power to license, tax, and
‘‘regulate’’ electric light companies or telephone com-
panies implies the power to grant permission to such
companies to use the streets of the municipality for their
appliances.* The term ‘‘ regulate ’’ is broader and imports
more power than the word ‘‘ control.’’** But the power
to regulate, standing alone, does not permit the granting
of an exclusive franchise.”

Sec. 262. Right to Grant Depends upon Delegation of
Sovereign Power; Municipal Power Subject to Consent
of Abutting Owners.

In the preceding chapter,” it is noted that in some juris-
dictions, particularly in New Jersey, the right of certain
companies to maintain poles and wires along streets and
highways, though the right is granted by the state, is sub-
ject to the procurement of the consent of the adjoining
proprietors. It is evident that the granting of a franchise

27. City of Owensboro v. Cumber-
land Telep. & Teleg. Co., 230 U. S.
58, 33 S. Ct. 988; City of Owensboro
vy. Cumberland Telep. & Teleg. Co.,
174 Fed. 739, 99 C. C. A. 1; Pike’s
Peak Power Co. v. City of Colorado
Springs, 105 Fed. 1, 44 C. C. A. 333;
State ex rel. National Subway Co. v.
City of St. Louis, 145 Mo. 551, 7 Am.
Elect]. Cas. 195, 46 S. W. 981, 42
L. R. A. 113.

28. Hershfield v. Rocky Mountain
Bell Telep. Co., 12 Mont. 102, 4 Am.
Electl. Cas. 73, 29 Pac, 883, wherein
it’ was said: “The grant of this
power, in our opinion, carried with
it the necessary concomitants of its
exercise; and that to license and
regulate the telephone service, it was
necessary to grant permission to use
the appliances requisite thereto. The
Constitution of the United States

provides that Congress shall have
power to regulate commerce with for-
eign nations, and among the several
states and with the Indian tribes.
Mr. Justice Field, expressing the
opinon of the United States Supreme
Court in the case of Gloucester
Ferry Co. v. Pennsylvania, 114 U. S.
203, in referring to this power to
regulate, said: ‘The power also em-
braces within its control all the in-
strumentalities by which that com-
merce may be carried on, and the
means by which it may be aided
and encouraged.’ ”

29. City of Owensboro v. Cumber-
land Telep. & Teleg. Co., 174 Fed. 739,
99 C.C. A. 1.

80. Exclusive franchises— As to
exclusive franchises, see §§ 219-222.

31. § 256.
Francuises; Municrean Grants. 383

by a municipality may be similarly conditioned. <A statute
which limits the right of a municipal council to grant
franchises for the use of the streets to cases where the
owners of more than one half of the lands fronting on said
streets have consented thereto, and provides that such
owners may enjoin the use of the streets by a company
that has not complied therewith, does not apply except in
cases arising thereunder, and does not therefore authorize
an injunction where an electric light company is exercising
a franchise granted prior to the statute.”

Sec. 263. Right to Grant Depends upon Delegation of
Sovereign Power; Subsequent Grant of Authority as
Ratification of Prior Grant. a

Where a city or village, at the time it purports to grant

a franchise for the use of highways for poles or wires, has

not the power to grant such a franchise, the right granted

may, nevertheless, be subsequently ratified by the state.®

Sec. 264. Right to Grant Depends upon Delegation of

Sovereign Power; Modern Tendency of ‘‘ Home Rule.’’

The tendency of twentieth century legislation is to give
municipalities larger powers than were formerly enjoyed
by such governmental divisions. This tendency is ex-
hibited, not only in taxation, police, school, and other
activities, but in the control over public service franchises.
The presence of electric and other lines of poles and wires
along the streets disfigures the public places, creates a
hindrance to the travel of pedestrians and vehicles and to
the operation of fire apparatus, makes a source of danger
to persons using the streets, and imposes grave liabilities
upon the municipalities. These and other reasons render
it advisable to permit cities and villages to have complete
control over corporations desirous of using the public
places for poles and wires. However, the justice of giving
32. MeWethy v. Aurora El. L. Co., 33. Kaukauna Elee. L. Co. v. City

202 Ill. 218, 8 Am. Electl. Cas. 220, of Kaukauna, 114 Wis. 327, 8 Am.
67 N. E. 9. Elect]. Cas. 348, 89 N. W. 542.
384 Law or ELEctriciry.

municipalities full control over the streets does not, of
itself, give them the right ‘to grant franchises to public
utility corporations; in every case the question is: Has
the legislature delegated the right to grant franchises? *

Sec. 265. Grant to Corporation Not Organized.

A municipal corporation after granting a franchise to
an electric company for the use of the streets cannot attack
the regularity of the company’s organization.* It is not
material that the grantee of a franchise was not fully incor-
porated at the time the ordinance granting the privilege
was introduced into or passed by the common council,
where the organization of the company was completed
before its acceptance of the grant.*° The irregularity in
passing a franchise ordinance prior to the formation of
the corporate grantee may not be questioned by an abut-
ting owner of the street through which poles and wires

of the company are permitted.”

34. “The tendency of modern leg-
islation is to transmit to the local
authorities the exclusive dominion
over the streets of the respective mu-
nicipalities, but the transmission of
that authority must be evidenced by
specific warrant, for the power is in
the state primarily.” Barhite v.
Home Telep. Co., 50 N. Y. App. Div.
25, 7 Am. Electl. Cas. 75, 63 N. Y.
Supp. 659.

35. § 16.

36. Chicago Telep. Co. v. North-
western Telep. Co., 199 Ill. 324, 8 Am.
Electl. Cas. 81, 65 N. E. 329, wherein
the court said: “A privilege granted
by a city to construct « public im-
provement in the streets, is a mere
license to the corporation, until the
corporation accepts the grant, and
constructs the public improvement
thereunder in accordance with the
terms and conditions of the same.
When the grant is accepted by the
corporation, after the passage of a

legal ordinance granting it, and in
pursuance of the terms of such ordi-
nance, then there is a contract be-
tween the city and such corporation.
Here, the introduction of the ordi-
nance in the common council was
merely in the nature of an offer or
proposition, and did not become a
contract, until the ordinance was
subsequently passed and accepted.”

The grant by a city or town to an
intended corporation of a franchise to
use its streets for the conveyance
of electricity for public use in the
town or city is valid, though at its
date the corporation is not chartered,
but is later chartered, and accepts the
grant. Clarksburg Elec. L. Co. v. City
of Clarksburg, 47 W. Va. 739, 7 Am.
Electl. Cas. 25, 35 S. E. 994, 50 L. R.
A. 142.

87. McWethy v. Aurora El. L. Co.,
202 Ill. 218, 8 Am. Electl. Cas. 220,
67 N. E, 9.
Francuises; Munictpan Grants. 385
Sec. 266. Power Conferred on Municipality after Accept-
ance by Company of Statutory Grant.

Where a corporation is authorized by statute to main-
tain its poles and wires within the limits of a municipality
and its right does not depend upon the will of the munici-
pal officials, but thereafter the statute is amended so as to
require such a corporation to secure consent of municipal
authorities for the erection of its lines within the bound-
aries of cities and villages, as to lines erected before the
amendment of the statute the municipality has no control,
but it may exclude the corporation from using any streets
or alleys not used at the time of the amendment.**® The
requirement of the statute as amended cannot impair
rights that have become vested.*

Sec. 267. Effect of Annexation of One Municipality to
Another.

Franchises, being constitutionally protected against
impairment, may not be destroyed by the consolidation of
the municipality granting the same with another munici-
pality.*° A company enjoying a franchise in one of such
municipalities may continue to exercise the same rights
within the same territory." Indeed, the annexation of
another district may extend the territory within which a
company may operate its system. If a public service cor-
poration is given a franchise to use the streets of a city
for poles and wires and thereafter the city limits are
extended during the life of the grant, in the absence of
some provision in the franchise requiring a contrary con-
struction, the company will be deemed to have a right to

38. City of Louisville v. Cumber- 89. Northwestern Telep. Exch. Co.

land Telep. & Teleg. Co. 224 U. S.
649, 32 S. Ct. 572, 56 L. Ed. 934;
Northwestern Telep. Exch. v. City of
St. Charles, 154 Fed. 386; Northwest-
ern Telep. Exch, Co. v. City of Min-
neapolis, 81 Minn. 140, 7 Am. Electl.
Cas. 168, 179, 83 N. W. 527, 86 N. W.
69, 53 L. R. A. 175.

25

v. City of Minneapolis, 81 Minn. 140,
7 Am. Electl. Cas. 168, 179, 83 N. W.
527, 86 N. W. 69, 53 L. R. A. 175.

40. §3 199 et seq.

41. People v. Chicago Telep. Co.,
245 Ill, 121, 91 N. E. 1065; City of
Chicago v. Mutual E. L. & P. Co., 55
Tll. App. 429, 5 Am. Elect]. Cas. 29.
386 Law oF ELEcTRICITY.

use the streets of the annexed territory.*? Likewise, the
company must bear the burdens of the extension of its
field; if conditions to be performed by it are a part of its
original franchise, such conditions are applicable to the
annexed area. Thus, where an ordinance granting a tele-
phone franchise has been accepted under the condition that
the company shall not increase its rates to subscribers
within the city, it may not charge higher rates in a subse-
quently annexed territory, though it had established the
disputed rates in such territory before the annexation.*
Upon annexation, the power of regulation over the public
service corporation and the power, if any, to modify the
franchise, passes to the greater municipality.* Any
attempt upon the part of the absorbed district to retain
control over such matters is void.**

Sec. 268. Necessity of Designating Location of Poles.

That an ordinance granting a franchise may be invali-
dated by reason of its failure to prescribe the manner in
which poles of the company shall be located, is an unusual
holding and one which will not be made in many jurisdic-
tions. That result, however, was reached in New Jersey,
where it was held that a statute, providing that municipal
authorities, when granting a franchise to a street railway
company ‘‘may’’ prescribe the manner and the places
where such poles shall be located, and the manner in which

42. People v. Chicago Tel. Co., 220
Ill, 238, 77 N. E. 245.

43. People v. Chicago Tel. Co., 220
Ill. 238, 77 N. E. 245, wherein it was
said: “The limitation that the de-
fendant should not increase to its
present or future subscribers within
the city of Chicago the rates for
telephone service then established
had no provision restricting it to
the existing limits of the city. The
words of the ordinance are clear
and not ambiguous, and apply to all
the territory within the city of Chi-
cago during the period of the grant.

The ordinance having been accepted
by the defendant became a contract
by which both parties were bound,
and the territory which has since
been annexed to the city is within
the city of Chicago. If there had
been an intention to restrict the’ lim-
itations to the existing city limits,
such an intention would naturally
have been expressed in the ordinance
or the acceptance.”

44. People v. Chicago Telep. Co.,
245 Ill. 121, 91 N. E. 1065.

45. People v. Chicago Telep. Co.,
245 Til, 121, 91 N. E. 1065.
Francuises; Municipan Grants. 387
the wires shall be strung thereon, is mandatory, and
‘may ’’ means ‘‘ must.’’ *®

Sec. 269. Body or Officials Authorized to Make Grant.

The granting of a franchise by a municipality being a
legislative act,*’ the granting power is normally vested in
its legislative body. This is the common council, municipal
assembly, board of aldermen, board of trustees, or body
with corresponding functions, by whatever name it may
be known. A statute placing such power in the hands of
another body is not given any broader construction than
is warranted by its language and purposes.** In the case
of city parks, it may be wise to give the official having
charge thereof the power to authorize the laying of con-
duits for the lighting of such parks; but it has been thought,
in the case of conduits designed to pass through the park
for the supply of private customers outside thereof, that
it is better that the city council have this authority.” But
the power to grant a municipal franchise may be delegated

46. State ex rel. Kennelley v.
Mayor, etc., Jersey City, 57 N. J. L.
293, 5 Am. Elect]. Cas. 146, 30 Atl.
531, 26 L. R. A. 281.

47. § 259.

48. People ex rel. Flatbush Gas Co.
v. Coler, 190 N. Y. 268, 83 N. E. 18,
wherein the court said: “As I have
already noted, the power to grant
such franchises is generally lodged in
the common council or corresponding
body, and we should not give a
statute in derogation of this common
tule, and transferring powers from
the authorities commonly invested
therewith to a special authority, any
broader construction than is fairly
warranted by its language and pur-
poses.”

49. “For instance, it was neces-
sary that it [a park] should be
lighted, and it would be entirely
proper and necessary that the com-
missioner should have power to au-

thorize some corporation to lay con-
duits therein for the purpose of sup-
plying such lights. The same very
likely might be said of water pipes
and other structures. But the use of
the parkway for appliances designed
for supplying electricity to private
consumers is in no sense connected
with that ordinary and primary pub-
lic enjoyment of it which naturally
ought to be subjected to the control
of the park authorities. Such use
is for purposes lying beyond such
enjoyment. It constitutes a privilege
to use the parkway just as any other
public street as a means to carrying
on a general business, and as such it
should be left subject to the jurisdic-
tion of the municipal authorities or-
dinarily intrusted with the control of
such matters.” People ex rel. Flat-
bush Gas Co. v. Coler, 190 N. Y. 268,
83 N. E. 18.
388 Law oF ELEctricity.

by the legislature to a body or to persons of more limited
authority. For example, the power to pass an ordinance
granting a corporation the right to open the streets and
lay conduits therein may be lodged in a board of street
and water commissioners.”

Sec. 270. Body or Officials Authorized to Make Grant;
Delegation by Municipality.

In view of the legal situation that a municipality in
granting a franchise is acting as an agency of the state
under authority delegated to it by the legislative body of
the state, it is clear, under the general principles of the
law of agency, that the municipality may not redelegate
this authority to another. Delegatus non protest delegare.
Thus, where the legislature has conferred exclusive power
over city streets to the city council, such council may not
legally pass an ordinance vesting in the city marshal the
authority to issue permits in the streets when the same are
by him deemed necessary.™

Sec. 271. Procedure for Granting Franchise; in General.

The formalities which shall be observed by the common
council or other municipal body granting a public service
franchise are generally prescribed by statute. Great diver-
sity exists between the various statutes upon the subject.
Whatever the requirements may be, if constitutional, at
least a substantial compliance therewith is required. The
statute may require the recording of the ayes and noes

50. United Elec. Co. v. City of New-
ark, 77 N. J. L. 104; 71 Atl. 237;
United Elec. Co. of N. J. v. Mutual
Ben. Elec. L. & P. Co, (N. J.) 81
Atl. 754.

51. City of Texarkana v. South-
western Teleg. & Telep. Co., 48 Tex.
Civ. App. 16, 106 S. W. 915.

52. Failure to give notice to one
member of the council of a city of
a special meeting at which they were
granted a franchise for the use of
the streets and alleys for the erection

of an electric and gas works and
plant, is cured by subsequent action
of the mayor and common council,
while in legal session, by the passage
and adoption of an ordinance ratify-
ing the ordinance granting the fran-
chise, and extending the time for the
completion of the works and plant.
Territory v. DéeWolfe, 13 Okl. 454, 74
Pac. 98; dismissed without opinion,
196 U. S. 643, 25 S. Ct. 794, 49 L.
Ed. 632,
Francuisrs; Municrpan GRANTs. 389
upon the passage of the ordinance granting the franchise.
A failure to so record the vote may cause the courts to hold
that the franchise is invalid. If it is provided by statute
that no ordinance or resolution granting a franchise shall
be passed until five days after its introduction, failure to
wait such five days may render the franchise void. A
similar result may follow the violation of a statute requir-
ing the passage of an ordinance or resolution granting a
franchise at a regular meeting of the body authorized to
grant franchises. In some cities it is necessary, before
the passage of an ordinance granting a franchise, that the
proposed ordinance be published in a newspaper or posted
in public places. The failure to obey such requirements
may vitiate the franchise.”

Title of Ordinance.— In some jurisdictions it is required
that the subjects of city ordinances shall be expressed in the
title thereof. Such a requirement is complied with when
the title calls attention to the general subject and does not
tend to mislead or deceive the people or council as to the
purpose or effect of the ordinance, or to conceal or obscure
the same.” Thus, it has been held that the title is sufficient
where it gives its object as ‘‘ the right to construct, main-
tain and operate an electric light and power plant.’’*

58. Monett Elec. L., P. & Ice Co. v.
City of Monett, 186 Fed. 360; Far-

54, Rough River Telep. Co. v. Cum-
berland Telep. & Teleg. Co., 119 Ky.

mers’ Telep. Co. of Quimby v. Town
of Washta, (Iowa) 133 N. W. 361.
“If it be said that this decision is
based upon technical grounds a suf-
ficient answer is that the complain-
ant seeks to enforce rights and privi-
leges which are most jealously
guarded by courts and legislative
bodies, and which are uniformly most
strictly construed in favor of the
public. It developed upon the grantee
herein to assure himself, not only of
the right of the city to contract, but
that it had exercised its powers in ac-
cordance with law. The safety of his
investment depended upon his vigil-
ance.” Monett Elec. L., P. & Ice Co.
v. City of Monett, 186 Fed. 360.

470, 27 Ky. Law Rep. 32, 84 S. W.
517; Maraman v. Ohio Valley Telep.
Co., 25 Ky. Law Rep. 784, 76 8. W.
398.

55. Rough River Telep. Co. v. Cum-
berland Telep. & Teleg. Co., 119 Ky.
470, 27 Ky. Law Rep. 32, 84 S. W.
517.

56. Meyer v. Town of Boomville,
162 Ind. 165, 70 N. E. 146.

57. Bartlesville Electric L. & P.
Co. v. Bartlesville Interurban Ry. Co.,
26 Okla. 453, 109 Pac. 228, 29 L.
R. A, (N. 8.) 77.

58. Bartlesville Electric L. & P. Co.,
v. Bartlesville Interurban Ry. Co., 26
Okla. 453, 109 Pac. 228, 29 L. R. A.
(N. 8.) 77.
390 Law oF ELecraicirty.

Approval of Mayor.— Under statutes of the state of
Washington, it has been held that the mayor of cities of
the fourth class therein has no veto or discretionary power
in the signing of ordinances, and mandamus lies to compel
him to sign an ordinance duly passed by the council. But
the statutory provisions applicable to most of the cities in
this country give the mayor greater power, so that it is
necessary that the ordinance be approved by him or passed
over his veto.

Sec. 272. Procedure for Granting Franchise; Sufficiency of
Resolution.

As has been noted, municipal franchises are usually
granted by the legislative body of the municipality. The
normal method of legislative action by a municipal legis-
lative body is by ordinance. Action by ordinance is, not
only proper,” but in some municipalities is necessary,” a
mere resolution of the municipal assembly not being suffi-
cient.“ The rule has thus been stated, ‘‘ When, by stat-
ute or charter, power is conferred upon a municipal coun-
cil and is silent as to the mode of action, the decision may
be by either ordinance or resolution, at discretion of the

59. State v. Taylor, 36 Wash. 607,
79 Pac. 286.

60. § 269.

61. Common knowledge.— “It is a
matter of common knowledge that it
[authority to license the use of
streets for telephone purposes] is
usually exercised by ordinance.” Vil-
lage of London Mills v. Fairview-
London Telep. Circuit, 105 Ill. App.
146; affirmed, 208 Ill. 289, 70 N. E.
313.

62. Board of Mayor, etc, of City
of Morristown v. East Tenn. Telep.
Co., 115 Fed. 304, 8 Am. Electl. Cas.
3, 53 C. C. A. 132; United Elec. Co.
v. East Pittsburg, 57 Pitts. L. Jour.
353.

63. Board of Mayor, etc., of City
of Morristown v. East Tenn. Telep.
Co., 115 Fed. 304, 8 Am. Electl. Cas.
8, 53 0. C. A. 132.

A resolution of common council
giving consent to a street railway to
place posts and stretch wires in a
street, and prescribing the size and
location of the poles, and limiting the
speed of the railroads when operated
by electricity, is « street regulation,
which, under the charter of Newark,
must be by ordinance. State v. City
of Newark, 53 N. J. Law 102, 4 Am,
Elect]. Cas. 40, 23 Atl. 284.

64. Board of Mayor, etc., of City
of Morristown v. East Tenn. Telep.
Co., 115 Fed. 304, 8 Am. Elect]. Cas.
3, 53 C. C. A. 132.
Francuises; Municrpan GRANTS. 391
council. But when the charter prescribes that franchises
can be granted by ordinance it is not competent to make
such a grant by resolution.’’®* Where a company is
granted by statute the right to place its poles and wires in
the highways of the state, except that in incorporated
cities and towns permission must be obtained from the
municipal authorities, it has been held that such permission
may be given by resolution.“ While a resolution is not
generally effective to repeal or modify an ordinance regu-
larly passed,” it has been held that an extension of the
time in reference to a franchise may be made by
resolution.®

Sec. 273. Procedure for Granting Franchise; Approval of
Board of Estimate.

The municipal body may be required to refer a proposed
ordinance granting a franchise to a board of estimate and
apportionment in order that the latter board may make
inquiry as to the money value of the franchise, the ade-
quacy of the compensation to be paid therefor, and suggest
terms for the granting thereof, which shall be conclusive
as a condition of the grant. In such a case the ordinance
should be referred to the board of estimate and apportion-
ment though the franchise-granting body deems it inad-

65. See also, Village of London
Mills v. Fairview-London Telep. Cir-
cuit, 105 Ill. App. 146; affirmed, 208
Ill. 289, 70 N. E. 313.

Municipality estopped to question
sufficiency of resolution— Where a
village board has by _ resolution
granted to the owner of a telephone
line the right to use the village
streets and such owner accepts such
grant and spends money in the con-
struction of its line along such streets,
the village is estopped from there-
after claiming that the original con-
sent should have been by ordinance
rather than by resolution. Village

of London Mills v. White, 208 IIL.
289, 70 N. E. 313.

66. Inhabitants of East Orange Tp.
v. Suburban Elec. L. & P. Co., 59 N.
J. Eq. 563, 7 Am. Electl. Cas. 37, 44
Atl. 628.

67. Board of Mayor, etc., of City
of Morristown v. East Tenn. Telep.
Co., 115 Fed. 304, 8 Am. Elect]. Cas.
8, 53 C. C. A. 132; City of Mitchell v.
Dakota Cent. Telep. Co., 25 S. Dak.
409, 127 N. W. 582.

68. United Elec. Co. v. East Pitts-
burg, 57 Pitts. L. Jour, 353.

69. Manhattan & Bronx Elec. Co. v.
Fornes, 47 Misc. (N. Y.) 209, 95 N. Y.
Supp. 851.

s
392 Law oF ELEcTRICITY.

visible to grant the franchise and it has the power to refuse
the franchise after an examination thereof by the board
of estimate and apportionment.”

Sec. 274. Procedure for Granting Franchise; Approval of
Inhabitants.

In the absence of statutory provision requiring the
approval of the electors or taxpayers, the municipal officers
are deemed to have the integrity and capability of granting
municipal franchises unassisted by other inhabitants. The
history of franchises in most of the large cities in this
country, however, has shown the advisability of placing
checks upon the discretion of the officials. In many munici-
palities the approval of the electors or taxpayers is
required as a condition precedent to the granting of a fran-
chise for the use of municipal streets. Under such statutes
a franchise without the required approval is invalid.” A
statute which requires that all ordinances authorizing the
erection of electric light plants shall be submitted to popu-
lar vote, applies to an ordinance granting a franchise to
maintain poles and wires for lighting in the streets.” But
it has been held that a statute which provides that city
councils shall have the power to erect electric light works,
or to authorize their construction by others, only when
such works shall be erected or authorized, pursuant to a
favorable vote of the taxpayers, applies only to works
erected by the cities or by others under contracts with or
for the cities, and does not apply to works erected by pri-
vate parties for their own use.

70. Manhattan & Bronx Elec. Co. Co. v. Jones Bros. Elec. Co., 10 Ohio
v. Fornes, 47 Mise. (N. Y.) 209, 95 Dec. 767, 3 Am. Electl. Cas. 516, 23
N. Y. Supp. 851. Week. Law Bull. (Ohio) 329.

71. Farmers’ Telep. Co. of Quimby 72. Keokuk v. Ft. Wayne Elec. L.
v. Town of Washta, (Iowa) 133 N. Co., 90 Iowa 67, 4 Am. Elect]. Cas.
W. 361; Keokuk v. Ft. Wayne Elec. 859, 57 N, W. 689.

L. Co., 90 Iowa 67, 4 Am. Electl. Cas. 73, Pike’s Peak Power Co. v. City
859, 57 N. W. 689; Hanson v. Hunter of Colorado Springs, 105 Fed. 1, 44
Elec. L. Co., 86 Iowa 722, 48 N. W. ©. C. A. 333.

1005, 53 N. W. 84; Brush Elec. L.
Francuises; Municrpan GRANTS. 393
Sec. 275. Procedure for Granting Franchise; Sale of Fran-
chise.

In the absence of express provision of law, municipal
officers are not required to sell franchises for the use of
the municipal streets to the highest bidder.* Like pro-
visions requiring the approval of voters, statutes requir-
ing the public sale of franchises are of modern origin, and
their purpose is to form as a check upon the acts of the
officers and to create competition between rival companies.
In a number of cities, it is now required that, before a
franchise shall be granted, it shall be publicly advertised,
proposals received, and the franchise awarded to the high-
est bidder. Such provisions are mandatory, and a fran-
chise may not be granted without compliance therewith.”
Even in the absence of express authority, a municipality
may determine the value of franchises by competitive bid-
ding and grant the franchise to the highest bidder.” The
franchise and the ordinances in connection with the public
sale thereof must not be so drawn as to restrict the bidding

74, Barhite v. Home Telep. Co. of
Rochester, 50 N. Y. App. Div. 25, 7
Am. Elect]. Cas, 75, 63 N. Y. Supp.
659. The simple fact that one man
or set of men of doubtful or unknown
financial credit offers to bid more
than a competing company for a con-
tract, e. g., a franchise to a telephone
company, that is to be of permanent
benefit or detriment to the citizens,
does not require the municipal au-
thorities to accept that offer, nor
must they, in absence of charter pro-
visions, necessarily make public sale
at auction of the franchises. Bar-
hite v. Home Telep. Co. of Roches-
ter, 50 App. Div. 25, 7 Am. Electl.
Cas. 75, 63 N. Y. Supp. 659.

Prior rights— Where a telephone
company organized under a general
statute giving it the right to occupy
city streets had exercised such right
prior to the enactment of a statute

(Wis. Rev. Stats. 1898, secs. 940c—
940j), providing that all franchises
granted by a city or village shall be
sold pursuant thereto if a majority
of the electors shall so determine by
vote, its rights under its charter and
franchise cannot be affected by the
adoption of such statute by the elec-
tors of a city, and the consequent
regulations thereby prescribed con-
trolling the location of its poles and
wires and its charges. State ex rel.
Wisconsin Telep. Co. v. City of She-
boygan, 114 Wis. 505 8 Am.. Electl.
Cas. 155, 90"N, W. 441.

75. Tri-state Teleg. & Telep. Co. v.
City of Thief River Falls, 183 Fed.
854; Arpin v. City of Thief River
Falls, 122 Minn. 34, 141 N. W. 833.

76, City of California v. Bunceton
Telep. Co., 112 Mo. App. 722, 87 S. W.
604; City of Plattsburg v. People’s
Telep. Co., 88 Mo. App. 306.
394 Law or Execrricity.

to a single person or corporation.” Where a statute
requires the sale of a franchise to the highest bidder, but
does not prescribe the terms and conditions of the sale, the
franchise must be sold for cash; in such a case the law
does not permit a bid whereby the bidder agrees to pay to
the municipality a percentage of the gross receipts obtained
from the use of the franchise.” Where the franchise is
granted without a public sale, the municipality granting
the franchise is not estopped from asserting the invalidity
thereof, though the holder of the franchise immediately
carries the same into operation by the construction of a
plant at considerable expense.”

The Constitution of Kentuky® provides that before a
municipal corporation shall grant a franchise to use the
municipal streets for a term of years, it shall advertise for
bids and award the franchise to the highest and best bid-
der. The provision is self-executory,” and a city may not
grant a franchise within its scope without offering the same
at public sale.*? This section does not apply to the waiver
of the forfeiture of a franchise previously given,** or to a
contract between a telephone company having a franchise
and the municipality whereby the rate for telephone serv-
ice fixed by the ordinance granting the franchise is low-
ered.** The extension of a gas franchise so as to include
electric lighting is, in the absence of a public sale, forbidden
by this section of the constitution.** The words ‘“‘ term of
years ’’ in the constitutional section do not exclude a fran-
chise for a year where it involves the use of permanent

77. Gage v. Conners, 142 N. Y. App.
Div. 228, 126 N. Y. Supp. 1041.

78. Thompson v. Alameda County
Supervisors, 111 Cal. 553, 44 Pac. 230.

79. Tri-State Telep. & Teleg. Co. v.
City of Thief River Falls, 183 Fed.
854.

80. § 164,

81. Merchants’ Police & Dist. Teleg.
Co. v. Citizens’ Telep. Co., 123 Ky. 90,
29 Ky. Law. Rep. 512, 93 S. W. 642.

82. Moberly v. Richmond Telep. Co.,

126 Ky. 369, 31 Ky. Law Rep. 783,
103 S. W. 714; Watson v. City of
Morehead (Ky.) 125 S. W. 724.

83. Cumberland Telep. & Teleg. Co.
v. City of Hickman, 129 Ky. 220, 33
Ky. Law Rep. 730, 111 S. W. 311.

84. Lutes v. Fayette. Home Telep.
Co., 155 Ky. 555, 160 S. 'W. 179.

85. People’s Elec. L. & P. Co. v.
Capital Gas & Elec. Co., 116 Ky. 76,
8 Am. Electl. Cas. 71, 25 Ky. Law
Rep. 327, 75 S. W. 280.
Francuises; Municipa, Grants. 395

structures in the streets;** but such words render void a
franchise without limit as to term, where it is not sold as
provided by the section.*’ The ordinance for the public
sale of a franchise may eliminate the owner of another
franchise as a bidder at the sale,** but it must not be so
drawn as to confine the bidding to one person. If the
bidding is not confined absolutely to a single person, it is
not material that the owner of the existing franchise has
an advantage over other bidders.”

Sec. 276. Proof of Franchise.

The granting of municipal consent to the occupation of
streets with poles and wires can be shown only by formal
municipal action." Parol statements of witnesses to the
effect that such consent was given is not admissible.”

86. Hilliard v. George G. Fetter L.
& H. Co, 127 Ky. 95, 31 Ky. Law
Rep. 1330, 105 S. W. 115, wherein the
court said: “It would be folly to in-
sist that the tearing up of streets in
the busiest part of a large city, dig-
ging trenches and placing therein ma-
sonry conduits for the purpose of re-
ceiving the ducts or pipes in, by and
through which electricity and steam
may be conducted, was a temporary
enterprise or improvement; and we
do not understand that counsel for
appellee so contend. Therefore, in
considering the question, we will
treat the ordinance as attempting to
grant a franchise or privilege to erect
or establish, maintain, and operate in
the streets for one year only a plant
intended to be and that is a perma-
nent and enduring structure. Was it
within the power of the council to
give this franchise in the manner pro-
vided in the ordinance? We think
not.”

87. Merchants’ Police & Dist. Teleg.
Co. v. Citizens’ Telep. Co., 123 Ky. 90,
29 Ky. Law. Rep. 512, 93 8. W. 642.

88. Louisville Home Telep. Co. v.
City of Louisville, 130 Ky. 611, 113

8. W. 855; Stiles v. Norton, 125 Ky.
672, 9 Am. Elect]. Cas. 1137, 101 S.
W. 1189.

89. Gathright v. H. M. Byllesby &
Co., 154 Ky. 106, 157 S. W. 45.

90. Gathright v. H. M. Byllesby &
Co., 154 Ky. 106, 157 S. W. 45.

91. Town of Pelham v. Pelham
Telep. Co, 131 Ga. 325 62 S. E. 186.

92. Town of Pelham v. Pelham
Telep. Co., 131 Ga. 325, 62 S. E. 186.

Parol statements of witnesses that
certain improvements were made or
work was done “ with the full knowl-
edge and consent of the municipal au-
thorities of said town, including the
mayor and council of said town;” and
that a telephone company had es-
tablished and maintained in the town
a telephone system, with poles, wires,
and other fixtures in, on, and over
the streets, “all by the consent of
the municipal authorities of said
town;” and that a witness, who has
been « member of the town council
and of a committee thereof, has des-
ignated and pointed out in the streets
of said town where to locate the
poles and wires, “receiving his au-
thority to do so from the town coun-
396 Law oF ELecrriciry.

Where consent to the occupation of the streets is to be
obtained from the mayor and city council, such consent is
sufficiently proved by the entry in the records of a meet-
ing of the council presided over by the mayor, reciting that
a motion granting it was offered by a member and adopted,
there being nothing to indicate that the mayor dissented.”

Acceptance of Franchise.— Where an ordinance granting.
a franchise provides that the company may accept it by
filing a written acceptance with the city clerk, a receipt
signed by such clerk to the effect that such a writing had
been received by him is admissible to prove the acceptance
of the franchise.”

cil of said town in regular meetings;” ¢ 98. Nebraska Telep. Co. v. City of
and other like statements, were not Fremont, 72 Neb. 25, 99 N. W. 811.
admissible in evidence. Town of Pel- 94, City of Baxter Springs v. Bax-
ham v. Pelham Telep. Co., 131 Ga. ter Springs L. & P. Co., 64 Kan. 591,
325, 62 S. E. 186. 8 Am. Electl. Cas. 125, 68 Pac. 63.
AsuTtinac Owners. 397

CHAPTER XIII
ABUTTING OWNERS.

SECTION 277. General Observations.
278. Conflict of Opinion as to what Constitutes Additional Servitude.
279, Distinction between City and Rural Highways.
280. Electric Lines as Additional Servitude; in General.
281. —— Public Lighting.
282. —— Private Lighting.
283. Street Railway as Additional Servitude.
284, Telegraph and Telephone Lines as Additional Servitude; in

 

General.
285. View That Line is Additional Servitude.
286. —— View That Line Is Not Additional Servitude,
287. —— Telephone and Telegraph Contrasted.

288. Conduits.

289, Fee Not Owned by Abutting Owner.

290. Absence of Franchise.

291. Special Damages Sustained by Adjoining Owner.

292. —— Obstruction to Ingress and Egress.
293. Shade Trees; in General.

294. —— Extent and Mode of Cutting Trees.
295. —— Damages.

296. Remedies of Abutting Owner; Hjectment.
297. —— Injunction.

298. —— Damages.

299. Rights of Subsequent Purchaser.
300. Consent of Owner to Construction of Line.

Sec. 277. General Observations.

In this chapter is discussed the rights of the owners of
lands adjoining a public highway in case an electric or
other line of poles and wires is constructed along such way.
The treatment of this subject, while the effect of not hav-
ing a franchise is mentioned,’ as a general proposition,
assumes that the person or corporation erecting the poles
and wires has received the consent of the state and the
municipal divisions thereof so far as the same is necessary.
In this country, in laying out a highway, to the owner of
the land over which it is constructed is usually reserved
the fee title to the strip appropriated, the state acquiring

1, § 290.
398 Law oF Eectriciry.

merely an easement for highway purposes. This easement
cannot be extended by the state so as to authorize the use
of the highway for purposes for which it was not dedicated
or taken. Thus, in so far as the rights of abutting owners
are concerned, the question arises whether the maintenance
of a line of poles and wires is a use of the highway justi-
fied under the original dedication, or whether such use
constitutes an additional servitude upon the rights of
owner of the fee. Authority from the state or from a
municipal corporation to maintain the line along the. high-
way cannot injuriously affect the rights of the abutting

owner.”

2. United States— Pacific Postal
Teleg. Co. v. Irvine, 49 Fed. 113, 4
Am. Electl. Cas. 140.

California— Gurnsey v. Northern
California Power Co., 160 Cal. 699,
117 Pac. 906, 36 L. R. A. (N. 8S.) 185.

Illinois— Postal Teleg. Cable Co.
v. Eaton, 170 Ill. 513, 49 N. E. 365,
39 L. R. A. 722, 62 Am. St. Rep. 390;
Board of Trade Teleg. Co. v. Barnett,
107 Til. 507, 1 Am. Elect]. Cas. 565,
47 Am. Rep. 453. .

Maryland.— Chesapeake & P. Teleg.
Co. v. Mackenzie, 74 Md. 36, 3 Am.
Electl. Cas. 196, 21 Atl. 690, 28 Am.
St. Rep. 219.

Massachusetts.— Pierce v. Drew,
136 Mass. 75, 1 Am. Electl. Cas. 571,
49 Am. Rep. 7.

Mississippi Stowers v. Postal
Teleg. Cable Co., 68 Miss. 559, 9 So.
356, 12 L. R. A. 864, 24 Am. St. Rep.
290.

New York.—Eels v. American Telep.
& Teleg. Co., 143 N. Y. 133, 5 Am.
Electl. Cas. 92, 38 N. E. 202, 62 St.
Rep. 138; Van Siclen v. Jamaica
Elec. L. Co. 45 N. Y. App. Div. 1,
7 Am. Electl: Cas. 307, 61 N. Y. Supp.
210; affirmed without opinion, 168
N. Y. 650, 61 N. E. 1135; Gorham v.
Eastchester Elec Co., 80 Hun 290,
5 Am. Electl. Cas. 199, 30 N. Y.

The owner of the fee has rights which are pro-

Supp. 125; Andrews v. Delhi & Stam-
ford Telep. Co., 36 Misc. 23, 72 N. Y.
Supp. 50; affirmed without opinion,
66 App. Div. 616, 73 N. Y. Supp.
1129; Clausen, etc., Brewing Co. v.
Baltimore, ete., Teleg. Co., (N. Y.)
2 Am. Electl. Cas. 210.

North Carolina.—Moore v. Carolina
Power & Light Co., 163 N. Car. 300,
79 S. E. 596; Brown v. Asheville
Elec. L. Co., 138 N. Car. 533, 9 Am.
Electl. Cas. 467, 51 S. E. 62, 69 L. R.
A. 631, 107 Am. St. Rep. 554.

North Dakota.—Donovan v. Allert,
11 N. Dak. 289, 8 Am. Electl. Cas.
183, 91 N. W. 441, 58 L. R, A. 775,
95 Am. St. Rep. 720.

Virginia— Western Union Teleg.
Co. v. Williams, 86 Va. 184, 3 Am.
Elect]. Cas. 184, 11 S. E. 106, 8
L, R. A. 429, 19 Am. St. Rep. 908.

Wisconsin.— Kreuger v. Wisconsin
Telep. Co., 106 Wis. 96, 7 Am. Electl.
Cas. 285, 81 N. W. 1041, 50 L. R. A.
298,

“Tf the owner’s right in the street
be property, as hereinbefore defined,
and as such is protected by the Con-
stitution, it inevitably follows that
the attempt by a private corporation,
in order to accomplish its own private
business purposes, to invade that
right by placing in the street in
ABUTTING OWNERS.

399

tected by the constitution, and he may not be deprived of
those rights without due process of law.

Sec. 278. Conflict of Opinion as to what Constitutes Addi-

tional Servitude.

On the question whether an electric, telephone, or tele-
graph line is an additional servitude upon the abutting
owner, practically the only point that the courts are in
harmony on is that there is an irreconcilable conflict in the
decisions.* The situation was pertinently summed up by

front of the lot permanent erections,
which will in any appreciable degree
impair the owner’s access to the lot,
or otherwise interfere with the full
enjoyment of the lot for all purposes
to which it is adapted, or of the
street itself, such an invasion is an
attempted taking. It is a diversion
of the use of the street from the pur-
poses originally designed for it, and
if it can be taken at all, as against
the will of the owner, it must be
upon the terms prescribed by the
Constitution.” Callen v. Columbus
Edison Elec. L. Co., 66 Oh. St. 166,
8 Am. Elect]. Cas. 243, 64 N. E. 141,
58 L. R. A. 782,

“From the manner in which the
case has been discussed by counsel,
we assume that the defendant’s tele-
phone line is for the use of the pub-
lic upon payment of certain charges.
Therefore, the use to which the high-
way has been appropriated by the de-
fendant is a public one. The trans-
mission of intelligence by telegraph
or telephone is a business of a public
character, to be conducted under pub-
lic control, in the same manner as
the transportation of persons or
property by common carriers. But,
of course, the fact that this is a
public use gives the Legislature no
right to authorize the taking of pri-
vate property for it without paying

compensation. The proposition is
equally elementary that the acquisi-
tion by the public of one easement
in land gives no right to another and
different easement. The public can-
not go beyond, but must be confined
within, the general purpose for which
the easement was granted or acquired
from the owner of the soil. Hence
whether an easement authorizes the
use of land in a particular way de-
pends upon the nature and extent of
the easement. These propositions are
so nearly axiomatic that they will
not be disputed by any one.” Cater
v. Northwestern Teleg. Exch. Co., 60
Minn. 539, 5 Am. Electl. Cas, 111, 63
N. W. 111, 28 L. R. A. 310, 51 Am.
St. Rep. 543.

Post Roads Act. The Post Roads
Act (see §§ 176-186), giving tele-
graph companies certain privileges,
does not affect the rights of abutting
owners in the highways through
which such lines are constructed. See
§ 180.

3. Difference not in rule, but in ap-
plication thereof—In Julia Bldg.
Assoc. v. Bell Telep. Co., 88 Mo. 258,
1 Am. Electl. Cas. 801, 57 Am. Rep.
398, it was said: “I think it may
be safely affirmed that all the au-
thorities to which we have been cited
by counsel on both sides of this case
agree that when the public acquires
400 Law or Eecrricity.

the Supreme Court of Kansas in the following language:
‘‘ Few questions have received more consideration from
the courts in recent years, or given rise to more conflict
of judicial opinion, than this one. In some cases the use
has been limited to travel by such methods as were in
vogue when the highway was established, while others
include all methods, old or new, and hold it to be immaterial
whether they were in use, or even thought of, when the
easement was acquired. ‘Some confine the use to moving
persons, animals, and vehicles, while others would include
stationary appliances used in the propulsion or convey-
‘ance of persons and things over the highways. By some it
is limited to transportation of persons and things tangible,
while others extend it to communications which are trans-
mitted unseen, by electric vibrations. Some treat it as an
additional burden when the fee of the highway is in the
adjoining owner, and others do not regard it to be such
whether the fee is in the public or the adjoining owner. In
still others a distinction is made between highways in the
country and streets in the city, holding that city streets
have always been designed and used for purposes not
appropriate for rural highways.’’* All courts, however,
agree that if special damage of a substantial nature is
caused to the abutting owner, such as arises from the
obstruction of the right of passage to and from the high-
way, the owner is entitled to relief.

Sec. 279. Distinction between City and Rural Highways.

In a number of cases, the courts have suggested that the
burden of poles and wires on a rural highway is different
than the burden of the same poles and wires upon a city

a street, either by condemnation,
grant, or dedication, that it may be

use as a street, that the abutting
owner can complain. The diversity

applied to all uses consistent with
and not subversive of the proper uses
of a street, and not inconsistent with
the uses contemplated in the dedica-
tion, grant, or condemnation, and
that it is only when the street is
subjected to a new servitude, incon-
sistent with and subversive of its

of opinion is not as to the rule itself,
but as to its application — that is, as
to whether this or that particular
use is not consistent with the proper
use of the street.”

4. McCann v. Johnson Co. Telep.
Co., 69 Kan. 210, 76 Pac. 870, 66
L. R. A. 171,
ABUTTING OWNERS. 401
street,’ and that a rural abutter might be entitled to dam-
ages in cases where a city owner would not be thus entitled.
The cases where the possible distinction is suggested are
those involving rural highways and sustaining the abutting
owner’s right or those of city streets denying his right to
damages. It is probable that the suggestion is made in
order to limit the effect of the decision. Apparently, how-
ever, in no jurisdiction has the court of last resort deliber-
ately adopted a rule for city streets which is different than
its rule for rural highways, and in a number of states, the

distinction has been disapproved.°

5. Julia Bldg. Assoc. v. Bell Telep.
Co., 88 Mo. 258, 1 Am. Elect]. Cas.
801, 57 Am, Rep. 398; Shinzel v. Bell
Telep. Co. of Philadelphia, 31 Pa.
Super. Ct. 221; Haverford E. L. Co.
v. Hart, 13 Pa. Co. Ct. 369, 4 Am.
Electl. Cas. 151; Krueger v. Wiscon-
sin Telep. Co., 106 Wis. 96, 7 Am.
Elect]. Cas. 285, 81 N. W. 1041, 50
L. R. A. 298. “The rights of a land
owner whose land: abuts upon a rural
highway are not inferior to those of
one whose land abuts upon the streets
of a city. This is conceded. Indeed
it has been often held that the rights
of the owner of land abutting upon
the streets of a city are more re-
stricted. This distinction, which is
sometimes made, rests upon an
alleged difference in the purpose of
the original dedication.” Cosgriff v.
Tri-State Telep. & Teleg. Co, 15
N. Dak. 210, 107 N. W. 525, 5 L. R.
A. (N.S) 1142.

“The use to which streets in a
town or city may be lawfully put are
greater and more numerous than in
the case of an ordinary road or high-
way in the country. With reference
to the latter, as we have just ob-
served, all the public acquires is the
easement of passage and its incidents;
and hence the owner of the soil parts
with this use only, retaining the

26

Indeed, substantial

soil, and by virtue of this ownership
is entitled, except for the purposes
of repair, to the earth, timber and
grass growing thereon, and to all
minerals, quarries and springs below
the surface. But with respect to
streets in populous places the public
convenience requires more than the
mere right of way over and upon
them.” Chesapeake & P. Teleg. Co.
v. Mackenzie, 74 Md. 36, 3 Am. Electl.
Cas. 196, 21 Atl. 690, 28 Am. St.
Rep. 219.

6. Hobbs v. Long Dist. Telep. Co.,
147 Ala. 393, 41 So. 1003, 7 L. R. A.
(N. S.) 87, 11 Ann. Cas. 525; Me-
Cann v. Johnson County Telep. Co.,
69 Kan. 210, 76 Pac. 870, 66 L. R. A.
171; Cater v. Northwestern Telep.
Exch. Co., 60 Minn. 539, 5 Am. Electl.
Cas. 111, 63 N. W. 111, 28 L. R. A.
310, 51 Am. St. Rep. 543.

“There is no sound distinction be-
tween urban and rural highways as
to the purposes for which they may
be used.” Cumberland Telep. &
Teleg. Co. v. Avritt, 120 Ky. 34, 27
Ky. Law Rep. 394, 85 S. W. 204.
“The underlying principle - which
must govern is the same, however,
in either case. The proposed use
must be within the purpose of the
original dedication. If it is not, it
constitutes an additional servitude,
402

Law oF ELEctTRICcITY.

reasons can be given for holding that the burden of poles
and wires is greater in city streets than in country roads.’

The Courts of New York, so far as telephone and tele-
graph lines are concerned, have carried the distinction
between urban and rural roads further than have the
courts of other states. The Court of Appeals, such being
the court of last resort, in an early case,® in holding that a
telegraph and telephone line along a rural highway was an
additional servitude, suggested the distinction between the
highway involved in that decision and a city street and
implied the possibility of a different result in a case involv-

whether it be of a street or rural
highway.”  Cosgriff v. Tri-State
Telep. & Teleg. Co., 15 N. Dak. 210,
107 N. W. 525, 5 L. R. A. (N. S.)
1142.

7. “So far as there is any distinc-
tion between rural and urban high-
ways there would be much more rea-
son for holding such structures an
additional servitude in the latter
than in the former. It is a matter
of common knowledge that telegraph
and telephone lines along the side of
a country road rarely, if ever, ap-
preciably interfere with either public
travel or the easements of the abut-
ting land owner; whereas, in the
cities, especially on business streets
where the buildings extend out to the
line of the street, the numerous wires
stretched upon the cross arms fre-
quently materially interfere with ac-
cess, light and air as well as render
protection of the buildings more diffi-
cult in case of fire.’ Cater v. North-
western Telep. Exch. Co., 60 Minn.
539, 5 Am. Electl. Cas. 111, 63
N. W. 111, 28 L. BR. A. 310, 54 Am.
St. Rep. 543. “Some of the cases
have drawn a distinction between
urban and suburban roads, but in re-
gard to wires and posts there would
be more reason for declaring them
burdensome in a city (where they ac-
cumulate in such numbers as to in-

terfere with the operation of engines
in extinguishing fires) than in the
country where there are but few and
far away farm houses.” Hobbs v.
Long Dist. Tel. Co., 147 Ala. 393, 41
So. 1003, 7 L. R. A. (N. S.) 87, 11
Ann. Cas. 525.

“No modern invention has con-
tributed more to commercial and
social intercourse than the telephone.
It is an appliance of great public
utility and is coming into general
use in the country as well as in the
city. Indeed, it seems to serve a
more beneficial purpose, and is a
greater convenience to rural residents
widely distant from business centers
and from one another than it is to
residents in cities. The question,
however, is not determinable by the
difference between urban and _ sub-
urban conveniences and necessities;
* * * it must be decided by the scope
and purposes of the highway, and
whether, in country or city, it is a
means of travel and transportation, a
medium of transmission, or intercom-
munication, between the people lo-
cated in different places.” McCann v.
Johnson County Telep. Co., 69 Kan.
210, 76 Pac. 870, 66 L. R. A. 171,

8. Eels v. Am. Telep. & Teleg. Co.,
143 N. Y. 133, 5 Am. Electl. Cas. 92,
38 N. E. 202, 62 St. Rep. 138.
r

ABUTTING OWNERS. 403
ing the rights of owners abutting the latter.° Thereafter,
for a number of years, mferior courts applied the rule
that such lines were additional burdens on country high-
ways, but not upon city streets..° And various interesting
questions arose as to whether streets in incorporated vil-
lages were rural highways under the rule." Eventually,
however, the question of telephone lines along city streets
came before the Court of Appeals, and it was held that the
proposed distinction was not sound and that such lines
were an additional servitude.”

Sec. 280. Electric Lines as Additional Servitude; in Gen-
eral.

As in other problems relative to additional servitudes

upon highways, a serious contrariety of opinion is to be

9. “ While concurring in the view
that the easement in a public street
in a city or village may well be
greater as the actual necessities of
the case are greater for sewers and
gas and water pipes, yet in this case,
as we have to deal only with the
easement in a purely country high-
way, it is not important to discuss
how the easement became greater in
the one case than in the other, or as
to the time when the right to the
enlarged use of the highway or street
attaches, or the method or means by
which the right to such enlarged use
was attained. Density of population
creates public necessities for water,
light, drainage and other conven-
jences which do not exist in purely
rural districts and along a purely
rural highway. Yet the same land
might alter from a country highway
to a city street, and it might be de-
termined that there was an implied
dedication of the country highway at
the time the land was taken to the
uses which the future village or city
street might require. We do not de-
cide as to that matter, nor do we
intimate that the defendant would or

would not have the right to place
its poles in the city street without
compensation to the owner, if he
owned to the center of the street.”
Eels v. Am. Telep. & Teleg. Co., 143
N. Y. 133, 5 Am. Elect]. Cas. 92, 38
N. E, 202, 62 St. Rep. 138.

10. Powers v. State Line Telep.
Co., 116 N. Y. App. Div. 737, 102
N. Y. Supp. 34; Castle v. Bell Telep.
Co., 49 N. Y. App. Div. 437, 7 Am.
Electl. Cas. 261, 63 N. Y. Supp. 482;
Gannett v. Independent Telep. Co. of
Syracuse, 55 Misc. (N. Y.) 555, 106
N. Y. Supp. 3.

11. The streets of a village of
10,000 inhabitants were considered in
the category of rural highways.
Powers v. State Line Telep. Co., 116
N. Y. App. Div. 737, 102 N. Y. Supp.
34. Likewise a village of 4,000 popu-
lation. Hudson River Telep. Co. v.
Forrestal, 56 Misc. (N. Y.) 133, 106
N. Y. Supp. 404. See also, Johnson
v. New York & P. Telep. & Teleg.
Co., 76 N. Y. App. Div. 564, 78 N. Y.
Supp. 598.

12. Osborne v. Auburn Telep. Co.,
189 N. Y. 393, 82 N. E, 428.
404 Law oF ELectriciry.

found whether poles and wires erected by an electric com-
pany under governmental authority impose an additional
burden upon the owner of the fee. It is difficult to distin-
guish between the additional burden of an electric company
and that of a telephone or telegraph company, except in
one particular. An electric line may be used for the illu-
mination of the highway and thus, in a general.way, is a
direct aid to the travel along the same.** Upon the close
question whether an electric line is an additional burden,
the circumstance that the company is engaged in lighting
the public highway is a determining factor in the decision.
In New York, for example, it is held that telephone lines,
whether upon a city street or rural highway, constitute an
additional servitude; but the right of an electric company
to maintain an electric line along a rural highway without
compensation to the abutting owner is sustained, where the
franchise to the company embodies a contract for public
lighting.** But, where an electric company is using the
public highways solely to enable it to furnish electric cur-
rent to private persons, it is difficult to find any distinction
between such use and the use by a telephone company.”

13. “The reason for the distine- poses for which it was originally

tion thus clearly drawn between elec-
tric light wires and telephone and
telegraph wires, though the equip-
ment in each instance is practically
the same, is obvious. Lights are con-
venient, often necessary, to insure the
full and complete use by the public
of the streets as highways. Lighting
is incidental to their use, and there-
fore the abutting owner is held to
have been fully compensated when
the highway was originally acquired.
But telephone and telegraph systems,
while often public conveniences, are
not incidental to the use of the
streets as highways and the enjoy-
ment and use of the streets as such
is not increased by such equipment.
All such equipments constitute a di-
version of the highway from the pur-

designed, and hence are an additional
burden on the easement.” Town of
Hazelhurst v. Meyers, 84 Miss. 7, 36
So. 33, 64 L. R. A. 805.

14. Palmer v. Larchmont Elec. Co.,
158 N. Y. 231, 7 Am. Electl. Cas. 298,
43 L. R. A. 172, 52 N. E. 1092.

15. See Guernsey v. Northern Cal.
Power Co., 160 Cal. 699, 117 Pae.
906, 36 L. R. A. (N. S.) 185, where
it was thought that the line would
not be an additional servitude if the
highway was thereby lighted, but
held that a line for service to private
persons was an additional servitude.

Transmission of power in aid of
highway. An interesting question
was suggested in Gurnsey v. Northern
Cal. Power Co., 160 Cal. 699, 117
Pac. 906, 36 L, R. A. (N. 8S.) 185,
ABUTTING OWNERS.

405

Sec. 281. Electric Lines as Additional Servitude; Public

Lighting.

It is practically undisputed that an electric line con-
structed for the purpose of furnishing light for a street
or highway does not impose an additional servitude upon
the owners of lands adjoining such street or highway,
when such line does not interfere with the owner’s right

of ingress to and egress from his premises.”

whether an electric line used for fur-
nishing power to a pumping station
for water to be used in sprinkling
the highway was an additional servi-
tude. The court did not decide the
point, but said: “It may be con-
ceded, too (though we may not so
decide), that a franchise to an elec-
tric company to erect its system over
a highway for the purpose of fur-
nishing power at a pumping plant
erected thereon, for water to be used
in sprinkling a highway, may be jus-
tified for the same reason that au-
thorizes the franchise for lighting the
highway.”

16. California— Gurnsey v. North-
ern California Power Co., 160 Cal.
699, 117 Pac. 906, 36 L. R. A. (N.S.)
185. ‘

Mississippi— Town of Hazelhurst
v. Mayes, 84 Miss. 7, 36 So. 33, 64
L. R. A. 805; Gulf Ice Mfg. Co. v.
Bowers, 80 Miss. 570, 8 Am. Electl.
Cas. 226, 32 So. 113.

Montana.—Loeber v. Butte Gen.
Elec. Co., 16 Mont. 1, 5 Am. Electl.
Cas. 130, 39 Pac. 912.

New Jersey.— Blanchard v. East-
ern Pennsylvania P. Co., 80 N. J. Eq.
10, 83 Atl. 505; Taylor v. Public
Service Corporation of New Jersey,
75 N. J. Eq. 371, 73 Atl. 118; af-
firmed, 78 N. J. Eq. 300, 81 Atl. 1134.
See also, Montclair L. & P. Co. v.
Town of Montclair, 67 N. J. Law 151,
50 Atl. 350.

New York.— Palmer v. Larchmont

This doc-

Elec, Co., 158 N, Y. 231, 7 Am. Electl.
Cas. 298, 52 N. E. 1092, 43 L. R. A.
172; Johnson v Thomson-Houston
Co., 54 Hun 469, 3 Am. Electl. Cas.
203; People ex rel. McManus v.
Thompson, 65 How. Pr.: 407, 1 Am.
Elect]. Cas. 554; affirmed, 32 Hun
93; Tuttle v. Brush Elec. Illum. Co.,
50 N. Y. Super. Ct. 464, 1 Am. Electl.
Cas. 508. “The care, management
and control of the public ways de-
volve upon the local municipal gov-
ernment in which they are located,
and it is the duty of the local govern-
ment to maintain them in such con-
dition that the public, by the exercise
of due care, may pass over them -in
safety. In the darkness of the night,
in crowded thoroughfares, light is an
important aid, largely tending to pro-
mote the convenience, as well as the
safety, of the traveling public. It.
is not only one of the uses to which
the public ways may be devoted, but
in the case of crowded thoroughfares.
a duty devolves upon the municipal-
ity of supplying it. In such cases
it is one of the burdens upon the fee
which must be borne as an incident
to the public right of traveling over
the way, and is deemed one of the
uses for which the land was taken
as a public highway.” Palmer v.
Larchmont Elec. Co., 158 N. Y. 231,
7 Am. Elect]. Cas. 298, 52 N. E.
1092, 43 L. R. A. 172.

Where the fee to public streets is
in a municipality, it may authorize
406 Law oF ELeEcrricity.

trine was explained in one case,” in the following language:
‘‘The authorities are quite uniform that a city or town
may light its streets as means of making them more safe
and convenient for public travel. The right to light the
town is presumed to have been acquired and paid for, as
incident to the right of public passage, when the property
was condemned or dedicated for public use. In other
words, the taking of the land for use as a street includes
not only the right of passage, but of securing a convenient
and safe passage; to light it, if you please, for that pur-
pose. It is not a new taking of property for public use,
but a completing to that extent of the uses of the first tak-
ing by adding appliances included within it, and now con-

structed by reason of the public need.’’**

private corporations or individuals to
erect light poles on the streets and
stretch wires thereon for the purpose
of furnishing light for the use of the
municipality and its citizens, pro-
vided they do not materially obstruct
the use of the streets for public
travel. McWethy v. Aurora Elec. L.
Co., 202 Ill. 218, 8 Am. Electl. Cas.
220, 67 N. E. 9.

17. Gulf Ice Mfg. Co. v. Bowers,
80 Miss. 570, 8 Am. Electl. Cas. 226,
32 So. 113.

18. “The reason for the distinc-
tion thus clearly drawn between elec-
tric-light wires and telephone and
telegraph wires, though the equip-
ment in each instance is practically
the same, is obvious. Lights are con-
venient, often necessary, to insure
the full and complete use of the
streets as highways. Lighting is in-
cidental to their use, and therefore
the abutting owner is held to have
been fully compensated when the
highways was. originally acquired.
But telephone and telegraph systems,
while often public conveniences, are
not incidental to the use of the
streets as highways and the enjoy-
ment and use of the street as such

When erected

is not increased by such equipment.
All such equipments constitute a di-
version of the highway from the pur-
poses for which it was originally
designed, and hence are an additional
burden on the easement.” Town of
Hazelhurst v. Meyers, 84 Miss. 7, 36
So. 33, 64 L. R. A. 805.

“The primary object of highways
is for the public travel by persons
and animals, and by carriage or
vehicles used for the transportation
of persons and goods, other than by
railroads. Sewers drain the surface
water from the highways, and thus
relieve them from impairment and
destruction. In this respect sewers
are for a street purpose. In addition,
they may drain also the abutting
property and houses and thus tend
to promote the public health. In
this respect they are for a municipal
purpose. Water supplied by mains
through the highways may be used
for cleansing and sprinkling the
streets. In this respect it is for a
street purpose. It may be used uy
the abutting owners for cleansing
and for domestic purposes, and is also
used for the extinguishment of fires.
In this respect it is for a municipal
Axsurting Owners. 407
and necessary for the lighting of the public highway, the
abutting owner cannot object to the appliances because
they are also used to furnish current to private persons
and corporations.’® It has, however, been held, that, in
those states where the maintenance of a line for private
lighting is deemed an additional servitude, where poles are
sought to be erected for both public and private purposes
and it does not appear that a particular pole to be erected
in front of an owner’s premises is necessary for the public
use, its erection is an infringement of the owner’s right of
property.”°

Subsequent Contract for Public Lighting—It would
seem reasonable to hold that, where a highway was origi-
nally so used by an electric company that its poles and
wires constituted an additional burden, a change could be
made in the manner of the use so as to render the electric
line not an additional servitude. But a decision has been
made in California which tends to another view. It has
been there held that an electric line constructed solely to
serve private persons with current is an additional servi-

purpose. Light is, as we have seen,
an aid to the public in the night
time in traveling upon the highway.

Jersey, 75 N. J. Eq. 371, 73 Atl. 118;
affirmed without opinion, 78 N. J. Eq.
300, 81 Atl. 1134, it was held that

It is, therefore, used for a street pur-
pose. All of the street purposes
which we have referred to are clearly
incident to the highway and are
deemed within the grant of lands for
highway purposes whenever the
necessity for these uses arises. Not
so with telegraph and _ telephone
wires. They in no way preserve or
improve the streets or aid the public
in traveling over them.” Palmer v.
Larchmont Elec. Co., 158 N. Y. 231,
7 Am. Electl. Cas. 298, 52 N. E,
1092, 43 L. R. A. 172.

19. McWethy v. Aurora Elec. L.
Co., 202 Ill. 218, 8 Am. Electl. Cas.
220, 67 N. E. 9.

Company restrained.— In Taylor v.
Public Service Corporation of New

where an electric light company has
complied with the New Jersey stat-
ute as to the erection of poles and
stringing of wires, an abutting owner
cannot prevent the placing of poles
or their use for the purpose of public
lighting, but if the company uses the
wires for private lighting, an abut-
ting owner, with respect to whose
land no consent in writing has been
given, has the right by ejectment or
by resort to equity, to restrain the
company from misusing its rights by
transmitting an unauthorized and ex-
cessive voltage over the wires in
front of such land owner’s premises.

20. Tiffany v. U. S. Illum. Co., 51
N. Y. Sup. Ct. 280.
408 Law or ELEcrriciry.
tude, and that a subsequent contract to furnish current to a
municipality does not justify the original entry.”
Uncertainty in Several Decisions.— In the reported deci-
sions of at least two of the earlier cases, which were decided
before the distinction between public and private lighting
had been clearly declared, it is not shown whether the elec-
tric line involved was intended for public or private light-
ing. In one case in Pennsylvania” it was held that an
owner abutting a rural highway was entitled to damages
for the construction of an electric line therealong. A sim-
ilar conclusion has been reached by an inferior court of
Ohio without indicating whether the line in question was
utilized for public or private lighting.**

Sec. 282. Electric Lines as Additional Servitude; Private
Lighting.

As indicated in the preceding sections, the right to main-
tain, without compensation to adjoining owners, an electric
line for the purpose of conveying electrical current from
one place to another or for furnishing current to private
persons or corporations, rests on a different basis than the
right to maintain such a line for the illumination of the
public highways. In the states where the question has
been passed upon, it has generally been held that the main-
tenance of electric lines for private lighting constitutes an
additional servitude upon the rights of the abutting owner,
though no specific damage to his egress or ingress is sus-
tained.”* Likewise, the transmission of electric current on

21. Gurnsey v. Northern California
Power Co., 160 Cal. 699, 117 Pac.

13 Pa. Co. Ct. R. 369, 4 Am. Electl.
Cas. 148.

906, 36 L. R. A. (N. 8.) 185, wherein
it was said: “A consequent contract
with the county, under which it pur-
chased power from the company, can-
not justify the original entry. If its
entry was invalid in the first in-
stance, this contract to purchase
power from it did not validate its
occupancy.”

22. Haverford Elec. L. Co. v. Hart,

23. McLean v. Brush Elec. L. Co.,
8 Ohio S. & C. P. Dec. 619, 1 Am.
Electl. Cas. 483, 9 Cin. Law Bull. 65.

24. California.— Gurnsey v. North-
ern California Power Co., 160 Cal.
699, 117 Pac. 906, 36 L. R. A. (N.S.)
185,

Illinois Carpenter v. Capital
Elec. Co., 178 Ill. 29, 7 Am. Elect.
Cas. 312, 52 N. E. 973, 48 L. R. A.
ABUTTING OWNERS.

409

the poles of a street railway company, or the addition of
another system of poles and wires to transmit the current,

is an additional burden upon the owner.”®

But it is evident

that, to a large extent, the question has been raised only in

645, 69 Am. St. Rep. 286; Goddard
v. Chicago, ete., Ry. Co., 104 Ill. App.
526; affirmed, 202 Ill. 362, 66 N. E.
1066. “It is laid down in some of
the authorities that the erection of
electric light poles by city authori-
ties for the purpose of lighting the
public ways and places is not a tak-
ing of private property for public use,
upon the ground that the use of the
streets for this purpose is in the
nature of an exercise of the police
power by the city. But when an
electric light company erects poles or
strings wires, not for the purpose of
lighting public ways and places, but
for the purpose of supplying light to
private individuals and firms in the
transaction of its own corporate and
commercial business, such erection of
poles and stringing of wires consti-
tute an additional easement in the
highway or private alley, for which
the owner of the fee may demand com-
pensation.” Carpenter v. Capital
Elec. Co., 178 Ill. 29, 7 Am. Electl.
Cas. 312, 52 N. E. 973, 43 L. RB. A.
645, 69 Am. St. Rep. 286.

New Jersey Andreas v. Gas &
Electric Co. of Bergen Co., 61 N. J. L.
69, 7 Am. Elect]. Cas. 319, 47 Atl.
555.

New York.— Post v. Suffolk L., H.
& P. Co., 77 Misc. 369, 136 N. Y.
Supp. 401.

Ohio.— Callen v. Columbus Edison
Elec. L. Co., 66 Oh. St. 166, 8 Am.
Elect]. Cas. 243, 64 N. E. 141, 58
L. R. A. 782; Schaaf v. Cleveland,
etc., Ry. Co., 66 Oh. St. 215, 64 N. E.
145. :

Conveying electricity to another
place.— The act of an electric light
company in erecting its poles and
wires on a highway for the sole pur-

pose of conveying the electric cur-
rent to a distant point, is an invasion
of the rights of abutting owners
having the title to the fee of the
highway subject to the public use,
unless the company has acquired the
right so to do either by grant from
said owners or by condemnation.
Post v. Suffolk L., H. & P. Co., 77
Mise. (N. Y.) 369, 136 N. Y. Supp.
401. ;

Alley.— When an electric light com-
pany erects poles or strings wires in
a private alley for the purpose of
supplying light to private individ-
uals, though the latter be part owners
in fee of the alley, an additional
burden is thereby imposed upon the
land; and the abutting owners may
demand compensation and may main-
tain an action in equity to compel
the removal of the poles and wires.
Carpenter v. Capital Elec. Co., 178
Til. 29, 7 Am. Electl. Cas. 312, 52
N. E. 973, 43 L. R. A. 645, 69 Am.
St. Rep. 286.

Conduits.— The owner of a tract
of land, who lays out walks through
the same and leases portions of the
tract abutting such walks to various
individuals, is not obliged to allow
electric lighting companies to lay con-
duits or other apparatus under the
walks for the purpose of enabling
such companies to supply one of the
lessees with electric lights, where it
appears that the private walks were
never dedicated or at least never ac-
cepted as public highways. Lent v.
_Tilyou, 106 N. Y. App. Div. 189, 9
Am. Elect]. Cas. 497,:94 N. ¥. Supp.
479,

25. Goddard v. Chicago, ete. Ry.

*Co., 104 Ill. App. 526; affirmed, 202
Ill. 362, 66 N. E. 1066,
410 Law oF Eecrriciry.

those jurisdictions which take a liberal view of the rights
of the adjoining owners. It would naturally be expected
that the decided conflict of opinion whether telegraph and
telephone lines constitute an additional burden would be
reflected in the decisions relative to electric lines used for
private lighting. Ultimately, it is thought that this conflict
will be exhibited; but, as yet, only the courts favoring the
landowner have rendered their opinions.

Sec. 283. Street Railway as Additional Servitude.

The general rule is that an electric street railway with
its attendant poles, wires, and other appliances in a street
is not an additional servitude. Substantially all the courts
of last resort in the United States, except the New York
Court of Appeals, include also the carriages and vehicles
used upon the ordinary street surface railroads among the
means of accomplishing the primary object of highways.
And it is quite uniformly held that a railroad, constructed
and operated in the streets of a city, so as not to mate-
rially interfere with its common use for public travel by
ordinary modes, or with private rights of abutting land-
owners, for the purpose of transporting persons from place
to place upon such street at their reasonable convenience,
whatever the motive power may be, is not an additional
burden upon the fee thereof, and really promotes the pri-
mary object of the highway. The ordinary electric street
railway with its trolley wire supported by cross-wires
attached to poles set near the outer edge of the sidewalks,
with due regard to the abutting property owners’ conven-
ience, is but an improved method of using the street for
public travel.?*

Sec. 284. Telegraph or Telephone Lines as Additional
Servitude; in General.
As indicated above,” there is an irreconcilable conflict
on the question whether telephone or telegraph lines con-
26. See Nellis on Street Railways 27. § 278.

(2nd Ed.), § 82, and cases there col-
lected.
ABUTTING OWNERS.

stitute an additional servitude.

411

The courts of last resort

in this country are quite equally divided upon the question
and those of each side present good reasons for their deter-

minations.

The proponents of the theory that these lines

are additional burdens claim that the primary purpose of
the highway is travel thereon **— motion from one place to
another along the highway *— and that the use of the high-
way for permanent structures not assisting transportation
is not a mere use of an easement, but is a permanent taking
of property, which is not justified under the original dedi-

28. “Any use of a public street
calculated to facilitate travel, under
the authorities of our state, is held to
be within the contemplation of the
dedicator and can not be considered
an added servitude. But a telephone
system is not such a use. Its object
has no relation to public travel, or
any contemplated use of the streets.
Union Elec. Telep. & Teleg. Co. v.
Applequist, 104 Ill. App. 517.

Lessening travel. “ There is force
in the contention, .and several courts
have adopted the view that the use
of poles for such purposes is within
the purpose of the original dedica-
tion, and therefore not a new use nor
an additional burden on the street,
because such use pertains to travel
on the street. That it lessens travel
on the street is admitted. That, how-
ever, is hardly the test. The question
is, does it lessen travel on the street
by such means a8 cause a permanent
obstruction of the street for a pur-
pose not within the original dedica-
tion?’ Donovan v. Allert, 11 N. Dak.
289, 8 Am. Electl. Cas. 183, 91 N. W.
441, 58 L. R. A. 775, 95 Am. St. Rep.
720.

29. “ Although the purpose of a
public highway is for the passage of
the public, it may be conceded :that
the land forming such highway was
not taken for the purpose of enabling
the public to pass over it only in

the then known vehicles, or for using
it in the then known methods for the
conveyance of property or the trans-
mission of intelligence. Still the pri-
mary law of the highway is motion,
and whatever vehicles are used, or
whatever method of transmission of
intelligence is adopted, the vehicle
must move and the intelligence be
transmitted by some moving body
which must pass along the highway,
either on or over, or perhaps under

it, but it cannot permanently appro-

priate any part of it.” Eels v. Amer-
ican Telep. & Teleg. Co., 143 N. Y.
133, 5 Am. Electl. Cas. 92, 38 N. E.
202, 62 St. Rep. 138.

“The primary use of a street or
highway is confined to travel or
transportation. Whatever the means
used, the object to be attained is
passage over the territory embraced
within the limits of the street.
Whether as a pedestrian, or on a@
bicycle, or in a vehicle drawn by
horses or other animals, or in a
vehicle propelled by electricity, or in
a car drawn by horses or moved by
electricity, the object: to be gained is
moving from place to place. The
same idea is expressed by courts and
text writers, that * motion is the pri-
mary idea of the use of the street.’”
Donovan v. Allert, 11 N. Dak. 289, 8
Am. Eleetl. Cas. 183, 91 N. W. 441,
58 L. R. A. 775, 95:Am. St. Rep. 720.
412

cation.®°

Law oF ELEcTRICITY.

On the other hand, the opponents of additional

servitude claim that the highways were dedicated, not
merely for travel on foot, on animals, in vehicles, or by
other modes of locomotion, but were dedicated also for
communication between the citizens, and that such com-
munication may be by an electric current along wires as

30. “We cannot agree that this
permanent appropriation and exclu-
sive possession of a small portion of
the highway can properly be regarded
as any newly discovered method of
exercising the old public easement, for
the very reason that this so-called
new method is a permanent, continu-
ous and exclusive use and possession
of some part of the public highway
itself, and, therefore, cannot be
simply a new method of exercising
such old public easement. It is a
totally distinct and different kind of
use from any heretofore known. It
is not a mere difference in the kind
of vehicle, or in their number or
capacity, or in the manner, method
or means of locomotion. All these
might be varied, increased as to num-
ber, capacity or form, altered as to
means or rapidity of locomotion or
transformed in their nature and char-
acter, and still the use of the high-
way might be substantially the same,
a highway for passage and motion
of some sort. Here, however, in the
use of the highway by the defendant
is the fact of permanent and exclu-
sive appropriation and possession, a
fact which is, as it seems to us,
wholly at war with that of the legiti-
mate public easement in a highway.”
Eels v. American Telep. & Teleg.
Co., 143 N. Y. 133, 5 Am. Electl.
Cas. 92, 38 N. E. 202, 62 St. Rep. 138.

“The argument to support the
proposition that the right to con-
struct and maintain a telephone line
for common public use is within this

easement is that the structures re-
quired for the exercise of the right
are mere adaptations of the road to
the passage of the electric current,
which ‘thus travels along the high-
way. But the resemblance between
this use and that ordinarily enjoyed
under the easement scarcely goes be-
neath the words by which it may be
described. In reality, the electric
current does not use the highway for
passage. It uses the wire, and would
be as well accommodated if the wire
were placed in the fields or over the
houses. The highway is used only as
a standing place for the structures.
Such a use seems to us to be so dif-
ferent from the primary right of
passage as to be essentially distinct.
Nor does it rest on the same footing
as those secondary uses to which
allusion has been made. Telephone
lines in a street do not afford to the
oceupants of neighboring property
such general convenience, nor have
they been permitted with such com-
mon and continued acquiescence, as
sanction the other uses mentioned.
We therefore think that the right
now under consideration is not
within the public easement, and can
be acquired, against the consent of
the private owner of the fee, only by
condemnation under the power of emi-
nent domain. To this effect has been
the trend of judicial opinion in this
State.” Nichol v. :N. Y. & N. J.
Telep. Co., 62 N. J. Law 733, 7 Am.
Elect]. Cas. 277, 42 Atl. 583, 72 Am.
St. Rep. 66.
ABUTTING OWNERS.

well as by physical means along the highway.”

413

Concern-

ing the telephone, they assert that it serves to direct travel
and transportation over the highway and that the messages

31. “It must be,: however, that the
contemplated uses should be deemed
to have been, not only in the walking,
riding upon horse-back and in wagons
or other vehicles drawn by animals,
in the going and returning upon busi-
ness, social, religious or political
missions, but also, by such methods
of travel and communication, in ad-
dition or in substitution for those, as
might come into vogue and be ac-

cepted and recognized as proper and-

important uses of the street in the
varying needs and demands of com-
merce, and the relations of man “to
man socially and otherwise. If this
were not true, the way originally
dedicated for a suburban highway,
but by the growth of population tbe-
coming a city street, or the dedica-
tion of a village or town street after-
wards becoming the principal thor-
oughfare of a great city, would be
limited to the uses in vogue at the
time and suited to the country road
or the village or town street; and
the growth of population, the ad-
vancement of commerce, and the
increase of inventions for the aid
of mankind would be required to
adjust themselves to the conditions
existing at the time of the dedication,
and with reference to the uses then
actually contemplated. That a dedi-
cation or condemnation is deemed to
comprehend uses not actually in the
minds of the parties at the time is
seen from the almost unvarying rule
that the electric street railway sys-
tems are not a new use and an addi-
tional servitude, but are a new
method of enjoying an old and ever
existing use.” Magee v. Overshiner,
150 Ind. 127, 7 Am. Electl. Cas. 241,
49 N. E. 951, 40 L. R.:A. 370, 65 Am.
St. Rep. 358.

“Tt seems to us that a limitation
of the public easement in highways
to travel and the transportation of
persons and property in movable
vehicles is too narrow. In our judg-
ment, public highways, whether ur-
ban or rural, are designed as ave-
nues of communication; and, if the
original conception of a-highway was
limited to travel and transportation
of property in movable vehicles, it
was because these were the only
modes of communication then known;
that as civilization advanced -and new
and improved methods of communica-
tion and transportation were devel-
oped, these are all in aid of and
within the general purpose for which
highways are designed. Whether it
be travel, the transportation of per-
sons and property, or the transmis-
sion of intelligence, and whether ac-
complished by old methods or new
ones, they are all-included within the
public ‘highway easement,’ and im-
pose no additional servitude upon
the land, provided they are not in-
consistent with the reasonably safe
and practical use of the highway in
other and usual and necessary modes,
and provided they do not unreason-
ably impair the special easements of
abutting owners in the street for pur-
poses of access, light and air.” Cater
v. Northwestern Telep. Exch. Co., 60
Minn. 539, 5 Am. Electl. Cas. 111,
63 N. W. 111, 28 L. R. A. 310, 51
Am. St. Rep. 543.

“Our conclusion is that the public
roads were dedicated, not merely for
travel on foot, or on animals, or in
vehicles, but for locomotion by any
means that should be afterwards dis-
covered, and for communication be-
tween the citizens of the country, by
carriers, on foot, or riding, or by.
414

Law oF ELECTRICITY.

which are sent over the line are a substitute for the mes-
sengers who formerly passed over the highway, and thus
the telephone relieves the highway of the burdens and wear

of travel.”

any other means that might be found
suitable and best. The mails could
be sent over them in any way that
was found most expeditious. If it
had been found advisable to send the
mails in-metal boxes swung on wires
far above the heads of the people, in
place of in stages and by carriers,
no one would have supposed it was
an additional burden upon the .abut-
ting owner.” Hobbs v. Long Dist.
Telep. Co., 147 Ala. 393, 41 So. 1003,
7 LL. R. A. (N. 8.) 87, 11 Ann, :Cas.
525.

The discovery of the telegraph de-
veloped a new and valuable mode of
communicating ‘intelligence. Its use
is certainly similar to, if not identi-
cal with, that public use of trans-
mitting information for which the
highway was originally taken, even
if the means adopted are quite differ-
ent from the post-boy or the mail-
coach, It is a newly discovered
method of exercising the old public
easement, and all appropriate methods
must have: been deemed to have been
paid for when the road was laid out.
Pierce v. Drew, 136 Mass. 75, 1 Am.
Electl. Cas. 571, 49 Am. Rep. 7.

“When these lands: were taken or
granted for public highways, they
were not taken or granted for such
uses only as might then be expected
to be made of them, by the common
methods of travel then known, or for
the transmission of intelligence by
the only methods then in use, but for
such methods as the improvement of
the country, or the discoveries of
future times, might demand.” People
y. Eaton, 100 Mich. 208, 5 Am. Electl.
Cas. 87, 59 N. W. 145, 24 LR. A,
721,

Uses not contemplated—If there
is any one fact established in the his-
tory of society and of the law itself,
it is that the mode of exercising this
easement is expansive, developing
and growing as civilization advances.
In the most primitive state of society
the conception of a highway was
merely a footpath; in a slightly more
advanced state it included the idea
of a way for pack animals; and, next,
a way for vehicles drawn -by animals
— constituting, respectively, the iter,
the actus and the via of the Romans.
And thus the methods of using public
highways expanded with the growth
of .civilization, until to-day our ur-
ban highways are devoted to a variety
of uses not known in former times,
and never dreamed of by the owners
of the soil when the public easement
was acquired. Hence it has become
settled law that the easement is not
limited to the particular methods of
use in vogue when the easement was
acquired, but includes all new and
improved methods, :the utility and
general convenience of which may af-
terwards be discovered and developed
in aid of the general purpose for
which highways are designated. Cater
v. Northwestern Telep. Exch. Co., 60
Minn. 539, 5 Am. Electl. Cas. 111,
63 N. W. 111, 28 L. R. A. 310, 51
Am. St. Rep. 543. i

82. “In a certain sense the tele-
phone is an adjunct of the highway
as the telegraph is of the railway.
It serves to direct travel and trans-
portation over the highway; it keeps
persons using the highway and those
in authority advised of its condition,
and, if necessary, they can provide
for repairs; and-it enables those who
ABUTTING OWNERS.

415

Sec. 285. Telegraph or Telephone Lines as Additional
Servitude; View that Line is Additional Servitude.

In the jurisdictions mentioned in the notes the view is

taken that the maintenance of a telephone or telegraph line

along a public highway, the fee whereof is in the adjoining

owner, constitutes an additional servitude upon such fee,

even though the owner’s right of ingress or egress is not

substantially injured.*

have sent teams and vehicles over it
to learn the progress that has been
made on the journey. The messages
transmitted over the line are a .sub-
stitute for the messengers who for-
merly passed over the highway, and
thus to a great extent relieve it
from the burdens and.wear of travel.”
McCann v. Johnson County Telep.
Co., 69 Kan. 210, 76 Pac. 870, 66
L. R. A. 171.

“The telephone takes the place of
the private messenger. The transmis-
sion of messages by telephone is a
business of a public character, which
is conducted under public control in
the same manner as the carriage of
persons or property.” Cumberland
Telep. Co. v. Avritt, 120 Ky. 34, 27
Ky. Law Rep. 394, 85 S. W. 204.

“Tf a citizen living or doing -busi-
ness on one end of Sixth street
wishes to communicate with a
citizen living and doing business
on the other end, or at any inter-
mediate point, he is entitled to use
the street, either on foot, on horse-
back or in a carriage or other vehicle
in bearing his message. The defend-
ants in this case propose to use the
street by ‘making the telephone poles
and wires the messenger to bear such
communications instantaneously and
with more dispatch than in any of
the above methods, or any other
known method of bearing oral com-
munications. Not only would such
communication be borne with more

dispatch, but, to the extent of the
number of communications daily
transmitted by it, the street would
be relieved of that number of foot-
men, horsemen or carriages. If a
thousand messages were daily trans-
mitted by means of telephone poles,
wires and other appliances used in
telephoning, the street through these
means would serve the same purpose,
which would otherwise require its use
either by a thousand footmen, horse-
men or carriages to effectuate the
same purpose. In this view of it
the erection of telephone poles and
wires for transmission of oral mes-
sages, so far from imposing a new
and additional servitude, would, to
the extent of each message -transmit-
ted, relieve the street of a servitude
or use by @ footman, horseman or
carriage.” Julia Bldg. Assoc. v. Beli
Telep. Co., 88 Mo. 258,:1 Am. Electl.
Cas. 801, 57 Am. Rep. 398.

83. California.— Pacific Postal
Teleg. Co. v. Irvine, 49 Fed. 113, 4
Am. Electl. Cas. 140 (telegraph line
in California).

Illinois —DeKalb County Telep. Co.
v. Dutton, 228 Ill. 178, 81 N. E. 838,
10 L. R. A. (N. S.) 1057, 10 Ann.
Cas. 464 (telephone); Burrall v.
American Telep. & Telg. Co., 224 Ill.
266, 79 N. E. 705, 8 L. R. A. (N. S.)
1091 (telephone); Postal Teleg. Ca-
ble Co. v. Eaton, 170 Ill. 513, 49 N.
E. 365, 39 L. R. A..722, 62 Am. St.
Rep. 390 (telegraph); Board of Trade
416

Law or ELectriciry.

Sec. 286. Telegraph or Telephone Lines as Additional
Servitude; View that Line is not Additional Servitude.

In other jurisdictions the courts with equal force insist
that a telephone or telegraph company may properly con-

Teleg. Co. v. Barnett, 107 Ill. 507, 1
Am, Elect]. Cas. 565, 47 Am. Rep.
453 (telegraph); Union Elec. Telep.
& Teleg. Co. v. Applequist, 104 Ill.
App. 517 (telegraph); American
Telep. & Teleg. Co. v. Jones, 78 Ill.
App. 372 (telegraph).

Maryland.— See Chesapeake & P.
Teleg. Co. v. Mackenzie, 74 Md. 36,
3 Am. Electl. Cas 196, 21 Atl. 690,
28 Am. St. Rep. 219.

Mississippi— Stowers v. Postal
Teleg. Cable Co., 68 Miss. 559, 9 So.
356, 12 L. R. A. 864, 24 Am. St. Rep.
290 (telegraph).

Nebraska.— Bronson v. Albion
Telep. Co., 67 Neb. 111, 8 Am. Electl.
Cas. 177, 93 N. W. 201, 60 L. R. A.
426 (telephone).

New Jersey—Nicoll v. N. Y. &
N. J. Telep. Co., 62 N. J. L. 733, 7
Am. Electl. Cas. 277, 42 Atl. 583, .72
Am. St. Rep. 66 (telephone); Broome
v. N.Y. & NIJ. Telep. Co., 42 N. J.
Eq. 141, 2 Am. Elect]. Cas. 259, 7
Atl. 851 (telephone); Western Union
Teleg. Co. v. Polhemus, 167 Fed. 231;
reversed on other grounds, 178 Fed.
904, 102 C. CG. A. 105, 29 L. R. A,
(N. 8.) 465 (telegraph in New Jer-
sey).

New York.—Osborne v, Auburn
Telep. Co., 189 N. Y. 393, 82 N. E.
428 (telephone); Eels v. American
Telep. & Teleg. Co., 143 N. Y. 133,
5 Am. Elect]. Cas. 92, 38 N. E. 202,
62 St. Rep. 138 (telegraph); Powers
v. State Line Telep. Co., 116 N. Y.
App. Div. 737, 102 N. Y. Supp. 34
(telephone); Hudson River Telep.
Co. v. Forrestal, 56 Mise. 133, 106
N. Y. Supp. 404; Gray v. York State
Telep. Co., 41 Misc. (N. Y.) 108, 83

N. Y. Supp. 920; affirmed, 92 N. Y.
App. Div. 89, 86 N. Y. Supp. 771.

North Dakota— Tri-State Telep. &
Teleg. Co. v. Cosgriff, 19 N. Dak. 771,
124 N. W. 75, 26 L. BR. A. (N. S.)
1171 (telegraph and telephone line) ;
Cosgriff v. Tri-State Telep. & Teleg.
Co., 15 N. Dak 210, 107 N. W. 525,
5 L. R. A. (N. S.) 1142 (telegraph
and telephone line); Donovan v. Al-
lert, 11 N. Dak. 289, 8 Am. Electl.
Cas 183, 91 N. W. 441, 58 L. R. A.
775, 95 Am. St. Rep..720 (telephone).

Ohio.— Daily v. State, 51 Ohio St.
348, 5 Am. Elect]. Cas. 186, 46 Am.
Rep. 578, 37 N. EH. 710 (telegraph) ;
Burns v. Columbus Citizens’ Telep.
Co., 30 Ohio Cir. Ct. Rep. 74; Smith
v. Central District Printing & Teleg.
Co., 2 Ohio C. C. R. 259, 2 Am. Electl.
Cas. 237 (telegraph).

Texas.— Southwestern Teleg. &
Telep. Co. v. Smithdeal, 103 Tex. 128,
124 S. W. 627. See also, Roaring
Springs Townsite Co. v. Paducah
Telep. Co., (Tex. Civ. App.) 164 S.
W. 50.

Virginia Western Union Teleg.
Co. v. Williams, 86 Va. 184, 3 Am.
Elect]. Cas. 184, 11 8. E. 106, 8
L. R, A. 429, 19 Am. St. Rep. 908
(telegraph).

Wisconsin.— Kreuger v. Wisconsin
Telep. Co., 106 Wis. 96, 7 Am. Electl.
Cas. 285, 81 N. W. 1041, 50 L. R. A.
298 (telephone).

Use by municipality of poles —A
telephone line of an ordinary local
exchange in a municipality is an ad-
ditional servitude upon the streets,
the fee of which is in the abutting
owners, the same as in the case of a
long distance telephone line in a
ABUTTING OWNERS.

417

struct a line of poles and wires along a public highway
without creating an additional burden upon the abutting
owners, if no obstruction of the right of ingress and egress

is made.**

rural highway; and this is true even
though the municipal corporation has
the privilege of using the telephone
poles for fire alarm and police sig-
nal. DeKalb County Telep. Co. v.
Dutton, 228 Ill. 178, 81 N. E. 838, 10
L. R. A. (N. S.) 1057, 10 Ann. Cas.
464,

84, Alabama.— Hobbs. v. Long Dis-
tance Telep. & Teleg. Co., 147 Ala.
393, 41 So. 1003, 7 L. R. A. (N. 8.)
87, 11 Ann, Cas. 525 (telephone).

District of Columbia—See Mc-
Cormick v. District of Columbia, 4
Mackey 396 (telephone).

Georgia The construction of a
telephone line upon a public county
road or highway in the state of
Georgia, with the approval of the
county authorities in charge of such
toad or highway (which telephone
line is used in the transmission of
intelligence betwen various points),
is not an additional burden or servi-
tude upon such public road, and does
not exceed the uses to which the
easement in the public can be put
by approval of such county authori-
ties, and that the adjacent or abut-
ting landowner upon such public road
has not the legal right to prevent
the use and occupancy by the com-
plainant of such public road for the
purpose of constructing, maintaining
_ and operating its telephone lines
thereon with the approval of such
county authorities. Southern Bell
Telep. & Teleg. Co. v. Nalley, 165
Fed. 263.

Indiana.— Magee v. Overshiner, 150
Ind. 127, 7 Am. Electl. Cas. 241, 49
N. E. 951, 40 L. R. A. 370, 65 Am.
St. Rep. 358 (telephone).

Kansas— McCann _v.

27

Johnson

County Telep. Co., 69 Kan. 210, 76
Pac. 870, 66 L. R. A. 171 (telephone).

Kentucky. Cumberland Telep. &
Teleg. Co. v. Avritt, 120 Ky. 34, 27
Ky. Law. Rep. 494, 85 S. W. 204
(telephone).

Louisiana.— Irwin v. Great South-
ern Telep. Co., 37 La. Ann, 63, 1 Am.
Electl. Cas. 709.

Massachusetts. Pierce v. Drew,
136 Mass. 75, 1 Am. Electl. Cas. 571,
49 Am. Rep. 7 (telegraph).

Michigan. Wyant v. Central
Telep. Co. 123 Mich. 51, 7 Am.
Elect]. Cas. 256, 81 N. W. 928, 47
L. R. A. 497, 81 Am. St. Rep. 155, 6
Det. Leg. N. 957 (telephone); People
v. Eaton, 100 Mich. 208, 5 Am. Electl.
Cas. 87, 59 N. W. 145, 24 L. R. A.
721 (telegraph).

Minnesota.— Cater v. Northwestern
Telep. Exch. Co., 60 Minn. 539, 5 Am.
Elect]. Cas. 111, 63 N. W. 111, 28
L. R. A. 310, 51 Am. St. Rep. 543
(telephone). See also, Willis v. Erie
Teleg. & Telep Co., 37 Minn. 347, 34
N. W. 337.

Missouri— Julia Bldg. Assoc. v.
Bell Telep. Co., 88 Mo. 258, 1 Am.
Elect]. Cas. 801, 57 Am. Rep. 398
(telephone); Gay v. Mutual Union
Teleg. Co., 12 Mo. App. 485, 1 Am.
Elect]. Cas 427 (telegraph).

Montana.— Hershfield v. Rocky
Mountain Bell Telep. Co., 12 Mont.
102, 4 Am. Electl. Cas. 73, 29 Pac.
883 (telephone).

Pennsylvania—Shinzel v_ Bell
Telep. Co. of Philadelphia, 31 Pa.
Super. Ct. 221 (telephone); York
Telep. Co. v. Keesey, 5 Pa. Dist. 366,
6 Am. Electl. Cas. 107 (telephone).

South Dakota.— Kirby v. Citizens’
418 Law or EQLEcTRICITY.
Sec. 287. Telegraph or Telephone Lines as Additional
Servitude; Telephone and Telegraph Contrasted.

In an early chapter of this work,** the differences exist-
ing between telephone and telegraph systems were stated.
One of the reasons for holding that an additional servitude
is not created by a telephone line is that it takes the place
of messengers who formerly traveled the highway, and
thus, to a certain extent, lessens the burdens upon the high-
way.** This reasoning has but little force when it is applied
to the line of a telegraph company. It is true that in some
cases the transmission of a telegram obviates the necessity
of travel. But it is also true that telegrams sometimes
create a necessity for travel. But little force can be
accorded to the argument in either case. On the other
hand, a local telephone system requires a large number of
wires, while a telegraph system uses comparatively few
for the transaction of its business. Considering the num-

Telep. Co., 17 S. Dak. 362, 8 Am.
Electl. Cas. 199, 97 N. W. 3.

Tennessee.— Frazier v. East Ten-
nessee Telep. Co., 115 Tenn. 416, 90
S. W. 620, 3 L. R. A. (N. S.) 323,
112 Am. St. Rep. 856,

Vermont.— See Rugg v. Commer-
cial Union Teleg. Co., 66 Vt. 208, 4
Am. Electl. Cas. 1142, 28 Atl. 1036,
but apparently the precise question
has not yet been determined in this
state.

West Virginia—Lowther v. Bridge-
man, 57 W. Va. 306, 50 S. E. 410
(telephone) ; Maxwell v. Central Dis-
trict & Printing Teleg. Co, 51 W.
Va. 121, 8 Am. Electl. Cas. 206, 41
S. E. 125 (telephone).

Turnpike.— Where a right of way
has been granted by a land owner
for the building of a turnpike
thereon, an agreement by the turn-
pike company to allow telephone
poles and wires to be erected there-
on, being for a public purpose, is
not an additional servitude on the
land, for which the original owner

can maintain an injunction or re-
cover compensation from the tele-
phone company. Cumberland Telep.
& Teleg. Co. v. Avritt, 120 Ky. 34,
27 Ky. Law Rep. 394, 85 S. W. 204.

35. See § 10.

36. “The telegraph, however, has
never been employed as a means of
interurban communication. It re-
quires skilled persons to receive the
messages, and then they are to be
carried to the persons for whom they
are intended by just such means and
uses of the streets as would other
written communications. The tele-
phone is particularly useful in com-
munications between the people
within a city, and it can be used for
that purpose directly, and by persons
without special skill. It is more
clearly a substitute for the old
methods of the communication of
messages between persons within the
city than the telegraph.’ Magee v.
Overshiner, 150 Ind. 127, 7 Am.
Electl. Cas. 241, 49 N. E. 951, 40
L. R. A. 370; 65 Am. St. Rep. 358.
ABUTTING OWNERS. 419
ber of telephone wires in cities and villages where conduits
are not utilized, courts might well be inclined to think that
such network was a burden in excess of the burden of a
few telegraph wires. A long distance telephone line is
more closely allied to a telegraph line than to a local tele-
phone system.’ But whatever differences may be pointed
out between the telephonic and telegraphic communication,
apparently no court has held that one creates an additional
servitude, but that the other does not.

Sec. 288. Conduits.

There are, as yet, not a sufficient number of reported
opinions to enable one to determine whether abutting
owners have the same rights as to underground wires that
they have as to wires strung upon poles. There are, how-
ever, indications that a more liberal rule for the companies
will prevail. Thus, in Ohio, where overhead telephone
wires are deemed an additional burden upon the abutting
owner, it has been held by a lower court that, if poles and
wires have already been erected along the street, it is no
invasion of the abutting owner’s rights to place them in
conduits.** In New York, another jurisdiction sustaining
the additional servitude of telephone lines, it has been held
by an intermediate appellate court that the abutting owner
is not entitled to compensation when overhead wires are
changed to conduits.** This latter decision was rendered,

37. “There can be no doubt that is without any substantial basis.”

under the law in this state, as here-
tofore announced, a long distance

telephone line places an additional

servitude upon the fee in a rural
highway. It is contended, however,
that there is a distinction in this
regard between the use of a street
in a city or village by a telephone
company operating an ordinary local
telephone: exchange, and the use of
a rural highway by a telephone com-
pany operating a long distance tele-
phone system. We are disposed to
think that the attempted distinction

DeKalb County Telep. Co. v. Dutton,
228 Ill. 178, 81 N. HE. 838, 10 L. R. A.
(N. S.) 1057, 10 Ann. Cas. 464.

88. Burns v. Columbus Citizens’
Telep. Co., 30 Oh. Cir. Ct. Rep. 74.

89. Castle v. Bell Telep. Co., 49
N. Y. App. Div. 437, 7 Am. Electl.
Cas. 261, 63 N. Y. Supp. 482.

Conduits under sidewalks.—The
owner of a tract of land, who lays
out walks through the same and
leases portions of the tract abutting
such walks to various individuals,
is not obliged to allow electric light-
420 Law oF E.ecrriciry.

it is to be observed, at a time when the court of last resort
in New York had not yet passed upon the question whether
a telephone line in a city street is an additional servitude
and the inferior courts were applying the doctrine that
such lines are additional servitude when constructed along
rural highways, but are not when constructed along city
streets.*° Had the decision sustaining the abutting own-
er’s rights along city streets been rendered, it is possible
the court would not have reached the conclusion it did in

the conduit case.

On the other hand, in Indiana, a state denying the addi-
tional servitude of overhead telephone wires, the same rule
is applied to conduits as to wires upon poles.**

Sec. 289. Fee not Owned by Abutting Owner.
In some cases it has been held that an electric or other
line will not be considered a burden of which an abutting

ing companies to lay conduits or
other apparatus under the walks for
the purpose of enabling such com-
panies to supply one of the lessees
with electric lights, where it ap-
pears that the private walks were
never dedicated or at least never ac-
cepted as public highways. Lent v.
Tilyou, 106 N. Y. App. Div. 189, 9
Am. Elect]. Cas. 497, 94 N. Y. Supp.
479.

40. See § 279.

41. Coburn v. New Telep. Co., 156
Ind. 90, 7 Am. Elect]. Cas. 270, 59
N. E. 324, 52 L. R. A. 671. “In lo-
cating, marking, and dedicating
streets in plats of land for urban
residences, the purpose of the dedi-
cation, in the absence of controll-
ing language, is conclusively pre-
sumed to be for the accommodation
of public travel, traffic, and communi-
cation. Anything which reasonably
facilitates these ends is, therefore,
consistent with the dedication. In
sparsely settled towns and cities pub-
lie necessity requires but little of
the servient owner, beyond the right

of unobstructed passage over the
street, but, as cities become populous
and the street crowded with travel-
ing footmen and vehicles, public ne-
cessity increases with the multitude;
and, whenever the necessity exists,
any use of the street by reasonable
structures and devices, above or be-
low the surface, which will enable
the citizens to communicate without
actual travel upon the streets, and
which does not materially obstruct
the ingress and egress and light and
air to abutting property, is within
the contemplated purpose of the dedi-
cation, and not a new burden upon
the fee.” Coburn v. New Telep. Co.,
156 Ind. 90, 7 Am. Electl. Cas. 270,
59 N. E, 324, 52 L. R. A. 671.

A complaint by an abutting land-
owner to enjoin the laying of con-
duits beneath the sidewalk, which
does not allege that the plaintiff is
the owner of the fee of the soil to
be invaded, is insufficient on de-
murrer. Erwin v. Central Union
Telep. Co., 148 Ind. 365, 46 N. E.
667.
Asurting Owners. 421
owner can complain, unless such owner also owns the fee
of the land over which the highway is laid out. For
example, in JJlinois, where the rules adopted are generally
in favor of abutting owners, it is held that an electric light
line is not an additional servitude where the fee of the
street is in the municipality and no special damage is
caused to the adjoining owner. If the fee of the highway
is in the municipality, it is generally permitted to grant the
use thereof for any purpose which does not interfere with
travel along the same or obstruct the rights of the abutting
owners to pass to and from his premises.** Of course, if
an obstruction is created to his right of ingress or egress,
the ownership of the fee is not material.“* In other deci-
sions, however, it is held that municipalities, owning the
fee to their streets, hold the same for the use of the public
and that they may not be diverted for other than street
purposes. Under this doctrine it matters but little whether
the fee be in the abutting owner; if the line of poles and
wires is proper as a street purpose, it is not an additional
burden though he owns the fee; if it is not a proper street

42. McWethy v. Aurora El. L. Co.,
202 Ill. 218, 8 Am. Electl. Cas. 220,
67 N. E. 9; Loeber v. Butte Gen.
Elec. Co., 16 Mont. 1, 5 Am. Electl.
Cas. 130, 39 Pac. 912; Post v. Hud-
son River Telep. Co., 76 N. Y. App.
Div. 621, 78 N. Y. Supp. 576; Hal-
leran v. Bell Telep. Co., 64 N. Y. App.
Div. 41, 7 Am. Elect]. Cas. 253, 41
N. Y. Supp. 685; affirmed, 177 N. Y.
533, 69 N. E. 1124. See also, Irwin
v. Great Southern Telep. Co., 37 La.
Ann. 63, 1 Am. Electl. Cas. 709.

43. “Cities which own the fee in
the streets may contract, lease or
grant their use for public or mu-
nicipal purposes not inconsistent with
nor prejudicial to the public ease-
ment or use for street purposes. In
such cases the fee having been trans-
ferred to the municipality, it can
grant rights in the streets other
than for street purposes which do

not impair the public easement.” Os-
borne v. Auburn Telep. Co., 189 N.
Y. 393, 82 N. E. 428.

An electric light company, under
contract to light the streets of a
city, cannot be restrained by injunc-
tion from erecting a pole in an alley,
the fee of which belongs to the city,
at a place designated by the city,
and being most convenient for the
purpose, and not interfering with
the easements of access, light or air
of the abutting owner, who brings
the action. Loeber v. Butte Gen.
Elec, Co., 16 Mont. 1, 5 Am. Electl.
Cas. 130, 39 Pac. 912.

44, McWethy v. Aurora Elec. L.
Co., 202 Ill. 218, 8 Am. Elect]. Cas.
220, 67 N. E. 9; Chesapeake & P.
Teleg. Co. v. Mackenzie, 74 Md. 36,
3 Am. Electl. Cas. 196, 21 Atl. 690,
28 Am. St. Rep. 219.
422

Law oF ELEctricirty.

purpose, his rights are deemed violated whether or not

he owns the fee.*

Sec. 290. Absence of Franchise.

Poles and wires erected along streets or highways with-
out a franchise from the state or from a local municipality
are a nuisance which may be abated.** An adjoining owner
is, in some cases, considered as having an interest in their
abatement which permits him to maintain an action to that

end.*’

45. McCann v. Johnson County
Telep. Co., 69 Kan. 210, 76 Pac. 870,
66 L. R. A. 171; Callen v. Columbus
Edison Elec. L. Co., 66 Ohio St. 166,
8 Am. Electl. Cas, 243, 64 N. E. 141,
58 L. R. A. 782; Southwestern Teleg.
& Telep. Co. v. Smithdeal, 104 Tex.
258, 136 8S. W. 1049. “ At one time
there was a tendency to attach
some weight to the ownership of the
fee of the street or highway. But it
is becoming well settled, for obvious
and convincing reasons, that that
question is immaterial.” Bronson v.
Albion Telep. Co., 67 Neb. 111, 8 Am.
Electl. Cas. 177, 93 N. W. 201, 60
L. R. A. 426.

“In the case at bar the fee in
the highway at the point in con-
troversy is in the plaintiff, but I
do not regard that fact as control-
ling upon the question of the proper
use of the highway. Of course the
plaintiff ‘could not recover in this
form of action unless he owned the
fee in the highway at this particular
point, but I do not think the proper

use of the highway depends upon the.

question as to who owns the fee
thereof. I think that the rights of
the public in and to the highway re-
main the same wherever the fee
thereof may be placed.” Eels v.
American Telep. & Teleg. Co., 143
N. Y. 133, 5 Am. Elect]. Cas. 92, 38
N. E. 202, 62 St. Rep. 138.

If the franchise under which the company is assum-

The title which a municipal corpo-
ration acquires, under section 2601,
Rev. Stat., to streets dedicated by a
proprietor who subdivides lots for
sale, is held for the use of the public
for street purposes. An owner of a
lot abutting on such street has a
property interest in the street in
front of his lot, which cannot be
taken against his will, except upon
the terms provided by the constitu-
tion, viz., that a compensation shall
first be made in money, or by a de-
posit of money. The placing by a
private lighting company of poles at
the curb in a street, and the string-
ing thereon of electric light cable lines
and wires for the purpose of fur-
nishing light and energy to private
takers, is a diversion of the street
from the purposes to which it was
dedicated, and is a taking of the
property of the abutting owner,
within the meaning of section 19 of
the bill of rights. And such placing
of poles, lines, and wires is none
the less an authorized taking, even
though it be consented to by the city
authorities. Callen v. Columbus Ed-
ison Elec. L. Co., 66 Ohio St. 166,
8 Am. Electl. Cas. 243, 64 N. E. 141,
58 L. R. A. 782.

46. § 430.

47. Maxwell v. Central District &
Printing Teleg. Co., 51 W. Va. 121, 8
Am. Electl. Cas. 206, 41 S. E. 125;
ABUTTING OWNERS.

423

ing the right to place its poles and wires in the streets is
wholly void, an abutting owner should be permitted to

assert the invalidity thereof.*

On the other hand, if the

franchise is not void, but merely voidable by the state or
municipality, an abutting owner should not be allowed to
attack the franchise in a collateral proceeding. An attack

Malone v. Waukesha Electric Light
Co., 120, Wis. 485, 9 Am. Electl. Cas.
25, 98 N. W. 247. “The only other
question worthy of consideration
presented by this record is as to
whether the plaintiff is entitled to
enjoin the erection of such telephone
poles as a public nuisance specially
damaging his property. If the de-
fendant was clothed with proper
legal authority to erect such poles,
although they may be a specific dam-
age to plaintiff’s property, and he be
entitled to sue therefore, he could
not maintain his injunction. For that
which is lawful for a person to do
cannot be enjoined as a nuisance. On
the other hand, if the defendant has
failed to show legal authority for its
conduct, the plaintiff is entitled to
his injunction.” Maxwell v. Central
Dist. & Printing Teleg. Co., 51 W. Va.
121, 41 8. E. 125.

Until city authorities have exer-
cised the power given them by ordi-
nance, as to the setting of electric
light poles, the property owner’s
right is paramount, and an electric
light company has no power, against
the objection of an owner, to place a
pole in front of the latter’s property.
Malone v. Waukesha Electric Light
Co., 120 Wis. 485, 9 Am. Elect]. Cas.
25, 98 N. W. 247.

48. See Kennelly v. City of Jer-
sey City, 57 N. J. L. 293, 5 Am.
Elect]. Cas. 146, 30 Atl]. 531, 26 L. R.
A. 281, permitting an abutting owner
to attack an ordinance granting an
electric franchise on the ground that
it did not prescribe the manner in

which, and the places where the poles
and wires should be placed.

49. Grantee not incorporated.—An
abutting owner cannot raise the ques-
tion that at the time the franchise
was granted the company was not
yet organized. Such an ordinance
may be premature and irregular, but
the defect may be waived by the ac-
ceptance of the franchise by the com-
pany. McWethy v. Aurora Elec. L.
Co., 202 Ill. 218, 8 Am. Electl. Cas.
220, 67 N. E. 9.

Granted to mayor and councilman.
An abutting owner cannot enjoin the
construction of a telephone system
on the ground that the franchise
was given to the mayor and one of
the city councilmen. Bronson v. Al-
bion Telep. Co., 67 Neb. 111, 8 Am.
Elect]. Cas. 177, 93 N. W. 201, 60
L, R. A. 426, wherein the court said:
“Tf the franchise was wholly void,
so that injury to plaintifi’s property
was threatened by mutilation of her
trees without any warrant of law
and by mere trespassers, a case for
an injunction might be presented. But
the most that can be said under the
allegations of the petition is that
the circumstances might possibly af-
ford ground for revocation or for
ousting the company in a direct pro-
ceeding for that purpose. The com-
pany is possessed of the franchise.
Whether the franchise was acquired,
or is held rightfully, is to be de-
termined only in a direct proceeding
to oust the company, or in a proceed-
ing to which some one who claims a
better title is a party.”
424 Law or ELecrricity.

upon a franchise assumes that the abutting owner has no
remedy if the franchise is valid; if the line which the fran-
chise holder proposes to construct is an additional servi-
tude upon the abutting owner’s rights, there is no neces-
sity for an attack upon the validity of the franchise. The
power to prohibit companies from maintaining poles and
wires in municipal streets are sometimes given to abutting
owners by statutes which require the consent of such
owners before the municipality shall grant a franchise for
that purpose.”

Sec. 291. Special Damages Sustained by Adjoining Owner.

Thus far the rights of abutting owners have been dis-
cussed upon the theory that no damage is sustained by the
owner other than that which inevitably results from plac-
ing poles and wires in proximity to his property. But it
is clear that a particular line may be so constructed as to
impose more than a normal burden upon the abutting
owner. Where the construction of the line, of itself, is
not an additional servitude, the owner will not be pro-
tected from injuries which incidentally arise from the
maintenance of the line.** They may be deemed damnum

Action by company.—In an action power. Sovereign power is limited

by an electric company to restrain an
abutting owner from cutting down
electric light poles, the validity of
the franchise granting the right can-
not be questioned. Consumers’ Gas
& Elec. L. Co. v. Congress Spring Co.,
61 Hun (N. Y.) 133, 3 Am. Elect.
Cas. 211, 15 N. Y. Supp. 624, 39 N.
Y. St. Rep. 703, wherein the court
said: “The defendants contend that
because the license given by the trus-
tees operates to permit the plaintiff
to invade their lands, and thus pre-
judice their property rights, the de-
fendants should be permitted to al-
lege anything which avoids the li-
cense. The contention is based upon
a false assumption. The license in
question comes from the sovereign

by constitutional restraints, and the
defendants’ protection against the
invasion by the sovereign of private
rights exists only in such restraints.
Private property shall not be taken
for public use without compensation.”

50. § 256.

51. “For injuries that are conse-
quental, i. e., the results of acts done
within the scope of the power
granted, arising from a proper exer-
cise of the same and which can in
no sense amount to an actual taking
of property or divestiture of acquired
right, no remedy can, however, be
had.” Irwin v. Great Southern Telep.
Co., 37 La. Ann. 63, 1 Am. Electl.
Cas. 709.
ABUTTING OWNERS. 425
absque injuria. Of such is the mere placing of a pole in
front of an owner’s property where there is no material
infringement of the owner’s right of access.” Granting
the necessity of a pole in a given vicinity, one owner may
not complain that it was erected in front of his property
rather than in front of his neighbor’s.* In this respect
it is not material that the neighbor may be a customer of
the company constructing the line, while the complaining
owner is not in any way interested therein.* An owner
will not be entitled to relief on the ground that the elec-
tricity conducted over the wires will cause a buzzing in his
telephone.* Special damages do not necessarily accrue
because the owner will be unable to continue an unauthor-
ized use of the street, such as backing wagons across the

street to the sidewalk.

52. District of Columbia.— Hewett
v. Western Union Teleg. Co. 4
Mackey 424, 2 Am. Electl. Cas. 222.

Louisiana— Irwin v. Great South-
ern Telep. Co., 37 La. Ann. 63, 1 Am.
Electl. Cas. 709.

Missouri— Gay v. Mutual Union
Teleg. Co., 12 Mo. App. 485, 1 Am.
Electl. Cas. 427.

Montana.— Loeber v. Butte Gen.
Elec. Co., 16 Mont. 1, 5 Am. Electl.
Cas. 130, 39 Pac. 912; Hershfield v.
Rocky Mountain Bell Telep. Co., 12
Mont. 102, 4 Am. Electl. Cas. 73, 29
Pac. 883.

New Jersey—Halsey v. Rapid
Trans. St. Ry. Co., 47 N. J. Eq. 380,
3 Am. Elect]. Cas. 283, 20 Atl. 859.

New York.— Halleran v. Bell Telep.
Co., 64 N. Y. App. Div. 41, 7 Am.
Elect]. Cas. 253, 71 N. Y. Supp. 685;
affirmed, 177 N. Y. 533, 69 N. E. 1124.

Ohio.— Hays v. Columbiana Telep.
Co., 12 Oh. C. D. 167, 21 Ob. Cir.
Ct. 480; Simons v. City of Toledo,
8 Oh. Cir. Ct. R. 535, 5 Am. Electl.
Cas. 152.

West Virginia— Maxwell v. Cen-
tral Dist. & Printing Teleg. Co., 51

Nor can the owner object that

W. Va. 121, 8 Am. Electl. Cas. 206,
41 S. E. 125.

58. Hershfield v. Rocky Mountain
Bell Telep. Co., 12 Mont. 102, 4 Am.
Electl. Cas. 73, 29 Pac. 883; John-
son v. Thomson-Houston Elec. Co.,
54 Hun (N. Y.) 469, 3 Am. Electl.
Cas. 203; Haverford Elec. L. Co. v.
Hart, 13 Pa. Co. Ct. 369, 4 Am.
Elect]. Cas. 148,

54. Haverford Elec. L. Co. v. Hart,
13 Pa. Co. Ct. 369, 4 Am. Electl.
Cas. 148.

55. Louisville Bagging Mfg. Co. v.
Central Passenger Ry. Co., (Ky.) 3
Am. Electi. Cas. 236; affirmed, 95
Ky. 50, 4 Am. Electl. Cas. 202, 23
S. W. 592, 15 Ky. Law Rep. 417, 44
Am. St. Rep. 203.

Upon the claim that the telephone
service at plaintiff’s house would be
interfered with by induction from
the trolley wire, held, that the danger
was not sufficiently clear to warrant
an injunction. Simmons v. City of
Toledo, 8 Oh. Cir. Ct. R. 535, 5 Am.
Elect]. Cas. 152.

56. Louisville Bagging Mfg. Co. v.
Central Passenger Ry. Co., (Ky.) 3
426 Law or Execrriciry.

the value of his property will be diminished. because he will
no longer be able to use the highway for a public market.”
Similarly, the abutting owner is not entitled to relief on
account of the liability of wires to blow down;* noises aris-
ing from maintenance of wires; the increased danger
from lighting;® or the possible impediment to firemen.”
In such class of incidental injuries, are not to be included
an obstruction to the right of passage to and from the
owner’s premises™ or the right to receive light and air
from the highway.* Nor can the drainage of the street
be interfered with to the damage of the abutting owner.™

Am. Electl. Cas. 236; affirmed, 95 Ky.
50, 4 Am. Electl. Cas. 202, 23 S. W.
592, 15 Ky. Law Rep. 417, 44 Am. St.
Rep. 203; Sills v. Columbus St. Ry.
Co., 28 Week. Law Bull. (Ohio) 172,
4 Am. Electl. Cas. 163.

57. Sills v. Columbus St. Ry. Co.,
28 Week. Law Bull. (Ohio) 172, 4
Am. Electl. Cas, 163.

58. Hewett v. Western Union Teleg.
fo., 4 Mackey (D. C.) 424, 2 Am.
Electl. Cas. 222.

59. Hewett v. Western Union
Teleg. Co., 4 Mackey (D. C.) 424, 2
Am. Electl. Cas. 222; Shinzel v. Bell
Telep. Co. of Philadelphia, 31 Pa.
Super. Ct. 221. “Noise is an insep-
arable incident of many lawful uses
to which a city street may be put,
without the consent of the abutting
landowners, and where such use is
not in itself an additional servitude
the resulting discomfort from noise is
damnum absque injuria.” Shinzel v.
Bell Telep. Co. of Philadelphia, 31 Pa.
Super. Ct. 221.

60. Hewett v. Western Union Teleg.
Co., 4 Mackey (D. C.) 424, 2 Am.
Electl. Cas. 222.

61. Hewett v. Western Union
Teleg. Co., 4 Mackey (D. C.) 424, 2
Am. Electl. Cas, 222.

62. § 292.

68. West Jersey R. Co. v. Camden,
etc., Ry. Co., 52 N. J. Hq. 31, 5 Am.
Elect]. Cas. 137, 29 Atl. 423; Tiffany

vy. U. S. Illum. Co., 67 How. Pr. (N.
Y.) 73, 1 Am Elect]. Cas. 629; af-
firmed, 51 N. Y. Super. 280; Clauson
& Sons Brewing Co. v. B. & P. Teleg.
Co., (N. Y.) 2 Am. Electl. Cas. 210;
Shinzel v. Bell Telep. Co. of Philadel-
phia, 31 Pa. Super. Ct. 221; Block
v. Salt Lake City Rapid Transit Co.,
9 Utah 31, 4 Am. Electl. Cas. 189,
33 Pac. 229, 24 L. R. A. 610.

64, Wendt v. Town of Akron,
(Iowa) 142 N. W. 1024. “ What-
ever may be the rights of a tele-
phone company in the streets of a
city, the right to interfere mate-
rially with the drainage of the prem-
ises of an abutting owner against his
consent, and without compensating
him, is not one of them.” Shinzel v.
Bell Telep. Co. of Philadelphia, 31 Pa.
Super. Ct. 221.

Drainage—JIn an action against a
telephone company by a landowner
claiming to recover injury to his
drainage by reason of the erection of
a telephone pole, the question of the
alleged injury will not be submitted
to the jury where the only evidence
on the subject is, that water backed
into the plaintiff’s cellar, and that
the pole was erected within about
eight inches of the drain, without
anything to show a connection be-
tween the two conditions. Shinzel
v. Bell Telep. Co. of Philadelphia,
31 Pa. Super Co. 221.
ABUTTING OWNERS. 427

Unsightly Poles.— It has been held that the right to erect
telegraph poles in a city street does not carry with it the
right to erect broken and unsightly poles,* And it may
be that the maintenance of large and unsightly poles in a
handsome residence street for the support of but two or
three wires is an unreasonable use of the street. But,
in the absence of municipal regulation or statutory require-
ments, under ordinary circumstances, such poles may be
erected as are sufficient for the needs of the company, and
an abutting owner cannot object thereto merely because
they do not harmonize with his conceptions of esthetics.”

Sec. 292. Special Damages Sustained by Adjoining Owner;
Obstruction to Ingress and Egress. :

It is well settled that, irrespective of the question
whether an electric or other line of poles and wires con-
stitutes an additional servitude upon the adjoining owner,
a particular line may not be constructed along a street or
highway so as to interfere materially with his passage to
and from his premises.” The rights of egress and ingress
are substantial in their nature and are vested in an owner
whose property abuts a public highway whether or not

65. Forsythe v. Baltimore & O. Teleg. Co., 12 Mo. App. 485, 1 Am.

Teleg. Co., 12 Mo. App. 494.

66. Prentiss v. Cleveland Telep.
Co., 32 Week. Law Bull. (Ohio) 113, 5
Am. Electl. Cas. 125. ;

67. Gulf Ice Mfg. Co. v. Bowers,
80 Miss. 570, 8 Am. Electl. Cas. 226,
32 So. 113; Palmer v. Larchmont
Elec. Co., 158 N. Y. 231, 7 Am. Electl.
Cas. 298, 52 N. E. 1092, 43 L. R. A.
172; Shinzel v. Bell Telep. Co. of
Philadelphia, 31 Pa. Super. Ct. 221.

68. Iowa—Snyder v. Fort Madi-
son St. Ry. Co., 105 Iowa 284, 7 Am.
Elect]. Cas. 359, 75 N. W. 179.

Maryland.— Chesapeake & P. Teleg.
Co. v. Mackenzie, 74 Md. 36, 3 Am.
Elect]. Cas. 196, 21 Atl. 690, 28 Am.
St. Rep. 219.

Missouri— Gay v. Mutual Union

Elect]. Cas. 427.

Nebraska Jaynes v Omaha
Street Ry. Co., 53 Neb. 631, 7 Am.
Elect]. Cas. 328, 74 N. W. 67, 39
L. R. A. 751.

New York.—Tiffany v. U. S. Tum.
Co., 67 How. Pr. 73, 1 Am. Electl.
Cas. 629; affirmed, 51 N. Y. Super.
Ct. 280; Clauson & Sons Brewing Co.
v. B. & P. Teleg. Co., (N. Y.) 2 Am.
Electl. Cas. 210.

Ohio.— Mantell v. Bucyrus Telep.
Co., 20 Oh. Cir. Ct. 345, 11 O. C. D.
274,

Pennsylvania.—Shinzel v. Bell
Telep. Co. of Philadelphia, 31 Pa.
Super. Ct. 221; Russ v. Pennsylvania
Telep. Co., 15 Pa. Co. Ct. 226, 5 Am.
Electl. Cas. 109, 3 Pa. Dist. Rep. 654;
428

Law oF ELectriciry.

such owner owns the fee of the highway and whether or
not the line, if properly constructed, would be an additional

burden upon his property.”

Governmental authority to

place poles and wires in such a place as interferes with an
owner’s access to his property is of no avail to a company
so placing them; the owner’s rights are protected by the
Constitution and may be abridged neither by the state nor

by any municipal or private corporation.”

Gillett v. Chester & Media Ry. Co.,
2 Pa. Dist. Rep. 450, 4 Am. Elect.
Cas. 160.

Utah.— Block v. Salt Lake City
Rapid Transit Co., 9 Utah 31, 4 Am.
Elect]. Cas. 189, 33 Pac. 229, 24 L.
R. A. 610.

Wisconsin.— Zehren v. Milwaukee
Elec. Ry. & L. Co., 99 Wis. 83, 7 Am.
Elect]. Cas. 345, 74 N. W. 538.

“The abutting owner has the right
of ingress to and egress from his
property by means of the street, in
@ manner which will accord with
the lawful purposes to which he
devotes his property, and also to
a reasonably available way through
the highway to the several stories
of his building in case of emer-
gencies like fire. He also has the
right to light and air from the high-
way. And he cannot be deprived of
either of these rights by the placing
of poles or erection of wires without
compensation being made to him.”
West Jersey R. Co. v. Camden, etc.,
Ry. Co., 52 N. J. Eq. 31, 5 Am. Electl.
Cas. 137, 29 Atl. 423.

69. Merchant’s Mutual Telep. Co.
v. Hirshman, 43 Ind. App. 283, 87 N.
E. 238; Chesapeake & P. Teleg. Co.
v. Mackenzie, 74 Md. 36, 3 Am.
Electl. Cas. 196, 21 Atl. 690, 28 Am.
St. Rep. 219; Block v. Salt Lake City
Rapid Transit Co., 9 Utah 31, 4 Am.
Electl. Cas. 189, 33 Pac. 229, 24 L. R.
A. 610.

In Nellis on Street Railways (2nd.
Ed.) § 80, it is said: “The abutting

The right of

owner in addition to his fee simple
title to the land to the center of the
street has, distinct from the public
in general, a special interest or right
in the street or highway lying in
front of his premises. Such interest
or right includes that of ingress or
egress. Of these special rights or in-
terests the abutter cannot be de-
prived except upon the appropriation
by the state to public use, and then
only upon payment of a just compen-
sation. The rights of access, light,
and air are easements forming part of
the estate of the abutting owner
whose right to their use is the same
as his right to the property itself.
Such an owner is entitled to the usa
of the street as a means of access to
his property, and for light and air,
whether the fee of the land in the
street is in the municipality in trust
for the purposes of public travel or in
him subject to the public use, and of
these rights, he cannot be deprived
without compensation. Whether or
not the abutting owner owns to the
middle of the streets, subject to the
public easement therein, affects the
question but little, except in New
York.”

70. Tiffany v. U. S. Illum. Co., 67
How. Pr. (N. Y.) 73, 1 Am. Electl.
Cas. 629; affirmed, 51 N. Y. Super. Ct.
280; Mantell v. Bucyrus Telep. Co.,
20 Oh. Cir. Ct. 345, 11 0. C. D. 274.
“If an appropriation of a street by
@ person or body corporate, even un-
der legislative and municipal sane-
ABUTTING OWNERS, 429
egress and ingress extends, not only to doors and openings
on the ground floor of a structure, but to openings on
upper floors through which merchandise and property may
be taken.”

What Constitutes Obstruction to Access.— As indicated
in the preceding section, if the construction of an electric
line or telegraph or telephone line is not of itself an addi-
tional servitude, the placing of a pole in front of an owner’s
premises does not cause special damage entitling him to
relief.”* While a pole of average size placed so as to cause
no unnecessary inconvenience to the owner is not objection-
able, a pole of extraordinary size, as, for example, one five
feet in diameter,”* may be deemed an obstruction to his
right of access. So, too, the placing of a pole directly in
front of the entrance to a place of business and but twenty-
three inches from the steps may constitute a particular
damage to the owner or occupant. A large telephone pole

tion, unreasonably abridges the right
of adjacent lot owners to use the
street as a means of ingress and
egress, or otherwise, they are thereby
deprived of a right without compensa-
tion; and an action will lie against
the person or corporation guilty of
usurping such unreasonable and ex-
elusive use for the recovery of such
immediate and direct damages as the
abutter may sustain.” Chesapeake
& P. Teleg. Co. v. Mackenzie, 74 Md.
36, 3 Am. Electl. Cas. 196, 21 Atl.
590, 28 Am. St. Rep. 219.

71. “The right of ingress and
egress is not confined simply to the
surface of the land, or to a door. It
applies equally to doors above the
surface through which merchandise
packages are taken; such as plain-
tiffs have in the second and third-
stories of their building.” Hays v.
Columbia Telep. Co. 12 Oh. C. D.
167, 21 Ohio Cir. Ct. 480.

72. “A space of twelve inches,
which is about the average width of
the pole, or fifteen inches, if you

please, occupied at intervals of 150
feet, can be no practical impediment
to the approach of any man’s house
along any street of the city.’ Hew-
ett v. Western Union Teleg. Co., 4
Mackey (D. C.) 424, 2 Am. Electl.
Cas, 222.

“We fail to see how a pole 12 to
15 inches in diameter, 20 feet distant
from the doorway, can impede free
ingress to the rear entrance of plain-
tiff’s beer hall.” Loeber v. Butte Gen.
Elec. Co., 16 Mont. 1, 5 Am. Elect].
Cas. 130, 39 Pac. 912.

78. Clausen & Sons Brewing Co.
v. B. & P. Teleg. Co., (N. Y.) 2 Am.
Elect]. Cas. 210.

74. Merchants’ Mutual Telep. Co.
v. Hirschman, 43 Ind. App. 283, 87
N. E. 238.

While a court will not interfere
after the municipal authorities have
authorized the erection of telephone
poles in a street, so long as the course
authorized by the city is being
strictly pursued and only slight in-
convenience to property owners and
430 Law or Escrriciry.

designated as a distributing pole of a diameter of sixteen
inches, which is planted opposite to an alley, at a point
distant from the house line between nine and ten feet, and
which renders it impossible to take long pieces of timber
and lumber through the alley for the purpose of repairs
and alterations, causes an injury to the owner that is not
temporary, and for which he is entitled to damages.”

Sec. 293. Shade Trees; in General.

An abutting owner, whether or not he owns the fee to
highway, has a right to grow and maintain shade trees
within the lines of the highway.” This right is, however,
subservient to the proper use of the highway by the public.
Where the construction of an electric, telephone, or tele-
graph line is deemed an additional servitude the trees of
an abutting owner may not be damaged without compensa-

tion to such owner.”

occupants is threatened; still it is
bound to interfere on a proper occa-
sion for the protection of a private
right. Injunction allowed to stand,
to the extent of restraining the
planting of a pole in front of any
door or window of plaintiff’s building.
Russ v. Penn. Telep. Co., 15 Pa. Co.
Ct. 226, 5 Am. Electl. Cas. 109, 3 Pa.
Dist. 654.

75. Shinzel v. Bell Telep. Co. of
Philadelphia, 31 Pa. Super. Ct. 221.

76. Adams v. Syracuse Lighting
Co., 137 N. Y. App. Div. 449, 121
N. Y. Supp. 762.

77. Slabaugh v. Omaha Elec. L. &
P. Co., 87 Neb. 805, 128 N. W. 505,
30 L. R. A. (N. 8.) 1084; Bronson v.
Albion Telep. Co., 67 Neb. 111, 8 Am.
Electl. Cas. 177, 93 N. W. 201, 60
L. R. A. 426; Daily v. State, 51 Oh.
St. 348, 5 Am. Elect]. Gas, 186, 46
Am. Rep. 578, 37 N. E. 710; South-
western Teleg. & Telep. Co. v. Smith-
deal, 103 Tex. 128, 124 S. W. 627.
See also, Braham v. Meriden Home
Telep. Co., 97 Miss. 326, 52 So. 485;

Where, however, the line is not an

Moore v. Carolina Power & Light Co.,
163 N. Car. 300, 79 S. E. 596.

“The right of an abutting owner
to maintain shade trees upon or
overhanging the sidewalk is general
and well recognized. In many juris-
dictions it is customary; with us it
has the sanction of express legisla-
tion. But this right is subject to all
proper uses of the street for the
primary purposes for which it was
dedicated or condemned. Hence, -al-
though a telephone or telegraph com-
pany is undoubtedly liable for un-
necessary or wanton injury to such
trees in erecting its poles and wires,
liability for injuries, even amounting
to removal or destruction of the trees,
which are necessary or proper in the
due carrying out of the public under-
taking, must depend upon the much-
mooted question whether use of a
street or highway for poles and wires
is an ordinary use, within the con-
templation of the parties when it
was dedicated or condemned, or is w
new and additional burden, for which
ABUTTING OWNERS.

431

additional burden upon the abutting owner and, hence, may
be constructed without his permission, a different situation

arises.

Under such circumstances it has been held that the

company by virtue of its franchise acquires the right to
do whatever is reasonably necessary to construct its line
along the highways; and, if it is necessary to trim trees,
within the bounds of the highway, it may be done without

liability to the abutting owner.”

the abutting owner is entitled to
compensation in case of injury.”
Bronson v. Albion Telep. Co., 67 Neb.
111, 8 Am. Electl. Cas. 177, 93 N. W.
201, 60 L. R. A. 426.

A telephone company in building
its line along the public highway
may do such reasonable trimming of
the branches of trees as is reason-
ably essential to the proper operation
of its line, without unnecessarily in-
terfering with or destroying trees or
parts thereof, making proper com-
pensation to abutting property
owners or other persons interested,
for the damage done thereby. Wray
v. Mott, 83 N. J. L. 110, 83 Atl. 866.

78. Southern Bell Telep. & Teleg.
Co. v. Constantine, 61 Fed. 61, 4 Am.
Elect]. Cas. 219, 9 C. C. A. 359, 23

U. S. App. 56; Southern Bell Telep.

& Teleg. Co. v. Francis, 109 Ala. 224,
6 Am. Elect]. Cas. 160, 19 So. 1, 55
Am. St. Rep. 930, 31 L. R. A. 193;
Miller v. Detroit, etc., Ry. Co., 125
Mich. 171, 7 Am. Electl. Cas. 387, 84
N. W. 49, 7 Det. Leg. N. 472, 51
L. R. A. 955, 84 Am. St. Rep. 569;
Wyant v. Central Telep. Co., 123
Mich. 51, 7 Am. Elect]. Cas. 256, 81
N. W. 928, 47 L. R A. 497, 81 Am.
St. Rep. 155, 6 Det. Leg. N. 957;
Adams v. Syracuse Lighting Co., 137
N. Y. App. Div. 449, 121 N. Y. Supp.
762; Dodd v. Consolidated Traction
Co., 57 N. J. L. 201, 5 Am. Electl.
Cas. 201, 31 Atl. 980. “ The private
right of the owner of the abutting
property to maintain the trees must

The company, in order to

yield to the paramount public right
whenever the necessity may arise, al-
though, until such necessity does
arise, the owner is clearly entitled
to the enjoyment of all the benefits
which may result to his property
from such trees, and to protection
from their destruction or mutilation
by others.” Southern Bell Telep. &
Teleg. Co. v. Francis, 109 Ala. 224,
6 Am. Electl. Cas. 160, 19 So. 1, 55
Am. St. Rep. 930, 31 L. R. A. 193.
“Tt was admitted by plaintiff’s coun-
sel that the erection of a telephone
line along the highway does not
create an additional servitude upon
abutting lands, and we need not cite
authorities in support of that propo-
sition. The right being given to erect
the poles and wire, the company must
of necessity have the right to remove
obstructions, as the highway officers
have authority to do when engaged in
highway work within their jurisdic-
tion.” Wyant v. Central Tel. Co.,
123 Mich. 51, 7 Am. Electl. Cas. 25°,
81 N. W. 928, 6 Det. Leg. N. 951, 47
L. R. A. 497, 81 Am. St. Rep. 155.

In Missouri, where a telephone or
telegraph line is not deemed an ad-
ditional servitude, it is nevertheless
held that the right of such a company
to maintain its lines along the street
is subservient to the right of an abut-
ting owner to have shade trees along
the street, and that the company
must respond in damages for any
injury to such trees from the con-
struction and maintenance of its poles
432 Law or Exectricity.

justify any trimming of trees, must show a franchise to
maintain its poles and wires along the highway in ques-
tion.” The right of a municipality to trim trees for the
erection of a municipal system is equal, if not greater, than
the right of a private corporation.**» Though a company
has the right to cut trees along the highways, it may not
enter the private premises of the abutting owner and muti-
late trees growing thereon.

Sec. 294. Shade Trees; Extent and Mode of Cutting Trees.

The right to trim trees, when not done with the assent
of the owner, must be based on the necessity therefor.
They may not be mutilated unless the company finds such
course reasonably necessary for the exercise of its fran-

chise grant.”

and wires. State v. Graeme, 130 Mo.
App. 138, 108 S. W. 1131; McAntire
v. Joplin Telep. Co., 75 Mo. App. 535.

Canada.— “ The Legislature of the
Province of Canada had the authority
to confer on the Montreal Telegraph
Company the right to cut the trees
on the public roads of the province,
and, ag an inference to cut the
branches overhanging said roads, of
trees on neighboring properties, which
obstructed or interfered with the
erection or efficient working of the
line they were authorized to con-
struct and work.” Roy v. Great-
western Teleg. Co. of Canada, 2
Quebec Superior Ct. 135. But see.
O’Connor v. Nova Scotia Telep. Co.,
22 Can. Sup. Ct. 278.

Notice to owner— An electric
street railway, authorized by the
proper township authorities to lay
tracks, erect poles and string wires,
is impliedly authorized to remove
obstructions, including shade trees,
whenever necessary for the construc-
tion of the railway as located by
the township authorities, without
compensation to the owner. The
owner is, however, first entitled to

The fact that it is more convenient to cut

notice and an opportunity to remove
the trees himself. Miller v. Detroit,
ete., Ry. Co., 125 Mich. 171, 7 Am.
Elect]. Cas. 387, 84 N. W. 49, 7 Det.
Leg. N. 472, 51 L. R. A. 955, 84 Am.
St. Rep. 569.

79. Cartright v. Liberty Telep. Co.,
205 Mo. 126, 103 8S. W. 982, 12
L. R. A. (N. S.) 1125, 12 Ann. Cas.
249.

80. Town of Hazelhurst v. Meyers,
84 Miss. 7, 36 So. 33, 64 L. R. A. 805.

81. Memphis Bell Telep. Co. v.
Hunt, 16 Lea (Tenn.) 456, 2 Am.
Electl. Cas. 282, 1 S. W. 159, 57 Am.
Rep. 337; Southwestern Teleg. &
Telep. Co. v. Braham, (Tex. Civ. App.)
8 Am. Elect]. Cas. 217, 74 S. W. 949;
Hodgins v. City of Toronto, 19 Ont.
App. (Can.) 537; Roy v. Great North-
western Teleg. Co. of Canada, 2
Quebec Superior Ct. (Can.) 135.

82. Alabama.— Southern Bell Telep.
Co. v. Francis, 109 Ala. 224, 6 Am.
Elect]. Cas. 160, 19 So. 1, 55 Am. St.
Rep. 930, 31 L. R. A. 193.

Illinois—— Western Union Teleg. Co.
v. Satterfield, 34 Ill. App. 386, 2 Am.
Electl. Cas. 296,

Louisiana.— Tissot v. Great South-
AxsuTting Owners. 433
away portions of the tree than it is to construct the line
so as to avoid the tree, does not afford a necessity for the
mutilation.“ Moreover, the trees may not be cut to a
greater extent than is necessary for the company’s pur-
poses; for any excessive cutting it is liable to the abutting
owner.** The cutting of limbs of a tree so as to leave a
space of from eight to thirteen feet in diameter is not
necessary to secure a space for but a few wires.** So, too,
the company must not be guilty of negligence in the con-
struction of its line; if its negligence causes damage to
trees of the landowner, the company may be liable.**

Sec. 295. Shade Trees; Damages.
The value of shade trees growing in front of one’s prem-
ises is not equivalent to the value of the wood or lumber

ern Telep. & Teleg. Co., 39 La. Ann.
996, 2 Am. Electl. Cas. 286,' 3 So.
261, 4 Am. St. Rep. 248.

New York— Adams v. Syracuse
Lighting Co., 137 N. Y. App. Div.
449, 121 N. Y. Supp. 762; Van Siclen
v. Jamaica Elec. L. Co., 45 -N. Y.
App. Div. 1, 7 Am. Electl. Cas, 307,
61 N. Y. Supp. 210; affirmed without
opinion, 168 N. Y. 650, 61 N. :E.
1135.

North Carolina.— Brown v. Ashe-
ville Elec. L. Co., 188 N. Car. 533,
9 Am. Elect]. Cas. 467,51 S. E. 62,
69 L. R. A. 631, 107 Am. St. Rep.
554-

Texas.— Southwestern Teleg. &
Telep. Co. v. Smithdeal, 104 Tex.
258, 136.8. W. 1049.

Canada.— Gilchrist v. Dominion
Teleg. Co., 3 Prigs. & Bur. (N. Br.)
553.

An electric lighting company oper-
ating in a city under -a municipal
franchise and under contract to light
the streets has not the right to
impair the beauty or usefulness of
the shade trees unless it be necessary
to do so in fulfilling its contract with
the city. Adams v. Syracuse Light-

28

ing Co., 137 N..Y. App. Div. 449, 121
N. Y. Supp. 762. .

83. Brown v. Asheville Elec. L. Co.,
138 N. Car. 533, 9 Am. Electl. Cas.
467, 51 S. E. 62,.69 L. R. A. 631,
107 Am. St. Rep. 554.

84. Southern Bell Telep. Co. v.
Francis, 109 Ala. 224, 6 Am. Electl.
Cas. 160, 19 So.:1, 55 Am. St. Rep.
930, 31 L. R. A. 193; Tissot v. Great
Southern Telep. & Teleg. Co., 39 La.
Ann, 996, 2 Am. Elect]. Cas. 286,
3 So. 261, 4 Am. St. Rep. 248; Bar-
ber v. Hudson River Telep. Co., 105
N. Y. App. Div. 154, 93 N. Y. Supp.
993.

Question for jury.— Whether it is
necessary in a particular case to trim
trees to the extent shown by the evi-
dence, is a question for the jury.
Adams v. Syracuse Lighting Co., 137
N. Y. App. Div. 449, 121.N. Y. Supp.
762.

85. Tissot v. Great Southern Telep.
& Teleg. Co., 39 La. Ann. 996, 2 Am.
Electil.-Cas. 286, 3 So. 261, 4 Am. St.
Rep. 248.

86. St. Paul Realty & Assets Co. v.
Tri-State Telep. & Teleg. Co., 122
Minn, 424, 142 N. W. 807.
434 Law or ELecrricity.

which might be procured therefrom. As a benefit to the
property, they have a larger value.** The owner is entitled
to the actual loss arising from the destruction of or injury
to his trees. Where the defendant had no right to cut
or trim the trees, the measure of damage is the difference
in the value of the property before and after the injury.”
In such a case it is not material whether the cutting was
negligently or skillfully done; the measure of the damages
is the same in either case, though the amount may be
greater where the company was guilty of negligence. In
determining the damages, probable injury to the sale of the
property may be considered.*? Where the defendant is
liable only for excessive cutting, the measure of damages
is the difference between the value of the property with the
trees reasonably trimmed and the value of the property
with the trees as they were actually mutilated. In such
a case, if the plaintiff’s evidence goes merely to the total
injury to the trees and not to the excessive injury, there is
a failure of proof, and the complaint should be dismissed.™*
The amount of damages is, as in other tort actions, difficult
of ascertainment, and a latitude corresponding to the diffi-
culty is given to the findings of a judge or jury upon the
question. Damages of $150 for the destruction of a single
tree have been sustained.** In another case, an appellate

87. Hoyt.v. Southern New England
Telep. Co., 60Conn., 385, 22° Atl. 957.
88. In estimating the damage by

firmed, 25 Del. 67, 78 .Atl. 401;
Nichols v. New York & Penn. Telep.
& Teleg. Co., 126 N. Y. App. Div. 184,

mutilating ornamental trees, the rule
may be invoked that damages are
due in cases of unlawful deprivation
of some legitimate gratification, al-
though the same are not measurable
jn ‘money. Tissot v. Great Southern
Telep. & Teleg. Co., 39 La, Ann. 996,
2 Am. Elect]. Cas. 286, 3 So. 261,
4 Am. St. Rep. 248.

89. Hoyt v. Southern New England
Telep. Co., 60 Conn. 385, 22 Atl. 957.

90. Jordan v. Delaware, etc., Telep.
Co., 24 Del. 107, 75 Atl. 1014; af-

110 N. Y. Supp. 325.

91. Moore v. Carolina Power &
Light Co., 163 N. Car. 300, 79 S. E.
596, ,

92. Hoyt v. Southern New England
Telep. Co., 60 Conn. 385, 22.Atl. 957.

93. Meyer v. Standard Telep. Co.,
122 Iowa 514, 98 N. W. 300.

94. Barber v. Hudson River Telep.
Co., 105 N. Y. App. Div. 154, 93 N.Y.
Supp. 993.

95. Hoyt v. Southern New England
Telep. Co., 60 Conn. 385, 22 Atl. 957.
Asutting Owners. 435
court refused to disturb a verdict of $500 for damage to
three trees.”

Punitive Damages.— Punitive damages may sometimes

be awarded to an abutting owner for the injury to his shade
trees. If the mutilation was accompanied by actual malice,
or was oppressive or wanton, a case is properly made which
authorizes the jury to give more than compensatory dam-
ages.°” And, in some jurisdictions, punitive damages are
allowed where the defendant has been guilty of gross negli-
gence.* Punitive damages are properly awarded where
the owner shortly before the injury warned the defendant’s
employees not to cut his trees, but they did so over the
protest of himself or of his family.°° But such damages
should not be given where the defendant acted in good faith
upon receiving the consent of the occupant of the premises,
though the company is liable for compensatory damages
where such occupant is not authorized to give the license.’
However, in a jurisdiction where punitive damages are
allowed against a corporation guilty of gross negligence,
consent of a person not the owner or occupant may not be
sufficient to protect the company from such damages; the
circumstances may be such as to charge it with gross negli-
gence in not investigating the power of the person assum-
ing to give the license.? Punitive damages follow com-

99. Cumberland Telep. & Teleg. Co.
v. Shaw, 102 Tenn. 313, 52 S. W. 163.

1. Western Union Teleg. Co. v.
Smith, 64 Oh. St. 106, 59 N. E, 890.

2. The superintendent of a tele-
phone company desiring to trim orna-
mental trees in a yard, made applica-
tion on the premises and was told
that the place was occupied by ten-
ants and permission could be obtained
only from the owner, whose address
was given. On the same day the

96. Poston v. Cumberland Telep. &
Teleg. Co., 94 Tenn. 696, 5 Am. Electl.
Cas. 203, 30 S. W. 1040.

97. Moore v. Carolina Power &
Light Co., 163 N. Car. 300, 79 S. E.
596.

98. Punitive damages are allowed
where fraud, malice, gross negligence,
or oppression intervenes. It is not
essential that these facts shall appear
by direct proof, but they may be in-

ferred by the jury from the facts of
the transaction. Cumberland Telep.
& Teleg. Co. v. Shaw, 102 Tenn. 313,
52 S. W. 163.

superintendent was told by a man
near the premises that he owned
them, and that he might cut the
trees. Acting upon this permission
436 Law or Eecrriciry.
pensatory damages; and, if the abutting owner is not enti-
tled to the latter, he may not be awarded the former.’

Penalty—SIn some jurisdictions statutory provisions
permit an abutting owner whose trees have been unlawfully
mutilated to recover a penalty of the person or corporation
committing the wrongful acts.* Such statutes, like other
penal statutes, are to be strictly construed in favor of the
defendant.’ The defendant, it has been held, should be
allowed to show upon the trial that the trees in question
were cut in good faith under the impression that they were
on land whose owners had given permission for cutting.
A telegraph company may be liable under such a statute,
though the cutting was done by its employees in disobedi-
ence to its orders, and their acts are not ratified by the
company.’ Municipal ordinances may also impose a pen-
alty for the unlawful cutting of trees within the municipal
limits.* Legislative enactments in some states prescribe
that the damages may be trebled, or otherwise multiplied,
in case of the wrongful cutting of trees or timber.°

of the supposed owner, the superin-
tendent caused the trees to be cut.
The man was not the owner. The
company had poles of sufficient
height to clear the trees, which might
have been used. Held, sufficient evi-
dence of gross negligence to warrant
the submission to the jury of the
question of punitive damages. Poston
v. Cumberland Telep. & Teleg. Co.,
94 Tenn. 696, 5 Am. Electl. Cas. 203.
30 S. W. 1040.

8. Jordan v. Delaware, etc., Telep.
Co., 24 Del. 107, 75 Atl. 1014; af-
firmed, 25 Del. 67, 78 Atl. 401.

4, Brahan v. Meridian Home Telep.
Co., 97 Miss. 326, 52 So. 485.

5. Postal Teleg. Cable Co. v. Le
Noir, 107 Ala. 640, 18 So. 266.

6. Postal Teleg. Cable Co. v. Le
Noir, 107 Ala. 640, 18 So. 266.

7. Postal Teleg. Cable Co. v. Brant-
ley, 107 Ala. 683, 18 So. 321.

Acts of the employees of the com-
pany under general directions from
its managing agent, to cut such
branches from the trees as are re
quired to string the wires and pre
vent contact, will bind the company
and make it liable for damages caused
thereby. Van Siclen v. Jamaica Elec.
L. Co., 45 N. Y. App. Div. 1, 7 Am.
Electl. Cas. 307, 61 N. Y. Supp. 210;
affirmed without opinion, 168 N. Y.
650, 61 N. E. 1135.

8. State Consol. Traction Co. v.
East Orange Tp., 61 N. J. L. 202,
38 Atl. 803.

9. See Van Siclen v. Jamaica Elec.
L. Co., 45 N. Y. App. Div. 1, 7 Am.
Electl. Cas. 307, 61 N. Y. Supp. 210;
affirmed, without opinion, 168 N. Y.
650, 61 N. E. 1135.
ABUTTING OWNERS. 437

Sec. 296. Remedies of Abutting Owner; Ejectment.

Where electric or telegraph or telephone poles and wires
constructed along a highway are an additional burden upon
the abutting owner’s rights, and he does not consent to
their erection, he may, according +o the weight of authority,
maintain an action of ejectment to compel their removal.”
In this respect no sound distinction is to be drawn between
lines which are erected over lands used for private pur-
poses and those erected along the highway without the
owner’s consent.* It has been held that the remedy is
available where the poles were erected upon adjoining
lands, and the only violation of the owner’s rights is the

maintenance of a wire across his property.”

10. Postal Teleg. Cable Co. v.
Eaton, 170 Ill. 513, 49 N. E. 365,
39 L. R. A. 722, 62 Am. St. Rep.
390; Moore v. Camden & T. Ry. Co.,
73 N. J. L. 599, 4 St. Ry. Rep. 779,
64 Atl. 116; French v. Robb, 67 N. J.
L. 260, 8 Am. Electl. Cas. 238, 51
Atl. 509, 57 L. R. A. 956, 91 Am, St.
Rep. 433; Eels v. American Telep. &
Teleg. Co., 143 N. Y¥. 133, 5 Am.
Electl. Cas. 92, 38 N. E. 202, 62 Am.
St. Rep. 138; Little v. American
Telep. & Teleg. Co., 96 N. Y. App.
Div. 559, 89 N. Y. Supp. 136; Myers
v. Bell Telep. Co., 83 N. Y. App. Div.
623, 82 N. Y. Supp. 83; Andrews v.
Delhi & Stamford Telep. Co., 36
Mise. (IN. Y.) 23, 72 N. Y. Supp. 50;
affirmed without opinion, 66 App. Div.
616, 73 N. Y. Supp. 1129.

Delay.— Where in the course of the
construction of a telephone and tele-
graph line, poles are erected and
wires are strung along a rural high-
way in front of the premises of an
abutting owner, whose title extends
to the center of the highway, with
the knowledge, but without the con-
sent, of the abutting owner, a person
who acquires title to the premises
eight years after the construction of

the line may, thirteen years after
such construction, successfully main-
tain an action in ejectment against
the telephone and telegraph company,
and is not obliged to seek relief in
an equitable action. Little v. Ameri-
can Telep. & Teleg. Co., 96 N. Y. App.
Div. 559, 89 N. Y. Supp. 136.

Condemnation after judgment.—
Where, after the entry of a judgment
ordering the abatement and removal
of a telephone pole as a nuisance, a
statute was enacted, authorizing the
taking by condemnation of rights and
easements for telephone purposes,
which act provided that it should not
apply to any pending action nor to
any claim or cause of action prior to
its passage, it was held that the
telephone company could not, by con-.
demnation proceedings under the act,
acquire a right to maintain the pole
which would supersede the right to
enforce the judgment for its removal.
Wisconsin Telep. Co. v. Krueger, 115
Wis. 150, 90 N. W. 458.

11. § 321.

12. See Butler v. Frontier Telep.
Co., 186 N. Y. 486, 9 Am. Electl. Cas.
922, 79 N. E. 716, 11 L. R. A. (N. S.)
920, 116 Am. St. Rep. 563.
438 Law or Etectriciry.

Different View.— The cases are not all agreed upon the
general rule stated above, and a different rule, though per-
haps not in accord with a strict enforcement of property
rights, is supported by forceful arguments. This rule,
which has but a limited application, is to the effect that,
where a public service corporation has constructed its line
over an owner’s property and the owner permits the con-
struction thereof without interference, though he does not
consent thereto, and the easement is one which the company
could procure through condemnation proceedings, the
owner cannot remove the company by ejectment, but must

resort to an action for damages.*

13. Gurnsey v. Northern California
Power Co., 160 Cal. 699, 117 Pace.
906, 35 L. R. A. (N. 8.) 185, wherein
the court explained its position as
follows: “ The principle which under-
lies this rule is not based on any con-
sideration of rights pertaining to the
public service corporation itself, but
solely upon considerations of public
policy. The rights which a public
service corporation may exercise un-
der the power of eminent domain are
conferred upon it on account of its
public character and to advance the
interests of the public. The defend-
ant, as such corporation, was author-
ized to proceed and acquire a right
of way over the land of the plaintiff.
It is true the constitution provides
that private property may not be
taken for public use unless compen-
sation is first paid to the owner.
But this condition of compensation
to be first paid is solely for the bene-
fit of the owner of the land and, like
any other personal right, may be
insisted on by him, or waived at his
pleasure. He might when the defend-
ant corporation commenced the con-
struction of its electric power system
over his land, have stood upon his
constitutional rights and enjoined its
entry until he had been first paid for

it, or he could have permitted the de-
fendant to enter thereon and perfect
the construction of its system for the
public benefit. But when he has
thus permitted by inaction expendi-
tures to be made and public interests
to intervene, he will be deemed to
have waived all other remedies which
he might have invoked save that of
an action for compensation. This
rule is not based so much upon the
application of the doctrine of estop-
pel, under which an owner of land,
who remains inactive and permits a
public service corporation, such as a
railroad, telegraph, telephone, elec-
tric power, was, or water company, to
enter upon his land without right
and expend large sums of money in
constructing and completing the
work, will be deemed to have acqui-
esced in the entrance, so that all
remedies save one for compensation
will be denied him. It is based
mainly on the great principle of pub-
lic policy under which the rights of
the citizen are sometimes abridged in
the interest of the public welfare. It
is applied in a case such as this,
when the plaintiff has stood by, with-
out asserting a right which he might
have invoked, until the corporation
charged with a service, public in its
ABUTTING OWNERS.

439

Sec. 297. Remedies of Abutting Owner; Injunction.

Where an electric or other company is erecting a line of
poles and wires in the highway in front of an abutting
owner’s premises, and the consent of such owner is re-
quired by law but not procured by the company, it is gen-
erally held that the owner has an appropriate remedy by
way of injunction to restrain the construction of the line.

nature, has completed its electric line
over his land, and is actually engaged
in discharging a public duty, advan-
tageous and important alike to the
social and business interests of the
community in proximity to its power
lines. Public policy requires that,
under such circumstances, the remedy
of ejectment should be denied to
plaintiff, when the effect of a judg-
ment in such an action would be to
destroy the efficiency of the electric
line system by taking possession from
defendants of that part of it con-
structed over the land of plaintiff,
and thus destroying the public rights
which have intervened.”

14, Burrall v. American Telep. &
Teleg. Co., 224 Ill. 266, 79 N. E. 705,
8 L. R. A. (N. S.) 1091; Snyder v.
Fort Madison St. Ry. Co., 105 Iowa
284, 7 Am. Elect]. Cas. 359, 75 N. W.
179; Blanchard v. Eastern Pennsyl-
vania P. Co., 80 N. J. Eq. 10, 83 Atl.
505; Gray v. York State Telep. Co.,
41 Mise. (N. Y.) 108, 83 N. Y. Supp.
920; affirmed, 92 N. Y. App. Div.
89, 86 N. Y. Supp. 771; Donovan v.
Allert, 11 N. Dak. 289, 8 Am. Electl.
Cas. 183, 91 N. 'W. 441, 58 L. R. A.
775, 95 Am. St. Rep. 720; Schaaf v.
Cleveland, ete., Ry. Co. 66 Oh. St.
215, 64 N. E. 145.

“Ts the plaintiff entitled to an in-
junction? The defendants contend
that he is not, because he can resort
to an action for damages, and thereby
be fully compensated for whatever
damages he has or may suffer. That

such is the general rule is, without
doubt, true. It is also a general rule
that a wide discretion is vested in
trial courts when granting or refus-
ing preliminary injunctions, and that
appellate tribunals will hesitate be-
fore interfering with the exercise of
such discretion by trial courts. But
we have reached a conclusion that the
facts of this case place it beyond the
application of these ordinary rules.
The defendants are proceeding to
damage the plaintifl’s property with-
out first complying with a mandatory
provision of the constitution. That
provision of the constitution is per-
emptory that property taken or dam-
aged for public use shall first be paid
for, and the Legislature has also en-
acted that payment must precede the
taking or damage, and has provided
adequate means for establishing the
amount of such damages. The taking
of or damaging of private property
for public use without the owner’s
consent is deemed so serious that
payment therefor is a prerequisite to
attempting to do so. The defendants
have the ultimate right, under their
franchise, to use the street for tele-
phone purposes; but payment of dam-
ages, actual or consequential, to
plaintiff’s property, must be first at-
tended to. This does not mean that
it may first be appropriated and paid
for at the end of a suit for damages,
but means that payment must pre-
cede the taking or damaging.” Dono-
van v,. Allert, 11 N. Dak. 289, 8 Am.
440 Law or ELscrriciry.

And where part of the line has been constructed, it has been
held that a mandatory injunction may be granted enjoining
the maintenance of the poles already erected,** and requir-
ing their removal.*® In some cases, however, it is held
that the owner has an adequate remedy at law to procure
damages for the maintenance of the line along the high-
way and that he may not have an injunction.” The theory
upon which this view is sustained is that the company is
a public service corporation and can, in any event, procure
the right in condemnation proceedings by payment of the
value thereof.* Much can be said in favor of this view
where the company has constructed the line without active
objection upon the part of. the abutting owner; in such a
case the equitable remedy of injunction may be denied upon
the ground of laches, and the owner remitted to his remedy

of damages.”

Elect]. Cas. 183, 91 N. W. 441, 58
L. R. A. 775, 95 Am. St. Rep. 720.

Threatened injury.— Whatever may
be the right of a city to authorize
the placing of poles and stringing
wires in its streets for telephone and
telegraph purposes, without consent
of or compensation to abutting
owners, held that the mere threatened
stringing of -wires without erection
of poles, does not constitute such ir-
reparable injury to the abutting
owner as to warrant the issuing of a
preliminary injunction. Roake v.
American Telep. & Teleg. Co., 41
N. J. Hq. 35, 2 Am. Electl. Cas. 218,
2 Atl. 618.

15. Broome v. ‘New York & New
Jersey Telep. Co., 42 N. J. Eq. 141,
2 Am. Electl. Cas. 259, °7 Atl. 851.

16. Where it appears that the acts
of the lighting company in placing
its poles and wires in the highway
were done without the knowledge or
consent of the lot owner, and that
their maintenance will work injury
tohis property, appreciable in char-
acter and amount, such owner has a

Where a company has been maintaining,

right to an injunction against such
maintenance. Callen v. Columbus
Edison Elec. L. Co., 66 Oh. St. 166,
8 Am. Electl. Cas. 243, 64 N. E.°141,
58 L, R. A. 782.

17. Hobbs v. Long Distance Telep.
& Teleg. Co., 147 Ala. 393, 41 So.
1003, 7 L. R. A. (N. S.) 87, 11 Ann.
Cas. 525; Bronson v. Albion Telep.
Co., 67 Neb. 111, 8 Am. Elect]. Cas.
177, 93 N. W. 201, 60 L. R. A. 426.

18. In Texas, an injunction is not
necessarily denied because the wrong
may be compensated in an action for
damages. Southwestern Teleg. &
Telep. Co. v. Smithdeal, 104 Tex.
258, 136 8. W. 1049.

19. Hankey v. Philadelphia Co., 5
Pa. Super. Ct. 148, 41 Week. Notes
Cases 27.

Mere delay by the owner of the fee
in a public highway in asking for an
injunction to compel the removal of
the telephone poles and restrain fur-
ther trespasses does not defeat her
right to relief, where the telephone
company knew of her ownership in
the fee and has not been in any way
Asuttina Owners. 441

without objection, poles with eight wires strung thereon,
the increase of the number to thirteen does not afford
ground for the issuance of an injunction.” An action to
restrain an electric company from erecting its poles and
wires on a public highway cannot be maintained by one
who is not the owner of land abutting on the highway.”
That one of several plaintiffs in such an action is not an
abutting owner, does not, however, affect the right of the
others to maintain the action.”

Sec. 298. Remedies of Abutting Owners; Damages.

Whether or not an abutting owner may have a remedy
by way of ejectment”® or injunction,” it is clear that he may
recover the damages he has sustained by reason of the
unlawful erection and maintenance in the highways of an
electric or other system of poles and appliances. This
proposition, of course, assumes that his consent is requisite
to the lawful maintenance of the poles and wires. Where
a suit is commenced to compel a telephone company to
remove a pole standing in front of the plaintiff’s door and
for damages caused thereby, if the company removes the
pole after the commencement of the suit, the only question
remaining is that of damages.”* The owner of the prop-
erty may bring an action for trespass, though the premises
are in the actual occupancy of a tenant.”* The measure of
damages is the difference between the market value of the

23. § 296.

24. § 297.

25. Merchant’s Mut. Telep. Co. v.
Hirshman, 43 Ind. App. 283, 87 N. E.
238,

mislead to its prejudice by reason of
such delay, which has not been of
such duration as to bar the complain-
ant’s rights. Burrall v. American
Telep. & Teleg. Co., 224 Ill. 266, 79

N. EF. 705, 8 L. R. A. (N.°S.) 1091.

20. Wirth v. Postal Teleg.-Cable
Co., 7 Oh. Cir. Ct. R. 290, 5 Am.
Electl. Cas. 184.

21. Post v. Suffolk L. H. & P. Co.,
77 Misc. (N. Y.) 369, 136 N. Y.
Supp. 401.

22. Post v. Suffolk L. H. & P. Co.,
77 Mise. (N. Y.) 369, 136 N. Y.
Supp. 401.

26. American Telep. & Teleg. Co. v.
Jones, 78 Ill. App. 372.

The owner of real estate which is
in exclusive possession of a tenant,
may maintain an action of trespass
against a telephone company for the
destruction of trees. Logan v. Penn-
sylvania Telep. Co., 40 Pa. Super. Ct.
644.
442 Law or Eecrriciry.

property immediately before the company’s entry and im-
mediately after the construction of the line.” Evidence
of what the value of the land would have been, had the
poles and wires not been erected, is not admissible on the
question of damages.”®

Sec. 299. Rights of Subsequent Purchaser.

Upon a conveyance of real estate by an owner who has
previously given an oral license to a company to maintain
poles and wires along the highway, the license is deemed
revoked, unless it has been so acted upon as to estop the
owner from revoking the same.”* Recording Acts do not,
as a general rule, affect the question. The existence of the
telephone wires and poles upon the land is constructive
notice of the telephone company’s rights in the premises,
which although the instrument creating the easement is
not recorded, will render the easement binding as against
a subsequent contract vendee of the land.*® If no consent
has been given by any one to the placing of poles in the
highway, the owner is not concluded from whatever remedy
he may have against the company on the ground that the
poles were placed there before he acquired title to the
abutting property." Where telephone wires are strung

27. Chesapeake & P. Teleg. Co. v.
Makenzie, 74 Md. 36, 3 Am. Electl.

Hirshman, 43 Ind. App. 283, 87 N. E.
238. Compare, Southwestern Teleg. &

Cas. 196, 21 Atl. 690, 28 Am. St.
Rep. 219; Hankey v. Philadelphia
Co., 5 Pa. Super. Ct. 148, 41 Week.
Notes Cases 27; Southwestern Teleg.
& Telep. Co. v. Smithdeal, (Tex. Civ.
App.) 126 8. W. 942.

28.‘Blashfield v. Empire State
Telep. « Teleg. Co., 147 N. Y. 520,
6 Am. Elect]. Cas. 126, 42 N. E. 2.

29. § 300.

80. Barber v. Hudson River Telep.
Co., 105 N. Y. App. Div. 154, 93
N. Y. Supp. 993.

31. Postal Teleg. Cable Co. v.
Eaton, 170 Ill. 513, 49 N. E. 365,
39 L. R. A. 722, 62 Am. St. Rep. 390;
Merchant’s Mutual Telep. Co. v.

Telep. Co. v. Smithdeal, 104 Tex. 258,
136 S. W. 1049. “It is however, said
that appellee purchased the land after
the telegraph line was constructed,
with full notice that the line had
been constructed, and hence he took
the land with the burden upon it.
It is no doubt true that appellee pur-
chased the land subject to all rights
appellant possessed in it; but the
trouble with appellant is, by taking
possession without making compensa-
tion to the owner of the fee it ac-
quired no rights as against such
owner, and when appellee purchased
he acquired all the right in the land
possessed by his grantor, and if his
Asurttinc Owners. 443
along a highway with the knowledge but without the con-
sent of the abutting owner, a person who acquires title to
the premises eight years after the construction may, thir-
teen years after such construction, maintain an action of
ejectment to compel their removal.*? If the line is an
additional servitude consent of the abutting owner must
be procured; when not an additional burden, the line
may be constructed against his will. Shade trees may be
especially protected by statute, and the consent of the
owner required before they shall be mutilated.®

Sec. 300. Consent of Owner to Construction of Line.

In the preceding sections of this chapter, the rights of
abutting owners are discussed upon the theory that they
have not consented to the construction of the line of poles
and wires in question. Clearly a different situation is pre-
sented when the company has procured such consent. The
right to maintain poles and wires across the property of
another is an easement, and the Statute of Frauds usually
requires that such right be evidenced by a written instru-
ment. It has been thought, however, that the right to
construct such a line along a highway in front of an abut-
ting owner is not an easement in the same sense as the right
to erect such a line across lands occupied exclusively for
private purposes.** Where the line would be an additional
servitude, it is not inappropriate to term the right secured
an ‘‘ easement.’’** However this may be, an oral grant

grantor was entitled to bring eject-
ment this right passed to the ap-
pellee.” Postal Teleg. Cable Co. v.
Eaton, 170 Ill. 513, 49 N. E. 365, 39
L. R. A. 722, 62 Am. St. Rep. 390.

82. Little v. American Telep. &
Teleg. Co., 96 N. Y. App. Div. 559,
89 N. Y. Supp. 136.

83. New Hampshire.— Under a pub-
lic statute authorizing the selectmen
of a town to license electric com-
panies, and providing that shade
trees shall not be cut without the

consent of the owner or the approval
of the selectmen, an electric light
company failing to comply with the
statute is liable as a trespasser for
cutting shade trees. Darling v. New-
port Electric Light Co., 74 N. H. 515,
69 Atl. 885.

34. See Western Union Teleg. Co.
v. Bullard, 67 Vt. 272, 5 Am. Electl.
Cas. 102, 31 Atl. 286.

85. Barber v. Hudson River Telep.
Co., 105 N. Y. App. Div, 154, 93
N. Y. Supp. 993.
444 Law oF KEctrictry.

to place poles and wires over one’s land is a mere license
which may be revoked. And the conveyance of the prem-
ises by the abutting owner with no mention of the com-
pany’s license, will be deemed a revocation thereof.*® <A
verbal consent, however, which has been acted upon by the
company and its poles and wires partially erected, may,
in some jurisdictions, not be revoked by the owner without
at least placing the company in statu quo.’ Consent to
the use of land for a telephone right of way is not shown
where the first knowledge that the company desired the
right of way was the presence of employees erecting poles.
A consent that a line shall be constructed on one part of an
owner’s land does not authorize the company to change
the line to another part against the owner’s objection.*®
A written instrument giving a telephone company the right
to erect its line along the highway in front of an owner’s
premises, and to maintain the same, with necessary poles,
wires, and guys, and to trim trees so that they shall not
come in contact with the wires, grants a right which is con-
tinuous and unlimited as to time. It contemplates not the
stringing of a single wire, but of as many wires as the
company shall find necessary to continue its business.*°
The grant of the right to trim trees so that they shall not
interfere with wires is ordinarily to be construed as author-
izing such cutting only as is reasonably necessary for the
protection of the wires.“ A license by a landowner per-
mitting a telegraph company to erect poles on lands along

36. Andrews v. Delhi & Stamford
Telep. Co., 36 Misc. (N. Y.) 23, 72
N. Y. Supp. 50; affirmed without
opinion, 66 App. Div. 616, 73 N. Y.
Supp. 1129.

87. Western Union Teleg. Co. v.
Bullard, 67 Vt. 272, 5 Am. Electl.
Cas. 102, 31 Atl. 286.

38. Heck v. Greenwood Telep. Co.,
35 Ind. App. 244, 73 N. E. 960.

89. Russellville Home Telep. Co. v.
Commonwealth, 33 Ky. Law Rep. 132,
109 S. W. 340.

40. Barber v. Hudson River Telep.

Co., 105 N. Y. App. Div. 154, 93
N. Y. Supp. 993.

41. Barber v. Hudson River Telep.
Co., 105 N. Y. App. Div. 154, 93
N. Y. Supp. 993. “ The right to trim
the trees so that they shall not inter-
fere with those wires, is not, how-
ever, a right to destroy trees or to
injure them wumnnecessarily. That
right must be exercised with reason-
able regard to the right of the land-
owner to the enjoyment of his trees.
For any excessive cutting of the trees
beyond such cutting as is reasonably
ABUTTING OWNERS. 445
the highway, ‘‘ to be set on line of fence,’’ will not be con-
strued to require the poles to be placed on the exact fence
line when it would involve an unnecessary destruction of
valuable trees.*? An instrument which is silent as to the
precise location of the poles, their height and the manner
and place of crossing the premises, may be supplemented
by oral proof.

Acquisition of Right by Prescription— While the right
to maintain an electric or other line of poles and wires
across the premises of another is an easement which, no
doubt, may be acquired by prescription, the right to main-
tain the line along the highway, though the line creates an
additional burden upon the abutting owner, is not estab-
lished as against such abutting owner by proof of the com-
pany’s peaceable possession of its route for more than
twenty years.**

Consent of Agent of Owner.— Consent to erect a line of
poles and wires along a highway in front of an owner’s
premises given by an agent of such owner is not effective
unless such agent has the authority to grant such permis-
sion.** Even in the absence of authority, however, the
acts of the agent may be subsequently ratified by the prin-
cipal.“* Moreover, consent by an agent to the trimming

necessary for the protection of de-
fendant’s wires, defendant is liable
to the plaintiff as for trespass.”
Barber v. Hudson River Telep. Co.,
105 N. Y. App. Div. 154, 93 N, Y.
Supp. 993.

42. Bowerman v. Inter-Ocean Telep.
& Teleg. Co., 121 N. Y. App. Div. 22,
105 N. Y. Supp. 565.

43. Nichols v. N. Y. & Pa. Telep.
& Teleg. Co., 126 N. Y. App. Div.
184, 110 N. Y. Supp. 325.

44, Andrews v. Delhi & Stamford
Telep. Co., 36 Misc. (N. Y.) 23, 72
N. Y. Supp. 50; affirmed without
opinion, 66 App. Div. 616, 73 N. Y.
Supp. 1129, wherein it was said:
“The poles and wires having been

erected in a public highway, outside
of a city or village, the Statute of
Limitations does not run against the
title of the real owner and occupant
of the premises, and the bar of the
statute does not apply.”

45. Agent to lease farms and col-
lect rents— An agent with authority
to lease farms and collect rents has
no implied authority to license tele-
graph companies to erect poles in the
highways in front of the farms.
American Telep. & Teleg. Co., 78 Ill.
App. 372.

46. Jordan v. Delaware, etc., Telep.
Co.; 24 Del. 107, 75 Atl. 1014; af-
firmed, 25 Del. 67, 78 Atl. 401.
446 Law oF ELectriciry.

of trees along the highway, while not a defense in an action
by the owner, may, if acted upon in good faith, relieve the
company from an imposition of punitive damages.*” Where
the property is owned by the wife, consent of the husband
may be sufficient. In such a case, where the husband and
wife are cohabiting, as strict proof of agency is not re-
quired as in the case of purely commercial agencies.*

47. § 298. Co., 24 Del. 107, 75 Atl. 1014; af-
48. Jordan v. Delaware, etc.,Telep, firmed, 25 Del. 67, 78 Atl. 401.
Linz Atone orn Across Raruroap. 447

CHAPTER XIV.
LINE ALONG OR ACROSS RAILROAD.

SECTION 301. In General.
302, Grant by Railroad of Right of Way.
303. Additional Servitude upon Owner of Servient Estate.
304. Railroad Entitled to Compensation.
305. Expiration of Grant.
306. Title to Appliances upon Expiration.
307. Maintenance of Telegraph Line by Railroad.
308. Personal Injuries; in General.

 

 

 

 

 

309. Liability of Railroad.
310. Liability of Owner of Wire.
311. Contributory Negligence.

312, Right of Railroad to Cut Wire Crossing Track.

Sec. 301. In General.

Inasmuch as railroad systems form a network over every
civilized country, it is evident that an electric, or a tele-
phone or telegraph line of any considerable extent must
pass either along or across a railroad. This chapter is
devoted to a discussion of the respective rights and lia-
bilities of railroad companies and companies maintaining
electric or other lines of poles and wires along, over, or
under the railroad right of way. In this connection several
questions have already been discussed. In the chapter on
Eminent Domain,’ the right of a company to condemn a
right of way for a line of poles and wires along a railroad
was treated. The rights and liabilities of telegraph com-
panies, in so far as they are affected by the Post Roads Act,
is also discussed in an earlier chapter of this work.? In
that chapter it is noted that a railroad company may not
grant to one telegraph company a right to maintain its
line along the railroad right of way to the exclusion of
other telegraph companies. But, irrespective of the Post
Roads Act, the same result is reached by holding that an
exclusive contract is in restraint of trade, and, therefore,
void.? Though the invalidity of exclusive contracts on the

1. § 85. 8. Pacific Postal Teleg. Cable Co.
2. §§ 176-186. v. Western Union Teleg. Co., 50 Fed.
448 Law or ELecrricirty.

ground that they are in restraint of trade seems well sup-
ported by authority, the doctrine is not so clear as a super-
ficial examination indicates. The cases supporting it are
those involving the rights of telegraph companies, not of
electric or telephone companies; and the conclusions
reached in those cases are beyond doubt correct, for the
Post Roads Act, of itself, renders such exclusive contracts
void. With the soundness of the actual decisions, no fault
can be found; but the grounding of the decisions upon the
theory that they are in restraint of trade is open to
objection. It is to be observed that in Canada, where
there is no statute in force corresponding to the Post Roads
Act, exclusive contracts are sustained.* Moreover, in some
of the state courts, which failed to give due importance to
the Post Roads Act, it has been held that exclusive con-

493, 4 Am. Elect]. Cas. 232; Balti-
more & Oho Teleg. Co. v. ‘Western
Union Teleg. Co., 24 Fed. 319, 1 Am.
Electl. Cas. 677; Western Union
Teleg. Co. v. Baltimore & Ohio Teleg.
Co., 23 Fed. 315, 1 Am. Electl. Cas.
728; Western Union Teleg. Co. v. Bur-
lington, ete., Ry. Co., 11 Fed. 1, 1
Am. Electl. Cas. 402; Western Union
Teleg. Co. v. American Union Teleg.
Co., 65 Ga. 160, 1 Am. Electl. Cas.
306, 38 Am. Rep. 781; Mobile, etc.,
R. Co. v. Postal Teleg.-Cable Co., 76
Miss. 731, 26 So. 370; Union Trust
Co. of New York v. Atchison, etc.,
R. Co., 8 N. Mex. 327, 6 Am. Electl.
Cas. 171, 43 Pac. 701. “It is not
competent for a railroad company to
grant to a single telegraph company
the exclusive right of establishing
lines of telegraphic communication
along its right of way. The purpose
of such contracts is very plainly to
cripple and prevent competition, and
they are, therefore, void, as being in
restraint of trade and contrary to
public policy, They are also in con-
travention of the act of Congress of
July 24, 1866.” Western Union
Teleg. Co. v. Burlington, etc., Ry.

Co. 11 Fed. 1, 1 Am. Electl. Cas.
402.

A contract by which a railroad
company undertakes to give a par-
ticular telegraph company the ex-
elusive privilege of placing and
maintaining its lines upon the right
of way of the railroad, is void as
being (1) in restraint of trade, (2)
against public policy, (3) in con-
flict with the right of eminent do-
main. Western Union Teleg. Co. v.
American Union Teleg. Co., 65 Ga.
160, 1 Am. Elect]. Cas. 306, 38 Am.
Rep. 781.

Texas statute—It has been held
that a statute, providing that no
person shall have power to contract
with any owner of land for the right
to erect and maintain a telegraph
line over his lands, to the exclusion
of the lines of other companies, ap-
plied to railroad owners. Western
Union Teleg. Co. v. Baltimore & O.
Teleg. Co., 22 Fed. 133, 1 Am. Elecfl.
Cas. 601.

4, Western Union Teleg. Co. v. New
Brunswick Ry. Co., N. Bruns. Eq.
Cas. 338; affirmed, 17 Can. Sup. Ct.
152.
Linz Aone or Across RariRoap. 449
tracts of the nature here referred to are not against public
policy.’ Electric and telephone companies are not affected
by the federal statute; and, when the question arises
whether a contract between a railroad and one of such
companies which forbids another electric or telephone com-
pany to place its lines along the right of way.is against
public policy, the decisions relative to telegraph companies
are not to be blindly followed. It is difficult to see how
such a contract is in restraint of trade so as to render it
void. An exclusive right to one telegraph company, it has
been held, does not prohibit the railroad from erecting a
line for its own business.®

Sec. 302. Grant by Railroad of Right of Way.

Subject to its inability to give a telegraph company an
exclusive right to erect and maintain its appliances along
the right of way, there is, as a general proposition, no
reason why a railroad company may not grant to an elec-
tric, a telephone, or a telegraph company the right to
maintain a line of poles and wires either along, over, or
under its railroad right of way.’ From this broad state-

5. Western Union Teleg. Co. v. Chi-
cago, etc., R. Co., 86 Ill. 246, 1 Am.
Elect]. Cas. 246, 29 Am. Rep. 28;
Western Union Teleg. Co. v. Atlantic
& P. Teleg. Co., 5 Oh. Dec, 407. The
result of these decisions is, of course,
erroneous.

6. Reid v. Nfld. Co. v. Anglo-Am.
Teleg. Co., C. R. (1910) A. C. (Eng.
P. C.), L. R. 1910 (A. C.) 560.

7. Western: Union Teleg. Co. v.
Pennsylvania Co., 129 Fed. 849, 64
C. C. A. 285, 68 L, R. A. 968; West-
ern Union Teleg. Co. v. American
Union Teleg. Co., 9 Biss. C. C. (U.S.)
72, 1 Am. Elect]. Cas. 288; Prather
vy. Western Union Teleg. Co., 89 Ind.
501, 1 Am. Electl. Cas. 863; Mobile,
ete, R. Co. v. Postal Teleg. Cable
Co., 101 Tenn. 62, 46 S. W. 571, 41

. 29

L. R. A. 403. See also, U. S. v. Union
Pac. Ry. Co, 160 U. 'S. 1, 6 Am.
Elect]. Cas. 697, 16 S. Ct. 190, 40
L. Ed. 319.

Subways.— In City of New York v.
Interborough R. T. Co., 125 N. Y.
App. Div. 437, 109 N. Y. Supp. 885;
affirmed without opinion, 194 N. Y.
528, 87 N. E. 1116, it was held that
the defendant company, a lessee of
subways in the city of New York,
may use the ducts in the subways
for the purpose of transmitting to
other city railways the excess of
electric current manufactured by it,
provided such use does not interfere
with the primary object for which
the city built the subway, or inter-
fere with the convenience of pas-
sengers.
450 Law oF ELecrriciry.

ment, several exceptions or limitations are to be made.
For example, if the railroad owns, not the fee of its right
of way, but only an easement, it may be that the rights of
the owner of the servient estate must be consulted before
the additional burden of a line of poles and wires can be
imposed upon his estate. So, too, special statutes may
limit the power of railroad companies to encumber their
tracks with poles and wires. Even in the absence of.
special statute, a railroad must not authorize poles and
wires to be placed so as to endanger the safety of its pas-
sengers or employees.® The permission given to a com-
pany to maintain a line of poles and wires along a railroad
may constitute a mere lease for a definite period,” or it
may confer upon the company an interest in the land in
the nature of an easement, to continue for the duration of
the railroad’s title—in perpetuity, perhaps." The con-
tract between a railroad and a telegraph company may,
however, create still a different situation; it may make the
two companies tenants in common of the line of poles and
wires.” The relation between the two companies is a mat-
ter depending on the construction to be placed on the par-
ticular contract evidencing their agreements.

Sec. 303. Grant by Railroad of Right of Way; Additional
Servitude upon Owner of Servient Estate.

Where a railroad does not own the fee simple title to
the land used by it, the rights of the owners of the servient
estates must sometimes be consulted before a telegraph or
other company will be allowed to erect and maintain a line
of poles and wires along the road. The rights of abutting
owners relative to the lines constructed along a highway
were discussed in the previous chapter, and the rights of

8. § 303. 11. Western Union Teleg. Co. v.

9. See §§ 308-311. Pennsylvania Co., 129 Fed. 849, 64

10. Western Union Teleg. Co. v. CC. C. A. 285, 68 L. R. A. 968.
Pennsylvania R. Co., 123 Fed. 33, 59 12. Southern Inv. Co. v. Postal

C. OC. A. 113; affirmed, 195 U. S. 540, Teleg. Cable Co. 156 N. Car. 259,
25 8. Ct, 133, 49 L. Ed. 312,195 U.S. 72 8. E. 361, Ann. Cas. (1913 A)
594, 25 S. Ct. 150, 49 L. Ed. 322. 224, ‘ :
Linz Aone or Across Rarroap. 451
owners over whose premises a railroad has but an ease-
ment and over which it is sought to run electric or other
wires, are analagous to the rights of owners abutting a
highway. In connection with owners abutting a highway,
the question was whether the new use for poles and wires
constituted an additional burden upon the rights of the
owner, and there was found to be great conflict of author-
ity. The cases relative to lines along railroads, while
fewer, are more in harmony. The rule is that a line con-
structed for the use of the railroad to assist it in the man-
agement of its business is not an additional burden upon
the owner of the fee.** Thus, in one case,* it was said:
‘A telegraph line, if not indispensable to a railroad, tends
so much to facilitate its business, and to the speedy and
safe running of its trains, that the railroad company has
a right to build it, to use its right of way therefor, and to
remove all obstructions thereon, to its fullest and most

uninterrupted and beneficial use.

18. Western Union Teleg. Co. v.
Rich, 19 Kan. 517, 1 Am. Electl. Cas.
271; American Telep. & Teleg. Co. v.
Pearce, 71 Md. 535, 3 Am. Electl.
Cas. 169, 18 Atl. 910. See also,
Prather v. Western Union Teleg. Co.,
89 Ind. 501, 1 Am. Elect]. Cas. 863.
“We entertain no doubt whatever as
to the right of a railroad company to
construct on and over its right of
way a telegraph or telephone line,
for its use in the operation of its
road and dispatch of its business;
and it may do this by itself, or may
employ another company to do it, or
may do it conjointly with another
company. If, then, this line is in
process of construction, or is about
to be constructed, over the right of
way of this railway company, in good
faith, for the use and benefit of the
latter in the operation of its road,
and to facilitate its business, or is
reasonably necessary for that pur-
pose, the land owners have no ground

Although it may have

of complaint, because such use of
their land is within the scope of the
original easement, for which they
have already received compensation.
But, on the other hand, if this is not
the motive for its construction, and
the main object in constructing it is
to establish an extensive line of tele-
graph and telephone communication
through this and other States, for
general commercial purposes, for the
use and benefit of the defendant, and
such a line ig not reasonably neces-
sary for the purposes of the railroad,
then it will be « new easement, and
put a new and additional burden
upon the land, for which the owners
are entitled to compensation.” Amer-
ican Telep. & Teleg. Co. v. Pearce, 71
Md. 535, 3 Am. Electl. Cas. 169, 18
Atl. 910.

14, Western Union Teleg. Co. v.
Rich, 19 Kan. 517, 1 Am. Electl. Cas.
271,
452 Law or ELectricity.

but an easement in the land, and that easement limited to
its use for railroad purposes, yet a telegraph is so con-
venient if not indispensable, that it may cut down every
tree and bush on the right of way if necessary for the most
constant and efficient use of a telegraph line, built by it
over and upon such right of way, just as it may dig away a
hill, or fill up a ravine, for the sake of a water tank or a
station house.’? And it has been held that it is immaterial
whether the railroad itself builds the line or whether it
enters into a contract with a telegraph company whereby
the latter builds it, so long as the purpose of the line is to
assist the railroad in its business.**> On the other hand,
it is clear that a telegraph line along a railroad constructed
for other than the purposes of the railroad is an additional
burden upon the person owning the fee over which the
railroad passes.** Where the grants of right of way to
the railroad are for railroad purposes only, and there is
already a line of telegraph and a contract for its use,

15. Western Union Teleg. Co. v.
Rich, 19 Kan. 517, 1 Am. Elect]. Cas.
271.

16. American Telep. & Teleg. Co. v.
Pearce, 71 Md. 535, 3 Am. Electl.
Cas. 169, 18 Atl. 910; Hodges v.
Western Union Teleg. Co., 133 N. Car.
225, 45 S. E. 572; Phillips v. Postal
Teleg. Cable Co., 130 N. Car. 513,
8 Am. Elect]. Cas, 287, 41 S. E. 1022,
89 Am. St. Rep. 868; reversed on
other grounds, 131 N. Car. 225, 42
S. E. 587; Western Union Teleg. Co.
v. Williams, 86 Va. 696, 3 Am. Electl.
Cas. 184, 11 8. E. 106, 8 L. R. A.
429, 19 Am. St. Rep. 908.

Rents and profits received by rail-
road— Where a railroad company
Las an easement in lands granted for
the use of its railroad and has leased
to a telegraph company the right to
use such easement for its poles and
wires, the owner of such easement is
not entitled, in an action by the rail-

road to quiet title to the parcel of
land, to an accounting of the rents
and profits received by the railroad
company from the telegraph company,
although an additional servitude was
created upon the land by such use.
Chicago, etc., R. Co. v. Snyder, 120
Towa 532, 8 Am. Electl. ‘Cas. 284, 95
N. W. 183.

Whether or not the construction of
a telegraph and telephone line upon
a railroad right of way imposes a
new burden upon the soil, not con-
templated and provided for in the
original condemnation proceeding,
depends on whether or not the pur-
pose of the construction is to facili-
tate the operation of the railroad
and increase its business; a question
the determination of which is not to
be left to the railroad officials alone.
American Telep. & Teleg. Co. v.
Pearce, 71 Md. 535, 3 Am. Electl.
Cas. 169, 18 Atl. 910.
Linz Atone or Across Ratroab. 453
sufficient for railroad purposes, and the contemplated line
is not for such purposes, it imposes a new servitude.”

Telephone Lines upon a railroad would seem to be in the
same legal situation as telegraph lines.** Such a line used
for communication between railroad employees, upon prin-
ciple, would not create an additional servitude upon the
owner of the fee. A telephone line used for the service of
the public in general would be an additional burden. Where
a railroad has granted a right to a telegraph company to
place its poles and wires along its right of way and the
telegraph company permits a telephone company to main-
tain wires upon its poles, an additional burden is imposed
upon the railroad of which the latter may complain.”

Electric Light Wires While the question has appar-
ently not been raised with reference to the additional servi-
tude of electric light, heat, or power wires, it is probable,
in accordance with the general principles above outlined,
that an electric line used for furnishing light or motive
power to the railroad would not be considered an additional
servitude as against the owner of the fee. A line used for
purposes foreign to the railroad clearly would be an addi-
tional burden.

Sec. 304. Railroad Entitled to Compensation.

A railroad cannot be compelled to permit the erection
along its tracks of a system of poles and wires without the
payment of adequate compensation for the privilege.” A

17. American Telep. & Teleg. Co. v.
Pearce, 71 Md. 535, 3 Am. Elect. Cas.
169, 18 Atl. 910.

18. See St. Louis, etc., R. Co. v.
Cape Girardeau Bell Telep. Co., 134
Mo. App. 406, 114 S. W. 586.

19. See Southern Inv. Co. v. Postal
Telegraph-Cable Co., 156 N. Car. 259,
72 S. E. 361, (1913 A) Ann. Cas. 224.

Where a telegraph company in its
notice of condemnation seeks only to
occupy a railroad company’s right of
way for the purpose of constructing
and maintaining a telegraph line, the
possibility of stringing telephone
wires for the use of a telephone com-

pany is no objection to the right to
condemn. When the telegraph com-
pany attempts to impose an addi-
tional servitude, the railroad com-
pany has its remedy against ‘such act.
Western & A. R. Co. v. Western
Union Teleg. Co. 138 Ga. 420, 75
8. E. 471, 42 L. R. A. (N. 8S.) 225.

20. Southwestern R. Co. v. South-
ern & Atlantic Teleg. Co., 46 Ga. 43,
1 Am. Electl. Cas. 32, 12 Am. Rep.
585; Canadian Pac. Ry. Co. v. Moose-
head Telep. Co., 106 Me. 363, 76 Atl.
885, 29 L. R. A, (N. 8.) 703, 20
Ann. Cas. 721.
454 Law or ELectriciry.
statute permitting the maintenance of poles and wires
without such compensation is clearly unconstitutional.”

Sec. 305. Expiration of Grant.

The expiration of a grant by a railroad of the privilege
of maintaining a line of poles and wires along its right of
way is to be determined by the contract between the par-
ties, subject nevertheless to whatever limitations there
may be on their power to contract. Thus, where a railroad
has given such a right to a telegraph company after exe-
cuting a mortgage on its railroad system, on foreclosure of
the mortgage and sale of the road, the purchaser acquires
the railroad free from the contract with the telegraph
company.” If the arrangement between the railroad and
owner of the poles and wires is in the nature of a lease,
the relation is that of landlord and tenant; and the privi-
lege extends only for the term of the lease. And if the
lease provides that the privilege may be revoked on notice
of a specified period, a notice in accordance with the terms
of the contract will determine the privilege.”* If the right

21. Southwestern R. Co. v. South-
ern & Atlantic Teleg. Co., 46 Ga. 43,
1 Am. Electl. Cas. 32, 12 Am. Rep.
585; Canadian Pac. Ry. Co. v. Moose-
head Telep. Co., 106 Me. 363, 76 Atl.
885, 29 L. R. A. (N. 8S.) 703, 20
Ann. Cas. 721.

An act of a state legislature per-
mitting a telegraph company to erect
and maintain its line upon the right
of way of railroad companies, and
prescribing that the injury to the
latter must be appraised by arbitra-
tion, held unconstitutional, upon the
grounds:

(1) That no provision is made for
enforcing the award, even if the par-
ties should agree to arbitrate.

(2) That it makes arbitration com-
pulsory. Southwestern R. Co. v.
Southern & Atlantic Teleg. Co., 46
Ga. 43, 1 Am. Electl. Cas. 32, 12 Am.
Rep. 585.

22. Western Union Telegraph Co.

v. Ann Arbor R. Co., 90 Fed. 379,
33 C.C. A. 113, 61 U.S. App. 741; re-
versed on other grounds, 178 U. 8.
239, 20 S. Ct. 867, 44 L. Ed. 1052,

23. Western Union Teleg. Co. v.
Pennsylvania R. Co., 123 Fed. 33,
59 C. C. A. 113; affirmed, 195 U. S.
540, 25 S. Ct. 133, 49 L. Ed. 312, 195
U.S. 594, 25 S. Ct. 150, 49 L. Ed.
322.

Waiver of notice to vacate——Where
the contract provided that the lease
could be vacated on six months’ no-
tice, and during that period of six
months rent was received, the accept-
ance by the comptroller of the rail-
road of rent after the giving of the
notice is not a waiver of the notice.
Western Union Teleg. Co. v. Penn-
sylvania R. Co., 123 Fed. 33, 59 C. C.
A. 113; affirmed, 195 U. S. 540, 25
S. Ct. 133, 49 L. Ed. 312, 195 U.S.
594, 25 S. Ct. 150, 49 L. Ed. 322.
Linz Atone or Across Rarroap. 455
granted is in the nature of an easement, and the contract
specifies no period of duration and reserves to the railroad
no right of revocation thereof, the duration of the grant
is the period for which the railroad could legally make such
a contract.* Where, however, the right has expired, the
railroad is not always allowed to remove the appliances of
the telegraph company; if the telegraph company, as soon
as practicable, has instituted condemnation proceedings to
procure a right of way for its lines along the railroad, the
railroad will be enjoined from interfering with the appli-
ances until the determination of the proceedings.”

Sec. 306. Expiration of Grant; Title to Appliances upon
Expiration.

The ownership of the poles and wires and other appli-
ances after the termination of the privilege is a question
which, like the other questions in this connection, depends
on the construction to be placed upon the contract evidenc-
ing the grant.** The normal situation would be to permit
the telegraph or other company to remove its appliances
at the expiration of the privilege, but the contract may pre-
scribe that the title thereto shall vest in the railroad, the

24. Western Union Teleg. Co. v. rights of way. Courts of equity un-

Pennsylvania Co., 129 Fed. 849, 64
C. C. A. 285, 68 L. R. A. 968.

25. Louisville & N. R. Co. v. West-
ern Union Teleg. Co., 207 Fed. 1,
124 C. C. A. 573; Western Union
Teleg. Co. v. Pennsylvania R. Co.,
120 Fed. 981; reversed, 123 Fed. 33,
59 C. C.A. 113, same case, 195 U. S.
540, 25 S. Ct. 133, 49 L. Ed. 312, 195
U. S. 594, 25 S. Ct. 150, 49 L. Ed.
322. “When the bill was filed the
telegraph company was occupying the
railroad company’s right of way by
virtue of a previous contract there-
for; and, while its right to so oc-
cupy under the contract had ceased,
it was prosecuting in various of the
states statutory proceedings for the
acquirement of interests necessary to
the continued occupancy of such

der these circumstances have the
power to enjoin interference by the
railroad company, at least in the
jurisdictions in which such proceed-
ings are pending, for such reasonable
time as may be required to prosecute
to conclusion the various pending con-
demnation proceedings, assuming, of
course, the existence of a meritorious
cause, and further assuming the
validity and. applicability of state
statutes authorizing such condemna-
tion.” Louisville & N. R. Co. v.
Western Union Teleg. Co., 207 Fed. 1,
124 C. C. A. 573,

26. St. Paul, ete., R. Co. v. West-
ern Union Teleg. Co., 118 Fed. 497,
8 Am. Electl. Cas, 945, 55 C. C. A.
263.
456 Law oF ELectriciry.

value of the appliances in such a case forming a part of
the consideration for the use of the right of way during
the continuance of the grant. Where a contract of a tele-
graph company with a railroad provided that, in case of
the dissolution or suspension of operation of the telegraph
company, the railroad might assume control of the line
until operation should be renewed by the telegraph com-
pany, and that its interest under the contract should not
be assigned by the telegraph company, it was held that the
contract did not enure to the benefit of a new corporation
which attempted to succeed to the rights of the old tele-
graph company, but thereupon the telegraph line became
the property of the railroad company.”

Sec. 307. Maintenance of Telegraph Line by Railroad.

What has been said relative to contracts between rail-
road and telegraph companies which permit the latter to
maintain telegraph lines along the right of way of the
railroad companies is not to be construed as prohibiting a
railroad company from erecting and maintaining a line
for its own purposes. The charter of a railroad would not,
ordinarily, permit it to engage in the telegraphic business
for revenue, but it has the right to maintain a telegraph
line as an incident to the dispatch of its trains and for its

27. Latrobe v. Western Union tain a line of telegraph along a rail-

Teleg. Co., 74 Md. 232, 3 Am. Electl.
Cas. 855, 21 Atl. 788.

28. Prather v. Western Union
Teleg. Co., 89 Ind. 501, 1 Am. Electl.
Cas. 863; Prather v. Jeffersonville,
ete., R. Co., 52 Ind. 16; Mobile, etc.,
R. Co. v. Postal Teleg. Cable Co., 101
Tenn. 62, 46 S. W. 571, 41 L. R. A.
403. See also, U. S. v. Union Pac.
Ry. Co., 160 U. S. 1, 6 Am. Electl.
Cas. 697, 16 S. Ct. 190, 40 L. Ed.
319.

A certain agreement between the
Western Union Telegraph Co. and the
State of Georgia, by which the com-
pany agreed to erect, equip, and main-

road owned by the State, held, not
to operate as a sale of the line and
apparatus to the State; and so to
pass nothing to a lessee of the rail-
road from the State except the right
to the exclusive use of the line as
stipulated in the contract. Western
Union Teleg. Co. v. Atlantic R. Co.,
91 U. 8. 283, 23 L. Ed. 350, 1 Am.
Electl. Cas. 194,

A railroad company having a right
to construct a line of railroad over
certain land, with all the incidents
necessary for its operation and main-
tenance, has the right to erect upon
such lands and along its railroad a
Linz Aone orn Across RarLroaD. 457
other private purposes. As stated above,” the grant of
an exclusive right to a telegraph company does not con-
clude it from maintaining a system of its own. The Post
Roads Act,®° however, forbids the construction of its tele-
graph line so as to prohibit telegraph companies from
acquiring the right by condemnation proceedings.

Sec. 308. Personal Injuries; in General.

The proximity of poles and wires to a railroad track is
a frequent cause of injury to servants passing on the
trains of the railroad company. A duty is imposed upon
the owner of poles and wires erected along or across a
railroad right of way to use reasonable care in the erection
and maintenance of such appliances to the end that no
injury will be caused therefrom to employees of the rail-
road. This duty is founded on the general principles of
the law of negligence. It is obvious that there is a duty
imposed upon the railroad also. The railroad’s duty is
not to permit any person or corporation to maintain struc-
tures along or across its right of way which will cause
injury to its employees. The duty of a master to furnish
a safe place for his servant to work requires that a rail-
road exercise reasonable care to protect its employees
against structures near the track. Within recent years the
liability of a master has been largely increased through
Employers’ Liability and Workmen’s Compensations Acts.
The railroad and the owner of the line may be liable jointly
for an injury to an employee caused by coming in contact
with a pole or wire near or across the track." It has been

telegraph line without interference by
the municipality through which it
runs; and the purpose which the rail-
road company has in contemplation
in erecting such telegraph line is im-
material. Pennsylvania R. Co. v.
Lilly Borough, 207 Pa. 180, 8 Am.
Elect]. 265, 56 Atl. 412.

29. § 301.

80. §§ 176-186.

31. Great Western Sugar Co. v.

Parker, 22 Colo. App. 18, 123 Pac.
670; Dillingham v. Crank, 87 Tex.
104, 5 Am. Electl. Cas, 342, 27 S. W.
93; Southwestern Teleg. & Telep. Co.
v. Corbett, (Tex. Civ. App.) 148 S. W.
826.

Joint tort-feasors.—In a subsequent
chapter of this work is a discussion
of the rights and liabilities of per-
sons jointly liable for injuries. “See
§§ 432-434,
458 Law or Eectriciry.

held, however, that where a railroad brakeman was injured
by contact with a trolley wire suspended across the track
and the only negligence that could be charged against the
railroad was the failure to warn the employee of the dan-
ger or compel the trolley company to raise it, the two com-
panies were not joint tort-feasors so that the trolley com-
pany was relieved from liability by a release given to the
railroad.”

Sec. 309. Personal Injuries; Liability of Railroad.

In the absence of a Workmen’s Compensation Act, or
an act of similar force, a railroad is not the insurer of the
safety of its employees. Its duty to furnish its servants’
a safe place in which to work, requires that due care be
exercised that no obstructions be placed near its trains
which will cause injury to a servant. Thus, a railroad is
liable if it fails to exercise reasonable care in keeping its
right of way free from poles and wires which are so close
to the track that an employee comes in contact therewith.
Where a wire is suspended across a railroad track so low
that a brakeman, or other employee, on the top of a car
comes in contact therewith and the railroad knows, or by
the exercise of ordinary’ care and diligence should have
known, the condition, and it makes no effort to remedy the
same, it is liable for injuries which accrue to the brakeman

32. Chapman v. Pittsburgh Rys.
Co., 145 Fed. 886, 76 C. C. A. 448.

Railroad not shown to be joint tort-
feasor.— In an action against a street
railway company, for personal in-
juries to plaintiff, a brakeman, whose
duty it was to ride on top of freight
cars, and who was thrown from a car
by coming in contact with one of
defendant’s trolley wires, alleged to
have been strung at an unsafe dis-
tance above the railroad tracks, held,
that a release, given by plaintiff to
the railroad company upon the pay-
ment to plaintiff of certain benefits
from such railroad company’s relief
department, did not discharge the de-

fendant from liability, as the railroad
company was not shown to be liable
a8 a joint tort-feasor. Chapman v.
Pittsburg Rys. Co., 140 Fed. 784, 4
St. Ry. Rep. 932; affirmed, 145 Fed.
886, 76 C. C, A. 418,

A release of the railroad company
by the injured employee in considera-
tion of the payment of wages and a
small gratuity given the injured per-
son, where no liability existed upon
the part of the railroad company, is
not a defense to an action against the
owner of the wire. Sherzer v. Lin-
coln Traction Co., 91 Neb. 407, 8 St.
Ry. Rep. 188, 136 N. W. 62.
Linge Aone on Across RarRoab.

459

by reason of such wire.** Similarly, if a telegraph or other
pole is so close to the railroad track that an employee
passing thereby in the pursuit of his employment is injured
by the pole, and the company knows, or by the exercise of
reasonable care should havé known, the situation of the
pole, it may be liable to the servant, whether the pole was
owned by itself or by another. The duty of the railroad

33. Chapman v. Pittsburgh Rys.
Co., 145 Fed. 886, 76 C. C. A. 448;
Erslew v. New Orleans, etc., R. Co.,
49 La. Ann. 86, 6 Am. Electl. Cas.
333, 21 So. 153; Meyers v. Detroit,
etc., R. Co., 166 Mich. 403, 132 N. W.
109; Todd v. City of Crete, 79 Neb.
671, 113 N. W. 172; Dillingham v.
Crank, 87 Tex. 104, 5 Am. Electl. Cas.
342, 27 S. W. 93; Southwestern Teleg.
& Telep. Co. v. Corbett, (Tex. Civ.
App.) 148 S. W. 826. See also, Far-
ley v. New York, etc., R. Co., 87 Conn.
328, 87 Atl. 990.

Railroad along city street.—In Dal-
ton v. Receivers, 4 Hughes (U. S.)
180, Fed. Cas. No. 3550, it was held
that the receivers of a railroad were
not responsible for the death of an
employee who was killed by being
caught by a wire across a city street
through which the railroad run cer-
tain trains. It was said in the opin-
ion, “The case does not fall within
the ruling of those numerous deci-
sions of the courts requiring rail-
roads to remove obstructions from
their property and territory, from
premises entirely under their owner-
ship and control. It is a case in
which the accident happened upon
the premises not belonging to the rail-
road.”

34, United States— Hall v. Union
Pac. R. Co., 5 McCrary 257 (U.$&.),
16 Fed. 744.

Colorado.— Great Western Sugar
Co. v. Parker, 22 Colo. App. 18, 123
Pac. 670.

Illinois.— Illinois Terminal R. Co.

v. Thompson, 210 Ill. 226, 71 N. E.
328; Chicago, ete., R. Co. v. Russell,
91 TIL. 298, 33 Am. Rep. 54.

Kentucky.— Louisville & N. R. Co.
v. Mulfinger’s Adm’x, 26 Ky. Law
Rep. 3, 80 S. W. 499 (cross-arm of
pole).

Massachusetts.— Bradley v. Central
Vermont Ry. Co., 196 Mass. 360, 82
N. E. 44,

New York.— Benthin v. N. Y. Cent.,
etc., 24 N. Y. App. Div. 303, 48 N. Y.
Supp. 503.

Rhode Island.—Crandall v. New
York, etce., R. Co. 19 R. I. 594, 35
Atl. 307.

Utah.— Helfrick v. Ogden City Ry.
Co., 7 Utah 186, 26 Pac. 295.

Track owned by another.— A rail-
road company knowingly permitting
a telegraph pole to remain for several
years in dangerous proximity to
switch tracks is not excused from
liability for injury consequent thereon
by the fact that the company did not
own the tracks or erect the pole,
where it used the tracks in further-
ance of its business, switching for the
corporation which owned the track
and erected the pole. INinois Termi-
nal R. Co. v. Thompson, 210 Ill. 226,
71 'N. E. 328.

Semaphore pole.—In an action for
the death of a locomotive fireman evi-
dence held to support a finding that
decedent was struck by a semaphore
pole maintained at a point so close
to the track as to be a source of
great danger to trainmen, authoriz-
ing a recovery. Louisville & N. R.
460 Law or ELsctriorrty.

pertains, not only to the original construction, but to the
maintenance of the poles and wires. If two or three
months before an accident to a brakeman, who collided
with a pole while he was at the edge of the top of a car, a
guy wire which held the pole upright was removed, thereby
causing the pole to lean toward the track, the railroad may
be liable.** If the grade of the railroad is raised, it is
incumbent upon the owner to raise his wire.** Where the
original construction of the appliance was without. negli-
gence, but it is sought to hold the railroad for conditions that
arose subsequently, it is necessary for the person injured
to show that the railroad had knowledge of the subsequent
conditions, or should in the exercise of reasonable care,
have acquired knowledge thereof. If a wire across a rail-
road track was originally placed sufficiently high to avoid
injury to persons on its cars, but it subsequently sags and
causes an injury, the existence of such sagging for a period
of two hours does not necessarily charge the company with
constructive notice of the condition.*’

Injuries to Others Than Employees of Company.— Where
a wire crossing a railroad track is carrying a current of
high voltage, a collision between the wire and a train may
tear the wire from its fastenings and place it in a position
where it is a source of danger to pedestrians and other
persons lawfully in the vicinity. Where a railroad has
knowledge that a dangerous wire is maintained across its
right of way, it is bound to the same degree of care as the
owner thereof to see that its trains do not cause such wire

Co. v. Hahn’s Adm’r, 135 Ky. 251,
122 S. W. 142.

Three years.—The presence of a
telegraph pole within eighteen inches
of passing freight cars for a period
of three years, is sufficient to charge
the company with either actual or
constructive notice of its presence.
Chicago, etc, R. Co. v. Russell, 91
Ill. 298, 33 Am. Rep. 54.

Evidence of other dangerous struc-

tures along the line of the road is
not admissible. Crandall v. New
York, ete., R. Co., 19 R. I. 594, 35
Atl. 307.

35, Bradley v. Central Vermont Ry.
Co., 196 Mass, 360, 82 N. EB. 44.

36. Chapman v. Pittsburgh Rys.
Co., 145 Fed. 886, 76 C. C. A. 418.

87. Southern Kansas Ry. Co. -of
Texas v. Shinn, (Tex. Civ. App.) 153
S. W. 636,
Linz Atone or Across RatiRoap. 461
to fall to the ground and cause injury to third persons.
In a jurisdiction requiring extraordinary care in the hand-
ling of electric currents,*? more than ordinary care is
imposed upon the railroad company.

Injury Not to be Anticipated—A railroad company is
bound to anticipate only such accidents as may reasonably
be forecasted. Where a brakeman on top of a car came in
contact with a wire stretched across the track, thereby
causing the wire to fall to the ground, and the wire coiled
around a workman twenty-five feet away from the track
and also caught upon a brake handle of a car in the train,
and such workman was thereby dragged along and killed,
it was held that the accident was one which the railroad
was not bound to anticipate and it was not liable.*

Assumption of Risk.— Under the common law doctrine of
assumed risk, a railroad employee, knowing the existence
and danger of a pole or wire in proximity to a railroad
track, who continues at his work without objection and who
is subsequently injured by coming in contact with such
appliance, would generally be considered to have assumed
the risk of injury from such appliance.** In some jurisdic-
tions, however, an employee is not deemed to assume the
risks of the master’s negligence. A danger not known
can not generally be deemed assumed; and, if there is evi-
dence that the employee had no knowledge of the location

38. Chicago Great Northern R. Co.
v. Hulbert, 205 Fed. 248, 125 C. C. A.
98; Owensboro City R. Co. v. Haden,
155 Ky. 283, 159 S. W. 792.

Injury to pedestrian— Where a
pedestrian is injured by the violent
breaking of an electric wire across a
railroad track caused by the running
of passenger cars against the wire,
the owner of the wire and the rail-
road company are liable, jointly or
severally, for the injury. The owner
of the wire is liable upon the ground
that he negligently constructed its
line or negligently permitted its wire
to sag so that it would be torn loose
by a train; the railroad is liable be-

cause it propelled its train against a
wire maintained across its right of
way at an insufficient height. ‘Chi-
cago Great Western R. Co. v. Hul-
bert, 205 Fed. 248, 125 C. C. A. 98.

39. See § 406.

40. Wabash, etc., R. Co. v. Locke,
112 Ind. 404, 14 N. E. 391, 2 Am. St.
Rep. 193.

41. See Blackstone v. Central of
Georgia Ry. Co., 112 Ga. 762, 38
8. E. 79.

42. Great Western Sugar Co. v.
Parker, 22 Colo. App. 18, 123 Pac.
670; Louisville & N. R. Co. v. Hahn’s
Adm’r, 135 Ky. 251, 122 S. W. 142.
462 Law oF ELecrriciry.

of the vole or wire, the assumption of risk is generally a
question for the jury.“ Though the servant is chargeable
with notice of the location of a pole so that he is deemed
to have assumed the risk thereof, if the situation of the
pole is negligently changed, as, for example, by a leaning
toward the track, and the servant has no knowledge of the
change, he is not deemed to have assumed the risk of
the pole in the new position.

Sec. 310. Personal Injuries; Liability of Owner of Wire.

If an electric, a street railway, or other corporation
maintains a wire across the right of way of a railroad
company, it must erect the same sufficiently high to avoid
interference with brakemen or other persons riding on
cars whose height is not more than may reasonably be
anticipated.** And, having erected the wire, it must use
at least reasonable care to see that the wire does thereafter
drop to a dangerous elevation.** These rules apply to guy
wires as well as to wires used for the conveyance of elec-
trical currents.*7 The company owning the wire is not
liable for injury to an employee riding on a ear or struc-

43. Erslew v. New Orleans, etc., R.
Co., 49 La. Ann. 86, 6 Am. Elect.
Cas. 333, 21 So. 153; Crandall v. New
York, etc., R. Co., 19 R. I. 594, 35
Atl. 307.

44. Bradley v. Central Vermont
Ry. Co., 196 Mass. 360, 82 N. E. 44,

45. Sherzer v. Lincoln Traction Co.,
91 Neb. 407, 8 St. Ry. Rep. 188, 136
N. W. 62; Southwestern Teleg. &
Telep. Co. v. Corbett, (Tex. Civ. App.)
148 ‘S. W. 826; American Teleg. &
Telep. Co. v. Kersh, 27 Tex. Civ. App.
127, 8 Am. Electl. Cas. 435, 66 S. W.
74.

46. “ Where it is proposed to con-
struct an overhead trolley across the
tracks of a steam railroad, the wires
should be suspended at sufficient
height to permit the free operation
of the railroad. * * * Proper con-

struction alone does not meet the full
duties and obligations imposed upon
the traction company in such a case,
but such duty extends to the proper
maintenance thereof at all times.”
Sherzer v. Lincoln Traction Co., 91
Neb. 407, 8 St. Ry. Rep. 188, 136
N.“W. 62.

Injury to pedestrian—If a pedes-
trian is injured by contact with an
electric wire maintained across a rail-
road track at an insufficient height
so that it is torn loose by train, the
electric company and railroad are
jointly and severally liable for the
injury. Chicago Great Western R.
Co. v. Hulbert, 205 Fed. 248, 125
C. C. A. 98.

47. Erslew v. New Orleans, etc., R.
Co., 49 La. Ann. 86, 6 Am. Electl.
Cas. 333, 21 So. 153.
Line Atone or Across Rarroap. 463
ture of a height not reasonably anticipated by the com-
pany.** It has been held that, where a railroad employee
was injured by contact with an overhead trolley wire, that
the accident itself affords a presumption of negligence,
and the owner of the wire is liable for the injury unless it
can show that the dangerous condition of the wire was due
to some unforeseen act or agency beyond its control.” A
contrary view has, however, been expressed in another
jurisdiction.

Sec. 311. Personal Injuries; Contributory ‘Negligence.

An employee of a railroad company injured by contact
with a pole or wire maintained close to its track may fail
to recover damages for his injuries where he has been
guilty of contributory negligence.” To be guilty of con-
tributory negligence, it is, as a general proposition, essen-
tial that he have knowledge of the dangerous location of
the pole or wire. He is not deemed negligent as a matter
of law for failing to see that a small wire is about to

obstruct his passage.”

48. Gross v. South Chicago City R.
Co., 73 Ill. App. 217.

49, Res ipsa loquitur—The doc-
trine of res ipsa loquitur, as applied
to electric wires, etc., is discussed in
a subsequent chapter. See §§ 592-
599,

50. Sherzer v. Lincoln Traction Co.,
91 Neb. 407, 8 St. Ry. Rep. 188, 136
N. W. 62.

51. Lofton v. Jacksonville Elec. Co.,
61 Fla. 293, 54 So. 959.

52. Helfrick v. ‘Ogden City Ry. Co.,
7% Utah 186, 26 Pac. 295.

Guilty of negligence. — Although it
may be negligence in an electric com-
pany to permit its wires over a rail-
road track to hang so low as to inter-
fere with brakemen standing upon
tops of cars of the railroad company,
yet if a brakeman, well knowing the
position of such wires and without
such urgent and imperative necessity

Nor is a person working on the

as to justify risks, attempts to pass
from the top of one car to another
while passing under such wire, he is
guilty of such contributory negligence
as will preclude a recovery from the
electric company. Danville St. Car
Co. v. Watkins, 97 Va. 713, 34 S. E.
884.

53. Smedley v. St. Louis, etc., R.
Co., 118 Mo. App. 103, 6 St. Ry. Rep.
860, 93 S. W. 295.

“It is common knowledge, and if
not it may become so by experiment,
that a single telephone wire carried
at an elevation is not always easily
visible to one who is actually looking
for it. Two of such wires stretched
at some distance from each other, as
is usual, are not always easily dis-
cernible. One might or might not
see them without considerable effort.
And if two persons from different
points were looking for the same wire
464

Law oF ELecrricity.

side of a moving car necessarily guilty of negligence in
failing to see that he will strike a pole close to the track
if he continues in the same position. Contributory negli-
gence in such cases, is a question for the jury.”

Sec. 312. Right of Railroad to Cut Wire Crossing Track.

The right of a railroad to cut, or otherwise interfere
with, wires running across its right of way, is discussed in

a subsequent chapter.®

one might discover it easily and the
other with difficulty. One may be
generally observant, even diligently
observant, of surroundings, without
discovering telephone wires in the air,
especially when their presence there
is not expected. Therefore we are
not prepared to say that because
plaintiff might have seen the wires
had he looked for them, or might
have seen them as he approached
them, his negligence is conclusively
established.” Meyers v. Detroit, etc.,
R. Co., 166 Mich. 403, 132 N. W. 109,

Evidence of the speed of the train
is admissible on the question of con-
tributory negligence. Southern Kan-
sas Ry. Co. of Texas v. Shinn, (Tex.
Civ. App.) 153 S. W. 636.

54. Illinois Terminal R. Co. v.

Thompson, 210 Ill. 226, 71 N. E. 328;
Chicago, etc., R. Co. v. Russell, 91
Ill. 298, 33 Am. ‘Rep. 54.

55. Illinois— Dlinois' Terminal R.
Co. v. Thompson, 210 Ill, 226, 71
N, E. 328.

Massachusetts.—Bradley v. Central
Vermont Ry. Co., 196 Mass. 360, 82
N. E. 44.

Michigan.— Meyers v. Detroit, etc.,
R. Co., 166 Mich. 403, 132 N. W.
109.

Missouri.— Smedley v. St. Louis,
ete, R. Co, 118 Mo. App. 103, 6
St. Ry. Rep. 860, 93 8. W. 295.

Rhode Island.— Crandall v. New
York, etc., R. Co., 19 R. I. 594, 35
Atl. 307.

56. § 368.
Line Over Private Property. 465

CHAPTER XV

LINE OVER PRIVATE PROPERTY.

SECTION 313. General Observations.
314. Grant of Right of Way; in: General.

 

315. Construction of Grant.

316. —— License.

317. —— Free Service as Consideration for Grant.
318, —— Proper Use of Easement Granted.

319. —— Line along Easement for Water Main.

320. Rights of Purchaser Subsequent to Erection of Line.
321. Remedies of Owner; Removal of Line.
322. —— Damages.

Sec. 313. General Observations.

The right to maintain electric or other wires across the
private lands of another may be acquired in either of
three ways. (1) by grant; (2) by prescription; (3) by
condemnation. In an earlier chapter, the acquisition of
rights by condemnation proceedings is treated. The rights
of the owner, so far as a line along a highway or along a
railroad right of way through his premises is concerned,
is also discussed in a prior chapter.”

Construction of Line by One of Several Co-Tenants.—
It has been held that one of several co-tenants cannot con-
struct poles and wires thereon for an electric or other
system, so as to interfere with the use and enjoyment of
the land by his co-tenant, without the consent of such
co-tenant.2 Under this rule, if one of the tenants desires
to maintain a line of poles and wires, the proper procedure
is to procure the consent of his co-tenant or acquire the
right by condemnation.

Sec. 314. Grant of Right of Way; in General.

As indicated in the preceding section, an owner of lands
may grant to an electric or other public service corporation
1. §§ 57 et seq. 8. Susquehanna Transmission Co.

2. § 303. v. St. Clair, 113 Md. 667, 77 Atl.
1119.

30
466 Law or ELecrricity.

an easement permitting the grantee thereof to maintain
poles and wires across the owner’s premises.* An ease-
ment of this character is governed by the same general
principles as relate to other easements. If the grant is
procured by fraud, it may be revoked.’ The privilege may
be given by a duly authorized agent of the landowner; as,
for example, where the real estate is in the name of the
wife, the husband may in some cases grant the right.
Though he has not authority in the first instance, his unau-
thorized acts may be ratified by the wife.®

Sec. 315. Grant of Right of Way; Construction of Grant.

Grants of rights of way for poles and wires are usually
prepared by the grantee, and should generally be construed
in favor of the landowner. Thus a grant to a telephone
company of the right to erect a line ‘‘ over and along ’’
certain property, with the right to place poles along the
highway adjoining such property, has been held not to
confer any right to erect a line or place poles diagonally
across the grantor’s property.’ Similarly, a grant of a
right of way by the owner of timber lands to a telephone
company, giving the latter the right to construct and main-
tain its lines over the property ‘‘ along the road, streets,
or highways adjoining the property * * * and the right
to cut down trees to clear the line,’’ has been held not to
warrant the company in clearing a diagonal way through
the entire tract, two and one-half miles long and twenty-
four feet wide.* Parol evidence may sometimes be admitted
to explain the terms of the grant.° For example, it has
been held that a grant which is silent as to the precise loca-
tion of the poles, their height and the manner and place of

4, Yeager v. Tuning, 79 Oh. St. & Teleg. Co., 71 8. Car. 528, 51S. E.
121, 86 N, E. 657,19 L.R. A. (N.S.) 243, 110 Am. St. Rep. 589.

700. 8. Morison v. American Telep. &
5. Burnett v. Postal Teleg. Cable Teleg. Co., 115 N. Y. App. Div. 744,
Co., 71S. Car. 146, 50 8. E. 380. 101 N. Y. Supp. 140.
6. Jordan v. Delaware, etc., Telep. 9. Morison v. American Telep. &
Co., 24 Del. 107, 75 Atl. 1014; af- Teleg. Co., 115 N. Y. App. Div. 744,
firmed, 25 Del. 67, 78 Atl. 401. 101 N. Y. Supp. 140,

7. Zimmerman v. American Telep.
Liye Over Private Property. 467
crossing the owner’s premises may be supplemented by
oral proof as to these matters and as to the reasonable use
of the right given.’°

Sec. 316. Grant of Right of Way; License.

The right to maintain a line of poles and wires over
another’s property when formally granted constitutes an
easement. It is an interest in real estate which, under the
Statute of Frauds of most states, requires a written instru-
ment for its conveyance.* Where a writing is essential to
the due conveyance of the right, a parol grant operates
merely as a license, sufficient perhaps to keep the company
from being classed as a trespasser, but revocable at the
will of the owner.” Thus, where several adjoining land-
owners verbally agreed to erect and maintain telephone
poles on their respective lands, and to contribute equally
to the expense of stringing wires thereon and operating a
telephone line, it was held that the agreement was merely
a license and could be revoked by one of the owners,
although in reliance thereon poles had been ereeted and the
line had been constructed.* In some jurisdictions, where
a licensee has expended money and labor upon the execu-
tion of the license, the privilege becomes irrevocable.
Where such is the law, a company constructing a line of
poles and wires under oral permission from the owner
acquires an irrevocable license.** Where an individual was
the owner of practically all the stock of an electric com-

10. Nichols v. N. Y. & Pa. Telep.
& Teleg. Co., 126 App. Div. 184, 110
N. Y. Supp. 325.

11. Yeager v. Tuning, 79 Oh. St.
121, 86 N. E. 657, 19 L. R. A. (N. 8.)
700. Compare, Anderson v. Mt. Ster-
ling Telep. Co., 27 Ky. Law Rep. 868,
86 S. W. 1119.

12. Yeager v. Tuning, 79 Oh. St.
121, 86 N. E. 657, 19 L. R. A. (N.S.)
700.

13. Yeager v. Tuning, 79 Oh. St.
121, 86 N. E. 657, 19 L. R. A. (N.S.)
700.

14. Indianapolis, ete., Tract. Co. v.
Arlington Telep. Co., 47 Ind. App.
657, 95 N. E. 280. “It has been
frequently held in this state that an
executed license, the execution of
which required the expenditure of
money and labor, is regarded in
equity as an executed agreement for
a valuable consideration, and, al-
though a parol license for the use
and occupation of real estate, it
is irrevocable.” Indianapolis, etc.,
Tract, Co. v. Arlington Telep. Co., 47
Ind. App. 657, 95 N. E. 280.
468 Law or E.ecrricirty.

pany and had absolute control of its affairs and was also
the owner of a tract of land adjoining the power plant of
the company, and the company had constructed a line of
wires across the private property, after the severance of
such owner from connection with the electric system, it
was held that the electric company might be deemed the
owner of an easement to maintain wires across the prem:
ises of such individual, though there was no formal con-
veyance of such an easement.*®

Sec. 317. Grant of Right of Way; Free Service as Consid-
eration for Grant.

As a consideration for a grant of a right to maintain
poles and wires over one’s premises, the grantee, though
a public service corporation, may agree to give the land-
owner free service. It has been held that such an agree-
ment will be enforced by injunction.** In one case it
appeared that a street railway company procured a deed
of land in consideration of free electric current and passes
to the members of the family on the cars, ‘‘ for such length
of time, only, as they reside at their present residence,’’
and it was held that a temporary absence of the family in
another state did not give the company the right to discon-
tinue furnishing passes, nor would such result follow the
transfer of the property where they continued to occupy it.”

Sec. 318. Grant of Right of Way; Proper Use of Easement
Granted.

A company, which has acquired a right of way for its
line of poles and wires, the right not being subject to
special limitations, may make such use of the easement
acquired as is necessary or convenient for the purpose for
which it was acquired.** If there is no limitation as to the

15. Keokuk Elec. Ry. & Power Co., 17. Humbert v. West Penn. Rys.
146 Iowa 679, 126 N. W. 60. Co., 228 Pa. St. 440, 77 Atl. 661.
16. Anderson v. Mt. Sterling Telep. 18. Western Union Teleg. Co. v.

Co., 27 Ky. Law Rep. 868,86 S. W. Polhemus, 178 Fed. 904, 102 C. C. A.
1119 (telephone service). 105, 29 L. R. A. (N. S.) 465.
Line Over Private Properry. 469
number of poles and wires, such additional ones as are
reasonably necessary may be placed upon the right of
way. But the company is liable for the destruction of a
spring on the owner’s premises, though it had a right of
way across the same, where the damage was caused by the
unnecessary use of dynamite in blasting holes.”

Sec. 319. Grant of Right of Way; Line along Easement for
“Water Main.

Where a person or corporation has acquired an easement
over the lands of another for the maintenance of a line of
water pipes to supply a municipality with water, it has
been held that the owner of the water system may there-
after construct a telephone or telegraph line along the
same, if such a line is reasonably necessary or convenient
for the repair, maintenance, or operation of the water
pipes.” A decision, apparently to the contrary, has been
rendered in another jurisdiction.” However this disputed
point may be, it seems clear that the owner of the water
system should not be allowed to permit a telephone or tele-
graph company to use the easement for commercial pur-
poses. Such a use is an additional servitude upon the land-
owner, though in his grant to the water company he ex-
pressly authorizes the company to operate a telephone or
telegraph line along the right of way for the water
purposes.”

was said: “The uses and purposes
for which the way is granted included

19. Western Union Teleg. Co. v.
Polhemus, 178 Fed. 904, 102 C. C. A.

105, 29 L, R. A. (N. S.) 465.

20. Little v. American Telep. &
Teleg. Co., 6 Pen. (Del.) 374, 67
Atl. 169, wherein it was said:
“There is no doubt that the owner
of a right of way over the lands of
another has the same right to use
the land as the owner would have,
so far as is necessary to accomplish
the purpose for which the right of
way was given. But he is not the
owner of the soil, and has but a
qualified or limited: right therein.”

21. City of Portland v. Metzer, 58
Oreg. 276, 114 Pac. 106, wherein it

doing any work which may be neces-
sary for maintaining, repairing, and
operating the pipe line, which will
include the maintenance of a tele-
phone line, if the same is necessary
or convenient for the proper or
prompt repair, maintenance, or opera-
tion of the line, which necessity is
very apparent.”

22, City of Spokane v. Colby, 16
Wash. 610, 48 Pae. 248,

23. Northeastern Telep. & Teleg.
Co. v. Hepburn, 73 N. J. Eq. 657, 69
Atl. 249.
470 Law or Huecrriciry.
Sec. 320. Rights of Purchaser Subsequent to Erection of
Line.

If the right to maintain a line of poles and wires across
the premises of another is a mere license which may be
revoked by the landowner, his conveyance of the property
without mention of the license will constitute a revocation
thereof.* If, however, the right is irrevocable, it is not
material whether the line is mentioned in the conveyance;
the purchaser takes title subject to the rights of the owner
of the line.” Recording acts in such a case do not materi-
ally affect the question if the line has already been con-
structed. In such a case the presence of the line is actual
notice to the purchaser of the rights of the company own-
ing the line.

Sec. 321. Remedies of Owner; Removal of Line.

In some jurisdictions, where a line of poles and wires
has been constructed over the private lands of another, the
latter has a remedy to compel the removal of the appli-
ances, either by way of an action of ejectment or by a suit
in equity for a mandatory injunction. Where the line has
not already been constructed, but the company is threaten-
ing to erect it against the consent of the owner, an injunc-
tion restraining the threatened acts seems an appropriate
remedy.” The remedy by ejectment has been held avail-
able where the poles were not erected upon the plaintiff’s
lands, and the only injury sustained was the presence of a

24. Bunke v. New York Telep. Co.,
110 N. Y. App. Div. 241, 97 N. Y.
Supp. 66; affirmed without opinion,
188 N. Y. 600, 81 N. E, 1161.

25. New York, ete., R. Co. v. Rus-
sell, 83 Conn. 581, 78 Atl. 324; In-
dianapolis & C. Tract. Co. v. Arling-
ton Telep. Co, 47 Ind. App. 657,
95 N E. 280. =

26. New York, etc., R. Co. v. Rus-
sell, 83 Conn. 581, 78 Atl. 324; In-
dianapolis & C. Tract. Co. v. Arling-
ton Telep. Co., 47 Ind. App. 657, 95
N. E. 280.

27. Majenica Telep. Co. v. Rogers,
43 Ind. App. 306, 87 N. E. 165.

Variance—— Where a complaint al-
leged that defendant telephone com-
pany had stretched its wires, without
right, over plaintiffs land, and the
proof showed that the poles were set,
but the wires were not strung, there
is no material variance, and an in-
junction was proper. Majenica
Telep. Co. v. Rogers, 43 Ind. App.
306, 87 N. E, 165.
Linz Over Private Property. 471
wire over the premises.”* In some jurisdictions, however,
the courts, considering the circumstance that the company
may procure the right of way by the payment of damages
in condemnation proceedings, hold that the only remedy
of the landowner is for damages.” Such a ruling is justi-
fiable only when the company is a public service corpora-
tion and entitled to maintain condemnation proceedings
and to secure the easement against the consent of the
owner. Moreover, upon principle, it would seem to apply
only where the line was erected with no objection on the
part of the owner; if the owner objects when the company
starts to erect, it would better conserve the rights of all
the parties to compel the company to secure the right by
condemnation.

Sec. 322. Remedies of Owner; Damages.
Where an electric or other line of poles and wires has
been constructed over the private premises of one without

28. Butler v. Frontier Telep. Co.,
186 N. Y. 486, 9 Am. Electl. Cas. 922,
79 N. E. 716, 11 L. R. A. (N. 8.)
920, 116 Am. St. Rep. 563, wherein
it was said: “If the wire had
touched the surface of the land in
permanent and exclusive occupation,
it is conceded that the plaintiff would
have been dispossessed pro tanto. A
part of his premises would not have
been in his possession, but in the
possession of another. The extent of
the disseisin, however, does not con-
trol, for an owner is entitled to the
absolute and undisturbed possession
of every part of his premises, includ-
ing the space above, as much as a
mine beneath. If the wire had been
a huge cable, several inches thick and
but a foot above the ground, there
would have been a difference in de-
gree, but not in principle. Expand
the wire into a beam supported by
posts standing upon abutting lots
without touching the surface of plain-

tiff’s land, and the difference would
still be one of degree only. Enlarge
the beam into a bridge, and yet space
only would .be occupied. Erect a
house upon the bridge, and the air
above the surface of the land would
alone be disturbed. Where along the
line of these illustrations would dis-
possession begin? What rule has the
law to measure it by? How much of
the space above the plaintiff’s land
must be subjected to the dominion of
the defendant in order to effect a
dispossession? To what extent may
the owner be dispossessed and kept
out of his own before there is a pri-
vation of seisin? Unless the princi-
ple of usque ad coelum is abandoned
any physical, exclusive and perma-
nent occupation of space above land
is an occupation of the land itself
and a disseisin of the owner to that
extent.”

29. See Fuselier v. Great Southern
Telep. & Teleg. Co., 50 La. Ann. 799,
472 Law or ELEcrricity.

his consent, the owner may disregard whatever other
remedies he may have and sue the trespasser for damages.”
In such a case, the plaintiff is entitled to recover the actual
damages sustained by him;* and, if the trespass is ma-
licious, wanton, or oppressive, the jury may be justified in
giving punitive damages.” In determining the damages
arising from the maintenance of a high tension line, the
character of the structures and the defendant’s acts in
sending a dangerous current over the plaintiff’s lands are
proper matters for the consideration of the jury.** The
time lost by the plaintiff in attempting to get the company
to remove the appliances from his premises is not a proxi-
mate result of the trespass, and cannot be considered.**
Nor, after his buildings are burned by fire, can the owner
claim that the appliances hindered the fireman in the extin-
guishment of the fire, and recover his loss of the company
erecting the appliances.** Where the appliances had been

24 So. 274; Doty v. American Telep.
& Teleg. Co., 123 Tenn. 329, 130 S. W.
1053, Ann. Cas. (1912C) 167.

Where a bridge eompany has given
to a telegraph company the right to
lay cables and wires across a bridge
for an annual rental, and the bridge
is subsequently condemned by the
county in which it is located, the
county cannot maintain a Dill in
equity against the telegraph company
to compel it to remove its wires and
cables, or pay rental for the use of
the bridge. In such a case the
county has an adequate remedy at
law. Beaver County v. Central Dist.
& Print. Teleg. Co., 219 Pa. St. 340,
68 Atl. 846.

30. Phelps v. Berkshire St. Ry.,
210 Mass. 49, 96 N. E. 128; Yoe v.
Savannah River Power Co., 89 S. Car.
396, 71 S. E. 979; Montgomery v.
Southern Power Co., 87 S. Car. 293,
68 S. E. 104%; Dabson v. Postal
Teleg. Cable Co., 79 8S. Car. 429, 60
S. E. 948; Ingleside Mfg. Co. v.

Charleston L. & Water Co., 76 S. Car.
95, 56 S. KE. 664; Phillips v. American
Telep. & Teleg. Co., 71 8S. Car. 571, 51
S. E. 247; Burnett v. Postal Teleg.
Cable Co., 71 S. Car. 146, 50 S. E,
780; Zanziger v. Wayne Elec. L. Co.,
6 Pa. Dist. Rep. 577, 7 Del. Co. Rep.
10.

Demand need not be made before
action of trespass is brought. Dab-
son v. Postal Teleg. Cable Co., 79
S. Car. 429, 60 S. E. 948.

31. Johns v. Cumberland Telep. &
Teleg. Co., 25 Ky. Law Rep. 2074, 80
S. W. 165.

32. Johns v. Cumberland Telep. &
Teleg. Co., 25 Ky. Law Rep. 2074, 80
S. W. 165.

33. Phelps v. Berkshire St. Ry.,
210 Mass. 49, 96 N. E. 128.

34. Southwestern Teleg. & Telep.
Co. v. Whiteman, 36 Tex. Civ. App.
163, 81 S. W. 76.

35. ‘Chaffee v. Telephone & Teleg.
Constr. Co., 77 Mich. 625, 3 Am.
Elect]. Cas. 462, 43 N. W. 1064.
Line Over Private Property.

473

removed at the time of the trial, evidence cannot be ad-
mitted to show what would have been the depreciation in
value of the premises had the appliances remained.*
Where a telephone company, without authority from the
owner, has annexed its wires to the roof of a building, the
owner may recover in an action of trespass the rental value
of the use of the building for stringing wires in the manner
the defendant’s wires were strung.”

36. Southwestern Teleg. & Telep.
Co. v. Whiteman, 36 Tex. Civ. App.
163, 81 S. W. 76.

37. Bunke v. New York Telep. Co.,
46 Mise. (N. Y.) 97, 91 N. Y. Supp.
390, 34 Civ. Proc. 170; affirmed, 110
N. Y. App. Div. 241, 97 N. Y. Supp.
66; affirmed without opinion, 188
N. Y. 600, 81 'N. E. 1161.

Testimony of a former employee of
the defendant, who had been em-
ployed to secure licenses from land

owners, that the license was worth

a certain sum per year, is compe-
tent. Bunke v. New York Telep. Co.,
110 N. Y. App. Div. 241, 97 N. Y.

Supp. 86; affirmed without opinion,

188 N, Y. 600, 81 N. E. 1161.
474

Law oF ELEcTRICITY.

CHAPTER XVI.

REGULATION OF ELECTRIC COMPANIES.

SECTION 323. In General.

324, Reasonableness of Regulations.

325. State Statutes.

326. Public Utility Commissions.
327. Power of Municipal Corporations; in General.

 

 

Municipality Cannot Deprive Itself of Police Power.

331. Matters Which May Be Regulated; in General.

 

328,

329. Form of Regulation.
330. —— Rates.

332. Poles.

333. —— Wires.

334. —— Rates.

335. Electricians.

 

336. Street Railway Companies.
337. Telegraph and Telephone Companies.

Sec. 323. In General.

Electric companies are subject to reasonable regulation

by the state and its municipal divisions.’

1, United States—Old Colony T.
Co. v. City of Omaha, 230 U. S. 100,
33 S. ‘Ct. 967; Missouri ex rel.
Laclede Gas. L. Co. v. Murphy, 170
U. S. 78, 18 S. Ct. 505, 42 L. Ed.
955; Portland Ry. L. & P. Co. v.
City of Portland, 200 Fed. 890. _

Alabama.— Consolidated E. L. Co.
v. People’s E. L. & Gas. Co., 94 Ala.
372, 4 Am. Electl. Cas. 250, 10 So.
440.

Arkansas— Arkadelphia Elec. L,
Co. v. City of Arkadelphia, 99 Ark.
178, 137 S. W. 1093. ;

California.— Merced Falls Gas &
Elec. Co. v. Turner, 2 Cal. App. 720,
9 Am. Elect]. Cas. 625, 84 Pac. 239.

Illinois— Commonwealth Elec. Co.
v. Rose, 214 Ill. 545, 9 Am. Electl.
Cas. 381, 73 N. E. 780.

Missouri— City of Carthage v.
Garner, 209 Mo. 688, 108 S. W. 521;

There are two

State ex rel. National Subway Co. v.
St. Louis, 145 Mo. 551, 7 Am. Electl.
Cas. 195, 46 S. W. 981, 42 L. R. A.
113; State ex rel. Laclede Gaslight
Co. v. Murphy, 130 Mo. 10, 5 Am.
Electl. Cas. 71, 31 S. W. 594, 31
L. R. A. 798; .affirmed, 170 U. S. 78,
18 S. Ct. 505, 42 L. Ed. 955.

Nebraska. Wabaska Elec. Co. v.
City of Wymore, 60 Neb. 199, 8%
N. W. 626.

New York.—Village of Saratoga
Springs v. Saratoga Gas, Electric
Light & Power Co., 191 N. Y. 123, 83
N. E. 693.

North Carolina— Horner v. Ox-
ford Water and Elec. Co., 153 N. Car,
535, 69 S. E. 607. “The defendant
company [an electric company] hav-
ing dedicated its property to the pub-
lic service, it thereby became the
subject of reasonable regulation and

{
REGULATION or ELEctRic CoMPANIES. 475
grounds on which regulation may be justified. In the first
place, every corporation is subject to such regulation as
comes within the police powers of the state or of municipal
corporations. The police power authorizes the imposition
of such requirements which tend to protect the health and
safety of the inhabitants. In this class, regulations may
be sustained which pertain to the location of poles and
wires and the guarding of travelers from such appliances.
The other theory upon which regulations may be sustained
is the public nature of the electric companies. As stated
in another chapter,’ electric companies are quasi-public.
Their public nature renders them subject to certain reason-
able regulations, such as those fixing reasonable rates for
its service.

Sec. 324. Reasonableness of Regulations.

Constitutional provisions prohibiting the taking of prop-
erty without due process of law prohibit the imposition
upon electric companies of unreasonable or confiscatory
regulations, either by statute or municipal ordinance.* The
company cannot be required to give its property either to
the government or to its customers. Thus, a municipal
ordinance requiring the company to furnish incandescent

control for the public benefit and by
the public agencies properly desig-
nated for the purpose.” Horner v.
Oxford ‘Water and Elec. Co., 153
N. Car. 535, 69 S. E. 607.

Pennsylvania.—-Monongahela City
v. Monongahela Elec. L. Co., 12 Pa.
Co. Ct. 529, 4 Am. Electl. Cas, 53.

Tennessee.— Great Falls Power Co,
v. Webb, 123 Tenn. 584, 133 S. W.
1105. ;

2. § 6.

3. United States.— Portland Ry. L.
& P. Co. v. City of Portland, 200 Fed.
890; Minneapolis Gen. Elec. Co. v.
City of Minneapolis, 194 Fed. 215.

Arkansas.— Arkadelphia Elec. L.
Co. v. City of Arkadelphia, 99 Ark.
178, 137 S. W. 1093.

California.— Matter of Goodrich,
160 Cal. 410, 117 Pac. 451, Ann. Cas.
(1913 A)* 56; Merced Falls Gas &
Elec. Co. v. Turner, 2 Cal. App. 720,
9 Am. Electl. Cas. 625, 84 Pac, 239.

Florida. City of Gainesville y.
Gainesville Gas & Elec. P. Co., 65
Fla. 404, 62 So. 919, 46 L. R. A.
(N. S.) 1119.

Missouri.— State ex rel. National
Subway Co. v. St. Louis, 145 Mo.
551, 7 Am. Electl. Cas. 195, 46 S. W.
981, 42 L. R. A. 113. ,

New York.— Village of Saratoga
Springs v. Saratoga Gas, Electric
Light & Power Co., 191 N. Y. 123,
83 N. E. 693.
476 Law or Eecraiciry.

lamps free to its customers is not valid.’ Upon the passage
of an ordinance or statute granting a franchise to an elec-
tric company to use the streets and highways for its appli-
ances within a certain district, certain conditions may be
annexed to the grant,’ and the company is bound to per-
form such conditions, whether or not they are reasonable.
The relative rights of the company and the government is
then a matter of contract between parties capable of con-
tracting. Conditions may be attached to a franchise grant
which, if subsequently sought to be imposed against the
consent of the grantee, would be deemed unreasonable and
ineffective. The burden is on the company to show that a
particular regulation is unreasonable. The fact that
requirements imposed by a municipal ordinance, if
enforced, will infringe the company’s constitutional rights,
does not relieve the company from offering to do those
things which it is lawfully bound to do.’

Sec. 325. State Statutes.

The power to regulate electric companies, so far as such
companies are subject to regulation, is lodged primarily in
the state. The state, by its lawmaking body, may make
such regulations as are proper, and they are valid and
enforceable if constitutional provisions are not violated.®
The legislative body may pass reasonable enactments pro-
viding where poles and wires shall be placed, prescribing
their manner of construction, or requiring the insulation
of electric wires.’ Such regulations are in the interest of

4. Matter of Goodrich, 160 Cal.
410, 117 Pac. 451, Ann. Cas. (1913 A)
56.

5. §§ 223-239.

6. Portland Ry., L. & P. Co. v. City
of Portland, 200 Fed. 890; Arkadel-
’ phia Elec. L. Co. v. City of Arkadel-
phia, 99 Ark. 178, 137 S. W. 1093.

7%, Missouri ex rel. Laclede Gas L.
Co. v. Murphy, 170 U. S. 78, 18 8. Ct.
505, 42 L. Ed. 955.

8. An unconstitutional discrimina-

tion in the persons or corporation
affected by the statute may render it
void as class legislation. State v.
Gantz, 124 La. 535, 50 So, 524, 24
L. R. A. (N. 8.) 1072.

9. See People ex rel. N. Y. EB. L.
Co. v. Squire, 107 N. Y. 593, 2 Am.
Electl. Cas. 176, 14 N. E. 820, 1 Am.
St. Rep. 893; affirmed, 145 U. 8.
175, 4 Am. Elect]. Cas, 122, 12 8. Ct.
880, 36 L. Ed. 666.

Conduits— The placing of electric
RecuLation or EiLectric CoMPaNIEs. 477
the health and safety of the inhabitants, and are sustain-
able under the police power. The use of soft coal at a
generating station in densely populated districts may be
forbidden by statute as a police measure.*® On account of
the public service nature of electric companies, their rates
are subject to revision by the state, so long as the rate
fixed is not unreasonable or confiscatory.”

Sec. 326. Public Utility Commissions.

In recent years, a number of states have created state
boards or commissions with the power to regulate electric
and other public service corporations. The statutes dele-
gating this power to such public utility bodies are consti-
tutional.’? One of the purposes of such bodies is to with-
draw the unrestricted right of competition between elec-
tric companies serving the same territory.** Perhaps the
paramount purpose of such statutes, however, is the pro-

wires in conduits is discussed in the
following chapter.

10. City of Brooklyn v. Nassau
Electric R. Co., 44 N. Y. App. Div.
462, 61 N. Y. Supp. 33.

11, Northern L. & P. Co. v.
Stocker, 13 Cal. App. 404, 109 Pac.
896. See also, Little Rock Ry. Elec.
Co. v. Newman, 91 Ark. 89, 1208S. W.
824.

12. Village of Saratoga Springs v.
Saratoga Gas, Electric Light & Power
Co., 191 N. Y. 123, 83 N. E. 693;
State v. Kenosha Elec. Ry. Co., 145
Wis. 337, 129 N. W. 600.

18. Weld v. Gas & Electric Light
Com’rs, 197 Mass. 556, 84 N. E. 101;
People ex rel. N. Y. Edison Co. v.
Willcox, 207 N. Y. 86, 100 N. E, 705,
wherein the court said: ‘It is the
settled policy of the state arising
through an extended and instructive
experience to withdraw the unre-
stricted right of competition between
corporations occupying through spe-
cial consents or franchises the public
streets and places and supplying the

public with their products or utilities
which are well nigh necessities. * * *
This policy instigated and is em-
bodied in the Public Service Commis-
sions Law, which was adopted in the
interests and for the good of the
people and should receive from the
courts an activity and effect in aid of
that policy within the fair and rea-
sonable meaning of its provisions.
The legislature will not be deemed to
have departed in that law from that
policy unless there is clear and cer-
tain language to that effect.”

“Our statutes are founded on the
assumption that, to have two or
more competing companies running
lines of gas pipe and conduits for
electric wires through the same
street would often greatly increase
the necessary cost of furnishing light,
as well as cause great inconvenience
to the public and to individuals from
the unnecessary digging up of the
streets from time to time, and the
interference with pavements, street
railway tracks, water pipes and other
478

Law or Execrriciry.

tection of the public from extortionate acts and charges of

electric companies operating with no competition.

Such

bodies are required to fix the.rates which electric com-
panies may charge for current;'* but they may also be
empowered to supervise matters of an internal nature,
such as the issuance of stocks and bonds by electric com-
panies. A mining corporation which generates electricity

structures.” Weld v. Gas & Electric
Light Com’rs, 197 Mass. 556, 84 N. E.
101.

Restriction of competition— The
Public Service Commission, in regu-
lating the issuance of stocks and
bonds, must not deny the application
in toto merely because the consent to
the issuance would promote competi-
tion which is not shown to be neces-
sary. People v. Public Service Com.
for 1st Dist., 137 N. Y. App. Div.
810, 122 N. Y. Supp. 641; appeal dis-
missed, 199 N. Y. 254, 92 N. E. 629.

14. California-Oregon*Power Co. v.
City of Grants Pass, 203 Fed. 173;
Village of Saratoga Springs v. Sara-
toga Gas, Electric Light & Power Co’,
191 N. Y. 123, 83 N. E, 693; Village
of Kilbourn City v. Southern Wiscon-
sin P. Co., 149 Wis. 168, 135 N. W.
499,

15. People v. Public Service Com.
for ist Dist., 137 N. Y. App. Div.
810, 122 N. Y. Supp. 641; appeal dis-
missed, 199 N. Y. 254, 92 N. E. 629.

The discretion of a public service
commission cannot override the dis-
cretion of the officers of a corpora-
tion in the management of its affairs,
or the provisions of the statute which
prescribe the cases in which securi-
ties are permitted to be issued. Its
duty upon an application under sec-
tion 69 of the Public Service Commis-
sions Law (Cons. Laws, ch. 48) is
to determine whether a proposed issue
of bonds is necessary for the proper
purposes of the company, is author-
ized by law and is to be used in a

proper manner. If such are the facts
it cannot withhold its certificate;
otherwise it cannot grant it. It is
beyond the power of the commission
to permit the issue of improper secu-
rities upon condition that the com-
pany reduce its capital stock and such
a condition is wholly unauthorized.
People ex rel. Binghamton L. H. &
P. Co. v. Stevens, 203 N. Y. 7, 96
N. E, 114.

Where an electric light company
makes application to the Public Serv-
ice Commission for authority to issue
additional stock and bonds, the Com-
mission has only power to determine
whether the purposes for which the
applicant wishes to issue the securi-
ties are within those enumerated in
the statute and whether or not the
additional stock or any part thereof
are reasonably necessary for such.par-
poses. The Commission has power to
authorize such part of the issue as
it deems reasonably required and to
refuse its consent as to the remainder.
People v. Public Service Com. for 1st
Dist., 137 N. Y. App. Div. 810, 122
N. Y. Supp. 641; appeal dismissed,
199 N. Y. 254, 92 N. E. 629.

Consent to construction of plant.—
Under some statutes, an electric com-
pany will not be allowed to issue
stocks and bonds, where the company
has not received the proper permis-.
sion and approval to begin the con-
struction of its plant. People ex rel.
N. Y. Edison Co. v. Willcox, 207 N. Y.
86, 100 N. E. 705.

Bonds to refund illegal bonds.—
REGULATION oF Hecrric CoMPANIES. 479
for its purposes but disposes of the surplus of its current
to the inhabitants of a nearby municipality at uniform
rates, may be classed as a public service corporation and
thus under the control of a public service commission.”

Sec. 327. Power of Municipal Corporations; in General.

The police power inherently lodged in municipal corpo-
rations enables them to protect the health and safety of
their inhabitants and to remove all obstructions in the
streets, though the power so to do is not specifically dele-
gated by the state. A municipality may, therefore, make
reasonable regulations which are binding upon electric
companies relative to the location of electric lines,’’ the
insulation and protection of dangerous wires,’* and other
matters of minor importance. It may require poles or
wires to be changed from one location to another; or, if

That it is proposed to use a part of
the desired bond issue to refund cer-
tain illegal bonds; that the present
bonds being illegal, the approval of
the application would permit the
capitalization of a franchise and that
the amount of the bonds of the new
issue is much too large as compared
with the amount of voting stock, are
not valid reasons for refusing the ap-
plication in its entirety. People v.
Public Service Com. for {fst Dist.,
137 N. Y. App. Div. 810, 122 N. Y.
Supp. 641; appeal dismissed, 199
N. Y. 254, 92 N. E. 629.

16. Wingrove v. Public Service
Commission, (W. Va.) 81 8S. E. 734.

17. Merced Falls Gas & Elec. Co. v.
Turner, 2 Cal. App. 720, 9 Am, Electl.
Cas. 625, 84 Pac. 239; State ex rel.
Laclede Gaslight Co. v. Murphy, 130
Mo. 10, 5 Am. Electl. Cas. 71, 31
S. W. 594, 31 L. R. A. 798; affirmed,
170 U. S. 78, 18'S. (Ct. 505, 42 L, Ed.
955.

The original location by an electric
light company of its poles by permis-
sion of the city authorities, and the

retention of such location for a num-
ber of years, creates no absolute inde-
feasible right, or irrevocable license,
to have each pole remain at the par-
ticular spot for all time. Merced
Falls Gas & Elec. Co. v. Turner, 2
Cal. App. 720, 9 Am. Electl. Cas. 625,
84 Pac, 239.

18. Commonwealth Elee. Co. v.
Rose, 214 Ill. 545, 9 Am. Elect]. Cas.
381, 73 N. E. 780.

“Electric wires, when charged, are
recognized as ‘being dangerous to life
and property, and their use is there-
fore subject to police regulations.”
State ex rel. Laclede Gaslight Co. v.
Murphy, 130 Mo. 10, 5 Am. Electl.
Cas. 71, 31'S. W. 594, 31 L. B. A.
798; affirmed, 170 U.S. 78, 18 S. Ct.
505, 42 L, Ed. 955.

Personal injuries— As to the lia-
bility of an electric company for per-
sonal injuries, see §§ 400 et seq. As
to injuries arising from the violation
of a municipal ordinance see §§ 420—
424,

19. Merced Falls Gas & Elec. Co.
v. Turner, 2 Cal. App. 720, 9 Am.
480 Law oF ELEctriciry.
it is reasonably necessary, the company may be required to
place its wires in conduits.”

Regulations Must be Reasonable— The vital limitation
upon the regulation of public service corporations is ‘‘ rea-
sonableness.’’ Statutes, orders of public utility commis-
sions, and municipal ordinances, regulating electric com-
panies, alike, must be reasonable. The right of regula-
tion does not give a municipality the right to revoke the
franchise of an electric company or to oust. its appliances
from the municipal streets. A municipality cannot acquire
the right to pass an ordinance taking the property of an
electric company for the use of the municipality or of its
inhabitants.” Regulations are presumed to be a proper
exercise of the municipality’s authority, and the burden is

on the electric company to show the contrary.”

Electl. Cas. 625, 84 Pac. 239; Monon-
gahela City v. Monongahela Elec. L.
Co., 12 Pa. Co. Ct. 529, 4 Am. Electl.
Cas. 53.

20. §§ 339-341.

21. § 324,

“The city authorities will not be
allowed to enforce regulations which
are tantamount to a denial of appel-
lant’s right to use the streets, or are
arbitrary, capricious, unreasonable,
or prohibitory in their nature or ef-
fect.” Merced Falls Gas & Elec. Co.
v. Turner, 2 Cal. App. 720, 9 Am.
Electl. Cas. 625, 84 Pac. 239.

22. Minneapolis Gen. Elec. Co. v.
City of Minneapolis, 194 Fed. 215.
See also, § 253.

23. Portland Ry., L. & P. Co. v.
City of Portland, 200 Fed. 890; Arka-
delphia Elec. L. ‘Co. v. City of Arka-
delphia, 99 Ark. 178, 137 S. W. 1093.
“Courts will not hesitate to stay the
arm of municipal power when any at-
tempt to curtail or deny the consti-
tutional right is made manifest or a

clear abuse of discretion is shown.
But they will as unhesitatingly frown
upon the doctrine that the constitu-
tional provision in question must be
construed as an abdication or denial
of ‘power on the part of cities to
widen, straighten, beautify and im-
prove streets and sidewalks, and to
compel property owners of every class
and kind to conform to all reasonable
regulations redounding to the general
good. I¢ is therefore incumbent upon
litigants seeking to restrain the exer-
cise of municipal power in this behalf
to show by their pleadings that the
regulation in question is an unneces-
sary and unreasonable exercise of the
discretion reposed in the municipal
authorities. The applicant for a re-
straining order must show by a plain
statement of substantive facts that
the regulation complained of is un-
reasonable, arbitrary, confiscating or
prohibitory.” Merced Falls Gas &
Elec. Co. v. Turner, 2 Cal. App. 720,
9 Am. Electl. ‘Cas. 625, 84 Pac. 239.
Reeuuation or Execrric Compantss. 481
Sec. 328. Power of Municipal Corporations; Municipality
Cannot Deprive Itself of Police Power.

A city or village cannot deprive itself of its inherent
right to regulate electric companies.** The police power
is an inalienable right to be exercised for the benefit of the
inhabitants of the municipality. A municipal corporation
cannot enter into a contract with an electric company by
which it loses its police power of regulation; nor can it
exercise the right in one instance in such a manner that
its right subsequently to exercise it is foreclosed. The state
itself cannot limit its exercise of the police power.”

Sec. 329. Power of Municipal Corporations; Form of
Regulation.

Where a municipality seeks to make regulations affect-
ing electric companies, the proper method usually is the
passage of an ordinance by the municipal assembly.” The
matter, however, is within the control of the state legisla-
ture, and some other practice on the part of the municipal
authorities may be prescribed by statute.

Sec. 330. Power of Municipal Corporations; Rates.
The power, sometimes lodged in municipalities, of regu-
lating the rates to be charged by electric companies is not

24, City of Ft. Smith v. Hunt, 72
Ark. 556, 82'S. W. 163, 66 L. R, A.
238,

25. City of Ft. Smith v. Hunt, 72
Ark. 556, 82 S. W. 163, 66 L. R. A.
238,

License fee— A city cannot enter
into a contract with an electric com-
pany to permit the erection in its
streets of poles to carry electric light
wires, which will deprive it of the
power to exact a license fee to cover
the expense of the police supervision
of its poles and wires. City of Ft.
Smith v. Hunt, 72 Ark, 556, 82 S. W.
163, 66 L. R. A, 238.

26. State ex rel. Laclede Gaslight

31

Co. v. Murphy, 130 Mo. 10, 5 Am.
Elect]. Cas. 71, 31 L. R. A. 798, 31
S. W. 594; affirmed, 170 U. S. 78,
18 S. Ct. 505, 42 L. Ed. 955.

27. Crowder v. Town of Sullivan,
128 Ind. 486, 3 Am. *Electl. Cas. 72,
28 N. E. 94; City of Passaic v. Public
‘Service Corporation of New Jersey,
75 N. J. Eq. 379, 73 Atl. 122; Point
Pleasant Elec. L. & P. Co. v. Borough
of Bay Head, 62 N. J. Eq. 296, 8 Am.
Electl. Cas. 230, 49 Atl. 1108.

Ordinance.—A city, having the
power to regulate lighting companies,
must exercise it by some general ordi-
nance defining the offense or regulat-
ing the matter; and, until an ordi-
482 Law or ELectricity.

to be confounded with the police power of regulating the
appliances placed in the street by electric companies. The
regulation of electric appliances on the streets is a power
derived from its control of the streets and from its inherent
police power. The police power permits it to make regula-
tions which tend to protect the safety of the inhabitants or
to free the streets from obstructions. The police power
does not, however, pertain to such financial matters as the
amount of money a citizen shall pay to an electric company
for current used by him. The regulation of rates is
founded, not on the police power, but on the public nature
of the company. By reason of its public character, the
state may, within certain limitations, regulate its charges.
This power the state may exercise in any one of at least
three different ways: (1) It may pass a statute fixing the
rate;”* (2) it may delegate the rate-fixing power to a state
board or commission,” or (3) it may delegate to a munici-
pality the power of determining the rates to be charged
by electric companies operating within its limits.*° Of
these three ways, there is but one which authorizes a
municipality to fix rates, and thus a municipality is with-
out power to regulate electric tolls unless it has received
a delegation of the power from the state.** And the state,
having delegated the rate-making power to a municipality,

nance is passed, the city has no right
to proceed in individual cases. City
of Passaic vi Public Service 'Corpora-
tion of New Jersey, 75 N. J. Eq. 379,
73 Atl. 122.

28. § 325.

29. § 326.

30. Portland Ry., L. & P. Co. v.
City of Portland, 200 Fed. 890; Arka-
delphia Elec. L. Co. v. City of Arka-
delphia, 99 Ark. 178, 137 S. W. 1093;
Gainesville Gas & Elec. Power Co. v.
City of Gainesville, 63 Fla, 425, 58
So. 785.

81. Minneapolis Gen. Elec. Co. v.
City of Minneapolis, 194 Fed. 215;
Wabaska Elec. Co. v. City of Wymore,
60 Neb, 199, 82 N. W. 626. “The

legislature has, of course, the right
to fix the price at which gas or elec-
trie lights shall be supplied by one
who enjoys a monopoly of the busi-
ness ‘by reason of having an exclusive
franchise. * * * And such right may
be delegated to the governing body
of a public or municipal corporation.
But the power of regulating the
charges for electric lights is not
found among the grant of powers con-
tained in defendant’s charter. There
is no such authority given, either ex-
pressly or by implication, and, there-
fore, it does not exist.” Wabaska
Elec. Co. v. City of Wymore, 60 Neb.
199, 82 N. W. 626.
ReGuuaTion oF HEiectric CoMPANIES. 483

may at any time revoke such delegation, and provide a
different procedure for determining electric rates. Thus,
after granting to a city the right to fix such rates, the
state may vest the power in a public utility commission
in such a manner that the city will thereafter have no
authority to prescribe the rates.*? Where the rate-making
power is transferred from a municipality to a public service
corporation, the transfer may render a prior rate-fixing
ordinance a nullity.* The authority given to a munici-
pality to fix rates for electricity, includes any authority
that may be fairly implied as incidental to or reasonably
necessary for the effectiveness of the power expressly
given. This includes the fixing of reasonable rates for
connections and the placing of meters, ete.** The right of
a municipal corporation to regulate the rates of electric
companies is analogous to its right to grant it a franchise
to operate within its limits. In either case, the authority in
the first instance is lodged in the state, but the state may, in
its discretion, delegate the authority to the municipality.*

Sec. 331. Matters Which May be Regulated; in General.

The matters which may be the subject of state or munici-
pal regulation cover a broad scope. Under the police
power the appliances in the streets, the poles** and wires,°
are especially subject to regulation. Regulations pertain-
ing to other matters, such as the electric rates,** and the
issuance of stocks and bonds by electric companies,** are
also sustained. While regulation is permitted, it is to be
remembered that prohibition is not allowed; a regulation
which impairs the franchise rights of an electric company
may be unconstitutional.” It has been said that a munici-
pal ordinance may not impose a duty upon an electric com-

82. California-Oregon Power Co. v. Co. v. City of Gainesville, 63 Fla.

City of Grants Pass, 203 Fed. 173; 425, 58 So. 785.
Union Elec. L. & P. Co. v. City of 35. §§ 244, 266.

St. Louis, (Mo.) 161 S. W. 1166. 86. § 332.
33. Union Elec. L. & P. Co. v. City 37. § 333.
of St. Louis, (Mo.) 161 S. W. 1166. 88. § 334.

84. Gainesville Gas & Elec. Power 839. See § 326.
40. See §§ 199 et seq.
484 Law or ELectsictry.

pany which in no way appertains to or grows. out of its
public functions.“ Regulations pertaining to the placing
of electric wires in conduits, and the imposing of license
fees upon electric companies are discussed in other places.“

Sec. 332. Matters Which May be Regulated; Poles.

Poles of electric companies placed along public highways
are peculiarly a matter for state or municipal regulation.“
The duty to protect travelers along the streets and high-
ways and to keep the public ways free from obstructions,
warrants the regulation of electric light poles. The par-
ticular places where poles are to be put may be designated
by the municipality, and the company will not be allowed
to place them in other locations. And, upon a change in
the highway, or if another location would less obstruct the
public travel, the company may be compelled to change

the location of one or more poles.*

41. Matter of Goodrich, 160 Cal.
410, 117 Pac. 451, (1913 A) Ann. Cas.
56, wherein the court, holding that
an ordinance requiring an electric
company to furnish incandescent
lamps free of charge was invalid,
said: “No one can seriously assert
that the furnishing of incandescent
lamps is a part of the public duty of
a quasi public corporation supplying
electricity for light or power. No
law of the state attempts in the re-
motest extent to impose such a duty.
The publie duty of such a corporation
is fully performed when it has
brought its commodity safely and
conveniently to the door of the con-
sumer. Within that door the com-
pany is not by law obliged and may
not by law be compelled to go for
any purpose foreign to the public
service it is called upon to render,
and that the purpose here contem-
plated is foreign is abundantly estab-
lished.”

42. § 339.

43. § 100,

All legislative grants

44, Mandamus has been held to be
@ proper remedy to compel an electric
company to obey municipal regula-
tions. Monongahela City v. Monon-
gahela Elec. L. Co., 12 Pa. Co. Ct.
529, 4 Am. Electl. Cas. 53.

45. Merced Falls Gas & Electric Co.
v. Turner, 2 Cal. App. 720, 9 Am.
Elect]. Cas. 625, 84 Pace. 239.

Change in curb lines— Where a
municipality, with a view of improv-
ing the street, makes changes in the
curb lines, it may compel an electric
light company to change the location
of its poles so as to correspond with
the changes in the highway. Monon-
gahela, City v. Monongahela Elec. L.
Co., 12 Pa. Co. Ct. 529, 4 Am. Elect.
Cas. 53.

The original location by an electric
light company of its poles by per-
mission of the city authorities, and
the retention of such location for a
number of years, creates no absolute
indefeasible right, or irrevocable li-
cense, to have each pole remain at
the particular spot for all time.
Reeuiation oF Eectric CompPaniss. 485
to electric companies to occupy streets with their appli-
ances are made impliedly, if not expressly, subject to the
police powers of the municipality, both to dictate and to
change the location of such appliances.** It is a proper
municipal regulation to compel an electric company to pro-
cure a license from the municipality before making any
excavation in the streets for the setting or removal of
poles.” The fact that the company has a franchise does
not authorize it, in such a case, to construct a line in a
street without consent to make the desired excavations.
The municipality may not, however, arbitrarily refuse to
grant the consent, as such an arbitrary action would con-
stitute an impairment of the company’s franchise. It has
been held that a city may require a company to permit
another to string wires on its poles upon the payment of
a reasonable consideration, where no material interference
is made with the business of the company owning the
poles.*® <A license fee may be imposed upon an electric
company for poles maintained in the municipal streets.*®

Sec. 333. Matters Which May be Regulated; Wires.

The dangers which arise from the stringing of high-
tension electric wires through the streets of cities and vil-
lages, clearly warrant, if they do not require, the reason-
able regulation of such wires to conserve the safety of the
inhabitants. Moreover, the possibility that such wires

Merced Falls Gas & Electric Co. v.
Turner, 2 Cal. App. 720, 9 Am. Electl.
Cas. 625, 84 Pac, 239.

46. Monongahela City v. Mononga-
hela Elec. L. Co., 12 Pa. Co. Ct. 529,
4 Am. Elect]. Cas. 53.

47. Cook v. North Bergen Tp., 72
N. J. L. 119, 9 Am. Electl. Cas. 610,
59 Atl. 1035. See also, City of
Carthage v. Garner, 209 Mo. 688,
108 S. W. 521 (telephone company).

48. Toledo Elec. St. Ry. Co. v.
Western Elec. L. & P. Co., 10 Oh. Cir.
Ct. 531, 4 0. C. D. 43.

49. Lancaster v. Edison Elec. Il.

Co., 8 Pa. Co. Ct. R. 178, 2 Am. Elect].
Cas. 116. See also, § 100. -

50. Consolidated E. L. Co. v. Peo-
ple’s E. L. & Gas Co., 94 Ala. 372,
4 Am. Electl. Cas. 250, 10 So. 440.
“Electric wires when charged, are
recognized as being dangerous to life
and property, and their use is there-
fore subject to police regulations.
State ex rel. Laclede Gaslight Co. v.
Murphy, 130 Mo. 10, 5 Am. Electl.
Cas. 71, 31 S. W. 594, 31 L. R. A,
798; affirmed, 170 U. 8S. 78, 18 8. Ct.
505, 42 L, Ed. 955.
486 Law or ELectriciry.

will cause fires or will obstruct the extinguishment of fires,
affords a ground for their regulation.“ A municipality,
within reasonable limits, may select the places where elec-
tric wires shall be strung.” It can require them to be
placed in conduits,** or upon poles of a specified height.
The practice of stretching the wires over and upon the
roofs of buildings may be absolutely prohibited.* Regu-
lations may be made as to the security with which the wires
shall be fastened to the poles; the manner of their insula-
tion; and the maintenance of guard-wires.”

Sec. 334. Matters Which May be Regulated; Rates.

As has been stated in the preceding sections, it is possible
for electric rates to be regulated by the state,*” by a public
utility commission, or by municipalities.” The property
of a public service corporation, such as an electric com-
pany, is theoretically dedicated to the public service, and

51. Elec. Imp. Co. v. City & County
of San Francisco, 45 Fed. 593, 3 Am.
Elect]. Cas. 89, 13 L. R. A. 131.

52. State ex rel. Laclede Gaslight
Co. v. Murphy, 130 Mo. 10, 5 Am.
Elect]. Cas. 71, 31S. W. 594, 31 L. R.
A. 798; affirmed, 170 U. S. 78, 18
S. Ct. 505, 42 L. Ed. 955.

53. § 339.

54, Elec. Imp. Co. v. City & County
of San Francisco, 45 Fed. 593, 3 Am.
Elect]. Cas. 89, 13 L. R. A. 131,
wherein it was said: “That the
stretching of these wires over build-
ings in the manner practiced, * * *
no one, I think, can doubt after read-
ing the affidavits, is extremely dan-
gerous, both as being liable to origi-
nate fires, and as obstructions to the
extinguishment of fires otherwise
originated. Indeed, the danger is a
matter of common knowledge. We
might almost as well require strict
proof of the danger of storing gun-
powder, or dynamite, in, under, upon,
or about our houses. * * * The dan-

ger is of a character cognate to that
of gunpowder. There is, doubtless,
a difference in the degree of the
danger, but the consequences are
liable to-be far more widespread and
calamitous. Should a raging fire oc-
cur, originated by the electric cur-
rent, or otherwise, these dangerous
wires might so obstruct the efforts
of the firemen to extinguish it, as to
result in the destruction of the entire
city. It is certainly, competent under
the police powers of the State, to
suppress such dangerous erections, in
the interest of the common safety of
the community.”

55. Commonwealth Elec. Co. v.
Rose, 214 Ill. 545, 9 Am. Electl. Cas.
381, 73 N. E. 780.

56. Commonwealth Elec. Co. v.
Rose, 214 Ill. 545, 9 Am. Elect]. Cas.
381, 73 N. E. 780,

57. § 325.

58. § 326.

59. § 330.
ReEeuLation oF Exectric ComPANIEs. 487
the public, within reasonable limitations, may determine
the amount it shall charge for the service. A minimum,
as well as a maximum, rate may be fixed and enforced.”
Even in the absence of positive regulation, the public posi-
tion of the company prohibits the charging of an unreason-
ably high rate. Rates fixed by the state or by its agencies
are not enforceable unless they are reasonable.* The com-
pany is entitled to sufficient revenue to pay the necessary
running expenses, to keep the plant in efficient operating
condition, and to afford the stockholders a fair return on
their investment. By a ‘fair return’’ is not meant the
interest which a timid investor obtains when making a safe
investment, such as in government bonds. It is not “‘ fair ’’

60. United States.— California-Ore-
gon Power Co. v. City of Grants Pass,
203 Fed. 173; Portland Ry., L. & P.
Co. v. City of Portland, 200 Fed. 890,

Arkansas.— Arkadelphia Elec. L.
Co. v. City of Arkadelphia, 99 Ark.
178, 137 S. W. 1093.

California— Northern L. & P. Co.
v. Stocker, 13 Cal. App. 404, 109 Pac.
896.

Florida.— Gainesville Gas & Elec.
Power Co. v. City of Gainesville, 63
Fla. 425, 58 So. 785.

New York.— Village of Saratoga
Springs v. Saratoga Gas, Elec. L. &
P. Co., 191 N. Y. 123, 83 N. E. 693.

North Carolina.— Horner v. Oxford
Water & Elec. Co., 153 N. Car. 535,
69 S. E. 607.

Tennessee.— Great Falls Power Co.
v. Webb, 123 Tenn. 584, 133 S. W.
1105.

Wisconsin.— Village of Killbourn
City v. Southern Wisconsin P. Co.,
149 Wis. 168, 135 N. W. 499.

61. Pinney & Boyle Co. v. Los
Angeles Gas & Elec. Corp., (Cal.) 141
Pac. 620, wherein it was said:
“Appellant asserts, however, that the
only reasonable use of the police
power in the matter of rate-fixing is
to establish the maximum charge

which the public utility may make,
leaving it open to the public utility
by agreement to fix a less charge for
an individual consumer. The unten-
ableness of this position, however,
must become apparent when a mo-
ment’s consideration is given to the
fact that one of the primary and most
important objects to be attained by
rate regulation is the prevention of
discrimination. It must be quite
clear that to hold that the rate-fixing
power goes no farther than to name
an amount beyond which a charge
may not be made leaves the utmost
room for abuse by way of favoritism
and discrimination within that limit.
It is, in practical effect, a denial of
the existence of the rate-fixing power
itself. Moreover, while the public
utility is bound to render the service
or furnish the commodity, an individ-
ual member of the public is not com-
pelled to accept the service or use the
commodity. If he does so, it is con-
clusively held that his act is an ac-
ceptance of the rate fixed and that he
may not thereafter contest the reason-
ableness of the rate,”
62. §§ 28, 29,
63. § 324.
488 Law oF HELEctRICcITY.

to require the stockholder to sustain the chances of an
entire loss of his investment, and then require him, should
the investment prove reasonably successful, to accept the
same return as if he had originally made the investment
in a non-hazardous security.** The company is not entitled
to a profit on each individual customer; all the company
can insist on is the right to a reasonable revenue from its
entire business.* If the company invests a portion of its
capital in fixtures, lamps, etc., which it sells to its cus-
tomers, and the compensation of its employees in this
department is charged against the revenue derived from
the sale of electricity, the returns from this branch may
be considered in determining the reasonableness of rates
fixed by municipal ordinance. Regulations fixing electric
rates are presumed to be reasonable, and the burden is on
the company to show the invalidity of the prescribed
charges.*’ Where rates have been legally fixed, the corpo-
ration must not enter into a contract giving one person
a higher or a lower rate than he is entitled to.%* Besides
violating the regulation, such a contract may constitute an
unlawful discrimination.” If the regulation is unreason-
able, the company may procure relief in the courts; but
the company cannot, without governmental consent, discon-
tinue its business merely because a municipality has fixed
its charges at an amount which it deems unreasonable.”

64, ‘The circumstances of a par-
ticular case might render it fair to
award the corporation a return
greater than that resulting from ordi-
nary investments.” Village of Sara-
toga Springs v. Saratoga Gas, Elec.
L. & P. Co., 191 N. Y. 123, 83 N. E.
693.

65. State ex rel. Jacobs v. Water,
Light & Transit Co., (Mo.) 155 S. W.
826.

66. Arkadelphia Elec. L. Co. v.
City of Arkadelphia, 99 Ark. 178, 137
S. W. 1093.

67. Portland Ry., L. & P. Co. v.
City of Portland, 200 Fed. 890; Arka-

delphia Elec. L. Co. v. City of Arka-
delphia, 99 Ark. 178, 137 S. W. 1093.

68. Village of Kilbourn City v.
Southern Wisconsin P. Co., 149 Wis.
168, 135 N. W. 499; Pinney & Boyle
Co. v. Los Angeles Gas & Elec. Corp.,
(Cal.) 141 Pac. 620.

69. See §§ 39, 40.

70. City of Gainesville v. Gaines-
ville Gas & Elec. P. Co., 65 Mla. 404,
62 So. 919, 46 L. R. A. (N. S.) 1119,
wherein it was said: ‘“ While it is
the duty of the company to observe
all lawful municipal regulations, the
company has a right to receive a rea-
sonable compensation for the public
Reeunation or Exectric CompPaniss. 489

Sec. 335. Matters Which May be Regulated; Electricians.

The occupation of installing electrical wires and fixtures
in buildings is, on account of the dangers arising from
negligent installation, subject to regulation by the state
or municipal divisions thereof. Such regulation is justi-
fiable under the police power to protect the citizens from
personal injury and their property from loss by fire." An
electrician may be required to obtain a permit from the
municipality before installing electrical appliances in a
building.” Such installation may be required to be made
subject to the supervision of the employees of the munici-
pality, and the municipality may require the electrician or
owner to pay certain fees for the supervision of such em-
ployees.” Electricians may be licensed and forbidden to
install electrical apparatus without the procurement of a
license.* But a statute requiring some electricians to pro-

service it renders to the city and its
inhabitants and to the equal protec-
tion of the laws in every department
of the government. If the regulations
imposed by the city are in law and
in fact illegal for any reason, the
company has its complete and ade-
quate remedy by appropriate proceed-
ings; but the company being engaged
in rendering a public service, must
continue to do so in a reasonably
adequate manner until relieved of its
duty by due process of law.”

71. Collins v. District of Columbia,
30 App. D. C. 212, 9 Am. Electl. Cas.
1137; Ex parte Cramer, 62 Tex. Cr.
11, 136 S. W. 61, Ann. Cas. (1913 C)
588. “A government has the power
to regulate the installation of elec-
trical apparatus, and all instruments
in public use that are under lax
supervision or installation may and
do prove dangerous to life and prop-
erty. The many uses to which elec-
tricity has been placed cannot by
us be now enumerated, but in a city
we see it on every hand. Cities and

towns are held to have the power to
establish fire limits and prevent the
construction of frame buildings and
buildings of other combustible ma-
terial in said limits as a protection
to property. Electrical apparatus
improperly installed is far more dan-
gerous to property than such struc-
tures.” Ex parte Cramer, 62 Tex. Cr.
11, 136 S. W. 61, Ann. Cas. (1913 C)
588. See also, Town of Akron v. Mce-
Elligott, (Iowa) 147 N. W. 773.

72, Ex parte Cramer,‘62 Tex. Cr.
11, 136 S. W. 61, Ann. Cas. (1913 C)
588; Collins v. District of Columbia,
30 App. D. C. 212, 9 Am. Electl. Cas.
1137.

73. Ex parte Cramer, 62 Tex. Cr.
11, 136 'S. W. 61, Ann..Cas. (1913 C)
588.

74, Revocation of license.— Where
statutes prescribe that licenses shall
be revoked by a city recorder, the
city council may not have the author-
ity to revoke an electrician’s license.
Wichita Elec. Co. v. Hinkley, (Tex.
Civ. App.) 131 S. W. 1192.
490 Law or ELectriciry.
cure licenses and exempting others from such duty, may be
unconstitutional as an unlawful discrimination.”

Sec. 336. Street Railway Companies.

Street railway companies are subject to regulations of
many kinds. Wires, poles, tracks, cars, fares, protection
of employees, transfers, speed, places of stopping, brakes,
fenders, care of streets, and many other matters, are all
subject to state and municipal regulation.” A street rail-
Way company may be required to maintain guard wires so
as to keep its dangerous wires from causing injury to per-
sons or property.” An ordinance requiring the mainte-
nance of guard-wires by an electric railway company
‘* whenever it shall be necessary to cross telephone lines,’’
applies to existing as well as future conditions.” The use
of electricity as a motive power for a street railway com-
pany within the bounds of a city is also a matter for mu-
nicipal regulation or restraint.” A railway company may
also be compelled to light its track where it extends through
a city or village, and for that purpose the municipality may
prescribe the use of electricity.*° An ordinance requiring
a street railway company to raise its wires for the purpose
of permitting the moving of buildings through the streets
has also been sustained as a reasonable exercise of the
municipality’s police power.™

75. State v. Gantz, 124 La. 535,
50 So. 524, 24 L. R. A. (IN. S.) 1072.

76, See Nellis on Street Railways
(2nd Ed.), sections 117-163, where
the entire question of street railway
regulation is considered.

77. Conrad v. Springfield Consol.
Ry. Co., 145 Ill. App. 564; affirmed,
240 Ill. 12, 88 N. HE. 180; State ex
rel, Wisconsin Telep. Co. v. Janesville
St. R. Co., 87 Wis. 72, 4 Am. Elect.
Cas. 289, 57 N. W. 970, 22 L. R. A,
759, 41 Am. St. Rep. 73.

78. State ex rel. Wisconsin Telep.
Co. v. Janesville St. R. Co., 87 Wis.

72, 4 Am. Electl. Cas. 289, 57 N. W.
970, 22 L. R. A. 759, 41 Am. St. Rep.
73, holding telephone company could
enforce the ordinance by mandamus.

79. State ex rel. Wisconsin Telep.
Co. v. Janesville St. R. Co., 87 Wis.

‘72, 4 Am. Electl. Cas. 289, 57 N. W.

970, 22 L. R. A. 759, 41 Am. St.
Rep. 73.

80. Terre Haute, ete. R. Co. v.
South Bend, 146 Ind. 239, 45 N. E.
324; Cincinnati, etc., R. Co. v. Vil-
lage of Bowling Green, 57 Oh. St. 336,
49 N. E, 121, 41 L. R. A. 422.

81, Indiana Ry. Co. v. Calvert, 168
ReEcunation oF EiEectric CoMPANIES. 491

Sec. 337. Telegraph and Telephone Companies.

Telephone and telegraph companies are subject to state
and municipal regulation to practically the same extent as
electric companies... Their regulation is to be distinguished
in but one particular. Telephone and telegraph companies,
where their lines extend beyond the bounds of a single
state, are instruments of interstate commerce, and hence
no state or municipal division can impose a regulation upon
them contrary to federal statute. With reference to tele-
graph companies, Congress has enacted the Post Roads
Act, giving telegraph companies certain rights upon high-
ways,” and the rights so given to telegraph companies may
not be abrogated by state or municipal action. Bearing in
mind the possible distinction arising from the interstate
- commerce position of telephone or telegraph companies,
such companies are subject to reasonable police regulations

made by states or municipal corporations.*

Ind. 321, 5 St. Ry. Rep. 229, 80 N. E.
961, 10 L. R. A. (N.S.) 780, 11 Ann.
Cas. 635.

82. §§ 176-186.

83, United States.— Western Union
Teleg. Co. v. Richmond, 224 U. S. 160,
32 S. Ct. 449, 56 L, Ed. 710; affirm-
ing 178 Fed. 310; Western Union
Teleg. Co. v. James, 162 U. S. 650,
6 Am. Electl. Cas. 858, 16 S. Ct. 934,
40 L, Ed. 1105; Mackay Teleg. &
Cable Co. v. City of Texarkana, 199
Fed. 347; Ohio Postal Teleg. Cable
Co. v. Board of Com’rs of Sandusky
County, 140 Fed. -692, 72 C. C, A, 186;
City of Wichita v. Old Colony T. Co.,
132 Fed. 641, 66 C. C. A. 19; Michi-
gan Telep. Co. v. Charlotte, 93 Fed.
11, 7 Am. Elect]. Cas. 52; Western
Union Teleg. Co. v. City of New York,
38 Fed. 552, 2 Am. Electl. Cas. 195,
3 L. R, A. 449; Mutual Union Teleg.
Co. v. City of Chicago, 16 Fed. 309,
1 Am. Elect]. Cas. 506, 11 Biss. 539.

California.— Western Union Teleg.
Co. v. City of Visalia, 149 Cal. 744,
87 Pac. 1023.

But their

Illinois— City of Springfield v.
Postal Teleg. Cable Co., 253 Ill. 346,
97 N. E. 672; Chicago Telep. Co. v.
Northwestern Telep. Co., 199 Ill. 324,
8 Am. Electl. Cas. 81, 65 N. E. 329.

Massachusetts.—Postal Teleg. Cable
Co. v. City of Chicopee, 207 Mass.
341, 93 N. E, 927, 32 L. R. A. (N.S.)
997; New England Teleg. & Telep. Co.
v. Boston Terminal Co., 182 Mass.
397, 8 Am. Electl. Cas, 132, 65 N. E.
835.

Michigan.— Village of Jonesville v.
Southern Michigan Telep. Co., 155
Mich. 86, 118 N. W. 736, 15 Det. Leg.
N. 968, 16 Ann. Cas. 110; Michigan
Telep. Co. v. City of Benton Harbor,
121 Mich. 512, 7 Am. Electl. Cas. 9,
80 N. W. 386, 6 Det. Leg. N. 566, 47
L. R. A. 104, 80 Am. St. Rep. 520;
Michigan Telep. Co. v. City of St.
Joseph, 121 Mich. 502, 7 Am. Electl.
Cas. 1, 80 N. W. 383, 6 Det. Leg. N.
566, 47 L. R. A. 87, 80 Am. St. Rep.
520.

Minnesota.— City of Duluth v. Du-
luth Telep. Co., 84 Minn. 486, 8 Am.
492

Law or Execrricity.

property may not be confiscated, and regulations, to be
enforceable, must be reasonable.** Under the guise of regu-
lation, a telegraph or telephone company may not be ex-

Electl. Cas. 136, 87 W. W. 1127;
Northwestern Telep. Exch. Co. v. City
of Minneapolis, 81 Minn. 140, 7 Am.
Kfecti, Cas. 168, 179, 83 N. W. 527,
86 N. W. 69, 53 L. R. A. 175.

Nebraska.— City of Plattsmouth v.
Nebraska Telep. Co., 80 Neb. 460, 114
N. W. 588, 14 L. R. A. (N. S.) 654.

New Jersey.— Inhabitants of Sum-
mit Tp. v. New York & N. J. Telep.
Co., 57 N. J. Eq. 123, 7 Am. Electl.
Cas. 58, 41 Atl. 146; American Union
Teleg. Co. v. Town of Harrison, 31
N. J. Eq. 627, 1 Am. Electl. Cas. 291.

New York.—American Rapid Teleg.
Co. v. Hess, 125 N. Y. 641, 3 Am.
Elect]. Cas. 142, 26 N. E. 919, 21 Am.
St. Rep. 764, 13 L. R. A. 454; New
Union Telep. Co. v. Marsh, 96 N. Y.
App. Div. 122, 89 N. Y. Supp. 79;
City of Rochester v. Bell Telep. Co.
of Buffalo, 52 N. Y. App. Div. 6,
% Am. Electl. Cas. 211, 64 N. Y. Supp.
804; Barhite v. Home Telep. Co. of
Rochester, 50 N. Y. App. Div. 25,
7 Am. Electl. Cas. 75, 63 N. Y. Supp.
659; City of Utica v. Utica Telep.
Co., 24 N. Y. App. Div. 361, 7 Am.
Electl. Cas. 67, 48 N. Y¥. Supp. 916.
Compare, Village of Carthage v. Cen-
tral N. Y. Telep. & Teleg. Co., 185
N. Y. 448, 78 N. E. 165, 113 Am. St.
Rep. 932.

Pennsylvania.— City of New Castle
vy. Central Dist. & Printing Teleg. Co.,
207 Pa. St. 371, 56 Atl. 931; Com. v.
Warwick, 185 Pa. St. 623, 7 Am.
Electl. Cas. 219, 40 Atl. 93; American
Teleg. & Telep. Co. v. Harborcreek
Tp., 23 Pa. Super. Ct. 437.

Texas.— City of Brownwood v.
Brown Teleg. & Telep. Co., 157 S. W.
1163.

Washington.—Western Union Teleg,
Co. v. Lakin, 53 Wash. 326, 101 Pac.
1094, 17 Ann. Cas. 718.

Wisconsin.— Wisconsin Telep. Co.
v. City of Milwaukee, 126 Wis. 1, 104
N. W. 1009, 1 L. R. A. (N. 8.) 581,
110 Am. St. Rep. .886; State v. City
of Sheboygan, 111 Wis. 23, 7 Am.
Elect]. Cas. 109, 86 N. W. 657; Wis-
consin Teleg. Co. v. City of Oskosh,
62 Wis. 32, 1 Am. Elect]. Cas. 687,
21 N. W. 828.

84, United States.—‘Western Union
Teleg. Co. v. City of Richmond, 178
Fed. 310; Louisville Home Telep. Co.
v. Cumberland Telep. & Teleg. Co.,
111 Fed. 663, 8 Am. Electl. Cas. 108,
49 C. C. A. 524.

Minnesota.— Northwestern Telep.
Exch. Co. v. City of Minneapolis, 81
Minn. 140, 7 Am. Elect]. Cas. 168,
175, 83 N. W. 527, 86 N. W. 69,
53 L. R. A. 175.

Missouri— City of Hannibal v.
Missouri & K. Telep. Co., 31 Mo. App.
23, 2 Am. Electl. Cas. 146.

Nebraska.— City of Plattsmouth v.
Nebraska Telep. Co., 80 Neb. 460, 114
N. W. 588, 14 L. R. A. (N. 8S.) 654.

Wisconsin.— State v. City of Mil-
waukee, 132 Wis, 615, 113 N. W. 40;
State v. City of Sheboygan, 111 Wis.
23, 7 Am. Electl. Cas. 109, 86 N. W.
657; Wisconsin Teleg. Co. v. City of
Oshkosh, 62 Wis. 32, 1 Am. Electl.
Cas. 687, 21 N. W. 828.

Question for court—It is a ques-
tion for the court whether conditions
sought to be imposed on a telegraph
company are reasonable. Mackey
Teleg. & Cable Co. v. City of Tex-
arkana, 199 Fed. 347.
REGULATION oF ELECTRIC CoMPANIES.

cluded from the streets.”

493

Regulations as to location,*

size,*’ shape,** number,®® manner of erection, and paint-
ing” of poles; the height, location,” size, and guarding of

85. City of Wichita v. Old Colony
T. Co., 182 Fed. 641, 66 C. C. A. 19;
Northwestern Telep. Exch. Co. v. City
of Minneapolis, 81 Minn. 140, 7 Am.
Elect]. Cas. 168, 179, 83 N. W. 527,
86 'N. W. 69, 53 L. R. A. 175; City
of Hannibal v. Missouri & K. Telep.
Co., 31 Mo. App. 23, 2 Am. Electl.
Cas. 146; City of Plattsmouth v.
Nebraska Telep. Co., 80 Neb. 460, 114
N. W. 588, 14 L. R. A. (N. S.) 654;
Inhabitants of Summit Tp. v. New
York & N. J. Telep. Co., 57 N. J. Eq.
123, 7 Am. Electl. Cas. 58, 41 Atl.
146; City of Brownwood v. Brown
Teleg. & Telep. Co., (Tex. Civ. App.)
152 S. W. 709.

Impairment of franchise.— In this
connection see §§ 199-208, discussing
the right of a state or municipality
to impair the grant of a franchise.

86. United States Western Union
Teleg. Co. v. City of Richmond, 178
Fed. 310; Ohio Postal Teleg. Cable
Co. v. Board of Com’rs of Sandusky
County, 140 Fed. 692, 72 C. C. A.
186; Louisville Home Telep. Co. v.
Cumberland Telep. & Teleg. Co., 111
Fed. 663, 8 Am. Electl. Cas. 108, 49
C. C, A. 524; Michigan Telep. Co. v.
City of Charlotte, 93 Fed. 11, 7 Am.
Elect]. Cas. 52; Mutual Union Teleg.
Co. v. City of Chicago, 16 Fed. 309,
1 Am. Electl. Cas. 506, 11 Biss. 539.

California— Western Union Teleg.
Co. v. City of Visalia, 149 Cal. 744,
87 Pac. 1023.

Michigan.— Village of Jonesville v.
Southern Michigan Telep. Co., 155
Mich. 86, 118'N. W. 736, 15 Det. Leg.
N. 968, 16 Ann. Cas. 110.

New York.— American Rapid Teleg.
Co. v. Hess, 125 N. Y. 641, 3 Am.
Elect]. Cas. 142, 26 N. E. 919, 21 Am.
St. Rep. 764, 13 L. R, A. 454; Bar-

hite v. Home Telep. Co. of Rochester,
50 N. Y. App. Div. 25, 7 Am. Electl.
Cas. 75, 63 N. Y. Supp. 659.

Pennsylvania.— City of New Castle
v. Central Dist. & Printing Teleg. Co.,
207 Pa. St. 371, 56 Atl. 931; Ameri-
can Teleg. & Telep. Co. v. Millcreek
Tp., 195 Pa. St. 643, 46 Atl. 140;
American Telep. & Teleg. Co. v. Har-
borcreek Tp., 23 Pa. Super. Ct. 437.

Texas.— City of Brownwood v.
Brown Teleg. & ‘Telep. Co., (Civ.
App.) 152 S. W. 709.

Wisconsin.— State v. City of She-
boygan, 111 Wis. 23, 7 Am. Electl.
Cas. 109, 86 N. W. 657.

Prohibition of line in block.— The
police power relative to the location
of poles and wires permits a munici-
pality to forbid the erection of a tele-
phone line upon the main street of a
village between certain places, where
access to the company’s patrons by
another route is feasible. Village of
Jonesville v. Southern Michigan Telep.
Co., 155 Mich. 86, 118 N. W. 736, 15
Det. Leg. N. 968, 16 Ann. Cas. 110.

87. Western Union Teleg. Co. v.
City of Richmond, 178 Fed. 310.

88. Village of Hardwick v. Vermont
Teleg. & Telep. Co., 70 Vt. 180, 40
Atl. 169.

89. Western Union Teleg. Co. v.
City of Richmond, 178 Fed. 310.

90. Western Union Teleg. Co. v.
City of Richmond, 178 Fed. 310.

91, Village of Hardwick v. Vermont
Teleg. & Telep. Co., 70 Vt. 180, 40 Atl.
169.

92. Michigan Telep. Co. v. Char-
lotte, 93 Fed. 11, 7 Am. Electl. Cas,
52; Western Union Teleg. Co. v. City
of New York, 38 Fed. 552, 2 Am.
Elect]. Cas. 195, 3 L. R. A. 449;
American Union Teleg. Co. v. Town
494 Law oF ELEcrTRIcIry.

wires; the placing of municipal wires, or the wires of
other companies,” upon its poles, are generally sustained.”
A statute requiring that the time of transmission and
receipt shall be stated on every telegram is proper.”

Telephone Rates.— By reason of the public character of
the telephone business, the power to regulate telephone
tolls is invested in the sovereign power.” The police
power, relative to obstructions in the streets does not
authorize a local municipality to fix telephone charges.”
While the power to fix telephone rates is not inherent in
cities and villages, the legislature may give it authority to

of Harrison, 31 N. J. Eq. 627, 1 Am.
Elect]. Cas.. 291; Chant v. Clinton
Telep. Co., 130 Wis. 533, 110 N. W.
423; State v. City of Sheboygan, 111
Wis. 23, 7 Am. Electl. Cas. 109, 86
N. W. 637. See also, Barhite v.
Home Telep. Co. of Rochester, 50 N, Y.
App. Div. 25, 7 Am. Electl. Cas. 75,
63 N. Y. Supp. 659.

Conduits.— The requirement of con-
duits is discussed in the following
chapter.

93. Western Union Teleg. Co. v.
City of Richmond, 178 Fed. 310; Pos-
tal Teleg. Cable Co. v. City of Chico-
pee, 207 Mass. 341, 93 N. E. 927, 32
L. R. A. (N. S.) 997. Contra, State
v. City of Sheboygan, 111 Wis. 23,
86 N. W. 657, 7 Am. Electl. Cas. 109.

94. Western Union Teleg. Co. v.
City of Richmond, 178 Fed. 310,

95. License fees—The imposition
of license fees as a condition for per-
mitting a telephone or telegraph com-
pany to maintain its poles and wires
in municipal streets, is discussed in
the chapter on Taxation. See § 109.

96. Postal Teleg. Cable Co. v. State,
110 Md. 608, 73 Atl. 679.

Penalty. A State statute, impos-
ing a penalty upon telegraph com-
panies for failure to transmit and
deliver telegrams with impartiality,
good faith and due diligence, on pay-

ment of the usual charges, was within
the police power of the State to enact,
in relation to messages from points
outside to points within that State,
and did not infringe the interstate
commerce provisions of the Federal
Constitution. Western Union Teleg.
Co. v. James, 6 Am. Electl. Cas. 858,
162 U.S. 650, 16 S. Ct. 934, 40 L. Ed.
1105. See also, Western Union Teleg.
Co. v. Pendleton, 122 U. 8. 347, 2
Am. Elect]. Cas. 49, 7 S. Ct. 1126, 18
Am. & Eng. Corp. Cas. 18.

97. Home Telep. & Teleg. Co. v.
City of Los Angeles, 211 U. S. 265,
29 S. Ct. 50; Johnson v. State, 113
Ind. 143, 2 Am. Electl. Cas. 22, 15
N. E. 215.

Evasion of statute— A statute pre-
scribing a fixed maximum rental for
telephones is constitutional and valid,
and cannot be evaded by charging the
maximum sum for the subscriber’s
use, and an additional fixed sum for
“non-subscribers.” Johnson v. State,
2 Am. Electl. Cas. 22, 113 Ind. 143,
15 N. E. 215,

98. City of St. Louis v. Bell Telep.
Co., 96 Mo. 623, 2 Am. Elect]. Cas.
44; South McAlester-Eufaula Telep.
Co. v. State, 25 Okla. 524, 106 Pac.
962; State v. City of Sheboygan, 111
Wis, 23, 7 Am. Elect]. Cas. 109, 86
N. W. 657.
ReEcuLation oF Exectrric ComPaNnigs. 495

regulate such matters. But the power given by the state
to one of its municipalities to fix and determine rates,
does not authorize the municipality to abandon the power
and to establish irrevocable rates for the entire period of
the telephone franchise.” Neither the state nor any mu-
nicipal division thereof may reduce telephone rates below
a rate which will pay operating expenses, maintain the plant,
and pay a fair return on the capital actually invested.’

99. Home Telep. and Teleg. Co. v. 1. City of Owensboro v. Cumber-

City of Los Angeles, 211 U. S. 265, land Telep. & Teleg. Co., 174 Fed. 739,
29 S. Ct. 50. 99 C.C. A. 1.
496 Law or EXectriciry.

CHAPTER XVII.

CONDUITS.

SECTION 338. In General.
339. Power to Compel Company to Place Wires Underground; in

 

General.

340. —— When Requirement Is Unreasonable.

341. Electric Wires Distinguished from Telephone or Telegraph
Wires.

342, Municipal Ownership of Conduits.
343. Corporate Ownership of Conduits; Contract by Municipal
Officers for Conduit. ,

344. —— Franchise to Construct Conduit.
345. —— Excavations in Streets.
346. ——- Duty to Permit Companies to Use Conduits.

347. Injuries to Conduits.
348, Injuries from Conduits.

Sec. 338. In General.

The foregoing chapters have been devoted principally,
though not exclusively, to electric lines constructed above
the surface of the ground. In this chapter is treated mat-
ters which pertain to lines placed underneath the surface
of the ground. Whether conduits constructed underneath
the surface of a highway are an additional burden upon the
rights of owners abutting the highway, is discussed in a
prior chapter.t. It was noted in the first chapter of this
work that conduits for telephone wires have been consid-
ered personal property for the purposes of taxation.? The
owner of conduits authorized to be placed in the highway
does not acquire thereby an easement in the real estate;
the conduits are personal property,’ and upon the discon-
tinuance of the highway, the owner is compelled to remove
them and is not entitled to damages on account of such
removal.* Though not an interest in real estate, the con-

1, § 288. 397, 8 Am. Elect]. Cas. 132, 65 N. E.
2. § 13. 835.
8. New England Teleg. & Telep. Co. 4. Boston Elec. Co. v. Boston Ter-

vy. Boston Terminal Co., 182 Mass. minal Co., 184 Mass. 566, 8 Am.
Conburts. 497
duits are the subject of ownership as other personal prop-
erty, and the owner has a cause of action for injury thereto.’

Sec. 339. Power to Compel Company to Place Wires
Underground; in General.

Overhead wires along a highway are a source of danger.
They may become unloosened or they may sag so as. to
create an obstruction to the highway. Their comparative
invisibility renders them more dangerous than are objects
of larger size. If the wires are charged with a deadly
current of electricity, while their danger is not apparent
to the senses, they may cause death or injury to those wha
come in contact. with them. The poles or towers support-
ing the wires are, to a certain extent, a continuing obstrue-
tion to travel. If horses or vehicles become unmanageable,
the presence of poles in the highway is one of the causes
of many accidents. Moreover, poles and wires may become
a hindrance to the extinguishment of fires. For these
reasons overhead poles and wires are subject to the police
power of the state and of municipal divisions thereof.’ If
the safety of the inhabitants and of their property reason-
ably requires that wires shall be placed in underground
conduits, and the requiring of such conduits cannot be said
to constitute a confiscation of the property of the company,
an electric, telephone, or telegraph company may be com-
pelled to place its wires in conduits. In other words, the
requirement that wires shall be placed in conduits is gen-
erally a proper exercise of the police power over poles and
wires.” On the other hand, in the absence of special statu-

Electl. Cas. 50, 69 N. E. 346; New
England Teleg. & Telep. Co. v. Boston
Terminal Co., 182 Mass. 397, 8 Am.
Electl. Cas. 132, 65 N. E. 835.

5. Missouri Edison Elec. Co. v.
Weber, 102 Mo. App. 95, 8 Am. Electl.
Cas. 923, 76 S. W. 736.

6. See §§ 323 ef seq.

7. United States.—People v. Squire,
145 U. 8. 175, 4 Am. Electl. Cas. 122,
12 S. Ct. 880, 36 L. Ed. 666; affirming

82

107 N. Y. 593, 2 Am. Elect]. Cas. 176,
14 N. E, 820, 1 Am. St. Rep. 893;
Western Union Teleg. Co. v. City of
New York, 38 Fed. 552, 2 Am. Electl.
Cas. 195, 3 L. R. A. 449.

Connecticut.— Appeal of New York
& N. H. RB. Co., 80 Conn. 623, 70
Atl. 26.

District of Columbia—See also.
Dewey Hotel Co. v. U. S. Elec. L.
Co., 17 App. D. C. 356.
498

Law oF ELEctRIcITyY.

tory provisions, a municipality may prohibit the laying of

wires under the streets.’

The mode by which companies

will be compelled to place the wires in conduits, is largely
in the discretion of the state or the municipality imposing

the requirement.

A statute providing for conduits may

provide for the appointment of officers or of a board or
commission who shall have the power to carry out the

Missouri— State ex rel. St. Louis
Underground Service Co. v. Murphy,
134 Mo. 548, 6 Am. Electl. Cas. 64,
77, 31 S. W. 784, 34'S. W. 51, 34
L. R. A. 369, 56 Am. St. Rep. 515;
State ex rel. Laclede Gaslight Co. v.
Murphy, 130 Mo. 10, 5 Am. Electl.
Cas. 71, 31 S. W. 594, 31 L. R. A.
798; affirmed, 170 U.S. 78, 18 S. Ct.
505, 42 L, Ed. 955.

New York.— American Rapid Teleg.
Co. v. Hess, 125 N. Y. 641, 3 Am.
Electl. Cas. 142, 26 N. E. 919, 13
L. R. A. 454, 21 Am. St. Rep. 764;
People ex rel. N. Y. E, L. Co. v.
Squire, 107 N. Y. 693, 2 Am. Electl.
Cas. 176, 14 N. E. 820, 1 Am. St.
Rep. 893; affirmed, 145 U. S. 175, 4
Am, Electl. Cas. 122, 12 S. Ct. 880,
36 L. Ed. 666; City of Rochester v.
Bell Telep. Co. of Buffalo, 52 N. Y.
App. Div. 6, 7 Am. Elect]. Cas. 211,
64 N. Y. Supp. 804; City of Geneva
v. Geneva Telep. Co., 30 Mise. (N. Y.)
236, 62 N. Y. Supp. 172; Electric
Power Co. v. City of New York, 29
Mise. (N. Y.) 48, 60 N. Y. Supp.
590; Clausen, etc., Brewing Co. v.
Baltimore, etc., Teleg. Co., (N. Y.)
2 Am, Electl. Cas. 210.

Express authority required.—It has
been held in one case in New York
that a village cannot compel a tele-
phone company to place its wires in
conduits, in the absence of express
legislative authority to make such
a regulation. Village of Carthage v.
Central N. Y. Telep. & Teleg. Co., 185
N. Y. 448, 78 N. E. 165, 113 Am. St.
Rep. 932.

License tax.— While such a require-
ment may be sustained under the po-
lice power, it is doubtful if munici-
pality can compel the company to
place its wires in conduits by the im-
position of an excessive license tax
upon overhead wires. Atlantic & Pac.
Teleg. Co. v. Philadelphia, 190 U. S.
160, 8 Am. Electl. Cas. 369, 23 S. Ct.
817. See also, §§ 100, 109, as to
license taxes.

“The rule is that where one devotes
his property to a use in which the
public has an interest, he must sub-
mit to be controlled by the public for
the common good to the extent of the
interest he has thus created. The
public are interested in the safe
and proper construction of telephone
wires, and hence the Legislature may
make rules and regulations for the

* proper management and operation of

all telephone companies. Thus the
State, in the exercise of its police
power, may require telephone com-
panies to put their wires in conduits
under the surface of the streets, and
this power is not restricted by the
State or Federal Constitutions, even
though contracts are thereby af-
fected.” City of Geneva v. Geneva
Tel. Co., 30 Mise. (N. Y.) 236, 62
N. Y. Supp. 172.

8. State ex rel. Laclede Gaslight
Co. v. Murphy, 130 Mo. 10, 5 Am.
Electl. Cas. 71, 31 S. W. 594, 31
L. R. A. 798; affirmed, 170 U. S. 78,
18 S. Ct. 505, 42 L. Ed. 955.
ConpbuvuITts.

499

requirements of the statute.° A municipality” or a private
corporation,** may be authorized to construct and own a

conduit, for the wires of others.

It is within the power

of a state or municipality to require that a single conduit

9. Postal Teleg. Cable Co. v. City
of Worcester, 202 Mass. 320, 88 N. E.
777; Trustees of Presbyterian Church
v. State Board, 55 .N. J. L. 436, 4 Am.
Electl, Cas. 135, 27 Atl. 809; Higgins
v. Manhattan Elec. L. Co., (N. Y.) 3
Am. Elect]. Cas. 167.

Officers to be designated by ordi-
nance.— Where a statute authorizes
the designation by city ordinance of
officers of a city to enforce the re-
quirements of the statute, but no
other duty is imposed upon the city,
the officers designated, in enforcing
the statute, are representatives of the
State, not of the city. Postal Teleg.
Cable Co. v. City of Worcester, 202
Mass. 320, 88 N. E. 777.

Repairs.— Even if the board of elec-
trical control of the city of New York
had refused permission to certain elec-
tric light companies for whose use
subways had not yet been provided
(as specified in the statute creating
the board), to make such repairs as
were necessary to keep their plant in
a perfect and safe condition, without
which permission said companies were
by statute prohibited from making
such repairs, such refusal would not
excuse the company for their failure
to make such repairs, until they had
exhausted their legal remedy against
the board to compel them to give the
requisite permission. U. 8. Illum. Co.
v. Grant, 55 Hun (N. Y.) 222, 3 Am.
Electl. Cas. 95, 7 N. Y. Supp. 788, 27
N. Y. St. Rep. 767.

The New Jersey Subways Act, the
object expressed in the title of which
is “the placing of electrical conduct-
ors underground,” does not, nor was
it under such title competent for the
Legislature to, empower the board of

subway commissioners to grant a fran-
chise to erect poles and wires in
streets. The office and effect of that
legislation relate to the control and
regulation of such franchises derived
from other competent authority. The
fifth section of that statute forbids the
maintenance of poles and overhead
wires, even by companies duly author-
ized to maintain them, without the
consent of the board of subway com-
missioners. The board could properly
express its consent by resolution;
which would, however, be ineffective,
unless the franchise were independ-
ently granted by other and competent
authority. Trustees of Presbyterian
Church v. State Board, 55 N. J. L.
436, 4 Am. Electl. Cas. 135, 27 Atl.
809.

Discretion of board.—Where a, stat-
ute creating a board of electrical con-
trol for a city gives the board full
discretion as to when, where, and how
electrical conductors shall be placed
underground, in the absence of fraud
or improper motives, its action will
not be interfered with by the courts.
U. §S. Illum. Co. v. Hess, 3 N. Y.
Supp. 777, 2 Am. Electl. Cas. 187, 19
N. Y. St. Rep. 883.

Removal of poles and wires by
board — A board of electrical control
may be given the power to remove
overhead poles and wires, when the
company has failed to do so after
due notice to remove them to sub-
ways. American Rapid Teleg. Co. v.
Hess, 125 N. Y. 641, 3 Am. Electl.
Cas. 142, 26 N. E. 919, 12 L. R. A.
454, 21 Am. St. Rep. 764.

10. § 342.

11. §§ 343-346,
500: Law or Enecrnicity.
shall contain all the wires in the street, where the right to
place wires in such conduit is adjusted so that the franchise

or other rights of the owner of wires are not constitution-
ally impaired.*

Sec. 340. Power to Compel Company to Place Wires
Underground; when Requirement is Unreasonable.

Police regulations, to be enforceable, must be reasonable,
not confiseatory.* It is clear that a distinction is to be
drawn between conduits im large cities and in rural com-
munities. That the requirement of conduits is a reason-
able regulation in a large city does not prove that it is
reasonable in a village, or even a small city. In the first
place, the necessity for conduits is not so urgent in a rural
community; the number of wires and poles is much fewer;
the danger of a conflagration is decidedly less. So, too,
the cost of conduits, compared with the revenue of the com-
pany, is so much more in a rural community that the regu-
lation might be confiscatory. A requirement by the state
or municipal authorities that wires shall be placed under-
ground in such large cities as New York,™ St. Louis,™ or

12. Western Union Teleg. Co. v.
Richmond, 224 U. S. 160, 32 8. Ct.
449, 56 L, Ed. 710; affirming 178 Fed.
310.

Conduit of another company.— Un-
less the same is not possible or prac-
ticable, a telephone company may be
required by a city to place its wires
in a conduit constructed by another
corporation pursuant to a contract
with the city providing for rental of
the use of the conduit to the city and
to electric companies. City of Roch-
ester v. Bell Telep. Co. of Buffalo, 52
N.Y. App. Div. 6, 7 Am. Electl. Cas.
211, 64 N. Y. Supp. 804.

13. § 324. ;

14. People v. Squire, 145 U. 8. 175,
4 Am. Elect]. Cas. 122, 12 S. Ct. 880,
36 L. Ed. 666; affirming 107 ‘N. Y.
593, 2 Am. Electl. Cas. 176, 14 N. KE.
820, 1 Am. St. Rep. 893; Western

Union Teleg. Co. v. City of New York,
38 Fed. 552, 2 Am. Elect]. Cas. 195,
3 L. R. A. 449 (telegraph) ; American
Rapid Teleg. Co. v. Hess, 125 N. ¥.
641, 3 Am. Electl. Cas. 142, 26 N. E.
919, 13 L. R. A. 454, 21 Am. St. Rep.
764; People ex rel. N. Y. E. L. Co. v.
Squire, 107 N. Y. 593, 2 Am. Electl.
Cas. 176, 14 N, E. 820, 1 Am. St. Rep.
893; affirmed, 145 U. S. 175, 4 Am.
Elect. Cas. 122, 12 S. Ct. 880, 36
L. Ed. 666 (electric company); City
of Rochester v. Bell Telep. Co. of Buf-
falo, 52 N. Y¥. App. Div. 6, 7 Am.
Electl. Cas. 211, 64 N. Y. Supp. 804
(telephone); Electric Power Co. v.
City of New York, 29 Mise. (N. Y.)
48, 60 N. Y. Supp. 590; Clausen, etc.,
Brewing Co. v. Baltimore, etc., Feleg.
Co., (N. Y.) 2 Am. Electl. Cas. 310
(telegraph).

15. State ex rel St. Louis Under-
Conpuvutts. d0L
Rochester, is sustained. The power of small cities of
New York, such as Geneva,”’ to compel telephone companies
to place their wires underground has also been sustained
by the courts of New York. But, as to smaller cities, the
better practice is to specify certain streets in the business
section for conduits, and permit the companies to string”
overhead wires in the sections less densely populated.* A
eity ordinance of Minneapolis, requiring the placing of
wires in conduits, was held invalid becanse the territory
for conduits was many times the area where such conduits
were reasonably required.*® 'The exercise of the police
power must be proportionate to, and commensurate with,.
the necessity for the protection and promotion of public:
health and safety. Where the streets of a small city are
broad and there is no evidence of congestion, it is not.
proper to compel the company to place its wires in
conduits.”

Sec. 341. Power to Compel Company to Place Wires
Underground; Electric Wires Distinguished from Tele-
phone or Telegraph Wires.

Electric wires or street railway wires are so much more
dangerous than telephone or telegraph wires that strong
reasons may be advanced for placing them underground,
while less dangerous wires are left overhead. But the dis-.
tinction between high-tension wires and other wires seems.
never to have been discussed in this connection. Tele-
graph lines, though protected by the Post Roads Acts,” are,

ground ‘Service Ca. v. Murphy, 134
Mo. 548, 6 Am. Electl. Cas. 64, 77,
31 S. W. 784, 34'S. W. 51, 34 L. R.
A. 369, 56 Am. St. Rep. 515.

16. City of Rochester v. Bell Telep.
Co. of Buffalo, 52 N. Y. App. Div. 6,
7 Am, Electl. Cas. 211, 64 N. Y. Spup.
804.

17. City of Geneva v. Geneva Telep.
Co., 30 Mise. (N. ¥.) 236, 62 N. Y.
Supp. 172.

18. Western Union Teleg. Co. v.

City of Richmond, 178 Fed. 310; af-
firmed, 224 U.S. 160, 32 S. Ct. 449,
56 L. Ed. 710.

19. Northwestern Telep. Exch. Co..
v. City of Minneapolis, 81 Mimn. 140,
? Am. Elect. Cas. 168, 179, 83 N. W..
527, 86 N. W. 69, 53 L. R. A. 475.

20. City of Plattsmouth v. Nebraska
Telep. Go., 80 Neb. 460, 114 N. W.
588, 14 L. R. A. (iN. S.) 654,

21. §§ 176-186.
502 Law or Etszcrrictrty.

nevertheless, subject to police regulations. The federal
statute does not exempt telegraph companies from obeying
a requirement that their lines be placed in conduits.”

Sec. 342. Municipal Ownership of Conduits.

A municipality, having the power to require electric and
other lines to be placed in conduits, may exercise a reason-
able discretion as to the means by which the conduits shall
be constructed and maintained. It may, perhaps, leave it
to each particular company to construct its own conduit.
On the other hand, as is seen in the following section, a
private or quasi-public corporation may be authorized to

construct a conduit for all the different companies.

Or,

if granted the power by statute, a municipality itself may

construct and operate a system of conduits.”

22. Western Union Teleg. Co. v.
City of New York, 38 Fed. 552, 2.
Am. Elect]. Cas. 195, 3 L. R. A. 449;
American Rapid Teleg. Co. v. Hess,
125 N. Y. 641, 3 Am. Electl. ‘Cas.
142, 26 N. E, 919, 18 L. R. A. 454,
21 Am. St. Rep. 764; Clausen, etc.,
Brewing Co. v. Baltimore, etc., Teleg.
Co., (N. Y.) 2 Am. Electl. Cas. 210.
“The claim that the act of Congress
authorizes the construction of tele-
graph wires over post-roads, and
therefore the Legislature has no power
to interfere, seems to me to carry
Federal authority far beyond any
point which the most confirmed be-
liever in centralization has yet had
the hardihood to claim. Such a doc-
trine would take away from the gov-
ernment of every State all police con-
trol over any portion of the streets
and avenues of any city, all of which
are letter carriers’ routes and there-
fore post-roads. The general govern-
ment would have the right to use and
obstruct in any manner they saw fit
each and every of such streets, and
the State authorities would be power-
less to protect its citizens from this

Though the

invasion of their rights.” Clausen,
ete., Brewing Co. v. Baltimore, etc.,
Teleg. Co., (N. Y.) 2 Am. Electl. Cas.
210.

“Nevertheless, persons and corpo-
rations enjoying grants and privileges
from the United States, exercising
Federal agencies, and engaged in in-
terstate commerce, are not beyond the
operation of the laws of the State in
which they reside or carry on their
business; and it is only when these
laws incapacitate or unreasonably im-
pede them in the exercise of their
Federal privileges or duties, and
transcend the powers which each
State possesses over its purely domes-
tic affairs, whether of police or inter-
nal commerce, that they invade
the national jurisdiction.” Western
Union Teleg. Co. v. City of New York,
38 Fed. 552, 2 Am. Electl. Cas. 195,
3 L. R. A, 449.

23. City of Geneva v. Geneva Telep.
Co., 30 Misc. (N. ¥.) 236, 62 N. Y.
Supp. 172.

Discretion of city.— Where a stat-
ute leaves it discretionary with a city
whether it shall itself construct con-
Conpburts. 503

right to construct a municipal conduit is not expressly
given by statute, it has been held that such right may be
implied from the municipality’s power to keep the streets
in good order and repair, free from encroachments.* It
may require companies owning lines to use its conduits;
and if the charges of the municipality are not unreasonable
so as to impair the company’s franchise, its constitutional
rights are not violated. An electric or other company is
not, however, entitled to place its wires in municipal con-
duits unless it has secured a valid franchise to maintain
its lines along the streets of the municipality. Within
reasonable limits, the companies using the conduits may be
required to contribute toward the cost of its construction.”
Where the conduits are to be used for more than one sys-
tem of wires; as, for example, a telephone and an electric
lighting system, the municipality must exercise reasonable
skill in the construction of the conduits to the end that
strong currents of the electric company will not materially
interfere with the transmission of messages along the tele-
phone lines.”” If the conduits are properly constructed, a
company will not be relieved from putting its wires in the
conduits, on the ground that the municipality has made no
rules in regard to the use of them; the courts will assume
that suitable rules will be made by the city, and that reason-
able facilities and protection will be afforded to the differ-
ent companies using the conduits.”

duits or allow electrical corporations
to do so, the determination of the city
to build the conduits, and their sub-
sequent construction by it, makes it
obligatory upon the companies to use
them. City of Geneva v. Geneva
Telep. Co., 30 Misc. (N. Y.) 236, 62
N. Y. Supp. 172.

24. O’Brien v. City of Erie, 7 Pa.
Dist. Rep. 491, 20 Pa. Co. Ct. 337.

25. Purnell v. McLane, Mayor of
Baltimore City, 98 Md. 589, 8 Am.
Electl. Cas. 55, 56 Atl. 830.

26. City of Geneva v. Geneva Telep.
Co., 30 Mise. (N. Y.) 236, 62 N. Y.
Supp. 172. See also, United Lines
Tel. Co. v. Grant, 137 N. Y. 7, 32
N. E. 1005.

27. City of Geneva v. Geneva Telep.
Co., 30 Misc. (IN. Y.) 236, 62 N. Y.
Supp. 172.

28. City of Geneva v. Geneva Telep.
Co., 30 Mise. (N. Y.) 236, 62 N. Y.
Supp. 172.
504 Law or Eiecraicity.
Sec. 343. Corporate Ownership of Conduits; Contract by
Municipal Officers for Conduit.

Where a public officer or board is charged with the duty
of enforcing statutes which pertain to the placing of wires
underground, such officer or board may be authorized to
contract with a private corporation for the construction
by the latter of a system of conduits to contain the wires
of public service corporations operating within the munici-
pal limits.” And the state or the municipality, acting
within its police powers, may require other companies to
place their-wires in such conduits. It may forbid a com-
pany to construct an independent system of conduits,
where space in an existing one is available.** To sustain
a requirement that one company shall use the conduits of
another, it is essential that the owner of the conduits charge
no more than a reasonable consideration for such use. By

29. Western Umion Teleg. Co. v-
City of New York, 38 Fed. 552, 2 Am.
Electl. Cas. 195, 3 L. R. A. 449;
American Rapid Teleg. Co. v. Hess,
125 N. Y. 641, 3 Am. Electl Cas.
142, 26 N. E. 919, 13 L. RB. A. 454,
21 Am. St. Rep. 764; City of Roch-
ester v. Bell Telep. Co. of Buffalo,
52 N. Y. App..Div. 6, 7 Am. Eleetd.
Cas, 211, 64 N. Y. Supp. 804.

Illegal contract enjoined by tax-
payer—— Where a contract between a
board of electrical control of a city
and a company engaged in the busi-
ness of constructing subways for elec-
tric wires is illegal, a remedy may
be had¢by a taxpayer’s action. Arm-
strong v. Grant, 56 Hun (N. Y.) 226,
3 Am. Electl. Cas. 132, 9 N. Y. Supp.
388.

30. People ex rel. Elec. Lines Co. v.
Ellison, 115 N. Y. App. Div. 254, 101
N. Y. Supp. 55; affirmed, 188 N. Y.
523, 81 N. E. 447; City of ‘Rochester
v. Bell Telep. Co. of Buffalo, 52 N. Y.
App. Div. 6, 7 Am. Electl. Cas. 211,
64 N. Y. Supp. 804.

31. People ex rel. N. Y. Elec. Lines

Co. v. Ellison, 188 N. Y. 523, 81
N. E. 447; People ex rel. N. Y. E. L.
Co. v. Squire, 107 N. Y. 593, 2 Am.
Eleetl. Cas. 176, 14 N. E. 820, 1 Am.
St. Rep. 893; affirmed, 145 U. 8. 175,
4 Am, Elect]. Cas. 122, 12 S. Ct. 880,
36 L. Ed. 666.

32. In New York city, the rents to
be charged for the use of subways was
subject to the control and regulation
of the board of electrical control, and
when such board had passed on the
question and fixed the rent, its deci-
sion was not reviewable by the courts.
Brush Elec, Illum. Co. v. Consol.
Teleg. & Elec. Subway Uo., 15 N. Y.
Supp. 81. But, where a company has
made a contract with the subway com-
pany providing for rental at a certain
sum, and has not called upon the
board to fix the rental, the courts will
not relieve the company from paying
the rental agreed upon, Brush Elec.
‘Tilum. Co. v. ConsoHdated, ete, Sub-
way Co, 60 Hun (N. Y.) 446, 15
N. Y. Supp. 477, 3 Am. Elect]. Cas.
150.
Conpuits. 505

making a contract with the municipality, the conduit owner
does not become free from reasonable regulations -pertain-
img to the construction, maintenance, and use of the con-
duits. ‘Thus, the municipality has the power to supervise
the location and construetion of subways laid pursuant to
the contract, and may require the subway company to pay
the salaries of such inspectors.”

Sec. 344. Corporate Ownership of Conduits; Franchise to
Construct Conduit.

A mnnicipality having authority to grant public service
franchises for the use of its streets, may give a franchise
to a company empowering it to construct and maintain con-
duits for its own or for the wires of other companies.*

33. People ex rel. Subway Co. v.
Monroe, 85 N. Y. App. ‘Div. 542, 83
N. Y. Supp. 382; affirmed without
opinion, 176 N. Y. 567, 68 N. E. 1122.

84. National Subway Co. v. ‘City of
St. Louis, 169 Mo. 319, 69 S.°W. 290;
State ex rel. National Subway Co. v.
St. Louis, 145 Mo. 551, 7 Am. Electl.
Cas. 195, 46 S. W. 981, 42 L. R. A.
113; Alleghany County L. Co. v.
Booth, 216 Pa. St. 564, 9 Am. Elect].
Cas. 944, 66 Atl 72, 9 L. R. A
(N. 8.) 404.

Franchises.— Several of the fore-
going chapters are devoted to a dis-
cussion of the law of franchises. See
§§ 192-276.

Board of aldermen.— The power to
grant franchises for the construction
and maintenance of conduits is gener-
ally in the municipal assembly, by
whatever name it is known. People
ex rel. Elec. Co. v. Consolidated Teleg.
& Elec, Subway Co., 187 N. Y. 58, 79
N. E. 892.

Pneumatic tubes for packages.—
There is no authority m the Ohio
statutes for a city to grant by ordi-
nance to a company the right to use
the streets for laying pneumatic tubes
therein for the purpose of carrying

packages by means of compressed air
and for supplying compressed air.
Such use of the streets is not implied
by a statute authorizing cities to
grant the use of its streets to com-
panies for the purpose of supplying
the public with electrie light and
power’ or automatic package carrier,
nor by a statute authorizing munici-
pal corporations to grant the use of
its streets, etc, to lay pipes and
drains to be used for the purpose® of
supplying its inhabitants with heat
and power. Ampt v. City of Cincin-
nati, 21 Oh. Cir. Ct. R. 300, 11 0. C.
D. 805.

Probate court—The statutes of
Ohio do not confer power on the
probate court to grant a telephone
company the right to put its wires
and apparatus in conduits under the
streets of a city in the absence of
consent by the municipal authorities.
Queen City Telep. Co. v. City of Cin-
einnati, 73 Oh. St. 64, 76 N. E. 392.

Change from overhead wires to con-
duits— Authority to run and main-
tain telephone wires “over and
through ” streets does not include per-
mission to run them under the streets;
but, after the granting of the tele-
506 Law or ELecrricity.

Or, inasmuch as all franchises emanate from the sovereign
power,** a conduit franchise may be granted directly by
the legislative body without the consent of the municipal
authorities.*° A municipal ordinance granting a franchise
to a subway company is valid though it does not require
that all the public be permitted to use the subways, and
does not reserve to the municipal authorities the right of
supervision or control of the conduits.*’ The powers and
functions of a subway company are of a public nature, and
the municipality, without special reservation in the fran-
chise, can, within reasonable limits, regulate the construc-
tion and use of the conduits.** A franchise to place con-
duits under municipal streets is a right which cannot,
except in exceptional cases, be revoked or otherwise im-
paired.** The state or municipality, when granting the

phone franchise, the municipality and
the company may by agreement
change the mode of using the streets
from the overhead to the underground
system. Com. v. Warwick, 185 Pa. St.
623, 7 Am. Electl. Cas. 219, 40 Atl.
93.

35. § 244,

36. Standard L. & P. Co. v. Mon-
treal, 10 Quebee Superior Ct. 209.

A statute giving an electric com-
pany the right to alter, inspect, and
repair its system of distribution, has
been thought to authorize a change
from poles and wires to conduits.
Alleghany County L. Co. v. Booth,
216 Pa. St. 564, 9 Am. Electl. Cas.
944, 66 Atl. 72,9 L. R. A. (N. S.)
404,

37. State ex rel. Nat. Subway Co. v.
St. Louis, 145 Mo. 551, 7 Am. Electl.
Cas. 195, 46 S. W. 981, 42 L. R. A.
113. This decision practically over-
rules State ex rel. St. Louis Under-
ground Service Co. v. Murphy, 134
Mo. 548, 6 Am. Electl. Cas. 64, 77,
31 S. W. 784, 34 8S. W. 51, 35 S. W.
1132, 34 L. R. A. 369, 56 Am. St.
Rep. 515, wherein it was held that

the franchise grant was invalid be-
cause it did not reserve to the munici-
pality the power of controlling the
construction, maintenance and use of
the conduits.

38. State ex rel. National Subway
Co. v. St. Louis, 145 Mo. 551, 7 Am.
Electl. Cas. 195, 46 S. W. 981, 42
L. R. A. 113.

89. Chesapeake & P, Telep. Co. v.
Baltimore, 89 Md. 689, 7 Am. Elect].
Cas. 135, 43 Atl. 784, 44 Atl. 1033.
See also, City of Baltimore v. Chesa-
peake, etc., Telep. Co., 92 Md. 692, 7
Am. Electl. Cas. 158, 48 Atl. 465,

Franchise impairment.— For a dis-
cussion of the impairment of fran-
chise, see §§ 199-208.

Where a telephone company, acting
in accordance with the terms of a city
ordinance, the acceptance of which by
the company has been declared by
the courts to constitute a valid con-
tract and which contract has been
ratified and perpetuated by the Legis-
lature, proceeds to file with the city
commissioner plans for the construc-
tion of conduits for its wires and to
express its willingness to construct
507

Convuits.

right to maintain conduits, may annex to the grant a con-
dition that the privilege may be subsequently revoked;*°
in such a case the grant receives but little constitutional
protection, and is more accurately termed a ‘‘ license.’’ *

Sec. 345. Corporate Ownership of Conduits; Excavation
in Streets.

The power to construct and maintain conduits under the
surface of city streets, by necessary implication, permits
the owner of the conduits to excavate for such construc-
tion. Moreover, conduits, in the course of time, require
repairs to keep them in -proper condition for effective use,
and the right to repair is necessarily deduced from the
right to own the conduits. The construction and repair
of conduits involves excavations in the streets. While the
municipality has the power to make reasonable regulations
as to the excavations to be made by the conduit owner, abso-
lute prohibition as to excavations would impair the franchise
or contract rights of the owner. A prohibition of excavation

is, therefore, generally forbidden by the constitution.* It

them under the supervision of said
commissioner, a new ordinance
adopted by the city does not operate
to repeal the former one and the
city will be restrained from interfer-
ence with the construction of the con-
duits during such time as the work
is properly done under the direction
of the city commissioner and in ac-
cordance with reasonable regulations
adopted by him. Chesapeake & P.
Tel. Co. v. City of Baltimore, 90
Md. 638, 7 Am. Electl. Cas. 151, 45
Atl. 446.

40. § 237.

41. Boston Elec. Co. v. Boston Ter-
minal Co., 184 Mass. 566, 8 Am.
Elect]. Cas. 50, 69 N. E. 346.

42. Montreal v. Standard L. & P.
Co., L. R. (1897) A. C. (Eng.) 527,
77 L. T. 115, 66 L. J. Q. B. (N. S.)
113,

An electric lighting company had

illegally broken up the surface of a
street within the district of a vestry
in the metropolis, and placed their
pipes and wires at a depth of about
two feet below the surface. Held,
that the vestry were not by virtue of
8. 96 the owners of the soil of the
street at that depth, and that, al-
though the company had acted ille-
gally in breaking up the street, the
vestry could not maintain an action
for a mandatory injunction to compel
the company to remove their pipes
and wires, there being no continuing
trespass upon or interference with
any right of the vestry. Vestry of
St. Mary v. London Co., (1899) 1
Ch. (Eng.) 474, 68 L. J. Ch. (N. S.)
238.

43. But see Andrews v. Abertillery
Urban Council, (1911) 2 Ch. (Eng.)
398, 80 L. J. Ch. 724, 105 L. T. 81,
75 J. P. 449, 9 L. G. R. 1009.
508 Law oF Etecrriciry.

may be required, as a police regulation, that the conduit
owner procure a permit from municipal officers before
making any excavations in the streets, but the granting
of such permit, though it may be subject to reasonable
regulations, may not be arbitrarily withheld.** :
Sec. 346. Corporate Ownership of Conduits; Duty to Per-

mit Companies to Use Conduits.

When a corporation is authorized to construct conduits
for the use of other companies, it is generally forbidden to
make discrimination as to such companies; so far as space
in the conduits is available, it is its duty to permit the com-
panies to use the same at a reasonable consideration.” Gen-
erally, however, only those companies which have a franchise
right to maintain a system of wires within the municipal
limits can be permitted to use conduits for their wires.** Ifa
company has secured from the municipality such privileges
as are essential for its use of conduits within the municipal
limits, but the owner of the conduits refuses to consent to

Right to excavate denied.— The
statute incorporating a telephone
company empowered it to lay is wires
underground, provided it interfered
with no street use and that in exca-
vating it should conform to the regu-
lations of the common eouncil. The
city charter gave the common council
exclusive control of excavations in
streets. Application for mandamus
to compel the city to give the com-
pany permission to excavate streets
for conduits: Held, properly denied,
the return showing that the eity had
under consideration the matter of
putting underground all .the wires
possible, and was investigatimg and
devising means te accomplish it with
the least interference with street uses.
State v. Towers, 71 Conn. 657, 7 Aum.
Electl. Cas, 124, 42 Atl. 1083.

44. ‘Seaboard Telep. & ‘Telep. Co. v.
Kearney, 68 N. Y. App. Div. 283, '74
N. Y. Supp. 15.

Mandamus is the proper remedy to
precure a permit to make excavations
in the streets. Seaboard Teleg. &
Telep. Co. v. Kearmey, 68 N. Y. App.
Div. 283, 74 N. Y. Supp. 15.

As a condition for the granting of
such permit, the subway company
may be required to pay the salaries
of city employees engaged im inspect-
ing the location amd construetion of
the conduits. People ex rel. Subway
Co. v. Monroe, 85 N. ¥.-App. Div.
542, 63 N. WV. Supp. 3823; affirmed
withont opinion, 176 N. Y. 567, 68
N. E, 1122,

45. Matter of Long Acre L. & P.
Os., 117 N. Y. App. Div. 80, 102
N. ¥. Supp. 242; affimmed, 188 N. Y.
361, 9 Am. Electl Cas. 1043, 80 N.E.
101,

46. Matter of New York Elec.
Lines Co., 201 N. Y. 321, 94 N. E.
1056.
Conpults. 509
their use by such company, the remedy of the latter is by
mandamus te compel the conduit owner to permit their
use.” The conduit owner is not deemed a common ear-
rier.“ It may withdraw the use of the conduits from any
company which refuses to pay for their use.*® ‘The interest
leased im conduits is neither real estate, for the recovery of
which ejectment will he, nor personal estate, for which
replevin will le; it is, rather, in the nature of a passenger’s
right to a place in a railroad car or that of a licensee, sub-
ject to be terminated by the-carrier or licensor upon failure
of the passenger or licensee to comply with its contract
fer carriage or privilege.”

Sec. 347. Injuries ta Conduits,

Conduits are property subject to ownership, and one
wrongfully or negligently causing injury thereto is liable.
If the municipality or a private individual or corporation
makes an excavation in the street, at least ordinary care
is required that no injury shall be done to conduits.”
Moreover, it has. been held that lability for mjury to a con-

47. Matter of Long Acre Elec. L
& P. Co, 188 N.Y. 361, 9 Am. Hlecth
Cas. 1043, 80 N. E. 1101, wherein it
was said: “The corporate powers and
duties of the defendant may be de-
scribed in general terms without spe-
cific referemee to the contract. and
legislative acts conferring upom it, as
it is claimed, the powers. whieh it. is
authorized and bound to exercise. It
has authority, and it is its duty, to
construct aud maintain conduits for
carrying wires for other corporations
authorized: to operate electrical eon-
ductors im the city of New York. In
this discussion it will be called the
‘Subway Company.’ It is its duty to
lease and allot space ta any corpora-
tion ‘having power to operate elee-
trical conduttors im any street, high-
way or publie place in the city of
New York that may apply for the
same, including any company or cor-

poration having, or which shall ac-
quire, lawful power to manufacture,
use, or supply electricity.’ The stat-
ute also provides that mandamus may
issue if the defendant should refuse
or fail to perform the duties and obli-
gations assumed by it.”

48. Brush Elec. Illum. Ca. v. Con-
solidated Teleg. & Elec. Subway Co.,
15 N. Y. Supp. 81;. affirmed, 60 Hun
446, 15 N. Y. Supp. 477, 39 N. ¥.
St. Rep. 538.

49. Brush Elec. Illum. Co. v. Cen-
solidated Teleg. & Elec. Subway Ca.,
15 N. Y. Supp. 81; affirmed, 60 Hun
446, 15 N. ¥. Supp. 477, 39 N. Y.
St. Rep. 538.

50. Brush Elec. Illum. Co. v. Con-
sol., etc., Subway Co., 60 Hun (N. Y.)
446, 3 Am. Electl. Cas. 150, 15 N. Y.
Supp. 477.

51, Hanrahan v. City of Baltimore,
114 Md. 517, 80 Atl, 312.
510 Law or E.ecrriciry.

duit may be founded on trespass, rather than on negligence.
Thus, in one case” it was held that a telephone company
was entitled to recover, from a building mover, damages
caused to its conduits by the driving of an iron spud or
stake into the ground in the operation of a capstan and
tackle with which he was moving a building through the
streets. The court thought that the duty was on the build-
ing mover, when driving the spud into the ground, to in-
form himself as to what was beneath the surface of the
street and to avoid injury to subsurface structures, and
held that the liability in case of damages ‘was not neces-
sarily founded on negligence, but could be based on tres-
pass. But in a case in Missouri,“ it appeared that a
telephone cable had been laid in a city sewer and that the
city authorities concluded to widen the sewer; in so doing
it became necessary to remove the cable and one of the city

52. Frontier Telep. Co. v. Hepp, 66
Misc. (N. Y.) 265, 121 N. Y. Supp.
460, wherein the court said: “We
are, however, of the opinion that,
when one like the defendant uses the
public streets of a city for his own
private purposes and goes beneath
the street surface by excavation or
otherwise, the duty rests upon him
to fully inform himself as to what
lies below, so that he may avoid
injury to the property of the city or
others rightfully there. The streets
of a modern city are so underlaid
with pipes and conduits of .various
kinds necessary to the comfort and
welfare of its citizens that one may
be required to take almost judicial
notice that in digging he may en-
counter some such pipe or conduit at
any point in the street. We have
sewers and water pipes, mains and
laterals, steam heating pipes, gas
pipes, electric lighting and power
lines, telephone and telegraph wires
and cables, and all their necessary
branches and connections for service
to the abutting owners, When, there-

fore, one proposes using the public
streets for his private purpose, and
proposes driving iron spuds or stakes
below the surface, ordinary prudence
and care dictate that he should in-
form himself of what lies beneath, so
as to avoid injury to public property,
or to the property of public service
corporations. If he fails to do this he
drives his stakes or makes his excava-
tions at his peril.”

58. “The defendant had the un-
doubted right to move the building
under the permit from the public au-
thorities, but that permit gave the
defendant no right or authority to
invade or injure the property of the
plaintiff in so doing. In moving the
house, the defendant took the chances
of possible injury to the property of
others in so doing; and, if he did so
damage the property of another, he
rendered himself liable.’ Frontier
Telep. Co. v. Hepp, 66 Mise. (N. Y.)
265, 121 N. Y. Supp. 460.

54. Reynolds County Telep. Co. v.
City of Piedmont, 152 Mo. App. 361.
Cowpurts. 511

employees struck the cable with a pick and injured it. It
was held that the telephone company failed to show negli-
gence and the city was not liable. In the last-mentioned
case, there being a question whether the telephone company
was duly authorized to place its cable in the sewer, it was
further held that, if it had no such authority, the only duty
of the city in removing it would be to refrain from reck-
lessly or wilfully injuring the cable.

Injury to Manholes.— The right to construct and main-
tain conduits necessarily involves the construction of man-
holes in order that employees of the conduit owner may
have access to the conduits for repairs and other lawful
purposes. Such manholes become a part of the traveled
portion of the street and they should be constructed suffi-
ciently strong to bear any load which experience shows is
likely to pass over them in the ordinary transactions of the
community, but they need not necessarily be strong enough
to sustain loads which the other parts of the street may
bear. In fact, it is impossible so to construct them. A
person desiring to convey a load of unusual weight should
exercise reasonable care to avoid the places which might
be damaged by the burden.** Thus, where the covers of
manholes were broken by a load of over thirty tons, and it
appeared that there was ample room for the vehicle to pass
along the street without going over the manholes and that
no precautions were taken to prevent injury to such covers,
even after seven or eight had been broken, it was held that
the persons driving the vehicle were liable.

Sec. 348. Injuries from Conduits.

In the construction and maintenance of conduits, the
owner thereof must exercise reasonable care to avoid injury
to innocent persons. A conduit company is bound to antici-
pate and provide against a possible accumulation of illumi-
nating gas from the mains of a gas company; and, if such

55. Missouri Edison Elec. Co. v. Weber, 102 Mo. App. 95, 8 Am. Electl.
Weber, 102 Mo. App. 95, 8 Am. Elect], Cas. 923, 76 8. W. 736.
Cas. 923, 76 S. W. 736. 57. Chalmers v. Paterson, etc,
56. Missouri Edison Elec. Co. v. Telep. Co., 66 N. J. L. 41, 48 Atl. 993.
512 Law or Exxcrriciry.

gas is negligently allowed to accumulate im its conduit, it
may be liable for injuries caused by an explosion thereof.”
Negligence may also be inferred from the failure of the
company to keep its underground wires insulated so as to
avoid the ignition of gas which has accumulated in the con-
duit. It has been held that a violent explosion in a eon-
duit, under the doctrine of res ipsa lequitur, imposes. the
burden on the conduit owner of showing that the explosion
was not caused by its negligence. But a contrary holding
has also been made to the effect that no presumption of
negligenee arises from an explosion in a manhole of a tele-
graph conduit." Where one of the mains of an electric
company fused, and in consequence the bitumen in which
the main was laid became volatilized into an inflamable gas,
which, after accumulating, exploded and caused a fire which
damaged the plaintiff’s goods, it was held that, apart from
the question of negligence, the electric company was liable

as for nuisance.™

58. Chalmers v. Paterson, etc.,
Telep. Co., 66 N. J. L. 41, 48 Atl. 993.

59. U’7Donnell v. Boston Elevated
Ry. Co., 205 Mass. 200, 90 N. E. 977.

60. St. Clair v. Edison Elec. L. Co.,
38 Pa. Super. Ct. 228.

61. Brinckhard v. Western Union
Teleg. Co., 12 N. Y. Supp. 534, wherein
the court said: “It is undoubtedly
true that where a thing that causes
injury is shown to be under the
management of the: defendant, and the
accident is one that ‘in the ordirfary
course of events does not happen, it
affords reasonable evidence that the
accident arose from want of care.
But. this rule only applies to those
cases where the want of care in the
management of thé thing would nat-
urally result in the happening of an
aecident of the kind established.
There is no evidence whatever in this
cease that any want of care on the
part of the defendants would cause
an explosion of this description. They
were not dealing with an explosive
material; there is nothing to show

what caused the explosion; neither is
there any evidence, as already stated,
that the defendants were responsible
for the existence of any explosive
material in the man-hole m question.”

62. Midwood & Co. v. Manchester
Corporation, (1905) 2 K. B. (Eng.)
597, 74 L. J. K. B. 884, 93 L. T. 585,
54 W. R. 37, 69 J. P. 348, 3 L. G. R.
1136, 21 T. L. R. 667, wherein it was
said: “It eannot, I think, seriously
be contended that, where the premises
of an adjoining owner are blown up
by an explosion brought about
through the agency of the defendant’s
system of electric lighting, there is
not. a nuisance. Whether the defend-
ants are liable in respect of it is, of
course, another matter. There was a
gradual accumulation of explasive gas
brought about by the fusion of the
bitumen by the operation of the over-
heated electrie wires, which process
went on for some three hours, and
ultimately resulted in an explosion.
If that was not a nuisanee I do not
know what would be one.”
INTERFERENCE WITH ELECTRICAL CURRENTS. 513

CHAPTER XVIII.
INTERFERENCE WITH ELECTRICAL CURRENTS.

Section 349. General Observations.
350. Electric versus Electric Company; in General.

 

 

351. Limitations on Prior Occupant’s Rights.
352, ——- Later Company Engaged in Public Lighting.
353. Remedy by Injunction.

354. Telephone versus Telephone Company.
355, Telephone or Telegraph versus Street Railway Company; in

 

 

 

 

General.
356. —— Different Views.
357. Negligence of Street Railway Company.
358. Contact of Lines.
359. —— ‘Effect of Municipal Regulations.
360. ——-Remedy by Injunction.
361. Telegraph or Telephone Line Not along Highway.
362. Telephone or Telegraph versus Electric Company; in General.
363. Negligence.
364. —— Conduits.

365. —— Injunction.

Sec. 349. General Observations.

The maintenance along the same street or highway of
two or more different systems of poles and wires with elec-
trical currents of varying intensity, is likely to cause a
conflict between the owners of such system. It is a -scien-
tific fact that a high-tension current of electricity in prox-
imity to a low-tension current, though the wires conveying
the different currents are not in contact, materially affects
the current of lower voltage. This, and cognate interfer-
ences of electrical uses, so far as the companies themselves
are concerned, are discussed in this chapter. The liability
of the companies for injuries to the property and persons
of other corporations or individuals is discussed ina subse-
quent chapter. In the following chapter is discussed the
liability for a physical interference with the wires of an
electric or other company. Hlectric, street railway, tele-
phone, and telegraph companies do not have exactly the
same rights in reference to the use of the streets. While

1. See § 498.
33
514 Law or Eecrricity.

the electric railway is generally considered a proper use
of the streets and the other companies mentioned are some-
times so considered, in many jurisdictions telephone, tele-
graph companies, and electric companies engaged in private
lighting are not considered to have rights in the streets
parallel to those of a street railway company or an electric
company engaged in lighting the highways. This is indi-
cated in the chapter on Abutting Owners, wherein it is
shown that telephone and telegraph lines in many juris-
dictions are considered as an additional burden upon the
owner of lands abutting the highway.? For this, among
other reasons, it has been found advisable to classify the
decisions discussing the matters covered by this chapter
according to the corporations involved in such cases. In
the first place, we have the interference between two elec-
tric companies.* Following this, is a discussion of inter-
ference between two telephone companies.* Then will be
found a treatment of the remedy of a telegraph or tele-
phone company whose electrical currents are affected by
the power lines of electric railways.* Finally, there is the
remedy of a telegraph or telephone company against an
electric company.®

Electric Company Versus Individual A case not sub-
ject to classification according to the method outlined above
is when an individual without authority has stretched a
wire across a street to the possible injury of an electric
company having wires along the street. In such a case,
where the individual has not been authorized by the state
or municipality to so stretch its wires, and the electric com-
pany is using the streets pursuant to a valid franchise, the
individual may be enjoined at the suit of the company from
maintaining its wires across the street.‘ The fact that the
individual has the consent of the abutting owners on both
sides of the street does not materially affect the situation,
as a franchise is essential to the validity of his action as

2. §§ 284-287. 6. §§ 362-365.
8. §§ 350-353. 7. Wettengel v. Allegheny Co. Light
4. § 354. Co., 223 Pa. St. 79, 72 Atl. 265.

5. §§ 355-361.
015

INTERFERENCE WITH HLECTRICAL CURRENTS.

against an electric company whose rights are infringed by
his wire.®

Sec. 350. Electric Versus Electric Company; in General.

If the franchise of an electric company is exclusive in
its nature, it is in a position whereby it can enjoin another
electric company from entering upon the streets or high-
ways.® In such a case it is of no importance whether the
lines of the two companies would conflict; the company
having the exclusive contract has a constitutional right
to forbid another company from entering the field in com-
petition, as the grant of a franchise to another company
constitutes an impairment of its exclusive grant.*° Where,
however —and such is generally the case —the franchise
is not exclusive, another corporation may be granted an
electric franchise for the same territory, or the munici-
pality itself (if authorized by statute) may undertake the
municipal ownership of an electric plant." The establish-
ment of another system of electric wires, of itself, does not
constitute an impairment of the first company’s franchise.
But the franchise of the first company, though not exclu-
sive, must not be impaired by subsequent action of the
municipality or other corporations. The prior company
has a right to the enjoyment of its franchise; and, if a
franchise is subsequently granted to another, the rights of
the former company must be respected.” The second com-
pany must construct its line so as not to interfere mate-
rially with the line of the first company.** In other words,

8. See § 195. Atl. 413, 86 Am. Rep. 712; Rutland
9. §§ 219, 240. Elec. L. Co. v. Marble City Elec. L.
10. § 203. Co., 65 Vt. 377, 4 Am. Electl. Cas.

11. §§ 203, 204.

12. Consolidated Elec. L. Co. v.
People’s Elec. L. & Gas Co., 94 Ala.
372, 4 Am. Elect]. Cas. 250, 10 So.
440; Edison Elec. Illum. Co. of
Williamsport v. Citizens’ Elec. Co.,
235 Pa. St. 492, 84 Atl. 438; Edison
Elec. L. & P. Co. v. Merchants’ &
Mfg’rs Elec. L., H. & P. Co., 200 Pa.
St. 209, 7 Am. Electl. Cas. 413, 49

256, 26 Atl. 635, 20 L. R. A. 821, 36
Am. St. Rep. 868; Montreal L., H. &
P. Co. v. Vipond, 40 Que. 8. C. (Can.)
196,

13. Bell v. David City, 94 Neb. 157,
142 N. W. 523; Edison Elec. Illum.
Co. of Williamsport v. Citizens’ Elec.
Co., 235 Pa, St. 492, 84 Atl. 438;
Edison Elec. L. & P. Co. v. Merchants’
& Mfg’rs Elec. L., H. & P. Co., 200
O16

Law or HELecrricity.

a company which, with municipal authority, first occupies
a reasonably sufficient space for its electrical appliances,
thereby acquires the right not to be molested in its posses-
sion.* Sufficient space has been construed to include, not
only the present needs of the electric company, but also
such additional space as it may reasonably be anticipated

the future growth of the business will require.”

A sub-

sequent company must not string its wires in dangerous
proximity to the wires of the earlier company.” Nor can

Pa. St. 209, 7 Am. Electl. Cas. 413,
49 Atl. 413, 86 Am. St. Rep. 712;
Rutland Elec. L. Co. v. Marble City
Elec. L. Co., 65 Vt. 377, 4 Am. Electl.
Cas. 256, 26 Atl. 635,.20 L. R. A. 821,
36 Am. St. Rep. 868; Montreal L., H.
& P. Co. v. Vipond, 40 Que. 8. C.
(Can.) 196.

14. Consolidated Elec. L. ‘Co. v.
People’s Elec. L. & Gas Co., 94 Ala.
372, 4 Am. Electl. Cas. 250, 10 So.
440; Edison Elec. Illum. Co. of
Williamsport v. Citizens’ Elec. Co.,
235 Pa, St.-492, 84 Atl. 438.

15. Edison Elec. Ilum. Co. of
‘Williamsport v. Citizens’ Elec. Co.,
235 Pa. St. 492, 84 Atl. 438.

16, Edison Elec. Illum. Co. of
Williamsport v. Citizen’s Elec. Co.,
235 Pa. St. 492, 84 Atl. 438; Rutland
Elec. L. Co. v. Marble City Elec. L.
Co., 65 Vt. 377, 4 Am. Elect]. Cas.
256, 26 Atl. 635, 20 L. R. A. 821, 36
Am. St. Rep. 868; Montreal L., H. &
P. Co. v. Vipond, 40 Que. C.'S. (‘Can.)
196.

Dangerous proximity depends upon
the circumstances. It is to be con-
sidered that, by reason of climatic
and other conditions beyond the power
of an electric company, poles will lean
and wires will sag. A subsequent
lime must, therefore, be constructed
so that, after such leaning of the
poles and such sagging of the wires
as may reasonably be anticipated, the
wires still remain a safe distance

apart. Edison Elec. Illum. Co. of
Williamsport v. Citizen’s Elec. 'Co.,
235 Pa. St. 492, 84 Atl. 438, wherein
it was said: “It has been demon-
strated by the uncontradicted evi-
dence that in the best of pole line
construction no pole will maintain its
‘perpendicular or other position in
which it is set. Climatic conditions,
freezing and thawing of the earth in
which the pole is planted, wind, rain,
sleet and snow, ‘heat and cold, all
have their tendency to cause the pole
to vary from its original position and
thereby correspondingly change the
position of all the wires in the span
supported by such pole causing a
greater or less sag in the wires, or
causing them to be moved farther to
one side or the other.

In this connection it has been dem-
onstrated by mathematical calcula-
tion that in a span one hundred feet
in length the deflection of a pole at
the top a distance of three inches
towards the other pole in the span
will increase the sag eighteen inches;
and that six inches of deflection will
increase the sag thirty-four inches,
over an original sag of twenty-four
inches.

This tendency in pole line construc-
tion, of poles to change their position
from a perpendicular line, or from
their original position, is one of the
conditions that must be guarded
against and provided for in the main-
INTERFERENCE WITH ELECTRICAL CURRENTS. 517
it protect its poles between the wires of the earlier com-
pany or fasten side-blocks on its poles.” The later company
must not interfere with the wires of the other company by
changing them to its own poles;*® nor can the later com-
pany fasten its wires to the poles of the earlier company
without authority.”

Sec. 351. Electric Versus Electric Company; Limitations
on Prior Occupant’s Rights.

Though, as stated in the foregoing section, a prior elec-
tric company is entitled to such space in the streets as is
reasonably sufficient for the safe and successful operation
of its works, it cannot occupy more space, if such additional
space is reasonably required by another electric company
also having a valid franchise.” Any other rule would per-
mit the first company to change its franchise to an exclusive
grant. The first company cannot resort to such devices as
unnecessarily crossing the streets,” running wires on both
sides when one side is sufficient for its needs,” or maintain-

tenance of two or more electric pole
line constructions on the same street
or highway.”

Induction.— “ When the defendant’s
wires were first strung upon the poles
they did not touch the wires and
poles of the orator, but from the
effect of storms from stretching or
some other cause, they now sometimes
come in contact with the orator’s
poles and wires and injure them.
The wires should not be nearer each
other than twelve inches, and the
cross pieces upon which they are
strung should be at least two feet
apart, so that when\ the wires are
loaded with snow and ice, or when
swayed by wind, they will not come
in contact. When a wire carrying
a heavy current comes in contact with
one carrying a lighter current, the
heavy current is liable to be inducted
into the other wire, which endangers
the orator’s wires, lamps and plant,
and is liable to set fire to buildings,

for which the orator would be answer-
able in damages.” Rutland Elec. L.
Co. v. Marble City Elec. L. Co., 65
Vt. 377, 4 Am. Electl. Cas. 256, 26
Atl. 635, 20 L. R. A. 821, 36 Am. St.
Rep. 868.

17. Montreal Lj H. & P. Co. v.
Vipond, 40 Que. C. S. (Cam.) 196.

18. Edison Hlec. Illum. Co. of
Williamsport v. Citizens’ Elec. Co.,
235 Pa. St. 492, 84 Atl. 438.

19. Edison Elec. Illum. Co. of
Williamsport v. Citizen’s Elec. Co.,
235 Pa. St. 492, 84 Atl. 438.

20. Consolidated Elec. L. Co. v.
People’s Elec. L. & Gas Co., 94 Ala.
372, 4 Am. Elect]. Cas. 250, 10 So.
440; Montreal L., H.-& P. Co. v.
Vipond, 40 Que. S. C. (Can.) 196.

21. Consolidated Elec. L. Co. v.
People’s Elec.:L. & Gas Co., 94 Ala.
372, 4 Am. Elect]. Cas. 255, 10 So.
440.

22. Consolidated Elec. L. Co. v.
People’s Elec. L. & Gas Co., 94 Ala.
518 Law oF ELecrricity.

ing dead wires in the streets.% Such practices are not
only an infringement of the rights of the subsequent com-
pany, but constitute a dangerous use of the streets within
the power of the municipal authorities to regulate.

Sec. 352. Electric Versus Electric Company; Later Com-
pany Engaged in Public Lighting.

If an electric company has a franchise which is constitu-
tionally protected from impairment, neither a municipality
nor a private corporation should be allowed to impair the
grant. It should be protected against assaults by a munici-
pality as well as by other corporations. Following this
line of reasoning, it would seem necessary to hold that a
municipality could not impair the grant merely because it
would thereby obtain public lighting by means of elec-
tricity. Rather than to permit an invasion of the constitu-
tional rights of an electric company, a municipality should
be compelled to seek some other method of lighting its
streets. Thus, it has been held that, as between two elec-
tric companies having franchises in the same municipality,
the fact that the later one has a contract for the lighting
of the public places of the municipality, gives it no superior
rights, and it cannot interfere with the appliances of the
earlier company.* The reasoning which reaches this result
is so satisfactory that it seems surprising that a contrary
conclusion has been reached. But, in a lower court of

372, 4 Am. Electl. Cas. 255, 10 So.
440; Montreal L., H. & P. Co. v.
Vipond, 40 Que. S. C. (Can.) 196.

28. Consolidated Elec. L. Co. v.
People’s Elec. L. & Gas Co., 94 Ala.
372, 4 Am. Electl. Cas. 255, 10 So.
440.

24, Edison Elec. L, & P. Co. v.
Merchant’s & Mfgrs. Elec. L., H. &
P. Co., 200 Pa. St. 209, 7 Am. Elect.
Cas. 413, 49 Atl. 766, 86 Am. St.
Rep. 712, wherein it was said: “As
between two corporations exercising
similar franchises upon the same

street, priority carries superiority of
right. Equity will adjust the con-
flicting interests as far as possible,
and control both, so that each com-
pany may exercise its own franchises
as fully as is compatible with the
necessary exercise of the other’s. But
if interference and limitation of one
or the other are unavoidable, the
later must give way, and the fact
that it is under contract with the
city for work of a public nature does
not alter its position, or give it any
claim to preference.”
INTERFERENCE WITH ELECTRICAL CURRENTS. 519
Indiana,” it has been held that, as between two electric
companies, each having permission to use the streets and
each furnishing commercial and domestic lights to the citi-
zens, but one only having a contract with the municipality
for the lighting of the streets and public places, the latter,
though later in occupation of the streets, has the para-
mount right, and, when the poles and appliances of the two
companies interfere, the company doing only the private
lighting must yield.

Sec. 353. Electric Versus Electric Company; Remedy by
Injunction.

If one electric company unlawfully interferes with the
wires, appliances, and electric currents of another company,
the former has a remedy by injunction. The damages aris-
ing from interference call for equitable relief, as the com-

plaining company has no adequate remedy at law.”

25. Terre Haute Elec. L. & P. Co.
v. Citizen’s Elec. L. & P. Co., (Ind.)
6 Am. Electl. Cas. 193.

26. Edison Elec. Illum. Co. of
Williamsport v. Citizen’s Elec. Co.,
235 Pa. St. 492, 84 Atl. 438; Edison
Elec. L. & P. Co. v. Merchant’s &
Mfgrs. Elec. L., H. & P. Co., 200 Pa.
St. 209, 7 Am. Electl. Cas. 413, 49
Atl. 766, 86 Am. St. Rep. 712; Rut-
land Elec. L. Co. v. Marble City
Elec. L. Co., 65 Vt. 377, 4 Am. Elect.
Cas. 256, 26 Atl. 635, 20 L. R. A.
821, 36 Am. St. Rep. 868.

Temporary injunctiof—A  com-
plaint in an action by one electric
light company for an injunction re-
straining another company from
erecting its poles and stringing- its
wires along the same streets and
among those of the complainant, con-
tained the allegations that such pro-
posed construction would cause the
complainant irreparable injury, would
continually interfere with its busi-
ness, would burn out its electrical
apparatus, and would greatly endan-

Not

ger the lives of its servants. Held,
that an answer which merely denied
that such results would arise “with
a reasonably prudent management of
complainant’s system of wires” was
not sufficient to authorize the disso-
lution of a temporary injunction.
Consolidated Elec. L. ‘Co. v. People’s
Elec. L. & Gas Co., 94 Ala. 372, 4
Am. Electl. Cas. 250, 10 So. 440.
Injunction denied.— Plaintiff, an
electric lighting corporation, was au-
thorized by a city ordinance to erect
poles upon the streets and attach
wires thereto for the transmission of
electricity for lighting purposes.
Later the defendant, another electric
lighting corporation, secured the same
privileges from the city with the un-
derstanding that its poles and wires
be placed in such manner and in such
places as the city authorities should
designate. Defendant erected three
poles on a certain avenue which pro-
jected between and above plaintiff’s
wires in close proximity to three of
plaintiff’s poles upon which defendant
520 Law or Execrriciry.

only wanton and negligent damage, but all interference,
not strictly unavoidable, with the line of the earlier com-
pany, will be enjoined, irrespective of the question of addi-
tional expense.” Where the subsequent plant is not yet
constructed and the owner thereof denies that it will be con-
structed so as to interfere with the system of the company
in operation, the latter is not entitled to an injunction.”
Where the question is as to the use of the poles of one com-
pany by another, the bill is insufficient if it merely states
conclusions. The size of the poles, their capacity, the
number of wires thereon, the proximity of these wires one
to another, and their location on the poles, are all material
facts and should be shown by the bill.”

Sec. 354. Telephone Versus Telephone Company.

The general principles outlined above with reference to
the interference between two electric companies, are appli-
cable to the interference between two telephone companies.
The electric currents normally conducted along telephone
wires, however, are of so much lower tension than those of
electric companies, that the wires and appliances of tele-
phone companies need not be separated by the same dis-
tance as is necessary in the case of competing electric com-
panies. The interference of telephone lines will not, except
in unusual cases, result in serious injury either to the lines
or to the persons using them. The injury would be merely
as to their power to transmit messages during the course

strung its wires. Upon a bill being Williamsport v. Citizen’s Elec. Co.,

filed to restrain defendant from so
erecting its poles and stringing its
wires, it was held that the defendant
having removed the danger by put-
ting cross-arms upon its poles the
pill should be dismissed, the location
of the poles and wires being in ac-
cordance with the city regulations.
Monongahela L. & 'P. Co. v. Rose Hill
Elec. L. ‘Co., 30 Pittsb. Leg. J. (Pa.)
301, 9 Am. Elect]. Cas. 838.

27. Edison Elec. Illum. Co. of

235 Pa. St. 492, 84 Atl. 438; Edison
Elec. L. & P. Co. v. Merchants &
Mfgrs. Elec. L., H. & P. Co., 200 Pa.
St. 209, 7 Am. Elect]. Cas. 413, 49
Atl. 766, 86 Am. St. Rep. 712.

28. Bell v. David City, 94 Neb. 157,
142 N. W. 523.

29. Montgomery L. & 'W. P. Co. v.
Citizen’s L., H. & P. Co., 147 Ala.
359, 9 Am. Electl. Cas. 776, 40 So.
981.
INTERFERENCE WITH ELECTRICAL CURRENTS. 521
of the interference. A telephone company, having a fran-
chise to maintain a telephone system in a certain area,
though the franchise is not exclusive, will be protected in
its reasonable occupancy of the streets as against a later
telephone company.*® A subsequent company will be per-
mitted to exercise its franchise, but it must be done in such
a manner as not to interfere with the lines of the earlier
company.** The prior lawful occupancy of urban streets
by a telephone company will not necessarily create a
monopoly of all the aerial space which it appropriates, but
may give such occupant such substantial rights in the con-
duct of its business as may be required in the growth and
extension of the same to meet the immediate demands of
the public service subject to the right of the courts to
restrain another telephone company from unnecessary
interference therewith.” The earlier company cannot erect
its lines in such a manner as to keep the later company off

80. Louisville Home Telephone Co.
v. Cumberland Telep. & Teleg. Co.,
111 Fed. 663, 8 Am. Electl. Cas. 108,
49 C. C. A. 524; Chicago Telep. Co.
v. Northwestern Telep. Co., 199 IL.
324, 8 Am. Electl. Cas. 81, 65 N. E.
329.

31. Louisville Home Telephone Co.
v. Cumberland Telep. & Teleg. Co.,
111 Fed. 663, 8 Am. Electl. Cas. 108,
49 C. C. A. 524; Northern Telep. Co.
v. Iowa Telep. Co., (Iowa) 98 N. W.
113; Northwestern Telep. Co. v. Twin
City Telep. Co., 89 Minn. 495, 8 Am.
Elect]. Cas. 103, 95 N. W. 460. See
also, Mt. Pleasant Telep. Co. v. Ohio,
etc., Telep. Co, 140 Ill. App. 27.
“It may properly be conceded that
its prior occupation of space under
the franchise granted by the statute
and ordinance would entitle it to the
continued enjoyment thereof, so long
as it continued to perform its obliga-
tions, without substantial impair-
ment. But its right is not absolutely
exclusive. It is subject to such inci-

dents as result. from: the exercise of
the rights of other parties who have
acquired a valid franchise of similar
character. It is implied in such
grants as were here made to the first
company that the grant is subject
to such limitations as will enable
another company to enjoy a like fran-
chise, and no property right is in-
vaded by the adoption of such meas-
ures by the second company as will
enable it to exercise its privilege,
provided there is no unreasonable and
unnecessary invasion of the opera-
tions of the first occupant. For the
property right of the first is not to
a monopoly. It is bound to exercise
its privilege in such a way as to give
room to another coming in under
the power reserved.” Louisville Home
Telep. Co. v. Cumberland Telep. &
Teleg. Co., 111 Fed. 663, 8 Am. Electl.
Cas. 108, 49 C. C, A. 524,

32. Northwestern Telep. Co. v. Twin
City Telep. Co., 89 Minn, 495, 8 Am.
Electl. Cas. 103, 95 IN. W. 460.
522

Law or Eecrricity.

the street ;* if possible, their occupancy must be adjusted
so that both may maintain their lines along the streets
without injury to either, but, if it is impossible for both to
operate in the same street, priority in time gives a superior

right.**

If the old company, whenever the new company

starts to erect a pole or wires, changes the location or
height of its line so that an interference will arise, the new
company may have relief by an injunction.** The grantee

33. Louisville Home Telep. Co. v.
Cumberland Telep. & Teleg. Co., 111
Fed. 663, 8 Am. Electl. Cas. 108, 49
C. C, A. 524; Cumberland Telep. &
Teleg. Co. v. Louisville Home Telep.
Co., 114 Ky. 892, 24 Ky. Law Rep.
1676, 72 S. W. 4.

34. “As between two corporations
exercising similar franchises upon
the same street, priority, though it
does not create monopoly, carries su-
periority of rights, and equity will
adjust conflicting interests, as far as
possible, controlling them so that each
company may exercise its own fran-
chise as fully as is compatible with
the necessary rights of another’s.
But where interference is unavoid-
able, the latter occupant must give
way.” Northwestern Telep. Co. v.
Twin City Telep. Co., 89 Minn. 495,
8 Am. Elect]. Cas. 103, 95 N. W. 460.

35. Cumberland Telep. & Teleg. Co.
v. Louisville Home Telep. Co., 114
Ky. 892, 24 Ky. Law Rep. 1676, 72
S. W. 4, wherein the court said:
“Appellant’s franchise was not ex-
clusive. Its prior occupation of a
particular space entitled it to the
continued enjoyment of that space
without substantial impairment by
appellee; but this enjoyment is sub-
ject to such incidents as result from
the exercise of the rights of appellee
under its franchise, for it is neces-
sarily implied in the grant to appellee
that it is subject to such limitations
xs will enable another to enjoy a like

franchise. Otherwise the right of the
first company obtaining a grant would
amount to a-monopoly. This was not
intended. The grant to appellant is
like other privileges in the public
ways. It must be exercised in such
a way as not unduly to interfere with
the rights of others. The substance
of its rights cannot be appropriated
by another, but there is no reason
why two telephone companies cannot
operate on the same side of the
street; and, from the proof in this
cease, it is not only common, but much
better than to have them on different
sides, when there are electric light
lines on the street, or other wires
carrying heavy currents of electricity.
The city authorities may rightfully
determine in what manner the streets
may be used, and to what extent, and
when, structures may be erected in
them; and, within reasonable limits,
to fix the space to be occupied by
rival telephone lines. Of course,
there must be no substantial impair-
ment of appellant’s property rights,
but mere inconvenience miust be en-
dured by it, just as by all others, in
the enjoyment of the public utilities
of the city.”

A railroad company cannot defeat
the exercise of the right of eminent
domain by a telegraph company in
constructing a line of telegraph on a
portion of its right of way, by the
construction and maintenance of a
line on both sides of its track, when
INTERFERENCE WITH EXLEcTRICAL CURRENTS. 523°

of a subsequent franchise may erect its lines on the same
side of the highway above those of the earlier company.**
The inconvenience of such arrangement will not afford the
earlier company a cause of complaint.” Two or more
telephone companies may be granted a franchise to use the
same street, and, in addition to telephone lines, electric
street railway, telegraph, fire alarm, and police wires may
be constructed along the street. As there are only two
sides to a street, it is obvious that frequently two or more
different systems must necessarily be built on the same side
of the street.** One company must not physically interfere
with the lines or appliances of another. Thus, where it
appeared that one telephone company sold to those of its
patrons who also used the telephone system of a competing
company certain instruments and switches, and helped its
patrons to install them, so that the patrons with one instru-
ment could receive and transmit messages over either
system, it was held that such installation was an unlawful

a line on one side of the track is
ample to furnish it with necessary
telegraph service. Western & A. R.
Co. v. Western Union Teleg. Co., 138
Ga. 420, 75 S. E. 471, 42 L. R. A.
(N. .S.) 225.

36. Louisville Home Telep. Co. v.
Cumberland Telep. & Teleg. Co., 111
Fed. 663, 8 Am. Elect]. Cas. 108, 49
C. C. A. 524; American Telep. &
Teleg. Co. of Alabama v. Morgan
County Telep. Co., 138 Ala. 597, 36
So. 178, 100 Am. St. Rep. 53; Chi-
cago Telep. Co. v. Northwestern
Telep. Co., 199 Ill. 324, 8 Am. Electl.
Cas. 81, 65 N. E. 329.

Danger from breaking cf wires.—
An injunction will not be issued to
restrain the subsequent occupant
from overbuilding the wires of the
prior occupant; the alleged danger of
the breaking and falling down of the
overbuilt wires upon those of the
prior occupant is too remote and un-
certain. Chicago Telep. Co. v. North-

western Telep. Co., 199 Ill. 324, 8 Am.
Electl. Cas. 81, 65 N. E. 329.

37. American Telep. & Teleg. Co.
of Alabama v. Morgan County Telep.
Co., 138 Ala, 597, 36 So. 178, 100
Am. St. Rep. 53; Chicago Telep. Co.
v. Northwestern Telep. Co., 199 IIL.
324, 8 Am. Elect]. Cas. 81, 65 N. E.
329; Cumberland Telep. & Teleg. Co.
v. Louisville Home Telep. Co., 114
Ky. 892, 24 Ky. Law Rep. 1676, 72
S. W. 4. “Mere inconvenience will
not afford ground for complaint. The
injury must be grave and unwar-
ranted by the requirements necessary
to such further exercise of the munic-
ipal authority in that direction as
may be deemed expedient.” Louis-
ville Home Telep. ‘Co. v. Cumberland
Telep. & Teleg. Co., 111 Fed. 663,
8 Am. Electl. Cas. 108, 49 C. C. A.
524,

38. Chicago Telep. Co. v. North-
western Telep. Co., 199 Ill. 324, 8 Am.
Electl. Cas. 81, 65 N. E. 329.
524 Law oF HLECTRICITY.

interference with the lines of such competing company and
this practice would be enjoined though the defendant com-
pany received no benefit therefrom except profits on the
sale of materials.*

Sec. 355. Telephone or Telegraph Versus Street Railway
Company; in General.

There is no doubt but that street railway cars propelled
by electric energy may be permitted upon municipal
streets. They tend to promote travel on the highways and
may properly use electricity as a motive power.*® Like-
wise telegraph and telephone lines may, subject to possible
rights of abutting owners,** be constructed along public
highways. The electric railway uses large quantities of
electricity under considerable tension, while the current
used by telephone or telegraph companies is comparatively
weak. The presence of the high tension street railway
current in proximity to the feeble current of the telegraph
or telephone company, sometimes sets up an electric cur-
rent along the wires of the latter. This condition is scien-
‘tifically known as ‘‘ induction.’’** Moreover, in the early

39. People’s Telep. & Teleg. Co. v.
East Tenn. Telep. Co., 103 Fed. 212,
43 0. C. A. 185.

40. §§ 385-389.

41, Abutting owners— The rights
of abutting owners as to telegraph or
telephone liines constructed along a
highway is discussed in an earlier
chapter. See §§ 284 et seq.

42. “It is a physical fact of much
importance in electrical mechanism
that, when two wires of two circuits

ley wire and the feed wire of the
railway is quite variable in quantity
and intensity, owing to the drain
upon the store of the electricity by
the moving and stopping of the car.
Nor is the electricity, as generated,
exactly uniform in its flow from the
dynamos. The result is, wherever
the telephone wire is parallel with
the trolley wire and feed wire, there
is induced upon the telephone wire
a current whose variation corresponds

are parallel to each other, and there
is a current of varying intensity on
one of them, this will produce in the
other in the opposite direction, a cur-
rent of electricity of similar varia-
tion. The amount of induction de-
pends upon variation in current, the
distance of the wires from each other,
and the length of the parallelism of
the wires. The current upon the trol-

with the variations of the electrical
current on the electric railway wires,
thereby producing such disturbances
as render the use of the telephone
plant impracticable. But one practi-
cable remedy has been discovered for
the disturbances caused by induction;
that is, to destroy the parallelism
of the wires of the two circuits. This
remedy is practicable for the tele-
INTERFERENCE WITH PLECTRICAL CURRENTS. 525
history of the use of electricity for street railway and com-
munication purposes, it was found advisable to use the
earth as a return circuit for the electric currents. The use
of the earth by both companies in some cases caused their
electrical currents to conflict. This conflict is known as
‘¢ eonduetion.’’? On account of more scientific knowledge of
the handling of electric currents and the better equipment
of the respective lines, conduction and induction do not
present the difficulties they formerly did. Such inter-
ferences are capable of correction and are now generally
adjusted without legal proceedings. In many jurisdictions,
while the propulsion of street railway cars along streets
is considered a primary use of the highway, the mainte-
nance of telephone or telegraph lines, though permitted, is
considered a secondary use of the highway.** Under this

phone company alone.’ Cumberland
Teleg. & Teélep. Co. v. United Flee.
Ry. Co., 93 Tenn. 492, 4 Am. Electl.
Cas, 297, 29S. W. 104, 27 L. R. A.
236.

43. Hudson River Telep. Co. v.
Watervliet Turnpike -Co., 135 N. Y.
393, 4 Am. Electl. Cas. 275, 32 N. E.
148,17 L. R. A. 674, 31 Am. St. Rep.
838; Cincinnati Inclined Plane Ry.
Co. v. Suburban Teleg. Assoc., 48 Oh.
St. 390, 3 Am. Elect]. Cas. 443, 29
Am. St. Rep. 557, 27 N. E. 890, 12
L. R. A, 534, 30 Cent. L. J. 218;
Rocky Mountain Bell Telep. Co. v.
Salt Lake City R. Co., (Utah) 3 Am.
Elect]. Cas. 356; ‘Bell Telep. ‘Co. v.
Montreal St. Ry. Co., 10 Quebec Su-
perior Ct. (Can.) 162. See also, Cen-
tral Union Telep. Co. v. Sprague
Elec., ete., Co., (Ohio) 2 Am. Elect.
Cas. 307; East Tennessee Telep. Co.
v. Knoxville St. Ry. Co, (Tenn.) 3
Am. Elect]. Cas. 400.

“The principal use of the street is
to accommodate the traveling public,
and whatever rights the telephone
company have must be held to be in
subordination to this right of travel.
They must so conduct their business

as not to interfere with ordinary
travel and they must submit to any
necessary inconvenience resulting
from the ordinary travel passing over
the street. They take their right
subject to this burden. This princi-
ple applies not only to the mode of
travel at the time the telephone was
built and their rights acquired, but
applies as well to any new or im-
proved modes of travel which have
been or may hereafter be invented
and applied generally in aid of travel
on the public streets.” Wisconsin
Tel. Co. v. Eau Claire St. Ry. Co.,
(Wis.) 3 Am. Elect]. Cas. 383.

“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 estab-
lished. To those improved agencies
devised for the conveniente and ad-
vantage of the community in general,
the franchise of the telephone com-
pany to occupy the streets for carry-
ing on its business must be secondary
and subordinate.” Cincinnati In-
526 Law or Execrricity.

doctrine a telephone or telegraph franchise is subject to the
rights of public travel by means of electric cars; and, if
such travel interferes with the use of the telephone or
telegraph lines, causing either induction or conduction, the
damage accruing to the telephone or telegraph company by
reason thereof affords no ground for relief. It is damnum
absque injuria.“* In such a case, it is immaterial whether
the telephone or telegraph company was in operation
before or after the use of electricity by the railway.* This
conclusion is the more readily reached because the tele-
phone company generally has it within its power to avoid
the interference by having a metallic circuit and other

devices.**

clined Plane Ry. Co. v. City & Sub-
urban Teleg. Assoc., 48 Oh. St. 390,
3 Am. Electl. Cas. 443, 27 N. E.
890, 29 Am. St. Rep. 557, 12 L. R. A.
534, 30 Cent. L. J. 218.

44, Hudson River Telep. Co. v.
Watervliet Turnpike Co., 135 N. Y.
393, 4 Am. Elect]. Cas. 275, 32 N. E.
148, 17 L. R. A. 674, 31 Am. ‘St. Rep.
838; ‘Cincinnati Inclined Plane Ry.
Co. v. City & Suburban Teleg. Assoc.,
48 Oh. St. 390, 3 Am. Electl. Cas. 443,
27 N. E. 890, 29 Am. St. Rep. 557,
12 L. R. A. 534, 30 Cent. L. J. 218;
Wisconsin Telep. Co. v. Eau Claire
St. R. Co., (Wis.) 3 Am..Electl. Cas.
383; Bell Telep. Co. v. Montreal St.
Ry. Co., 10 Quebec Superior Ct. (Can.)
162. See also, Central Union Telep.
Co. v. Sprague Elec., etc., Co., (Ohio)
2 Am. Electl. Cas. 307; Central Penn.
Telep. Supply Co: v. Wilkesbarre &
West Side Ry. Co., 11 Pa. Co. Ct.
417, 4 Am. Electl. Cas. 260; East
Tennessee Telep. Co. v. Knoxville St.
Ry. Co., (Tenn.) 3 Am. Elect]. Cas.
400. “The plaintiff has a franchise

which is entitled to protection, but:

the prime difficulty it encounters
grows out of its subordinate char-
acter. It has been given and accepted
upon the express condition that it
shall not obstruct or interfere with

the enjoyment by the defendant of its
franchises. The plaintiff is not using
the streets for one of the purposes to
which they -have been dedicated as
public highways, while the defendant
is occupying them in such a manner
as to expedite public travel and pro-
mote the public use to which they
were originally devoted. The condi-
tion contained in the plaintiff’s grant
would have been implied had it not
been expressly named.” Hudson River
Telep. Co. v. Watervliet Turnpike Co.,
135 N. Y. 393, 4 Am. Electl. Cas. 275,
32 N. E. 148,17 L. R. A. 674, 31 Am.
Am. St. Rep. 838.

45. Hudson River Telep. Co. v.
Watervliet Turnpike Co., 135 N. Y.
393, 4 Am. Electl. Cas. 275, 32 N. E.
148, 17 L. R. A. 674, 31 Am. St. Rep.
838; Cincinnati Inclined Plane Ry.
Co. v. City & Suburban Teleg. Assoc.,
48 Oh. St. 390, 3 Am. Electl. Cas. 443,
27 N. E, 890, 29 Am. St. Rep. 557,
12 L. R. A. 534, 30 Cent. L. J. 218;
Bell Telep. Co. v. Montreal St. R. Co.,
10 Quebec Superior Ct. (Can.) 162.

46. Rocky Mountain Bell Telep. Co.
v. Salt Lake City R. Co, (Utah) 3
Am. Elect]. Cas. 356; Wisconsin
Telep. Co. v. Eau Claire St. R. Co.,
(Wis.) 3 Am. Electl. Cas. 383.
INTERFERENCE WITH ELECTRICAL CURRENTS. 527

In England, the same result is reached, though the
reasoning of the courts is different. Constitutional ques-
tions not troubling the English judges, they hold that the
question is merely one of the powers given to the street
railway company. They hold that, if the street railway.
company is given the right to run its cars by electricity and
it acts reasonably in the exercise of such power and in the
avoidance of injury to others, there is no liability.*

Sec. 356. Telephone or Telegraph Versus Street Railway
Company; Different Views.

The doctrine stated in the preceding section is not con-
sistently followed in this country. In other jurisdictions,
a telephone or telegraph company will be held to have equal
rights in the streets as have trolley companies. This is the
view held by the courts of Indiana, where it is held that the
rights granted the two different companies to occupy the
highways are co-ordinate, and in their respective use of
them they are independent of each other, and that the only
duty imposed‘upon one as against the other is that, in
carrying out the purposes of their organizations, they do
not carelessly, negligently, or maliciously interfere with
the rights of the other.“ It is to be noticed, however, that,
while the street railway is held not to be entitled to superior
rights, by holding it liable only for negligence, practically
the same conclusion is reached.** ‘This same view was had
in a federal decision, and the result was reached that the
telephone company should protect its lines from conduction
and induction.*® It seems that after such federal decision,
the telephone company did adopt devices to prevent injury
from the wires and currents of the street railway company,

47. National Telep. Co. v. Baker, 48. Citizen’s Telep. Co. v. Ft.

L. R. 2 Ch. D, 186, 4 Am. Electl. Cas.
320, wherein it was said: “The de-
fendants are expressly authorized to
use electrical power, and the Legisla-
ture must be taken to have contem-
plated it, and to have condoned by
anticipation any mischief arising from
the reasonable use of such power.”

Wayne & S. Ry. Co., (Ind. App.) 100
N. E. 309.

49. Citizen’s Telep. Co. v. Ft.
Wayne & S. Ry. Co., (Ind. App.) 100
N. E. 309.

50. Cumberland Teleg. & Telep. Co.
v. United Ry. Co., 42 Fed. 273, 3 Am.
Elect]. Cas. 408, 12 L. R. A. 544,
528 Law or ELecrricity.

and then the question was presented to the state court of
last resort as to who should pay the expense of the appli-
ances." The court held that the induction was to be
remedied at the expense of the telephone company; that
the street railway company should pay the cost of obviating
the conduetion; and that, as to wires and lines which actu-
ally came in contact, the street railway should bear the
expense of their separation, as it should have constructed
its lines so as not to come in.contact with those of the
telephone company.”

Sec. 357. Telephone or Telegraph Versus Street Railway
Company; Neglignce of Street Railway Company.

Whatever the strict legal rights of the parties may be
in the absence of negligence, it is clear that a street railway
is liable to a telephone or telegraph company for any
injuries caused by a negligent construction or operation of
its system. The cases cited in the foregoing sections
indicate that at the time of their decision it was thought
that the escape of electricity so as to cause conduction or
induction was not, of itself, actionable negligence. This
may now be true, for in a recent cause it was said: ‘‘ It
cannot be said that the mere fact that appellee [a railway
company] conducted its line of railroad with its high

51, Cumberland Teleg. & Telep. (Wis.) 3 Am. Electl. Cas. 383. “An

Assoc. v. United Elec. Ry. Co., 93
Tenn. 492, 4 Am. Elect]. Cas. 297, 29
S. W. 104, 27 L. R. A. 236.

52. Cumberland Teleg. & Telep.
Assoc. v. United Elec. Ry. Co., 93
Tenn. 492, 4 Am. Hlectl. Cas. 297, 29
S. W. 104,27 L. R. A. 236.

53. Birmingham Traction Co. v.
So. Bell Telep. & Teleg. Co., 119 Ala.
144, 7 Am. Elect]. Cas. 405, 24 So.
731; Central Penn. Telep. & Supply
Co. v. Wilkesbarre, ete., Ry. Co., 11
Pa. Co. Ct. 417, 4 Am. Hlectl. Cas.
260; Rocky Mountain Bell Telep. Co.
v. Salt Lake City R. Co. (Utah) 3
Am. Elect]. Cas. 350; Wisconsin
Telep. Co. v. Eau Claire St. R. Co.,

electric passenger railway company is
bound to use reasonable care and
prudence in placing its wires and
poles, and to adopt all ordinary and
usual appliances and methods to pre
vent contact between its trolley and
feed wires and the wires of a tele-
phone company stretched along or
across the same highway. An electric
company, failing to exercise this de-
gree of care, may be restrained, by
injunction, from operating its line
until this defect in construction is
remedied.” ‘Central Penn. Telep. Sup-
ply Co. v. Wilkesbarre & West Side
Ry. Co., 11 Pa. Co. Ct. 417, 4 Am.
Electl. Cas. 260.
‘

INTERFERENCE WITH ELECTRICAL CURRENTS. 529

voltage system of electricity necessary to propel its cars
in close proximity to appellant’s wires, on a public highway,
when it might have been constructed elsewhere, would of
itself constitute an act of negligence.** However, as scien-
tific knowledge of the control of electric currents increases,
a greater burden is necessarily imposed upon street railway
companies to confine their currents within proper bounds.
The question of negligence in the selection of appliances
depends upon the fact whether one has made use of the
means which, in the progress of science and improvement,
have been shown by experience to be the best. He is not
bound to experiment with recent inventions not generally
known.*. But, though the courts would now reach the same
conclusion, this does not show that there will not come a
time when such injuries will be deemed prima facie evi-

dence of the street railway company’s negligence.™

54, Citizen’s Telep. Co. v. Ft.
Wayne & S. Ry. Co., (Ind. App.) 100
N. E. 309.

55. “The substance of all the cases
we have met in our examination of
this question — and we have cited but
a small fraction of them— is that,
where a person is making lawful use
of his own property, or of a public
franchise, in such a manner as to
oceasion injury to another, the ques-
tion of his liability will depend upon
the fact whether he has made use of
the means which, in the progress of
science and improvement, have been
shown by experience to be the best;
but he is not bound to experiment
with recent inventions, not generally
known, or to adopt expensive devices,
when it lies in the power of the per-
son injured to make use himeelf of
an effective and inexpensive method of
prevention.” Cumberland Teleg. &
Telep. Co. v. United Ry. Co., 43 Fed.
273, 3 Am. Elect]. Cas. 408, 12 L. R.
A. 544.

56. “It is quite possible too, that
the legal obligations of the parties

34

may change with the progress of in-
vention, and the duty of surmounting
the difficulty ‘be thrown upon one
party or the other, as a cheaper or
more effectual remedy is discovered.
For example, if it were shown that
by the use of a certain device the de-
fendants could control their return
current in such a way as not to inter-
fere with the use of complainant’s in-
struments, the law might treat their
failure to adopt such measures as
negligence in the use of their fran-
chise, and enjoin them, or hold them
liable for all damages sustained by
the complainant. If, upon the other
hand, the difficulty can be better con-
trolled by a device applicable to tele-
phones, it might be incumbent upon
the complainant to adopt it, leaving
the courts to settle the further ques-
tion, whether the expense of so doing
is recoverable of the defendants. We
are thus compelled to consider this
case with reference to the present
state of the art, and with the pos-
sibility, that in another year circum-
stances may so change as to reverse
530 Law or Etecrricity.
Sec. 358. Telephone or Telegraph Versus Street Railway
Company; Contact of Lines.

Even the courts which permit a street railway company
to come into a street and compel a telephone or telegraph
company to protect its lines at its own expense, have not
sustained the right of the railway to string its wires so as
to come in actual contact with the telephone wires. If such
course were necessary, no doubt, under the doctrine enunci-
ated by the courts of New York and Ohio, the telephone
company would be required to move its wires to conform
to the necessities of the railway.’ But if the railway can
construct its line without serious inconvenience so as to
avoid the danger of contact with telephone or telegraph
wires, reason compels it to do so.** Whether this doctrine
is founded upon the inviolability of the telephone or tele-
graph franchise, or upon the theory that the construction
is a negligent act, is not important. The rule is adopted
that a street railway company cannot construct its lines
in such proximity to telephone or telegraph wires already
lawfully upon the street that there is danger of actual
contact.”

Sec. 359. Telephone or Telegraph Versus Street Railway
Company; Effect of Municipal Rgulations.
Where two or more different companies are maintaining
wires and poles within a city or village, such municipality,
under its police power, has the right to regulate the erection

completely the legal obligations of the
parties. Indeed, since the litigation
between the telephone companies and
the electric railway companies origi-
nally began, considerable progress has
been made towards a solution of the
problem.” Cumberland Teleg. &
Telep. Co. v. United Ry. Co., 42 Fed.
273, 3 Am. Electl. Cas. 408, 12 L. R.
A. 544,

57. Central Penn. Telep. & Supply
Co. v. Wilkesbarre & West Side Ry.
Co., 11 Pa. Co. Ct. 417.

58. Central Penn. Telep. & Supply
Co. v. Wilkesbarre & West Side Ry.
Co., 11 Pa. Co. Ct. 417.

59. Birmingham Traction Co. v. So.
Bell Telep. & Teleg. Co., 119 Ala. 144,
7 Am. Electl. Cas. 405, 24 So. 731;
Central Penn. Telep. Supply Co. v.
Wilkesbarre & West Side Ry. Co., 11
Pa. Co. Ct. 417, 4 Am. Electl. Cas.
260; Cumberland Teleg. & Telep.
Assoc. v. United Elec. Ry. Co., 93
Tenn. 492, 4 Am. Electl. Cas. 297, 29
S. W. 104, 27 L. R. A. 236.
531

INTERFERENCE WITH HLECTRICAL CURRENTS.

and guarding of their appliances.** Duties may be imposed
upon the companies which will change their strict legal
rights. For example, a municipality may require that a
street railway company erect guard wires so as to prevent
interference whenever its lines cross those of a telephone
company. Such a regulation may be enforced by the tele-
phone company by writ of mandamus.”

Sec. 360. Telephone or Telegraph Versus Street Railway
Company; Remedy by Injunction.

If a telephone or telegraph company’s rights are
infringed or threatened to be infringed, and no other
adequate remedy is apparent, no doubt it would be pro-
tected by injunction. But injunction is a drastic remedy
when it is sought to stop the operation of a railway, and
the failure of such companies to succeed when seeking to
prohibit the operation of a street railway company, has
been thought to be due, at least partially, to the remedy
sought.” If a telephone or telegraph company can avoid
the interference by mechanical devices, there is justice in
compelling it to install such devices, and subsequently, if
its legal rights have been infringed, permitting it to recover
of the street railway company the cost of the installation
of the necessary devices.” If its legal rights are infringed

60. See §§ 327-329.

61. ‘State ex rel. Wisconsin Telep.
Co. v. Janesville St. R. Co., 87 Wis.
72, 4 Am. Electl Cas. 289, 57 N. W.
970, 22 L. R. A. 759, 41 Am. St.
Rep. 73.

62. Cumberland Teleg. & Telep.
Assoc. v. United Elec. Ry. Co., 93
Tenn. 492, 4 Am. Elect]. Cas. 297,
29 S. W. 104, 27 L. R. A. 236.

The right to damages has been de-
nied as well as the right to an injunc-
tion. Bell Telep. Co. v. Montreal St.
R. Co., 10 Quebec Superior Ct. (Can.)
162,

63. “It is the duty of every per-
son to employ all reasonable means
to protect himself and any valuable

right that he may possess from in-
jury if he wishes to hold any other
person responsible for the loss that
he causes. A person in the enjoy-
ment of a valuable right of property
or otherwise about to receive irrep-
arable injury from the enjoyment of
some other right by another, which
either might prevent by the use of
reasonable means, cannot obtain any
injunction restraining the other from
the enjoyment of his right until he
adopts such reasonable means. In

‘such a case a party about to be in-

jured holds the remedy in his own
hands and the law requires him to
use it; he can claim nothing on ac-
count of his own wrong. Anybody
532 Law or HELectricity.

and it is thereby compelled to change the location of its
lines to avoid contact or to adopt devices to prevent con-
duction, it may recover the expense from the street railway
company. Before the street railway system is con-
structed, an injunction by a telegraph or telephone com-
pany may be refused on the ground that it does not appear
that there is any probable danger from the construction
of the railway system.** Injunction may be issued to
restrain a railway from unlawfully maintaining its wires
in such proximity as to cause contact with the wires of a
telephone company.”

Sec. 361. Telephone or Telegraph Versus Street Railway
Company; Telephone or Telegraph Line Not Along
Highway.

In the foregoimg sections, the respective rights of an
electric railway and a telephone or a telegraph company
have been discussed upon the theory that both companies
were maintaining their lines along a public highway. Such
is usually the situation. When such is not the case, but
one or both companies are operating their lines upon
private property, the question of which use is subservient
to the other does not arise. In an English case coming
before the Privy Council on appeal from the Supreme
Court of the Cape of Good Hope, it appeared that the
operation of a submarine cable at Cape Town had been
interfered with by the use of electricity as the motive power
of atramway. The court held that the doctrine of Rylands
v. Fletcher™ was applicable to electricity accumulated on

may enjoin the negligent use of a
right by another about to cause ir-
teparable injury to the enjoyment of
his own right which he has used due
care to protect. Rocky Mountain Bell
Telep. Co. v. Salt Lake City R. Co.
(Utah) 3 Am. Electl. Cas. 356.

64, Cumberland Teleg. & Telep.
Assoc. v. United Elec. Ry. Co., 93
Tenn. 492, 4 Am. Elect]. Cas. 297, 29
S. W. 104, 27 L. R. A. 236; Central
Penn. Telep. & Supply Co. v. Wilkes-

barre & West Side Ry. Co., 11 Pa.
Co. Ct. 417, 4 Am. Elect]. Cas. 260.

65. East Tenn. Telep. Co. v. Chat-
tanooga, (Tenn.) 2 Am. Electl. Cas.
323; Rocky Mountain Bell Telep. Co.
v. Salt Lake City R. Co., (Utah) 3
Am. Electl. Cas. 350.

66. Birmingham Traction Co. v. So.
Bell Telep. & Teleg. Co., 119 Ala. 144,
7 Am. Elect]. Cas. 405, 24 So. 731.

67, In Rylands v. Fletcher, L. R.
2 8 L. Cas. 330, it was held that,
INTERFERENCE WITH ELECTRICAL CURRENTS. 533
one’s premises, but that the doctrine of that. case did not
apply to damages caused to the operation of the cable by
the electricity passing along the sheathing thereof and caus.
ing induction, where the cable company could have remedied
the difficulty by laying a twin-core cable a few miles out
from land. In an Indiana case it appeared that an inter-
urban railway line paralleled that of a steam railroad, and
that the use by the interurban railway of a powerful cur-
rent of electricity interfered with the telegraph and signal
wires of the railroad company. It was held that, no negli-
gence of the interurban railway being shown, the operation
of its road would not be enjoined. In another Indiana
case it appeared that, after a telephone company had
procured a right of way for its line over certain premises,
an interurban electric company purchased the land for its
right of way. The telephone company, being required to
change its line, was permitted to recover the expense thereof

where the owner of land brings upon
his lands anything which would not
naturally come upon it, and which is
in itself’ dangerous, and may become
mischievous if not kept under proper
control, though in so doing he may
act without personal wilfulness or
negligence, he will be liable in dam-
ages for any mischief thereby occa-
sioned. That particular case was one
where a land. awner had constructed
a large reservoir which broke caus-
ing another’s: premises to be dam-
aged. In United. States, the doctrine
of Rylands.v. Fletcher is not gen-
erally followed either in connection
with water. reservoirs. or electrical
currents.

68. Lake Shore, ete., R. Co., v. Chi-
cago, ete.,.Ry: Co., 48 Ind. App. 584,
7 St. Ry: Rep. 127, 92 N. E. 989, 95
N. E. 596, wherein it, was said: “ Here
we have: two adjoining owners, using
their property for the same general
purposes,, and’ each exercising’ an un-
doubted legal: right, and neither

charged with negligence, unskillful-
ness or malice. They belong to that
class of owners as legislative em-
powered non-natural or extraordi-
nary users. of land. The: peculiar ap-
paratus in use by one is said to be
rendered. less, efficient. by the escaping
electric. currents from the appliances
in use by the other, but no tangible
or sensible injury to person or prop-
erty of the complainant: is shown.
There are so many exceptions which
must be recognized when formulating.
any general rule defining. the respec-
tive rights. of such owners im the use
of. their property that very few
courts: have: attempted: to. formulate
such a rule. without the element. of
negligence, unskillfulness,. or malice.
So the courts: in this country, con-
trary to the principle: of Fletcher v;
Rylands, are- agreed im holding: the
owner of land: under the. facts here
appearing: responsible: for the conae-.
quences of such user only when they
result, from the owner’s negligence.”
534 Law or Etecrricity.

from the railway.” This decision, though apparently con-
trary, is justified under the law of Easements. ‘The inter-
urban company owned the land subject to the easement of
the telephone company and could not, under the general
principles of the law of Easements, abridge the use of the
telephone easement.

Sec. 362. Telephone or Telegraph Versus Electric Com-
pany; in General.

A. telephone or telegraph company having the prior
lawful occupancy of a highway is entitled to continue its
possession unmolested from interference by an electric
company engaged in furnishing lights and power to private
individuals.” The subsequent occupant must not place its
wires so close to the wires of the prior occupant that they
are likely to come in contact, or to cause induction.” If there
are but two companies to use the street, their lines should
be placed on opposite sides thereof, if such practice is
necessary. The possibility of an electric company having
a superior right on account of its lighting the highways
has been intimated, but never actually sustained.” If such

69. Indianpolis, etc., Tract. Co. v.
Arlington ‘Telep. Co., 47 Ind. App.
657, 95 N. E. 280.

70, Central Union Telep. Co. v. City
of Conneaut, 167 Fed. 274, 93 C. C. A.
196; Western Union Teleg. Co. v.
Los Angeles, 76 Fed. 178, 6 Am.
Electl. Cas. 202; Western Union
Teleg. Co. v. Guernsey, etc., Light Co.,
46 Mo. App. 120, 3 Am. Electl. Cas.
425; Bell Telep. Co. v. Belleville Elec.
L. Co., 12 Ont. (Can.) 571.

As between a telegraph company
entitled to use highways by authority
of its acceptance of the post-roads
act of Congress of 1866, and a com-
pany organized for and engaged in
the business of furnishing electric
light and power, the former, having
prior occupancy of « street, has the
superior right. So held in an action

for equitable relief against the oper-
ating of wires so as to cause injury
by induction. Western Union Teleg.
Co. v. Los Angeles Elec. Co., 76 Fed.
178, 6 Am. Electl. Cas. 202.

Judicial notice—The courts will
take judicial notice that an electric
lighting wire so placed that it some-
times comes in contact with a tele-
phone wire is dangerously near. Cen-
tral Union Telep. Co. v. City of Con-
neaut, 167 Fed. 274, 93 C. C. A. 196.

71. Paris Elec. L. & Ry. Co. v.
Southwestern Teleg. & Telep. Co.,
(Tex. Civ. App.) 5 Am. Electl. Cas.
262, 27 S. W. 902; Bell Telep. Co. v.
Belleville Elec. L. Co., 12 Ont. (Can.)
571.

72. Western Union Teleg. Co. v.
Los Angeles, 76 Fed. 178, 6 Am.
Electl. Cas. 202.
535

INTERFERENCE WITH HLECTRICAL CURRENTS.

is the case, the priority extends only to companies engaged
strictly in public lighting, or to poles and wires necessary
for the public service. If the electric company is first in
the field, a subsequent telephone or telegraph company can-
not complain of the interference of their respective lines.”
The first occupant has a decided advantage in litigation
‘relative to the conflicting uses of electricity. But the first
company upon a street must not occupy any more thereof
than is reasonably sufficient for its present and anticipated
needs ;* it will not be permitted to occupy both sides of
the street, when one is sufficient.”

Sec. 363. Telephone or Telegraph Versus Electric Com-
pany; Negligence.

It has been held that an electric company is not neces-
sarily guilty of negligence in placing its, line carrying
20,000 volts of electricity within three feet of a telephone
line.”*

Sec. 364. Telephone or Telegraph Versus Electric Com-
pany; Conduits.

In an action by a telegraph company to restrain a tres-
pass by an electric company, based on the interference of
their respective conduits, the plaintiff is not entitled to any
relief, where it is shown that the defendant’s conduit does
not materially affect the use of the telegraph wires, and
the only difficulty arising from the presence of the defend-
ant’s conduit is slight trouble and expense when plaintiff
is excavating for repairs to its conduit.”

73. Nebraska Telep. Co. v. York
Gas & Elec. Co., 27 Neb. 284, 3 Am.

76. Brown v. Northern Cal. Power
Co., 14 Cal. App. 651, 114 Pac. 74.

Electl. Cas, 364, 43 N. W. 126.

74, Western Union Teleg. Co. v.
Guernsey, etc., Light Co., 46 Mo. App.
120, 3 Am. Electl. Cas. 425; Bell
Telep. Co. v. Belleville Elec. L. Co.,
12 Ont, (Can.) 571.

75. Bell Telep. Co. v. Belleville
Elec. L. Co., 12 Ont. (Can.) 571.

77. Western Union Teleg. Co. v.
Syracuse Elec. L. & P. Co., 178 N.Y.
325, 70 N. E. 866, wherein it was
said: “All that the plaintiff can
lawfully demand is that its structure
shall not be unreasonably interfered
with. This is involved in the terms
of its grant, when construed in the
536 Law or HELecrricity.
Sec. 365. Telephone or Telegraph Versus Electric Com-
pany; Injunction.

Where the prior occupancy of a telephone or telegraph
company is threatened to be molested by an electric com-
pany, and material injury appears to be a certain or prob-
able result, not a mere probability of the electric com-
pany’s acts, the telephone or telegraph company may have
relief by injunction.”® If injury from the proximity of
wires is not reasonably to be anticipated, an injunction will

not be granted.”

light of all the facts. It cannot keep
out other structures, even if their
construction involves expense and in-
convenience to itself. It cannot say
there shall be no subway above, be-
neath or on either side of its own.
* * * The city cannot destroy the
plaintiff’s line nor prevent reasonable
access to it, but it is not obliged to
consult the mere convenience of the
plaintiff, nor study to save it from
expense to the detriment of the pub-
lic. In other words, the plaintiff
may make a reasonable, but not an
unreasonable, use of the right
granted. While the city could not
grant to another the right to use the
same space occupied by the plaintifi’s
line, it could authorize the use of any
other space, provided access to the
line was left open, even if it was less
convenient and more expensive.”
78. Western Union Teleg. Co. v.
Los Angeles Elec. Co., 76 Fed. 178,
6 Am. Electl. Cas. 202; Western
Union Teleg. Co. v. Guernsey, etc.,
Light Co., 46 Mo. App. 120, 3 Am.

Elect], Cas. 425; Western Union
Teleg. Co. v. Champian Elec. L. Co.,
9 Ohio S. & C. P. Dec. 541, 1 Am.
Electl. Cas. 822, 14 Week. Law. Bull.
327; Paris Elec. L. & Ry. Co. v.
Southwestern Teleg. & Telep. Co.,
(Tex. Civ. App.) 5 Am. Electl. Cas.
262, 27 8. W. 902. “Any unauthor-
ized threatened invasion of such
rights of the plaintiff in so operating
its system of telegraphy would be
unlawful, and if it materially injuri-
ously affected the same, destroyed
or impaired its property, a court of
equity would be justified in prevent-
ing the same by the extraordinary
remedy of injunction, upon the prin-
ciple that private property cannot
be taken except in accordance with
law and after compensation is made
therefor.” Western Union Teleg. Co.
v. Champian Elec. L. Co., 9. Ohio S.
& C. P. Dee. 541, 1 Am. Electl. Cas.
822, 14 Week. Law Bull. 327.

79. Nebraska Telep. Co, v. York
Gas & Elec. Co., 27 Neb. 284, 3 Am.
Electl. Cas. 364, 43 N. W. 126.
Inzunizs to Linzs. 037

CHAPTER XIX.

INJURIES TO LINES.

SECTION 366. In General.
367. Criminal Liahility.
368. Removal of Wire Crossing Railroad Track.
369. Moving Building along Street; Moving Building an Extraor-
dinary Use of Street.

 

 

 

370. Injury to Street Railway Line.

371. —— Injury to Electric Line.

372. Injury to Telephone Line.

373. Negligence of Building-Mover.

374. -—— State or Municipal Regulation of Building Moving.
375. —— Injury from Wires to Person Moving Building.

376. —— Contract to Move Wires.

Sec. 366. In General.

While the preceding chapter relates to the rights and
liabilities arising from the interference of electrical cur-
rents of two or more corporations, this chapter relates to
physical injuries to poles, wires, and other appliances. In
this connection, it is to be noted that in the chapter on
Conduits, the right of action for injuries to underground
lines is discussed.t There can be no question but that,
if one wrongfully interferes with the poles or wires of
a public service corporation, he is liable for all damages
occasioned by such. wrongful act.? If the acts are done
maliciously or wantonly, punitive damages may also be
given to the owner of the line.* If poles and wires are
strung along a municipal street without authority, they
constitute a nuisance which may be abated by the munici-
pality.* The officers and agents of the municipality may
remove the same and are not liable, except for injuries

1. § 347. 3. International & Great, Northern
2. Electric Power Co. v. Metropoli- Railroad Co. v. Telephone and Tele-
tan Telep. & Teleg. Co, 75 Hun graph Co., (Tex.) 21 Am. & Eng.
(N. Y¥.) 68, 4 Am. Electl. Cas. 649, Corp. Cas. 62,.2 Am. Electl. Cas. 879..
27 N. Y. Supp. 23, 57 N. Y. St.. Rep.. 4, § 430.
57; affirmed, on opinion below, 148
N. Y. 746, 43 N. E. 986,
538 Law or Hxectricity.

arising from an abuse of their power of removal.’ More-
over, it has been held that an abutting owner may abate a
wire maintained over the sidewalk without authority.®
Though one has the right to remove poles and wires, he
must not convert the property, after removal, to his own
use. The unlawful maintenance of appliances on one’s
land does not authorize the conversion of such appliances.”

Sec. 367. Criminal liability.

An unlawful intentional injury to wires, poles, or other
appliances of an electric or other public service corporation
is, by the Penal Code of most states, made a criminal

offense.®

5. Coverdale v. Edwards, 155 Ind.
374, 7 Am. Elect]. Cas. 15, 58 N. E.
495; Electric Power Co. v. City of
New York, 29 Misc. (N. Y.) 48, 60
N. Y. Supp. 590.

In the absence of regulations fixing
the height at which wires should be
placed, municipal authorities have no
right to molest the wires of a tele-
graph company, strung across the
streets, but suspended from poles
standing on private land; so long as
they do not interfere with the free
use of the streets for purposes of
travel. American Union Teleg. Co.
v. Town of Harrison, 31 N. J. Eq.
627, 1 Am. Electl. Cas. 291.

6. Paterson Ry. Co. v. Grundy, 51
N. J. Eq. 213, 4 Am. Elect]. Cas. 173,
26 Atl, 788.

7. Electric Power Co. v. Metro-
politan Telep. & Teleg. Co., 75 Hun
(N. Y.) 68, 4 Am. Elect]. Cas. 649,
27 N. Y. Supp. 93, 57 N. Y. St. Rep.
57; affirmed on opinion below, 148
N. Y. 746, 43 N. E. 986; Electric
Power Co. v. City of New York, 29
Mise. (N. Y.) 48, 60 N. Y¥. Supp.
590.

8. State v. McCallister, 7 Pen.

The legislature, in its discretion, may make the
offense either a felony or a misdemeanor.°

Under the

(Del.) 301, 76 Atl. 226; Alt v. State,
88 Neb. 259, 129 N. W. 432, 35
L. R. A. (N..S.) 1212; Craighead v.
State, (Tex. Cr.) 47 S. W. 128.

“Tapping wire.”"—It has been
held that the mere “tapping” of a
telephone wire without injuring it
or rendering conversation more diffi-
cult or indistinct is not “ damaging ”
a line as those words are used in a
criminal statute. State v. Nords-
kog, 76 Wash. 472, 136 Pac. 694.

Evidence—In a prosecution for
malicious injury to a telephone wire
connecting farm houses, testimony
that defendant, when told that if
he did not yield to an increased rate
his telephone would be removed,
threatened that if the company cut
off his service he would “show them
a good time getting by his phone,”
was competent, both upon the issue
of malice and as tending to prove
the commission of the offense. State
v. Brotzer, 245 Mo. 499, 150 S. W.
1078.

9. See Ex parte Cannon, (Cal.) 138
Pac. 740; State v. Brotzer, 245 Mo.
499, 150 S. W. 1078; State v. McKee,
126 Mo. App. 524, 104 S. W. 486.
Insvunites to Liss. 539
penal statutes of some jurisdictions, it is not essential to
constitute the offense that the injury be done with an evil
motive or purpose; it is sufficient if done wilfully and with-
out right..° Under a penal statute forbidding the removal
or obstruction of any line of telegraph or the severing of
any wire thereof, a criminal prosecution will lie, it has been
held, for the cutting or destruction of telephone wires." In
some jurisdictions the unlawful tampering with an electric
light meter is made a criminal offense.’

Sec. 368. Removal of Wire Crossing Railroad Track.
The crossing of a steam railroad by an electric or other
line may, if the line is not sufficiently elevated, cause an
injury to railroad employees riding on the top of its cars,
for which injury the railroad may be liable in damages."
But, if such a line is maintained along a public highway

10. McGowan v. State, 146 Ala.
679, mem., 40 So. 142.

11. Davis v. Pacific Telep. & Teleg.
Co., 127 Cal. 312, 59 Pac. 698.

“Telephone” as “ Telegraph.— In
another place is discussed the ques-
tion whether a “telephone” is a
“telegraph” as the latter term is
used in certain statutes. See § 11.

12. Electric light meter.— Upon
the trial of an indictment under the
Act of March 22, 1899 (P. L., p. 210,
ce. 85), which charged the defendant
with having unlawfully tampered
with the meter of an electric light
company which supplied him with
electric light, thereby preventing the
meter from recording or measuring
the full amount of the current sup-
plied to him, fixing the date of the
offense September 3, 1902, it was
satisfactorily proven that on the day
named the meter was found to have
been tampered with by removing the
seal and inserting a pin between the
disc and magnets, so that, although
the current was passing to the lights
which were burning, the dise did

not rotate and cause the current to
be recorded or measured, as it was
its office to do, so that the only ques-
tion left for the jury was as to
whether the defendant had been con-
nected with the tampering with the
meter. The defendant offered to
prove by the books of the company
the amounts charged to him during
the years 1901, 1902, and 1903 with
the purpose of showing the absence of
any discrepancy in the amount
charged for the month during which
the tampering occurred, and also for
the purpose of affecting the credibil-
ity of a witness for the state. The
offer was overruled by the trial judge.
Held, on error, that the evidence
offered, if relevant at all, bore so re-
motely upon the issues involved, that
its admission or rejection was with-
in the discretion of the trial judge,
so that its rejection was no ground
for reversal. State v. Block, 70
N. J. L. 398, 9 Am. Electl. Cas. 48,
57 Atl. 391.
18. § 309.
540 Law or ELEcTRICITY.

pursuant. to a valid franchise, if it does not obstruct the
railroad right of way or endanger the safety of railroad
employees, the railroad may not consider it a nuisance and
remove it.* And it has been held that the fact that the
rights of the railroad at the crossing were not condemned
by the owner of the line before the construction thereof,
does not. authorize the employees of the railroad to cut the
wire.’* In another case it was held that, while an electrical
street railway company has no right to string its wires
across a steam railroad track at such height as to interfere
with the proper,operation of the railroad company, and the
latter would in case of neglect or refusal of the former to
place its wires at the proper height have a right to remove

14, Alt v. State, 88 Neb. 259, 129
N. W. 482, 35 L. R. A. (N. 8.) 1212;
St. Louis, etc., Ry. Co. v. Batesville,
ete., Telep. Co., 80 Ark. 499, 97 8. W.
660. “When defendant cut the
wires in the public highway, they
were not obstructing trains or en-
dangering railroad employees. If the
rights or property of the railroad
company were invaded by the tele-
phone company, as suggested by de-
fendant, the courts were open for the
purpose of granting adequate relief.
Under the facts disclosed by the
record, the protection of those rights
did not justify a resort to violence
or require the destruction of prop-
erty which was at the time on a
public highway and being used in
the public service.” Alt v. State,
88 Neb. 259, 129 N. W. 432, 35
L. R. A. (N. S.) 1212.
line is a public utility;
and its public importance is recog-
nized by clothing it with the power
of eminent domain, and giving it. the
free use of the State’s highways.
* * * Therefore it follows that.
the railroad company, taking the
view of the law most favorable to it
under the evidence accredited by the
jury, was not authorized to remove
the line of telephone from its right

* #

“A telephone.

of way, and therefore it was liable
for damages for so doing.” St. Louis,
ete., Ry. Co. v. Batesville, ete., Telep.
Co., 80 Ark. 499, 97 S. W. 660.

15. McGowan v. State, 146 Ala.
679, mem., 40 So. 142, wherein it
was said: “The theory of the de-
fense was, and is, that, as the owner
of the telephone line, without the
consent of the railroad company, and
without condemnation proceedings,
had crossed the right of way of the
railroad company, the railroad com-
pany had the right to cut and re-
move the wire, and its employees act-
ing under its instructions could there-
fore be guilty of no offense. The
facts in the case will not justify such
defense. The telephone line as con-
structed created no obstruction to
the railroad company in the opera-
tion of its road, and if it should be
conceded that the owner of the tele-
phone line violated the property
rights of the railroad company, in
erecting the telephone line without
first having obtained consent, or hav-
ing taken condemnation proceedings,
this would not authorize the -defend-
ant, under the instructions of the
railroad company, to take the law
into his, own hands, in plain violation
of the statute.”
Inzvunies to Lrvygs. 541
or raise the same, yet this must be done with due regard to
the business of the street railway company and so as to do
as little harm as possible; and where the railroad cuts
such wires when the line is in full operation in the daytime,
although there were several hours in each night when the
wires might have been raised or removed without injury to
the business or property of the street railway company, it
is guilty of trespass ab witio, and becomes liable for all
damages caused to the street railway company.”

Sec. 369. Moving Building Along Street; Moving Building
an Extraordinary Use of Street.

The right of a person to move a building along a highway
is not the same as his right to travel upon such highway in
any of the ordinary methods. The moving of a building
is an extraordinary, not an ordinary, use of a highway."

16. Saginaw Union St. Ry. Co. v.
Michigan Central R. Co., 91 Mich.
657, 4 Am. Electl. Cas. 243, 52 N. W.
49.

17. United States— Edison Elec.
L. & P. Co. of St. Paul v. Bloom-
quist, 185 Fed. 615.

Indiana— Williams v. Citizen’s
Ry. Co., 130 Ind. 71, 29 N. E. 408.

Iowa.— Ft. Madison St. Ry. Co.
v. Hughes, 137 Iowa 122, 6 St. Ry.
Rep. 253, 114 N. W. 10.

Minnesota.— Edison Elec. L. & P.
Co. of St. Paul v. Bloomquist, 110
Minn. 163, 124 N. W. 969, 125 N. W.
895.

New Jersey. Millville Tract. Co.
v. Goodwin, 53 N. J. Eq. 448, 5 Am.
Electl. Cas. 23, 32 Atl. 263.

North Dakota— Northwestern
Telep. Exch, Co. v. Anderson, 12
N. Dak. 585, 98 N. W. 706, 65 L.R. A.
771, 102 Am. St. Rep. 580.

“The use of the streets for moving
houses is not, however, a usual, but
is rather an extraordinary one. It
does not pertain to the primary right
to the use of the streets for travel
or other public uses. The public de-

rives no benefit therefrom generally.
Such extraordinary use of the street
may, however, be permitted as a
favor, under restrictions safeguard-
ing the rights of the public to the
street in certain cases, as necessity
may require.” Northwestern Tel.
Exch. Co, v. Anderson, 12 N. Dak.
585, 98 N. W. 706, 65 L. R. A. 771,
102 Am. St. Rep. 580. ;

A contrary view.—In Telegraph
Co. v. Wilt, 1 Phila. (Pa.) 270, 10
Pa. Law J. 375, 8 Leg. Int. 238, it
was held that a person moving a
house along a street had a right to
move a telegraph wire which was in
the way without liability to the tele-
graph company. The court said:
“The act of the defendant in mov-
ing a house, was a lawful one; he
had a right to the use of the highway
for his lawful business, usque ad.
coelum. The legislature certainly
could not have intended to have re-
stricted this common right without
express words. The company, there-
fore, seem subject to the contingency,
of such a use of the highway if they
do not take care to place their wire.”
042 Law or Etecrricity.

Though an extraordinary use of the highway, in the
absence of statute or municipal regulation prohibiting it,
it is thought one has a right to move a building through
the streets, subject to the rights of the owners of wires
and other persons using the highways for primary pur-
poses.** But it has been said that one has no right to move
a house along a municipal street without permission from
the municipal authorities.”

Sec. 370. Moving Building Along Street; Injury to Street
Railway Line.

Though the moving of a building is not a primary use
of a highway, the contrary is true of the operation of a
street railway system. An electric trolley is deemed a
new method of facilitating public travel. The moving of
buildings, if permitted at all, being a use of the highway
subservient to the use by street railway, in the absence

-of statute or municipal regulation on the subject, the build-
ing-mover is liable for all damages which he causes to the
street railway system.” The constitutional protection of
the street railway franchise forbids injury to its system

18. Northwestern Telep. Exch. Co.
v. Anderson, 12 N. Dak. 585, 98
N. W. 706, 65 L. R. A. 771, 102 Am.
St. Rep. 580. “And there is no doubt
but that one desiring to change the
location of a house or other structure
may move it along a public street,
providing the conditions of the street
are such that this may be done with-
out injury to others having a prior
right thereto, and providing further,
that this does not by interfering with
travel become a nuisance.” Ft. Mad-
ison St. Ry. Co. v. Hughes, 137 Iowa
122, 6 St. Ry. Rep. 253, 114 N. W. 10.

19. Edison Elec. L. & P. Co. of
St. Paul v. Bloomquist, 110 Minn.
163, 124 N. ‘W. 969, 126 (N. W. 895.

20. “ Where the use of the street
has been lawfully appropriated in so
far as essential for the operation

thereon of an electric street railway,
one of the modern conveniences of

-travel and transportation, there is no

tenable ground for demanding that
its operation shall cease or be unduly
interfered with, or that the value of
its franchise shall be impaired or its
property destroyed to enable another
to make an unusual and extraordi-
nary use of the street in the moving
of houses or other structures over it.
This would be inconsistent with the
franchise granted to which the street
has become subject. The rights of
the defendants to the use of the
street was limited by those of the
company to operate its cars thereon,
and they could not insist upon the
elimination of its franchise rights in
order to give way to them over the
road in moving the house. In other
Inzuries to Linzs.

543

without compensation to the owner.” The liability is not
founded upon negligence, though negligence may enhance
the damages. Moreover, if the street railway company has
received a valid grant of the right to maintain its lines in
the streets, and the building-mover has no governmental
authority for the moving of the building, and it is reason-
ably to be anticipated that the building will cause serious
injury to the street railway system, the moving of the
building may be restrained by injunction.”

words, the defendants had the right
to the use of the street as it was,
with the trolley line in operation, and
not as it would have been had no
franchise been granted by the city of
Ft. Madison; and, as they could not
move the house lengthwise on the
street as they intended without occu-
pying the company’s track, destroy-
ing the trolley line, and interrupting
for a considerable time the operation
of its cars, the jury was rightly in-
structed that they were not entitled
to take the house into that street.”
Ft. Madison St. Ry. Co. v. Hughes,
137 Towa 122, 6 St. Ry. Rep. 253, 114
N. W. 10.

21. § 205.

22. Williams v. Citizens’ Ry. Co.,
130 Ind. 71, 29 N. E. 408; Ft. Madi-
‘gon St. Ry. Co. v. Hughes, 137 Iowa
122, 6 St. Ry. Rep. 253, 114 N. W.
10; Millville Tract. Co. v. Goodwin,
53 N. J. Eq. 448, 5 Am. Electl. Cas.
23, 32 Atl. 263. “The defendants
propose to occupy the highway, not
for the purpose of ordinary travel or
communication, but for the purposes
of removing a very large frame build-
ing, to do which nearly the entire
street is occupied. This, it must be
admitted, is an obstruction of the
street. It certainly interferes more
or less with ordinary travel, but the
question is not whether or not they
may so occupy the street, in case by
so doing they do not become a nui-

sance to others who desire and have
a lawful right to use the streets for
the purposes for which they are estab-
lished, but the question is whether
or not they have a right, in using the
street, to prevent the company from
the full, free and complete exercise of
the franchises with which it is clothed.
I think the statement of the question
brings with it the correct answer.
While all persons ordinarily have a
tight to use the street to the same
extent with the car company, yet they
have no right unduly or unreasonably
to occupy the street, and so to pre-
vent the passage of trains.” Millville
Tract. Co. v. Goodwin, 53 N. J. Eq.
448, 5 Am. Elect]. Cas. 23, 32 Atl.
263.

Action on injunction bond.— Where
a suit by a street railway company to
restrain certain defendants from mov-
ing a house through the street and
thereby obstructing and interfering
with plaintiff’s lines was dismissed,
the defendants, in order to recover on
the bond, must show that they did not
threaten to tear down the overhead
construction or to use the company’s
track as alleged. Ft. Madison St. Ry.
Co. v. Hughes, 137 Iowa 122, 6 St.
Ry. Rep. 253, 114 N. W. 10.

Under municipal permit.— A street
railroad company is not entitled to a
continuance of a temporary injunc-
tion restraining a defendant, who is
preparing to move a house through
544 Law or EL ecrriciry.
Sec. 371. Moving Building Along Street; Injury to Elec-
tric Line.

The occupation of streets by an electric company with
its lines for supplying private individuals with light is not
regarded as favorably as the occupation of a street railway
company. As a general proposition, only so far as its
lines are used for public lighting of the highway, is the
occupation by an electric company considered a primary
use of the highway. But, conceding that the rights of an
electric company and a- house-mover are co-ordinate, it
seems that an electric company should be protected in its
prior occupation, and that if a house-mover desired to move
a building along a highway, he should reimburse the com-
pany for injuries to or the expense of moving its lines.”
Where a house-mover secured a municipal permit to move
a building along certain streets and the permit contained
the restriction, ‘‘ This permit does not allow interference
with wires or any other obstructions,’’ it was held that,
inasmuch as an electric company had been lawfully in pos-
session of the streets with its wires and lamps at the time
of the issuance of the permit, the house-mover’s right to
the use of the streets was limited as provided by the permit,
and he possessed no legal right to interfere with the wires
and lamps for the purpose of moving the building, and that
a trial court was justified in enjoining the interference,
except upon condition that the house-mover give reasonable
‘notice to remove the wires and execute a bond to pay the
reasonable expense thereof.* It is difficult, if not impos-
sible, to reconcile the priority of the electric company with
a rule requiring it to insulate its wires at street crossings

the streets under a municipal permit N. Y. & Penn. Traction Co. v. Still-

from interfering with its wires and
overhead construction, when the in-
junction is vacated upon the condi-
tion that notice be given to the street
railroad company, that it be allowed
to handle the wires and overhead con-
struction by its own servants, and
that the defendant pay all expenses
and damages sustained. Western

man, 143 N. Y. App. Div. 717, 7
St. Ry. Rep. 537, 128 N. Y. Supp.
363,

23. Edison Elec. L. & P., St. Paul,
v. Bloomquist, 185 Fed. 615.

24, Edison Elec. L. & P. Co. of St.
Paul v Bloomquist, 110 Minn. 163,
124 N. W. 969, 125 N. W. 895.
Inguries to Lives. 545
in order to avoid injury to persons moving buildings along
the street. But in one case” such a duty has been imposed
upon an electric company. There are other reasons why
electric wires should be insulated at street crossings.” If
the electric company has no franchise or governmental
permission to maintain its wires in the streets, it cannot
be said to have any rights prior to persons moving build-
ings. In sucha case its wires are a nuisance and the electric
company is clearly liable for injuries to one engaged in
moving a building through the street.’

Sec. 372. Moving Building Along Street; Injury to Tele-
phone Line.

In the chapter on Abutting Owners, it was pointed out that
in some jurisdictions a telephone line is considered a proper
highway use, while in others a contrary view is sustained.”
In those states where it is thought that highways are
designed for communication as well as for physical travel,
a telephone line should be protected from building-movers
in the same way that street railway lines are protected.
This view has been sustained in at least one jurisdiction.”
But the priority of the telephone company has also been
sustained in a state which considers the telephone an addi-
tional burden upon the highway.*® Where, however, tele-

25. Winegarner v. Edison L. & P.
Co., 83 Kan. 67, 109 Pac. 778, 28
L. R. A. (N. 8.) 677.

26. See §§ 510-522.

27. Clough v. Rockingham County
Light & Power Co., 75 N. H. 84, 71
Atl. 223.

28. §§ 284-287.

29. Kibbie Telep. Co. v. Landphere,
151 Mich. 309, 115 N. W. 244, 14
Det. Leg. N. 953, 16 L. R. A. (N. S.)
689.

30. Northwestern Telep. Exch. Co.
y. Anderson, 12 N. Dak. 585, 98 N. W.
706, 65 L. R. A. 771, 102 Am. St. Rep.
580. See also, New York & N. J.
Telep. Co. v. Deixheimer, 11 N. J.
Law Jour. 246. “Our conclusion is

35

that the defendant’s rights to the
street for house-moving purposes were
subordinate to those of the plaintiff;
that plaintiff was given paramount
rights to the streets by virtue of the
ordinance containing no provision for
direct or indirect revocation for pri-
vate purposes; that defendant was a
mere licensee, with privileges to use
the streets in a manner not unreason-
ably interfering with the use of the
streets for traveling purposes, and
without interference with those hav-
ing prior rights to them under ordi-
nances that have ripened into rela-
tions in the nature of contracts
thereby becoming vested rights; that
the use of the streets by defendant
546 Law oF ELecrricity.

phone wires are required by a valid ordinance to be elevated
a certain distance, a lower wire is a nuisance, and may be
cut to permit a person to move a building through the
street.** An injunction will not be issued to enjoin the
moving of a building through a street, where the mover
has a valid permit from the municipal authorities binding
him to pay all damages caused to wires in the streets.”

Sec. 373. Moving Building Along Street; Negligence of
Building-Mover.

Irrespective of the rights of the parties in the absence
of negligence, if a house-mover wilfully or negligently
injures the wires of a company lawfully maintained in the
street, he is liable for the damage. So, too, he may be
liable for personal injuries to travelers upon the highway.
Thus, if the house-mover negligently places a dangerous
wire where a person in the street will come in contact there-
with, in the absence of contributory negligence, he should
respond to the injuries caused thereby.*

Sec. 374. Moving Building Along Street; State or Munici-
pal Regulation of Building Moving.

The street appliances of an electric or other public

service corporation are peculiarly subject to regulation by

for such purposes was not an ordi-
nary, but an exceptional and extraor-
dinary use thereof, out of which the
public as such derives no benefit; that
neither the defendant’s license, nor
the special permit to move this build-
ing, did or could protect him from
liability for damages to plaintiff aris-
ing out of the exercise of the permis-
sion given him to move this build-
ing.” Northwestern Telep. Exch. Co.
v. Anderson, 12 N. Dak. 585, 98 N. W.
706, 65 L. R. A. 771, 102 Am. St.
Rep. 580.

31. New York & N. J. Telep. Co. v.

Deixheimer, 11 N. J. Law J. 246.

32. Southwestern Teleg. & Telep.

Co. v. Thompson, (Tex. Civ. App.)
142 S. W. 1000.

33. Nagle v. Hahe, 123 Wis, 256, 9
Am. Elect]. Cas. 218, 101 N. W. 409.

Evidence that the companies main-
taining wires in the streets had men
at the building as the defendant was
moving it, who took care of the wires,
and that this was the general cus-
tom, is incompetent where the wit-
ness is not shown to have known any-
thing about a general custom. Evi-
dence to show the individual custom
of the defendant is also incompetent.
Nagle v. Hahe, 123 Wis. 256, 9 Am.
Electl. Cas. 218, 101 N. W. 409.
Insurtes to Liss. 547
the state or the municipal divisions thereof.** Their power
over the moving of buildings is even greater, for building-
movers are not given franchises which are protected by the
Constitution. The use of streets for the moving of build-
ings is such an extraordinary use that it may be prohibited
by the municipal authorities. Regulations, relative to,
moving buildings, so far as they impose obligations on the
house-mover are sustainable. Within reasonable limits, as
to obligations imposed on the owner of the wires, they are
likewise sustainable, but they must not be such as will
impair the franchise of the company maintaining the
wires.** A municipality may grant a permit to a person
to move a building through the streets ;** and, if such license
does not purport to place the expense of moving, or the
injury to, wires upon the owner thereof, the owner cannot
enjoin the moving of the building.” The imposition of the
expense on the owner of the wires is generally considered
an impairment of his rights which cannot be made under
the power of regulation.** And it has been thought of no
importance whether the expense was large or small.*

34. §§ 323 et seq.

35. §§ 199 et seq.

36. Indiana Ry. Co. v. Calvert, 168
Ind. 321, 5 St. Ry. Rep. 229, 80 N. E.
961, 10 L. R. A. (N. S.) 780, 11
Ann. Gas. 635; Edison -Elec. L. Co. of
St. Paul v. Bloomquist, 110 Minn.
163, 124 N. W. 969, 125 N. W. 895;
Western N. Y. & Penn. Traction Co.
v. Stillman, 143 .N. Y. App. Div. 717,
7 St. Ry. Rep. 537, 128 (N. Y. Supp.
363.

37. Western N. Y. & Penn. Traction
Co. v. Stillman, 143 N. Y. App. Div.
717, 7 St. Ry. Rep. 537, 128 N. Y.
Supp. 363; Southwestern Teleg. &
Telep. Co. v. Thompson, (Tex. Civ.
App.) 142 S. W. 1000.

88. Northwestern Telep. Exch. Co.
y. Anderson, 12 N. Dak. 585, 98 N. W.
706, 65 L. R. A. 771, 102 Am. St.
Rep. 580; Edison Elec. L. & P. Co. v.
Bloomquist, 185 Fed. 615.

In Indiana, it has been held that a
municipality may pass an ordinance
requiring street railway companies to
lift their wires to permit the moving
of buildings, where the moving of the
building will not cause an unreason-
able interruption in the street railway
traffic or cause an unreasonable ex-
pense. Under such an ordinance, if
the company fails to lift its wires,
they may be moved by the house-
builder. Indiana Ry. Co. v. Calvert,
168 Ind, 321, 5 St. Ry. Rep. 229, 80
N. E. 961, 10 L. R. A. (N. 8.) 780,
11 Ann. Cas. 635. In this case the
damage to the company was fixed at
$87.50, but it was held that the com-
pany must bear it. ;

89. Edison Elec. L. & P. Co. v.
Bloomquist, 185 Fed. 615. “But
whether the damage in a case of this
kind is small or great does not seem
to be the determining factor. If the
548 Law or E.ecrriciry.

A state statute may authorize the cutting or removal of
wires in certain cases for the moving of buildings.*® Such
statutes usually require that notice of a specified time shall
be given to the company of the intention to move the build-
ing. They do not afford any rights to a company main-
taining wires in the streets without a franchise or munic-
ipal consent; such a company is not entitled to a notice of
the moving of the building.**

Sec. 375. Moving Building Along Street; Injury from
Wires to Person Moving Building.

If a building-mover can be deemed to have equal or
greater rights in the streets than a company maintaining
wires therein, the latter is obligated to exercise reasonable
care to avoid injury to persons engaged in the moving of
buildings. Thus, if the company has no franchise for the
maintenance of its lines, a person injured thereby while
moving a structure along the street may recover damages.*

If a person moving a building across a road, with the
consent of the owner of the poles and wires, climbs a pole
to unfasten an intervening wire and is injured by the break-
ing of the pole, the owner of the pole is not liable.**

company can be compelled to move its
wires at expense to itself, it can be
compelled to move its poles. If the
moving of a house through the streets
is a public use of the streets, then
the companies can be made to submit
to any expense, however great.” Edi-
son Elec. L. & P. Co. of St. Paul v.
Bloomquist, 185 Fed. 615.

40. A. M. Richards Building Mov-
ing Co. v. Boston Elec. L. Co., 188
Mass. 265, 9 Am. Electl. Cas. 610, 74
N. E. 350.

41. Clough v. Rockingham County
Light & Power Co., 75 N. H. 84, 71
Atl. 223.

42. Winegarner v. Edison L. & P.
Co., 83 Kan. 67, 109 Pac. 778, 28
L. R. A. (N. S.) 677. See also, ‘Sedl-

meyr v. City of Fitzgerald, 140 Ga.
614, 79 S. E. 469.

43. Clough v. Rockingham County
Light & Power Co., 75 N. H. 84, 71
Atl. 223.

44, Morris v. Rounsaville, 132 Ga.
462, 64 S. E. 473, wherein it was
said: “If it was an act of negli-
gence on the part of the defendants
to erect the poles along the roadside
without authority, or knowingly to
allow the pole to stand along the
roadside in a rotten condition with
reference to persons using the road
as a highway for purposes of travel,
these were not acts of negligence with
reference to one climbing the pole for
the purpose of removing the wire
solely for his own benefit. There was
Insurtes to Linzs. 549
Sec. 376. Moving Building Along Street; Contract to Move
Wires.

The legal rights of a house-mover and a public service
corporation may be modified by their contract. Thus, for
a consideration, an electric or other public service corpora-
tion may agree to move its wires so as to permit a person
to move a building through the streets. If, under such a
contract, the company undertakes to raise the wires, but,
on account of its negligence, damage is caused to the build-
ing, the owner thereof may have a remedy against the
company.* It has been held that, in the absence of author-
ity for that purpose, the president of a street railway
company cannot contract with a person so as to bind the
company to suspend the running of its cars and to cut or
elevate its wires, so that such person may move a large
building upon and along its tracks 111 feet or more, in
order to cross the same.**

no duty on the defendants to keep
their poles in safe condition for per-
sons to climb in order to remove the
wires thereon so as to move a house
across the highway. If the erection
of poles along the highway was with-
out authority, this fact would not
give a right of action to one injured
while climbing the pole for the pur-
pose stated. In order for acts to con-
stitute negligence towards any par-
ticular person, there must be a breach
of duty owing to such person at the

‘particular time and under the par-

ticular circumstances; and to give a
right of action for injuries resulting
from such breach of duty, such negli-
gence must be the proximate cause of
the injuries.”

45. Pearson v. Tri-State Telep. &
Teleg. Co., 111 Minn. 331, 126 N. W.
1091.

46. Millville Tract. Co. v. Goodwin,
53 N. J. Eq. 448, 5 Am. Electl. Cas.
23, 32 Atl. 263.
590

Law or EILEctRIcITY.

CHAPTER XX.
ELECTROLYSIS.

Section 377. Defined.

378. A Question of Minor Importance.

379. Result of Negligence.
380. Function of Courts,
381. Complaining Party.

382. Responsibility of Other Railways Not a Defense.

383. Expert Testimony.

Sec. 377. Defined.

In the leading case* on the question, electrolysis was

defined as follows: ‘‘ Electrolysis is the decomposition of
a metal solution in water, liquid ammonia, etc., accompanied
by decomposition of the water into oxygen and hydrogen,
or a mass of molten metal, by having an electric current
passed through it.’”? No complaint can be found with this
definition, except that it does not clearly indicate the mat-
ters discussed in this chapter. In this chapter is treated
the liability for damages caused to underground pipes by
reason of such electric currents passing along the same.
Gas pipes are susceptible to injury from electric currents,
but the principal question involved is that of the injury to

water pipes.®

1, Peoria Waterworks Co. v. Peoria
Ry. Co., 181 Fed. 990.

2. Other definitions.— “The separa-
tion of a chemical compound into its
constituent parts or elements by the
action of the electric current.”
Sloane’s Standard Elec. Dictionary,
(10th Ed.) 212.

“ Electrolysis is a chemical dissolu-
tion caused by an electric current.
Whenever a current of sufficient quan-
tity and intensity is passed through
a chemical compound in a fluid con-
dition, it will cause a chemical dis-
ruption, and one of the elements will
go to the anode, or the place at which

\

the current enters the fluid mass, and
the other will go to the cathode, or
the place where the current leaves it.”
Per Judge Taft in Lowrey v. Cowles
Elec. Smelting & Aluminum Co., 68
Fed. 354, 366.

“When the passage of an electric
current through a substance is accom-
panied by definite chemical changes
which are independent of the heating
effects of the current, the process is
known as electrolysis, and the sub-
stance is called an electrolyte.” 9
Ency. Britannica (11th Ed.) 217.

8. “As applied to water pipes, elec-
trolysis is the stripping off of small
ELECTROLYSIS. 551

Sec. 378. A Question of Minor Importance.

No doubt, to the owner of a particular waterworks whose
pipes have been injured by the negligence of a street rail-
Way company in permitting the escape of its electric cur-
rent, the question of the street railway company’s liability
is an important matter. But such injuries do not fre-
quently arise. An exhaustive search has disclosed but two
reported decisions which directly involve the liability for
injuries from electrolysis.* Modern electrical progress
has enabled street railway companies to handle their cur-
rents so as to cause less injury to water pipes than was

caused when the electric trolley was first used.®

Sec. 379. Result of Negligence.

It is obvious that the current of an electric railway, if
conveyed by feed wires to the car and then to the rail or

particles of the iron when a suitable
electrolytic solution is present, leav-
ing the carbon of which the pipe is
partly composed intact. What the
cathode is in this process of decom-
position does not clearly appear, but
it may be assumed to be the adjoin-
ing water pipe, a gas pipe, lead water-
service pipe, street car rail, or some
metallic deposit in the soil; one or
more of these being part of the circuit
of the current operating on the water
main, and flowing toward the nega-
tive side of the dynamo in the rail-
way power station. Pure water, being
a nonconductor of electricity, cannot
be an electrolyte, but readily becomes
such when a portion of metal is dis-
solved in it, as copper sulphate (blue
vitriol), zine sulphate, silver nitrate,
iron oxide (rust), ete. The breaking
up of the water into hydrogen and
oxygen at once introduces a new re-
sistance to the current, tending to
put an immediate end to electrolysis.
This resistance, known as “ polariza-
tion,” may be overcome in a variety
of ways, among others by applying a
higher voltage or potential or by an

alternating current. The oxygen go-
ing to the water pipe from which the
current is passing oxidizes or rusts
the pipe, and the coating of rust acts
as an insulator, tending to prevent
further corrosion of the pipe at that
point.” Peoria Waterworks Co, v.
Peoria St. Ry. Co., 181 Fed. 990.

4, Peoria Waterworks Co. v. Peoria
St. Ry. Co., 181 Fed. 990; City of
Dayton v. City Ry. Co., 26 Oh. Cir.
Ct. 736, 9 Am. Electl. Cas. 267.

In another case, as one of the
grounds for establishing that the
power house of a street railway com-
pany was a nuisance, it was alleged
that it caused electrolysis in the water
pipes of a neighboring owner. Town-
send v. Norfolk Ry. & L. Co., 105
Va. 22, 9 Am. Electl. Cas. 939, 52
8. E. 970, 4 L. R. A. (N. S.) 87.

5. “The danger to underground
pipes and other metallic structures
from electrolysis has been much over-
estimated by some people, as the
trouble can be overcome by proper
care and attention to the return cir-
cuit.” Cravath-Trow, Electric Rail-
ways, p. 66.
552 Law or E.ecrricity.

by some other circuit back to the power-house of the com-
pany, and the company does not use the earth as a return
circuit or permit the electricity to escape into the ground,
would cause no damage to underground pipes. The damage
is done because the return current to the power-house
passes, for a greater or less distance, along the under-
ground pipes. While it may be beyond the power of a
street railway company to control the current so that no
part of it will escape into the ground and pass along water
pipes, it may be controlled so that the escaping current is
not sufficient to cause material injury to water pipes. If
reasonable care is used by the electric company, electricity
in sufficient quantities to cause electrolysis will not escape
and return by water pipes.. Whatever the respective
rights of a street railway and the owner of a waterworks
might be in the absence of negligence, it is clear that
neither must be guilty of negligence which will cause injury
to the other. Upon the ground of negligence, in the only
reported cases on the question, it has been held that the
owner of waterworks was entitled to relief.’

Sec. 380. Function of Courts.

Assuming that a street railway company is negligently
permitting its electrical current to pass into the ground

6. “The trouble can be overcome
by proper care and attention to the
return circuit. Trouble from elec-
trolysis, however, is sure to occur
unless such care is given.” Cravath-
Trow, Electric Railways, p. 66. . “It
is evident, however, that the condi-
tions of the track circuit and bond-

the earth between the tracks and
water pipes.” Cravath-Trow, Electric
Railways, p. 98.

7. Peoria Waterworks Co. v. Peoria
St. Ry. Co. 181 Fed. 990; City of
Dayton v. City Ry. Co., 26 Oh. Cir.
Ct. 736, 9 Am. Elect]. Cas. 267. “The
whole duty of defendant is to make

ing must be very bad if current would
flow over a line of water pipe, with
its high-resistance joints, in sufficient
volume to cause electrolysis, in pref-
erence to the rail return circuit, espe-
cially since ordinarily the resistance
offered to the flow of the current over
the water pipes back to the power
house must include the resistance of

the damage as little as possible by
using the best means within its power,
the selection of such means to be left
to its discretion, and at its peril of
failure to exercise such discretion in
a fair, bona fide way.” Peoria Water
Works Co. v. Peoria Ry. Co., 181
Fed. 990.
ELECTROLYSIS. 553
so that electrolysis of water mains results therefrom, what
is the power of the court? No doubt the railway would be
liable in money damages for such injuries as have been
caused to the waterworks by its negligence in failing to
confine its current within proper bounds. But the courts
cannot directly order the railway company to use a par-
ticular appliance for the avoidance of injury; they cannot
compel it to adopt a particular system for the handling of
its electricity.* The authority of the courts is limited to
the enjoining of the negligent escape of the damaging
electrical current.’ This may indirectly cause the install-
ation of a new system or the adoption of new devices.

Sec. 381. Complaining Party.

The owner of the waterworks, if his property is injured
by the negligence of a street railway company, may main-
tain an action for an injunction. The action has been sus-
tained when brought by a private corporation owning the
works,’° and also when brought by a municipality owning
a waterworks system for service to its inhabitants.”

8. City of Dayton v. City Ry. Co.,
26 Oh. Cir. Ct. 736, 9 Am. Electl. Cas.
267.

9. Peoria Waterworks Co. v. Peoria
St. Ry. Co., 181 Fed. 990. “ At the
outset it may be said that the court
has no power to prescribe by injunc-
tion the use of any particular system
of circuit or negative return. It is
doubtful, indeed, whether the judicial
power would extend to the making of
a decree restraining the defendant
from continuing to serve the public
unless it shall cease injuring com-
plainants’ water system. The utmost
possible relief is to restrain defend-
ant from continuing the injury, as-
suming for the present that sufficient
damage is shown, and punishing it
and its officers for contempt in case
of disobedience, leaving the means of
curing the injury entirely to its dis-
cretion. In case of such a result, a

decree might be rendered in contempt
proceedings brought in this suit on
the equitable side, awarding compen-
sation for such injury as might be
shown, with incidental punishment.
Or a proceeding for a criminal con-
tempt might be brought in case of
deliberate disobedience in which a fine
or imprisonment might be imposed.
Bessette v. Conkey Co., 194 U. 8. 324,
24 Sup. Ct. 665, 48 L. Ed. 997. That
no specific system can be imposed by
the court is settled by general deci-
sions, passing on the essential distinc-
tions between legislative and judicial
power.” Peoria Waterworks Co. v.
Peoria St. Ry. Co., 181 Fed. 990.

10. Peoria Waterworks Co. v. Peo-
ria Ry. Co., 181 Fed. 990.

11. City of Dayton v. City Ry. Co.,
26 Oh. Cir. Ct. 736, 9 Am. Elect]. Cas.
267.
554 Law or Execraiciry.

Where the street railway franchise is granted by the
municipality owning the waterworks, the municipality is
deemed to have contemplated and to have condoned by
anticipation any mischief arising from the reasonable use
of the street railway system.’?

Sec. 382. Responsibility of Other Railways not a Defense.

In an action by the owner of waterworks to restrain the
negligent operation of a railway system which is causing
electrolysis, it would seem that the railway company would
not have the courage to urge as a defense that other rail-
ways were also responsible for injury to the water mains.
Yet, at least one court has felt called upon to deny the
validity of such defense. If the street railway could show
that no part of the injury was caused by its own electrical
currents and that the entire injury was caused by the cur-
rents of other companies, no doubt a defense would be
established.

Sec. 383. Expert Testimony.

An examination of the reported decisions on the question
of electrolysis indicates that the cases were largely a battle
between electrical experts with conflicting opinions. Expert
evidence is peculiarly necessary in litigations of this
character.**

12. City of Dayton v. City Ry. Co.,
26 Oh. Cir. Ct. 736, 9 Am. Electl.
Cas. 267.

13. City of Dayton v. City Ry. Co.,
26 Oh. Cir. Ct. 736, 9 Am. Electl.
Cas. 267.

14. See also, Koplan v. Boston

Gaslight Co., 177 Mass. 15, 58 N. E.
183.

Expert evidence.— Questions per-
taining to the receipt of expert evi-
dence are discussed in a subsequent
chapter. See §§ 605-612.
Street Raiiways. 555

CHAPTER XXI.
STREET RAILWAYS.

SEcrion 384. Scope of Discussion.
385. Electricity as Motive Power; in General.

386. —— Permission to Use Granted by Municipality.

387. ——Charter Power of Company to Use Electricity.

388. —— Delegation to State Board of Power to Permit Use of Elec-
tricity.

389. ——- Distinction between Railroad and Street Railway.

390. Injuries to Passengers; in General.

 

391. Electrical Explosion.

392, —— Electrical Shock.

393. ——— Collision with Post in Proximity to Track.
394, —— Trolley Pole.

395. —— Ownership of Car.

396. Injuries to Travelers; in General.

397. —— Third Rail.

398. Cable Slot.

 

399. Injuries to Employees.

Sec. 384. Scope of Discussion.

It is not the purpose of this book to discuss the law of
street railways. Street railway law includes many topics
not properly treated in a work on electrical law. To illus-
trate, street railway law covers such questions as the issu-
ance of transfers, the payment of fares, separation of the
races in street cars, the pavement of the streets, the taxa-
tion of street railway lines, accidents arising from the
collision of cars with vehicles and travelers, the injury to
passengers from jolts and premature starting of the cars,
the ejection and assault upon passengers, and many other
matters. These questions arise whether the street car is
propelled by horse, steam, cable, or electrical power. They
have no connection with the law of electricity other than
that the cars of the defendant company may be moved by
that force. For this reason they are not discussed in this
book.’ But, inasmuch as electricity is the motive power

1. In Nellis on Street Railways, discussion of all street railway ques-
(2nd Ed.) will be found a complete tions.
556 Law or Execrriciry.

of most street railway systems, of necessity, certain elec-
trical questions arise which are peculiar to street railways.
Of such is the right of a street railway company to use
electricity as a motive power for its cars. Likewise, the
scope of this work justifies the treatment of the liability
of the street railway company for injuries which are re-
ceived by passengers or employees from its current of
electricity or the appliances associated therewith. In sub-
sequent chapters is treated its liability in electrical cases
where no rational distinction can be made between a street
railway company and any other company using the electric
current. In this chapter is discussed those electrical mat-
ters which particularly relate to street railway companies.

Sec. 385. Electricity as Motive Power; in General.

Subject to the general right of travel and the rights of
abutting owners, the use of streets and highways by rail-

way companies is within the power of the legislature. The
law-making body may permit or prohibit such use. [If it

sees fit to permit such companies to construct their lines
along the streets and highways, it may prescribe the par-
ticular location, the use of certain appliances, etc. It may
also specify the motive power to be used by the company.’
This control over the motive power may be delegated by
the legislature to municipal corporations,’ or to a state
board or commission.* But the conduction of electricity
along the streets in sufficient quantities to operate a street
railway system is dangerous, and a street railway com-
pany may not use such motive power unless it is authorized
so to do by a general or special statute or by the lawful

2. Power used by other companies.
—A street railway company may use
the trolley system of motor power
without the sanction of the mayor
and city council, where its charter

by another corporation exercising
street railway franchises thereon,”
and the Legislature subsequently
gives express authority to other com-
panies to use the trolley system.

authorizes it to use “any motive
power and means of traction which
the mayor and city council may sanc-
tion or which shall be authorized to
be made use of in the city * * *

Hooper v. Baltimore City Pass. R.
Co., 85 Md. 509, 37 Atl. 359, 38
L. R. A. 509.

3. § 386.

4. § 388.
Street Raruways. 557
act of a municipality or other agency of the state. If the
company is given the power to operate a street car system,
and no specific motive power is prescribed, in the absence
of contrary statute or adverse municipal regulation it may
use electricity.* If, however, it is granted the right to use
some particular motive power, e. g., animal, by the maxim
expressio unius est exclusio alterius, it would seem, upon
principle, that it would have no right to use electricity for
the propulsion of its cars.° But it has been held that, in
construing a statute enacted before the days of electric
railways authorizing the construction of ‘‘ street or horse
railways,’’ the legislature will be presumed to have in-

5. Wilmington City Ry. Co. v.
Wilmington & B, S. Ry. Co., 8 Del.
Ch. 468, 46 Atl. 12, wherein it was
said: “ Whenever a statute specifies
the motive power to be used, the
expression of that power may be
construed to exclude any other. The
general rules of construction require
this. But, when an exclusive right
is given in general terms to a city
railway, the effort to confine it to
the particular motive powers in use
at the time would seem to be as arti-
ficial and unauthorized as to confine
it to the kind of rails then in use,
excluding the idea of modern rails
of steel and of great weight, or to
limit the size and shape and quality
of cars to those known at the time.
All these things, including the motive
power, are subordinate,— mere means
to make the franchise effective; and
yet the expression of any of them
might be so made as to limit the
grant. When no kind of motive
power is mentioned, it should be
taken to indicate that the Legisla-
ture means what it says, ‘a city
railway, however propelled, whether
by powers then familiar, or those
they know not of; in fact, any kind
of power which the ingenuity of
man may contrive that does not con-
stitute an additional burden upon the

highway, or an injury and annoyance
to the public.”

A, charter authorizing a company
thereby incorporated to maintain and
operate a street railway along and
over a public street in an incorpo-
rated town, which is silent as to the
character of the motive power to
be used for propelling the company’s
cars, will be intended as giving the
right to use that kind of motive
power which would be most conduc-
ive to the best interests and safety
of the public having occasion to use
the street as a common highway, and
which was, at the time of passing
the charter, in ordinary use. N.
Chicago City R. Co. v. Lake View,
105 Ill. 207, 44 Am. Rep. 788.

6. Wilmington City Ry. Co. v.
Wilmington & B. S. Ry. Co., 8 Del.
Ch. 468, 46 Atl. 12.

Objection waived.— Where a street
railroad line has been operated for
more than ten years by motive power
other than that furnished by horses
and mules, an objection to the oper-
ation of an extension of such line
by electricity, based upon the ground
that the original line was to be oper-
ated by motive power furnished by
horses and mules, is not well taken.
Bell v. City of Glenville, 27 Ohio Cir.
Ct. R. 181. .
558 Law oF ELEctricity.

tended the use of such improved motive power as future
invention might produce and public utility and convenience
require, and thus the statute be given a construction broad
enough to include the use of electricity.’ In determining
whether a particular statute permits the use of the electric
current for motive power, it is not of controlling impor-
tance that the statute was enacted prior to the employment of
electricity to move cars. So it has been held that legislative
authority to a street railway company to use ‘‘ such motive
power as they may deem expedient and proper ’’ does not
confine the company to such methods as were known when
the law was enacted, but includes the electric trolley system,
though it was then unknown.® Similarly, it was held that
a statute enacted in 1862 which authorized the operation of
a street railway by ‘‘ any mechanical or other power,’’

except steam, permitted the use of electricity.°

7%. Lonergan v. La Fayette St. Ry.
Co. (Ind.) 3 Am. Elect]. Cas. 273,
wherein it was said: “The para-
mount purpose of the Legislature in
enacting the statute authorizing the
use of a new and improved mode of
travel in cities was the public con-
venience. Especially regulations are
imposed in reference to gradient and
location, but nothing is directly said
about the motor. The motor was not
a controlling or noticed matter in the
immediate purpose of the act. If the
prime object was the accommodation
of the local public, by the use of
this sort of conveyance, how can it
be reasonably asserted that this ac-
commodation of the same public by
the same way should be restricted to
the use of an instrumentality which
is only a subordinate means to the ul-
timate end in view, the accommoda-
tion or convenience of the public?
If it is correct to say that public
utility and convenience are the under-
lying considerations for establishing
authority for the operation of street
cars, it would seem that the propel-
ling power should fall within the

same consideration as the principal
thing; in other words, that public
utilty or convenience should operate
throughout, and when it required
that the motor should be modified,
or superseded, when not inconsistent
with the enjoyment of the public
easement in the street by the general
public, and in the absence of any
declaration of a contrary intent, it
would seem rational to infer that
such was the intent of the Legisla-
ture.”

8. Paterson Ry. Co. v. Grundy, 51
N. J. Eq. 213, 4 Am. Electl. Cas. 173,
26 Atl. 788.

“Any motive power except steam.”
—A statute authorizing the main-
tenance of a street railroad to
be operated by any motive power ex-
cept steam, authorizes the use of
electricity, and so the maintenance
of the necessary poles and wires, al-
though their erection is not expressly
mentioned. Com. v. Westchester, 9
Pa. Co. Ct. 542, 3 Am. Electl. Cas.
326.

9. Hudson River Telep, Co. v. Wa-
tervliet Turnpike Co., 135 N. Y. 393,
Street Rarways. 509

Change of Motive Power.—A street railway company
which is given a discretion as to the motive power which
it may use after a selection of its power, is not irrevocably
bound thereby. Pursuant to state and municipal regula-
tions, if any, it may change the kind of power.’°

Sec. 386. Electricity as Motive Power; Permission to Use,
Granted by Municipality.

For a street railway company to obtain a valid grant
from a municipality of the right to use electricity as a
motive power for its cars, three things must concur:
(1) The power to grant the use of electricity must have
been delegated to the municipality by a constitutional stat-
ute;* (2) the municipality must actually exercise its right
in favor of the street railway company ;” (3) the company

4 Am. Electl. Cas. 275, 32 N. E. 148,
17 L. R. A. 674, 31 Am. St. Rep.
838; Hudson River Telep. Co. v. Wa-
tervliet, etc, R. Co., 56 Hun (N.Y.)
67, 3 Am. Elect]. Cas. 387, 9 N. Y.
Supp. 177.

Other than locomotive.— A statute
authorizing a street railway company
to convey passengers “by any power
other than by locomotive,’ may be
construed to authorize the use of
electricity. Gillett v. Chester &
Media Ry. Co., 2 Pa. Dist. Rep. 450,
4 Am. Electl. Cas. 160.

10. Hudson River Telep. Co. v.
Watervliet Turnpike Co., 135 N. Y.
393, 4 Am. Electl. Cas. 275, 32 N.E.
148, 17 L. R. A. 674, 31 Am, St. Rep.
838.

Whatever may be the right of a
street, railway company to change
from time to time its method of
operation without municipal consent,
held, that a private citizen could not
raise the question in an action for
personal injuries, caused by an acci-
dent occurring five years after such
changed method had been in operation
without objection. Potter v. Scran-

ton Tract. Co., 176 Pa. St. 271, 6
Am. Elect]. Cas. 95, 35 Atl. 188.

11. Constitutionality—A statute
which merely authorizes a street
railway company to substitute elec-
tricity for horses as its motive power,
upon first obtaining municipal au-
thority; and empowers the municipal
authorities to permit the mainte-
nance in streets of the necessary
poles and wires for such purposes,
held, to relate only to the public
easement, leaving the companies to
obtain from land owners such pri-
vate rights or property as they may
require, and not to create an addi-
tional easement without compensa-
tion to the abutting owner; and not
to be unconstitutional. Roebling v.
Trenton Pass. R. Co., 58 N. J. Law
666, 6 Am. Electl. Cas. 137, 34 Atl.
1090, 33 L. R. A. 129.

12. A franchise permitting the
propulsion of cars by electricity or
eable, or partly by each, may be con-

.strued to authorize the company to

electrify cable routes. McGilora v.
Seattle Elec. Co., 61 Wash. 38, 111
Pac. 896, Ann. Cas, (1912 B) 1011.
560 Law or Exectricity.

must be one authorized by its charter or by statute to
employ electricity as a motive power for the propulsion of
its cars.” The authority to use electricity cannot generally
be questioned by a person who is injured by a collision with
one of its cars,'* but it has been held that a rival company,
in a contest involving the possession of a particular street,

may show that its opponent is using a motive power not
authorized.”

Delegation from State.— Municipalities, by general or
special act, are usually given the general control of their
streets. ‘They are also frequently given special authority
to regulate the use of their streets for street railway pur-
poses. Such powers embrace the granting of franchises
to street railway companies to use the streets for the mov-
ing of cars by electricity.** Where a statute confers the
right upon a municipality to permit the use of ‘‘ steam,
horse or other power ”’ by a street railway company, the
use of electricity may be permitted.” A statute authoriz-
ing municipal authorities to permit the maintenance of
‘“horse and steam railroads,’’ has been construed to com-
mit them the discretion to grant a street franchise to elec-
tric railways. This ruling was based on the theory that the
words ‘‘ horse and steam ’’ were intended as words of illus-

13. See § 387.

14. Hine v. Bay City Consol. R.
Co., 115 Mich. 204, 73 N. W. 116, 4
Det. Leg. N. 813.

15. Indianapolis Cable St. R. Co.
v. Citizens St. R. Co., 127 Ind. 369,
24 N. E. 1054, 26 N. E. 893.

16. Indianapolis Cable St. R. Co.
v. Citizens St. R. Co., 127 Ind. 369,
24 N. E, 1054, 26 N. E. 893; Canal &
Clarborne R. Co. v. Crescent City
R. R. Co., 44 La. Ann. 485, 4 Am.
Electl. Cas. 13, 10 So. 888; North
Baltimore Pass. Ry. Co. v. North
Line Ry. Co., 75 Md. 233, 4 Am.
Elect]. Cas. 1, 23 Atl. 466.

A statute permitting railway com-
panies in certain cities to use other
than animal power when authorized

by municipal councils, is not uncon-
stitutional as local or special legisla-
tion. Reeves v. Philadelphia Trac-
tion Co., 152 Pa. St. 153, 4 Am.
Elect]. Cas. 24, 31 W. N. C. 265, 25
Atl. 516.

17. A statute conferred power upon
a municipal corporation to permit the
use of “steam, horse or other power ”
by an electric railway company. It
had been decided that the use of
steam could not be thus permitted,
since it would impose a new servi-
tude. Hela, nevertheless, that the
use of electricity could be permitted,
under the language “other power.”
Taggart v. Newport St. Ry. Co., 16
R. I. 668, 3 Am. Electl. Cas. 306, 19
Atl. 326, 7 L. R. A. 205.
Street Ratways. 561
tration, rather than of limitation.* Though a city has no
authority to authorize a change of motive power, if it con-
sents to a change, a statute thereafter passed which author-
izes municipal consent to the change may be considered a
ratification of its acts.’

Sec. 387. Electricity as Motive Power; Charter Power of
Company to Use Electricity.

A street railway company may not use electricity as a
motive power unless its charter expressly or impliedly
authorizes it to use such motive power, or unless some
statute grants it the right.*° If the state does not permit
the use of electricity, it cannot procure the right from a
municipal division of the state. If the articles of incorpo-
ration of a street railway company provide ‘“‘ that said rail-
way is to be operated by horse power,’’ it cannot change to
the overhead electric system." But a city ordinance grant-

18. Buckner v. Hart, 52 Fed. 835,
4 Am. Electl. Cas. 21, affirmed, 54
Fed. 925.

19. City Ry. Co. v. Citizens’ St. R.
Co., 166 U. S. 557, 17 S. Ct. 653, 41
L. Ed, 1114.

Change upon consent of munici-
pality—— A contract between a street
railway company and the city in
which it operates, providing, among
other things for a change of motive
power to electricity, is not ultra vires
where it is provided by statute that
any street railway may use electric
motors instead of horses, if it shall
first obtain the consent of the proper
municipal authorities. City of Tren-
ton v. Trenton St. Ry. Co, 72
N. J. L. 317, 4 St. Ry. Rep. 772, 63
Atl. 1.

20. State v. Board of Chosen Free-
holders of Cumberland, 56 N. J. Law
416, 4 Am. Elect]. Cas. 48, 28 Atl.
553; Haines v. Twenty-second St.,
ete., Ry. Co., 1 Pa. Dist. Rep. 506,
4 Am. Electl. Cas. 42.

36

Overhead wires forbidden— The
charter of defendant, a street rail-
road company, authorized it “to 1lo-
cate, construct and operate such rail-
road with cars propelled by elec-
tricity, in any mode that does not in-
volve the use of overhead wires.”
An earlier general statute empowered
the authorities of any municipal
corporation to authorize the use of
“any improved motive power” ex-
cept steam, upon street railroads.
Held, that the defendant’s powers
were limited by its charter, and the
mayor and common council could not
permit it to use overhead wires; the
exception in the charter being equiva-
lent to a positive prohibition. Far-
rell v. Winchester Ave. R. Co., 61
Conn. 127, 3 Am, Electl. Cas, 85, 23
Atl. 757.

21. Haines v. Twenty-second St.,
etc., Ry. Co., 1 Pa. Dist. Rep. 506,
4 Am. Electl. Cas. 42.
562 Law or Execrriciry.

ing to a street railway company the right to use electricity
is not necessarily void where the company has not charter
power to receive the grant; the grant may become effective
when the charter of the company is amended so that it can
employ electricity as a motive power.” If a railway com-
pany has not the right to use electricity as a motive force,
it cannot confer such upon its lessee.”

Sec. 388. Electricity as Motive Power; Delegation to State
Board of Power to Permit Use of Electricity.

The power, originally lodged in the state, of prescribing
the force for the operation of street railways, may be dele-
gated, not only to a municipality, but to a state board or
commission. A practical function of such an agency is
the regulation of changes in motive power, rather than the
prescription of the power to be used in the first instance.*
If a procedure before such a board or commission is laid
down for a change of motive power, application to such
board or commission is necessary.”> The corporation, being
subject to reasonable regulation, loses its right to make
changes at its wish.

Sec. 389. Electricity as Motive Power; Distinction be-
tween Railroad and Street Railway.

While most street railways use electricity as their motive

power and most commercial railroads do not use. such

22. Louisville & N. R. Co. v. Bowl-
ing Green Ry. Co., 110 Ky. 788, 23
Ky. Law Rep. 273, 63 S. W. 4.

23. State v. Board of Chosen Free-
holders of Cumberland, 56 N. J. L.
416, 4 Am. Electl. Cas. 48, 28 Atl.
553.

24, See Matter of Kingsbridge Ry.
Co., 66 N. Y. App. Div. 497, 73 N. Y.
Supp. 440; People ex rel, Luckings
v. Board of R. R. Com’rs, 30 N. Y.
App. Div. 69, 51 N. Y. Supp. 781;
affirmed without opinion, 156 N. Y.
693, 51 N. E. 1093; Potter v. Collis,
19 N. Y. App. Div. 392, 46 N. Y.

Supp. 471; affirmed, 156 N. Y. 16,
50 N. E. 413.

Consent of abutting owners, or
some fractional portion thereof, may
be required for a change of motive
power. In re Rochester, etc., R. Co.,
51 N. Y. App. Div. 65, 64 N. Y.
Supp. 429; St. Michael’s Protestant
Episcopal Church v. Forty-second St.,
etc., Ry. Co., 26 Mise. (N. Y.) 601,
57 N. Y. Supp. 881.

25. St. Michael’s Protestant Episco-
pal Church v. Forty-second St., etc.,
Ry. Co., 26 Misc. (N. Y.) 601, 57
N. Y. Supp. 881.
Street Rarways. 563
power, the use is not to be considered as a criterion of the
distinction between commercial railroads and street rail-
ways. The determination of the question whether a rail-
road is a street railway or a commercial railroad is
dependent, not on the character of the motive power
employed, but on the character of the use. It can make
no difference whether the cars of a railroad company are
propelled by the agency of steam, or of gasoline, or of
electricity, compressed air, liquified air, or any other
agency which science and the inventive genius of man in
the future may bring into use. Rather the character of
a railroad is determined by the nature and extent and
limits put upon its operation by laws or otherwise, and by
the character and object of its corporate creation as shown
by its charter.** Railroads which are not classed as ‘‘ street
railways ’’ may be permitted to use electricity as a motive
power.”

Sec. 390. Injuries to Passengers; in General.

A street railway company, while not the insurer of their
safety,”* is bound to exercise a very high degree of care

to avoid injury to its passengers.”

26. Nellis on Street Railways, (2nd
Ed.) section 4.

27. Howley v. Central Valley R. Co.,
213 Pa. 36, 62 Atl. 109, 2 L. R. A.
(N. 8.) 138; Sparks v. Philadelphia,
etc., R. Co., 212 Pa. St. 105, 61 Atl.
881.

28. McRae v. Metropolitan St. Ry.
Co., 125 Mo. App. 562, 9 Am. Electl.
Cas. 1127, 5 St. Ry. Rep. 636, 102
S. W. 1032; Newberry v. Bristol
Tramways & Carriage Co., 107 L. T.
(Eng.) 801, 11 L. G. R. 69, 57 S. J.
172, 29 T. L. R. 177.

29. Colorado— Denver Tramway
Co. v. Reid, 4 Colo. App. 53, 4 Am.
Electl. Cas. 332, 35 Pac. 269.

Maryland.— Baltimore City Pass.
Ry. Co. v. Nugent, 86 Md. 349, 38
Atl. 779, 39 L. R. A. 161.

Massachusetts.— Steverman v. Bos-

When its cars are pro-

ton Elevated Ry. Co., 205 Mass. 508,
91 N. E. 919.

Missouri— Donovan v. Kansas
City Elevated Ry. Co., 157 Mo. App.
649, 7 St. Ry. Rep. 190, 138 S. W.
679; Brod v. St. Louis Transit Co.,
115 Mo, App. 202, 9 Am. Electl. Cas.
610, 5 St. Ry. Rep. 645, 91 S. W. 993.

New York.— Horan v. Rockwell,
110 App. Div. 522, 96 N. Y. Supp. 973.
“The obligation rested upon the de-
fendant to exercise the utmost care
and diligence suggested by human
prudence and foresight in the con-
struction and equipment of its cars
to insure the safety of the passengers
it had received for carriage.” Paine
v. Geneva, etc., Tract. Co., 115 App.
Div. 729, 6 St. Ry. Rep. 812, 101
N. Y. Supp. 204.

Pennsylvania. Keator v. Scran-
564 Law or ELecrricity.

pelled by such a dangerous force as electricity, the highest
degree of care must be exercised to prevent injury to
passengers from the escape of its dangerous current. It
must use due care to avail itself of all new inventions and
improvements known to it which will contribute to the
safety of its passengers, but it is not required to use the
latest improvements which human skill and ingenuity have
devised to prevent accidents.*°

Sec. 391. Injuries to Passengers; Electrical Explosion.

The reported decisions indicate the frequency of elec-
trical explosions in street cars. For some reason, usually
not shown, a loud report comes from the controller, or
some other part of the car; a burst of flame envelops all
or a portion of the car; the clothing of the passengers is
singed or, possibly, inflamed; the occupants of the car

ton Traction Co., 191 Pa. St. 102,
43 Atl. 86, 44 L. R. A. 546, 44
W.N. C. 128.

Texas.— Dallas Consol. Elec. St.
Ry. Co. v. Broadhurst, 28 Tex. Civ.
App. 630, 68 S. W. 315.

West Virginia— Mannon v. Cam-
den Interstate Ry. Co. 56 W. Va.
554, 3 St. Ry. Rep. 928, 49 S. E.
450.

In Nellis on Street Railways (2nd
Ed.) section 274, it is said: “It
has been a rule of law from the ear-
liest times and is now firmly estab-
lished that carriers of passengers, in
consideration of the great danger to
human life consequent upon their
neglect of duty, must exercise the
greatest practicable care for the
safety of their passengers and to
prevent accidents and injuries. While
street railway companies, as common
carriers, are not insurers of the abso-
lute safety of their passengers and
do not insure them against all
hazards incident to their transporta-
tion, they are required to exercise,
through their servants, a very high

degree of care, skill, diligence and
foresight, such as should be exercised
by very careful and skillful railroad
employees, to avoid injury and loss
of life to those whom they undertake
to carry as passengers, and for in-
juries resulting from a failure of
duty in this regard they are liable.”

30. “It is incumbent upon a rail-
way company, propelled by the pow-
erful and dangerous agencies of steam
or electricity, especially in a large
and populous city, to use ordinary
and reasonable care to avail itself of
all new inventions and improvements
known to it which will contribute to
the safety of its passengers, and
prevent accidents to others, when-
ever the utility of such improvement
has been tested and demonstrated;
but it is not required to have in use
the latest improvements which
human skill and ingenuity have de-
vised to prevent accidents.” Rich-
mond Ry. & Elec. Co. v. Gathright,
92 Va. 627, 6 Am. Electl. Cas. 311,
24 8. E. 267, 53 Am. St. Rep. 839.
Street Ratiways. 565
become panic-stricken and madly rush to the door; some
jump and others are pushed off the car by the rush of the
passengers. Generally, the difficulty is merely temporary,
and, had the passengers remained in their seats, no injury
would have resulted. But, nevertheless, for the injuries
to a passenger under such circumstances the street railway
company is generally required to respond indamages.™ ‘The
basis of the liability is the negligence of the company; and,
if it can be shown that the electrical disorder was caused
by its negligence, it is liable for the damages arising there-

from.

$1, Alabama.— Birmingham Ry. L.
& P. Co. v. Jordan, 170 Ala. 530, 54
So. 280.

California— Patterson ov. San
Francisco, ete., Ry. Co., 147 Cal. 178,
9 Am. Elect]. Cas. 485, 4 St. Ry. Rep.
44, 81 Pac. 531; Waniorek v. United
Railroads of San Francisco, 17 Cal.
App. 121, 118 Pac. 947.

Illinois.— Chicago Union Tract. Co.
v. Newmiller, 215 Ill, 383, 4 St. Ry.
Rep. 165, 74 N. E. 410; Garner v.
Chicago Consol, Tract. Co., 150 Ml.
App. 149.

Indiana.— Louisville, ete, Tract.
Co. v. Worrell, 44 Ind. App. 480, 86
N. E. 78. '

Iowa.— Blumenthal v. Union Elec.
Co., 129 Iowa 322, 9 Am. Electl. Cas.
934, 4 St. Ry. Rep. 303, 105 N. W.
588.

Massachusetts.— Steverman v. Bos-
ton Elev. Ry. Co., 205 Mass. 508, 91
N. E. 919; Beattie v. Boston Elevated
Ry. Co., 201 Mass. 3, 86 N. E. 920;
Gilmore v. Milford, etc., Ry. Co., 193
Mass. 44, 5 St. Ry. Rep. 439, 9 Am.
Electl. Cas. 936, 78 N. E. 744;
Cassady v. Old Colony St. Ry. Co.,
184 Mass. 156, 8 Am. Electl. Cas.
815, 1 St. Ry. Rep. 330, 68 N. E.
10, 63 L. R. A. 285. Compare, Martin
v. Boston, etc., R. Co., 205 Mass. 16,
91 N. BE, 159.

Missouri.— Logan v. United Rys.

Moreover, while the snap and crack of electrical |

Co. of St. Louis, 166 Mo. App. 490,
148 S. W. 444; Brod v. St. Louis
Transit Co., 115 Mo. App. 202, 9
Am, Elect]. Cas. 610, 5 St. Ry. Rep.
645, 91 S. W. 993.

New Hampshire.— Lord v. Man-
chester St. Ry., 74 N. H. 295, 67 Atl.
639.

New York.— Blumenthal v. Brook-
lyn Union Elev. R. Co., 158 App. Div.
558, 143 N. Y. Supp. 811; Paine v.
Geneva, etc., Tract. Co., 115 App. Div.
729, 6 St. Ry. Rep. 812, 101 N. Y.
Supp. 204; German v. Brooklyn
Heights R. Co., 107 App. Div. 354,
9 Am. Elect]. Cas. 933, 4 St. Ry.
Rep. 848, 95 N. Y. Supp. 112; Dorff
v. Brooklyn Heights R. Co., 95 App.
Div. 82, 3 St. Ry. Rep. 714, 88 N.Y.
Supp. 463; Leonard v. Brooklyn
Heights R. Co., 57 App. Div. 125, 7
Am. Electl. Cas. 683, 67 N. Y. Supp.
985; Poulson v. Nassau Elec. R. Co.,
30 App. Div. 246, 7 Am. Electl. Cas.
677, 51 N. Y. Supp. 933; Poulson v.
Nassau Elec. R. Co., 18 App. Div.
221, 7 Am. Electl. Cas. 675, 45 N. Y.
Supp. 941.

Washington.— Firebaugh v. Seattle
Elec. Co., 40 Wash. 658, 4 St. Ry.
Rep. 1055, 82 Pac. 995, 2 L. R. A.
(N. 8.) 836, 111 Am. St. Rep. 990.

Negligence of motorman—TIi a
motorman of an electric car after the
explosion of the controller, when he
566 Law or Euscrricity.

sparks is an ordinary incident to electrical railway travel,
an unusual occurrence, as, for example, when the noise is
so violent as to.cause panic among the passengers, or the
flash is so brilliant that it seems to envelop the car in
flames, under the doctrine of res ipsa loquitur, it is held
in some jurisdictions that the street railway company is
called on to explain the occurrence and show its absence
from negligence. Under such circumstances, unless it
produces evidence tending to show its freedom from negli-
gence, it may be liable, though the particular wherein it
was negligent is not established by the plaintiff. It is no
explanation for the company to plead that it is unable to
account for the explosion, and that the appliances are of
the best and most approved pattern, and that there is no
means or test by which it can be determined whether a con-
troller or other appliance will explode. It has no right to
place an appliance on its cars which is likely to explode
to the injury of passenger and which cannot be tested or

inspected so as to guard against such an occurrence.

is in no danger, abandons his post
and in full view of the passengers
upon a crowded summer car, many of
whom are women and children, jumps
over the back of the front seat
among the passengers, leaving the car
to run uncontrolled and apparently
on fire, it is for the jury to say
whether the act was not negligent,
and such as to necessarily throw the
passengers into a panic and reason-
ably lead them to the conclusion that
they were in imminent peril. In such
a case a verdict and judgment for
one of the passengers who was in-
jured in the panic will be sustained.
Dunlay v. United Tract. Co., 18 Pa.
Super. Ct. 206.

Passenger on another car.— The
liability of the street railway com-
pany is the same where the electrical
explosion occurs on a car other than
the one on which the plaintiff is
riding, but which is so close at the

time of the explosion that the pas-
sengers on the plaintiff’s car are
thrown into a panic which causes the
injury in question. German v. Brook-
lyn Heights R. Co., 107 N. Y. App.
Civ. 354, 9 Am. Electl. Cas. 933, 4
St. Ry. Rep. 848, 95 N. Y. Supp. 112.

82. § 599.

Gross negligence—— An _ explosion
in a controller does not, of itself,
show gross negligence. Martin v.
Boston, etc., R. Co., 205 Mass. 16,
91 N. E. 159.

88. Poulson v. Nassau Elec. R.
Co., 30 N. Y. App. Div. 246, 7 Am.
Electl. Cas. 677, 51 N. Y. Supp. 933.
“Tt cannot be the law that a carrier
of passengers may make use of a
dangerous appliance, no matter how
essential to the conduct of its busi-
ness in a particular manner, or how
perfect such appliance may be in its
construction, with the knowledge
that a defect in it which would re-
Street Raiiways. 567

Burning Out of Fuse.— A fuse is a safety device to pre-
vent an excessive current of electricity from entering the
machinery of an electric car. It consists of a small piece
of metal over which the ordinary current utilized by the
company passes in order to reach the motor, but, if an
excessive current attempts to pass into the car, the fuse
melts and the circuit is destroyed.** A fuse does not per-
form its important function until it burns out.** Its burn-
ing out in the ordinary way, therefore, cannot be said to
constitute negligence.** If, however, the fuse is so placed
-that its burning out will injure a passenger, the jury may
rightly say that the company is guilty of negligence.*” Or,
if its burning out is accompanied by a violent explosion or
causes the car to appear to be a blaze of fire, a case of negli-

gence may be presented.*

sult in injury to the passenger could
not be detected by any known test,
and then evade liability for injury
sustained by a passenger by saying:
‘Such defects, if any, which caused
the injury could not have been dis-
covered by any known method of in-
' spection and, therefore, no liability
attaches.” Paine v. Geneva, etc.,
Tract. Co., 115 N. Y. App. Div. 729,
6 St. Ry. Rep. 812, 101 N. Y. Supp.
204.

34, See § 15.

85. “As it is common knowledge
that all mechanical devices wear out,
it cannot be said as a matter of law
that a fuse is not more likely to burn
out in an old electrical appliance than
in a new one.” Lord v. Manchester
St. Ry., 74 N. H. 295, 67 Atl. 639.

36. Cassady v. Old Colony St. Ry.
Co., 184 Mass. 156, 8 Am, Electl. Cas.
815, 1 St. Ry. Rep. 330, 68 N. E. 10,
63 L. R.A. 285. —

87. Cassady v. Old Colony St. ‘Ry.
Co., 184 Mass. 156, 8 Am. Elect]. Cas.
815, 1 St. Ry. Rep. 330, 68 N. E. 10,
63 L. R. A. 285, wherein it was said:
“This was an open car, and this fuse-
box was placed directly under a seat

intended for passengers, so that if,
for any reason, there should be a
harmful flame resulting from the
burning out of a fuse, it might be
reasonably apprehended that it would
reach and injure a passenger. While,
therefore, the mere burning out of a
fuse properly located and in proper
condition does not of itself import
negligence on the part of the defend-
ant, still, if the fuse be so located
as, by its burning out, to injure a
passenger, such a location may be in-
consistent with the degree of care
which a common carrier owes to its
passengers. It would be something
like arranging the safety-valve of a
locomotive engine so that the escap-
ing steam might reach a passenger in
his seat. Upon the whole, we think
that the plaintiff had a right to go to
the jury on the question of the negli-
gence of the defendant.” ,

38. Williams v. New York & Queens
County Ry. Co., 97 N. Y. App. Div.
133, 9 Am. Electl. Cas. 301, 3 St. Ry.
Rep. 713, 89 N. Y. Supp. 659; Poul-
son v. Nassau Elec. R. Co., 18 N. Y.
App. Div.. 221, 7 Am. Electl. Cas.
675, 45 N. Y. Supp. 942.
568 Law oF ELsctricity.

Contributory Negligence.—Whether or not the passenger
is in actual danger from an electrical explosion, if he is not
accustomed to such an occurrence, he may be justified in
believing that he is in serious danger of injury. The in-
stinet of self-preservation compels the passenger, in the
face of an apparent danger from fire or electrical shock,
to use the quickest method to a place of safety. It is
natural that one should overestimate the danger of his
position. The law does not expect him to reason calmly
as to his danger; if he reasonably antictpates injury he is
not to be charged with contributory negligence because,
had he remained in his seat, he would have escaped injury.*°
The question of his contributory negligence is for the

jary.*°

39. California. Patterson v. San
Francisco, etc., Ry. Co., 147 Cal. 178,
9 Am. Electl. Cas. 485, 4 St. Ry. Rep.
44, 81 Pac. 531; Waniorek v. United
Railroads of San Francisco, 17 Cal.
App. 121, 118 Pac. 947,

District of Columbia.—Kight v.
Metropolitan R. Co, 21 App. D. C.
494,

Illinois — ‘Chicago Union Tract. Co.
v. Newmiller, 215 Ill. 383, 4 St. Ry.
Rep. 165, 74 N. E. 410.

Indiana.— Louisville, etc., Tract.
Co. v. Worrell, 44 Ind. App. 480, 86
N. E. 7.

Iowa.— Blumenthal v. Union Elec.
Co., 129 Iowa 322, 9 Am. Electl. Cas.
934, 4 St. Ry. Rep. 303, 105 N. W.
588,

Massachusetts.— Steverman v. Bos-
ton Elevated Ry. Co., 205 Mass. 508,
91 N. EK. 919; Beattie v. Boston Ele-
vated Ry. Co., 201 Mass. 3, 86 N. HE.
920.

Missouri— Williamson v. St. Louis
Transit Co., 202 Mo. 345, 5 St. Ry.
Rep. 649, 9 Am. Electl. Cas. 1127,
100 S. W. 1072.

New Hampshire.—Lord v. Manches-
ter St. Ry., 74 N. H. 295, 67 Atl. 639,
wherein the court said: “If the de-

Where a boy was a passenger on an electric car,

cedent was frightened by the noise
and the electrical display which ac-
companied the burning out of the
fuse, it cannot be held that her negli-
gence contributed to cause her death
if a person of average prudence,
frightened as she was, would, or
might, have pursued the same course
to avoid impending danger. Upon
all the evidence, it cannot be said as
a matter of law that the electrical
display was so slight that a person
of average prudence frightened
thereby would not have tried to re-
move himself as far as possible from
the fuse-box, and that in such an at-
tempt he might not have been thrown
from a car running at a speed of fif-
teen miles an hour.” Lord v. Mad-
chester St. Ry., 74 N. H. 295, 67 Atl.
639.

New York.— Paine v. Geneva, etc.,
Tract. Co., 115 N. Y. App. Div. 729,
6 St. Ry. Rep. 812, 101 N. Y. Supp.
204,

Washington.— Firebaugh v. Seattle
Elec, Co, 40 Wash. 658, 4 St. Ry.
Rep. 1055, 82 Pac. 995, 2 L. R. A.
(N. 8.) 836, 111 Am. St. Rep. 990.-

40. Paine v. Geneva, etc, Tract.
Co., 115 N. Y. App. Div. 729, 6 St.
STREET RAILWAYS. 569

and a broken wire fell and struck the dashboard of the
platform of the car, and the lights thereupon went out,
and this was followed by a flash and a loud explosion,
whereupon the boy ran to the back platform and jumped
off the car which was moving at high speed and was
killed, it was held that, though none of the other passengers
were frightened, the question of the boy’s contributory
negligence was for the jury, and their finding would not
be disturbed by an appellate court.

Proximate Damages.— The damages which the law per-
mits the passenger to recover of the street railway com-
pany are, not only for the direct injury caused by the ex-
plosion and fire, but also for those which are received in
jumping from the car, or which are otherwise received in
attempting to escape from the danger.” It is just as
culpable to frighten a passenger negligently and thereby
indirectly injure him by causing him to jump from the car,
as it is to injure him directly. Likewise, injuries received

Ry. Rep. 812, 101 N. Y. Supp.
204,

Where a passenger received injuries
alleged to have resulted from emission
of flames from the electric apparatus
of the car, or of such magnitude
that he was justified in jumping from
the car, and the evidence on the other
hand tended to show that the flash
was of a slight character, accom-
panied by but a slight noise, together
with evidence that plaintiff was not
only not thrown from the car but
that he rushed out of the car and
immediately jumped from it, which
he acknowledged to those going to
his assistance, admitting his foolish-
ness in having jumped at all, and
where the evidence further showed
that all of the other passengers re-
mained in the car, as the evidence
was conflicting on the material points
in issue it was for the jury to deter-
mine what credit should be given to
it, and their verdict could not be dis-
turbed on appeal. Patterson v. San

Francisco, etc., Ry. Co., 147 Cal. 178,
9 Am. Elect]. Cas. 485, 4 St. Ry. Rep.
44, 81 Pac. 531.

41. Chretian v. New Orleans Rys.
Co., 113 La. 761, 9 Am. Electl. Cas.
261, 3 St. Ry. Rep. 293, 37 So. 716,
104 Am. St. Rep. 519. See also,
Paine v. Geneva, etc., Tract. Co., 115
N. Y. App. Div. 729, 6 St. Ry. Rep.
812, 101 N. Y. Supp. 204.

42. Steverman v. Boston Elev. Ry.
Co., 205 Mass. 508, 9 N. E. 919;
Leonard v. Brooklyn Heights R. Co.,
57 N. Y. App. Div. 125, 7 Am. Elect].
Cas. 683, 67 N. Y. Supp. 985. See
also, Stern v. Westchester Elec. Ry.
Co., 99 N. Y. App. Div. 491, 9 Am.
Electl. Cas. 302, 3 St. Ry. Rep. 713,
90 N. Y. Supp. 870.

43. Williamson v. St. Louis Tran-
sit Co., 202 Mo, 345, 5 St. Ry. Rep.
649, 9 Am. Elect], Cas. 1127, 100
S. W. 1072; Dorff v. Brooklyn
Heights R. Co. 95 N. Y. App. Div.
82, 3 St. Ry. Rep. 714, 88 N. Y.
Supp. 463.
570 Law or ELecrricity.

from the fall of another passenger against the plaintiff
may be the subject of recovery,** or from being pushed off
the car by panic-stricken passengers.*°

Sec. 392. Injuries to Passengers; Electrical Shock.

The obligation of a common carrier, such as a street
railway, to exercise the highest degree of care for the pro-
tection of its passengers applies to the electric current
which it uses as a motive power. It must exercise due care
to restrain its current within the bounds necessary for the
operation of the car; if, by reason of its failure to control
its current, metal parts of the car become charged with
electricity and a passenger is thereby injured, the company

must ordinarily respond in damages.**

44, Logan v. United Rys. Co. of
St. Louis, 166 Mo. App. 490, 148
S. W. 444; Birmingham Ry. L. & P.
Co. v. Jordan, 170 Ala. 530, 54 So.
280.

45. German v. Brooklyn Heights
R. Co., 107 N. Y. App. Div. 354, 9
Am. Elect]. Cas. 933, 4 St. Ry. Rep.
848, 95 N. Y. Supp. 112; Williams v.
New York & Queens County Ry. Co.,
97 N. Y. App. Div. 133, 9 Am. Electl.
Cas. 301, 3 St. Ry. Rep. 713, 89 N.Y.
Supp. 659.

46. Colorado.— Denver Tramway
Co. v. Reid, 4 Colo. App. 53, 4 Am.
Elect]. Cas. 332, 35 Pac. 269.

Illinois — East St. Louis Elec. St.
Ry. v. Sliger, 65 Ill. App. 312.

Kentucky.— South Covington &
Cincinnati St. Ry. Co. v. Smith, 27
Ky. Law Rep. 811, 3 St. Ry. Rep.
264, 9 Am. Elect]. Cas. 452, 86 S. W.
970.

Massachusetts.— McDonough v.
Boston Elev. Ry. Co., 208 Mass. 436,
94 N. E, 809.

Missouri.— Black v Metropolitan
St. Ry. Co., 162 Mo. App. 90, 144
S. W. 131; McRae v. Metropolitan
St. Ry. Co., 125 Mo. App. 562, 9 Am.
Electl. Cas. 1127, 5 St. Ry. Rep. 636,

Under the doctrine

102 S. W. 1032. See also, Black v.
Metropolitan St. Ry. Co., 217 Mo.
672, 117 S. W. 1142.

New York.— D’Arcy v. Westchester
Electric Ry. Co., 82 App. Div. 263,
81 N. Y. Supp. 952; Buckbee v. Third
Ave. R. Co., 64 App. Div. 360, 7 Am.
Elect]. Cas. 692, 72 N. Y. Supp. 217.

Texas.— Denison, etc., Ry. Co. v.
Johnson, 36 Tex. Civ. App. 115, 81
S. W. 780; Dallas Consol. Elec. St.
Ry. Co. v. ‘Broadhurst, 28 Tex. Civ.
App. 630, 68 S. W. 315.

Wisconsin— Burt ov. Douglas
County St. Ry. Co., 83 Wis. 229, 4
Am. Electl. Cas. 329, 53 N. W. 447,
18 L. R. A. 479.

An expert witness for the street
tailway company, defendant, having
given testimony tending to show that
electricity could not be transmitted
to a trail-car in sufficient quantities
to injure a person, held, competent
on cross-examination to ask him if
there were not, upon certain metal
railings of all of the defendant’s
cars, blisters caused by the escape of
electricity from trail-cars. Denver
Tramway Co. v. Reid, 4 Colo. App. 53,
4 Am. Electl. Cas. 332, 35 Pac. 269.

Res inter alios acta—In an action
Street Ratiways. 571
of res ipsa loquitur an electric shock to a passenger usually
creates a presumption of negligence, calling upon the com-
pany to produce evidence as to its freedom from negli-
gence.*” The liability of the company has been sustained
where the injury was caused by the charged condition of
a metal plate at the entrance to the car,** a metal cover to
a sandbox in the floor of the vestibule,*® the railing or
hand-holds™ by the steps,” a guard-rail on the platform,”
the controller-box,** or a brass rod placed across a window.”

Charged Wire. A street railway company employing
a dangerous current of electricity for its motive power
must use the highest degree of care to avoid injury to its

for injuries caused by an electric
shock sustained by a passenger alight-
ing from a car, it has been held
proper to reject evidence tending to

show that other persons getting off.

and on the car about the same time
were not injured. Denver Tramway
Co. v. Reid, 4 Colo. App. 53, 4 Am.
Electl. Cas. 332, 35 Pac. 269. The
testimony of experts of instances
where persons had received shocks
similar to the one received by the
plaintiff and were not injuredjthereby,
is not admissible. Black v. Metropol-
itan St. Ry. Co., 162 Mo. App. 90,
144 S. W. 131. But it has been
held proper for the plaintiff to show
that on the same day and the day
before the injury to plaintiff, other
persons were shocked by the same car,
as such: evidence tends to show that
the car and its equipments were not
in proper repair, and that the com-
pany knew, or ought to have known,
the fact. Dallas Consol. Elec. St. R.
Co. v. Broadhurst, 28 Tex. Civ. App.
630, 68 S. W. 315. Likewise, it is
proper, in an action by a passenger
injured by the breaking of a trolley
wire, to show that the same wire had
frequently broken during the season.
The evidence is admissible to charge
the company with notice of the defect-

ive condition of the wire. Richmond
Ry. & Elec. Co. v. Bowles, 92 Va.
738, 6 Am. Electl. Cas. 449, 24 S. E.
388,

47. § 599.

48. McRae v. Metropolitan St. Ry.
Co., 125 Mo. App. 562, 5 St. Ry. Rep.
636, 102 S. W. 1032; Buckbee v.
Third Ave. R. Co., 64 N. Y. App. Div.
360, 7 Am. Electl. Cas, 692, 72 N. Y.
Supp. 217.

49. Black v. Metropolitan St. Ry.
Co., 162 Mo. App. 90, 144 S. W. 131.
See also, Black v. Metropolitan St.
Ry. Co., 217 Mo. 672, 117 8. W. 1142.

50. Eickhof v. Chicago, etc. Ry.
Co., 77 Ill. App. 196.

51. Dallas Consol. Elec. St. Ry. Co.
v. Broadhurst, 28 Tex. Civ. App. 630,
68 S. W. 315.

52. Denison, etc., Ry. Co. v. John-
son, 36 Tex. Civ. App. 115, 81 S. W.
780.

58. Burt v. Douglas County St. Ry.
Go., 83 Wis. 229, 4 Am. Electl. Cas.
329, 53 N. W. 447, 18 L. R. A. 479.

54. South Covington & Cincinnati
St. Ry. Co. v. Smith, 27 Ky. Law
Rep. 811, 3 St. Ry. Rep. 264, 9 Am.
Elect]. Cas. 452, 86 S. W. 970.

55. D’Arcy v. Westchester Electric
Ry. Co., 82 N. Y. App. Div. 263, 81
N. Y. Supp. 952.
572 Law or Hecrricity.

passengers from the breaking of the wire. A prima facie
case of negligence is presented where it is shown that its
trolley wire broke and caused injury to a passenger with-
out contributory negligence on his part. This prima facie
case may be rebutted by the company by showing that the
breaking of the wire was an act of God or an inevitable
accident. If the breaking of the wire was caused solely by
a hidden, latent defect in the wire which could not have
been discovered or detected by any reasonable examination,
the carrier is not liable unless negligence may be predicated
upon some other ground than the breaking of the wire.
The company may be liable where its trolley wire breaks
and, in falling, comes in contact with metal parts of the
car so that an electrical disturbance is caused which
frightens the passenger and impels him to jump from the
car.*’ Negligence may also be imputed to a street railway
company where it leaves a live wire suspended from the
roof of the car at the rear platform, so that a passenger,
believing the wire to be rope, inadvertently touches it.™
It is rarely that the breaking of a trolley wire causes injury
to persons in the car; the injury, if any, is usually occa-
sioned to pedestrians and other persons in the street. The
liability of the street railway company to such persons is
discussed in another chapter.”®

Contributory Negligence The presence of electricity
in places where the passenger comes in contact with it
is not visible to the eye. One of the greatest dangers from
the electric current lies in its imperceptibility to the ordi-
nary senses. A passenger who, in the ordinary course of
travel, is shocked by touching a charged part of the car
which he has no ground to believe dangerous, is not guilty
of negligence.

56. Baltimore City Pass. Ry. Co. v.
Nugent, 86 Md. 349, 38 Atl. 779, 39
L. R. A. 161.

_57. Richmond Ry. & Elec. Co. v.
Bowles, 92 Va. 738, 6 Am. Elect]. Cas,
449, 24 8. EE, 388.

58. Hopkins v. Michigan Tract. Co.,
144 Mich. 359, 9 Am. Electl. Cas. 935,

4 St. Ry. Rep. 521, 107 N. W. 909,
13 Det. Leg. N. 254,

59. See § 496.

60. Burt v. Douglass County St.
Ry. Co., 83 Wis. 229, 4 Am. Elect].
Cas. 329, 53 N. W. 447, 18 L. R. A.
479,
Street Rariways. 573

Sec. 393. Injuries to Passengers; Collision with Post in
Proximity to Track.

The duty of the street railway company to use the highest
degree of care for the protection of its passengers extends
to the prevention of injuries from posts and other objects
beside the track." <A street railway company may he
charged with negligence for its failure to maintain the posts
supporting its wires a reasonably safe distance from the
track; and, where the base of the post is properly located,
negligence may in some cases be inferred from the leaning
of the post toward the track. Even though the poles are
not apparently in dangerous proximity to the track, negli-
gence may be based on the excessive speed of the car, where
such speed causes an oscillation which throws a passenger
toward the poles.“ A traveler on a street car has a right
to rely on the presumption that the company has adopted

61. Cameron v. Lewiston, etc. St.
Ry., 103 Me. 482, 70 Atl. 534, 18
L. R. A. (N. 8S.) 497. “The rule of
law requiring railway companies to
exercise extraordinary care and dili-
gence in protecting their passengers
applies as well to the construction
and maintenance of tracks as to the
operation of cars thereon. * * * And
this rule is not complied with if per-
manent obstructions are allowed to
remain on or so near the track as to
imperil the safety of passengers on
passing cars.” Salmon v. City Elec.
Ry. Co., 124 Ga. 1056, 4 St. Ry. Rep.
160, 53 8. E. 575.

62. “The roadbed and its equip-
ment were constructed and operated
for the carrying of passengers under
the usual conditions of public travel,
and it was for the jury to determine
whether in anticipation of such use
of ita car, reasonable diligence called
for a realignment of the pole to avoid
the danger of possible collision, and
whether its failure to take this pre-

caution was negligence.” Pomeroy v.
Boston, ete., Ry. Co., 193 Mass. 507,
5 St. Ry. Rep. 436, 79 N. E. 764.

Cross-beam.— Negligence may be
based on the maintenance of a cross-
beam bolted to one of the street rail-
way company’s poles in such a man-
ner that the arm of a passenger pro-
truding through an open window
comes in contact therewith. Gardner
v. Metropolitan St. Ry. Co., 223 Mo.
389, 122 S. W. 1068, 18 Ann. Cas.
1166.

It is not negligence, as a matter of
law, for an electric railway company,
on placing in service wider cars than
those theretofore in use, to fail to
give direct notice or warning to pas-
sengers of the danger of contact with
the trolley poles resulting from the
increased width of the car. Chapman
v. Capital Traction Co., 37 App. D. C.
479,

63. Schmidt v. Coney Island, ete.,
R. Co. 26 N. ¥. App. Div. 391, 49
N. Y. Supp. 777.
574

Law or ELEcrTRICITY.

and maintained a reasonably safe mode of transportation.“
The act of a passenger in riding on the steps or running-
board, or in passing along a running-board of a street
railway car, does not in all cases constitute contributory
negligence ;* and, if he collides with a post of the company
while he is lawfully riding on the running-board, he may be

permitted to recover damages from the company.

64, Pomeroy v. Boston, etc. Ry.
Co., 193 Mass. 507, 5 St. Ry. Rep.
436, 79 N. E. 764.

65. Connecticut.— Hesse v. Meri-
den, etc., Tramway Co., 75 Conn., 571,
54 Atl. 299.

Illinois.— Maier v. Chicago City
Ry., 166 Ill. App. 500.

Indiana.— Indianapolis St. Ry. Co.
v. Haverstick, 35 Ind. App. 281, 4
St. Ry. Rep. 283, 74 N. E. 34; Citi-
zens’ St. R. Co. v. Hoffbauer, 23 Ind.
App. 614, 56 N. E. 54; Indianapolis
Traction & Terminal Co. v. Richey,
(Ind. App.) 80 N. E. 170.

Maine.— Cameron v. Lewiston, etc.,
St. Ry. 103 Me. 482, 70 Atl. 534, 18
L.R. A. (N. S.) 497.

Massachusetts.— Pomeroy v. Bos-
ton, ete., Ry. Co., 193 Mass. 507, 5
St. Ry. Rep 436, 79 N. E. 764; Mason
v. Boston, ete, Ry. Co., 190 Mass.
255, 4 St. Ry. Rep. 475, 76 N. E.
717.

Montana.— Previsch v. Butte Elec.
R. Co., 47 Mont. 170, 131 Pac. 25.

New Jersey.—Wheeler v. South Or-
ange & M. Traction Co., 70 N. J. L.
725, 3 St. Ry. Rep. 631, 58 Atl. 927.

New York.—Horan v. Rockwell,
110 App. Div. 522, 96 N. Y. Supp. 973.

Rhode Island.— Elliott v. Newport
St. Ry., 18 R. I. 707, 4 Am. Electl.
Cas. 449, 5 Am. Elect]. Cas. 384, 28
Atl. 338, 31 Atl. 694, 23 L. R. A. 208.

Wisconsin.—Tolleman v. Sheboy-
gan L. P. & Ry. Co., 148 Wis. 197,
8 St. Ry. Rep. 173, 134 N. W. 406.

“Transportation of passengers of-
ten includes the use by them of the

The

running board by the invitation and
with the permission of the carrier,
and where this condition of travel
appears, then ordinarily as a matter
of law negligence cannot be inferred
on the part of a passenger who
stands thereon while in transit.”
Pomeroy v. Boston, etc., Ry. Co., 193
Mass. 507, 5 St. Ry. Rep. 436.

66. Connecticut.— Hesse v. Meri-
den, etc., Tramway Co., 75 Conn. 571,
54 Atl]. 299.

Illinois— Maier v. Chicago City
Ry., 166 Il. App. 500.

Indiana.— Indianapolis St. Ry. Co.
v. Haverstick, 35 Ind, App. 281, 4 St.

‘Ry. Rep. 283, 74 N. E. 34; Citizens’

St. R. Co. v. Haffbauer, 23 Ind. App.
614, 56 N. E. 54; Indianapolis Trac-
tion & Terminal Co. v. Richey, (Ind.
App.) 80 N. E, 170.

Maine.— Cameron v. Lewiston, etc.,
St. Ry., 103 Me. 482, 70 Atl. 534, 18
L. R. A. (N. 8.) 497.

Massachusetts.— Pomeroy v. Bos-
ton, etc., Ry, Co., 193 Mass. 507, 5 St.
Ry. Rep. 436, 79 N. E. 764; Mason
v. Boston, ete, Ry. Co., 190 Mass.
255, 4 St. Ry. Rep. 475, 76 N. E.
717.

New Jersey.— Wheeler v. South
Orange & M. Traction Co., 70 N. J.
L. 725, 3 St. Ry. Rep. 631, 58 Atl.
927.

New York.— Schmidt v. Coney Is-
land, ete., R. Co., 26 N. Y. App. Div.
391, 49 N. Y. Supp. 777.

Pennsylvania.— Brennan v. Schuy-
kill Tract. Co., 27 Pa. Super. Ct. 188.

Rhode Island.— Elliott v. Newport
Srreet Ratways. 575
negligence of the company in maintaining the post in dan-
gerous proximity to the track,.and the contributory negli-
gence of the passenger who is riding in a dangerous posi-
tion, are generally questions for the jury.” A passenger
is charged with notice of the existence of poles at the usual
distance from the cars; if he comes in contact with one of
these, he will generally fail to recover, either by reason of
his contributory negligence or on the theory that he
assumed the risk of injury from such poles. In some juris-
dictions it is held that a passenger who takes a place upon
the steps or running-board of a street railway car when
there is room inside of the car is guilty of negligence
and cannot recover if he comes in contact with a post of
the company. And it has been held that a passenger who,
though acquainted with the line and with its dangers, and
in spite of a warning notice conspicuously placed in the
car, steps upon the foot-board of a moving trolley car for
the purpose of alighting, his body being outside the car,
and is struck by a trolley post, and injured, is guilty of
contributory negligence which bars recovery against the

‘railway company.” Where the plaintiff who was riding
on the rear platform of a car on the side toward trolley

- poles placed between two tracks of the defendant’s road,
was struck in the head by one of such poles while leaning
out over the side-rail to see whence came some smoke,
apparently from under the car, and the evidence showed
that the poles were about seventeen inches from the side
of the car, it was held that plaintiff was guilty of contribu-
tory negligence as matter of law.’

Projection of Body Beyond Side of Car.— Whether a
passenger who is injured by projecting a part of his body

6t. Ry., 18 R. I. 707, 4 Am. Electl.
Cas. 449, 5 Am. Electl. Cas. 384, 28
Atl. 338, 31 Atl. 694, 23 L. R. A. 208.

67. See the cases cited above.

68. Bridges v. Jackson Elec. Ry., L.
& P. Co., 86 Miss. 584, 4 St. Ry. Rep.
547, 38 So. 788; Burns v. Johnstown
Pass. Ry. Co., 213 Pa. 143, 4 St. Ry.

Rep. 962, 62 Atl, 564,2 L. R. A. (N.

-S.) 1191,

69. State, Sharkey v. Lake Roland
Elev. Ry. Co., 84 Md. 163, 6 Am.
Elect]. Cas. 412, 34 Atl. 1130.

70. Huber v. Cedar Rapids, etc., Ry.
Co., 3 St. Ry. Rep. 245, 124 Iowa 556,
100 N. W. 478. :
576 Law or ELectricity.

beyond the side of a car is guilty of contributory negligence
so as to preclude the recovery of damages for the injuries
he receives by contact with a post near the track, depends
on the circumstances." In one case, where a passenger,
being taken ill suddenly, extended her head out of a car win-
dow over an iron screen which covered the lower part of
the window, it was held that she was negligent.” On the
other hand, the liability of the company has been sustained
where the passenger protruded his head beyond the side
line of the car for the purpose of expectorating.”

Pole of Another Company.— Where the pole is not owned
or used by the street railway company, it is not generally
to be charged with negligence on account of its position.
It may, however, be liable for the injury to a passenger
upon the theory that it constitutes negligence to operate
its cars without specific warning to its passengers of the

danger from such pole.”

71. See Wichita R. & Light Co. v.
Cummings, 72 Kan. 694, 4 St. Ry.
Rep. 323, 84 Pac. 121; Cummings v.
Wichita R. & Light Co., 68 Kan. 218,
2 St. Ry. Rep. 278, 74 Pac. 1104.

In Nellis on Street Railways, (2d
Ed.) section 356, it is said: A pas-
senger sitting beside an open win-
dow, riding with his arm resting on
the sill not more then three inches
outside the car, is not necessarily
negligent so as to preclude recovery
for an injury to his arm caused by
another car passing on a switch. And
where a passenger projected his head
beyond the side of the car to ex-
pectorate, whereby he came in con-
tact with a pole which the company
had placed very near the track, it was
held, that he was not, as a matter
of law, so lacking in care and caution
that he was precluded from recover-
ing damages for the injuries sus-
tained. But under certain conditions
of speed and surroundings it may be
negligent, as a matter of law, for a
passenger to permit his arm, or any

portion of his body, to protrude be-
yond the outside line of the car, and
the same rule may be applicable as
in the case of passengers on steam
roads. So, if a passenger unneces-
sarily and voluntarily leave his seat
and thus expose himself to danger
and come in contact with some ob-
ject in close proximity to the track,
he cannot recover for the injury thus
occasioned. And where a passenger
riding on the rear platform projected
his head beyond the side of a car and
came in contact with a trolley pole
about seventeen inches from the side
of the car, it was held that he was
guilty of contributory negligence as
a matter of law.”

72. Christensen v. Metropolitan St.
Ry. Co., 137 Fed. 708, 4 St. Ry. Rep.
306, 70 C. C. A. 657,

73. Salmon v. City Elec. Ry. Co.,
124 Ga. 1056, 4 St. Ry. Rep. 160, 53
S. E. 575.

74, Previsch v. Butte Elec. R. Co.,
47 Mont. 170, 131 Pac. 25,
577

Steeet Raltways.

Sec. 394. Injuries to Passengers; Trolley Pole.

The obligation of a street railway company to its passen-
gers requires it to exercise the utmost care to prevent
injury to them from the appliances connected with its
ears." If, by reason of its failure to perform its duty, the
arm, commonly known as a trolley pole, which forms the
connecting link between the car and the trolley wire, causes
injury to the passenger, it may be liable for the damages.”*
If such pole falls and injures a passenger, or a person
about to enter into or pass from a car, under the rule of
res ipsa loquitur, a jury is justified in awarding a verdict
to the person injured without other proof of the company’s
negligence.” The liability, nevertheless, is based on negli-
gence; and, in'the absence of negligence, a passenger is not
entitled to recover for injuries from the falling of the pole.”
Where a.person sustained personal injuries while a passen-
ger on an open trolley car operated by defendant, and,
upon the evidence submitted, the jury might have found
that he was standing inside the car, leaning against the
guard-rail, and that while the car was running at very high
speed the trolleyileft the overhead wire, and the pole, strik-
ing one or more cross-wires, bounced backward and down-
ward, and was bent ‘thereby sufficiently to strike, and did
strike, ‘the plaintiff, inflicting the injury complained of, it
was held a question for the jury whether defendant should

75. The high degree of care re-
quired of a carrier of passengers, ex-
tends to the matter of the arrange-
ment of its wires overhead and the
working of the trolley pole thereon,
and in case of negligence in this re-
spect resulting in injury to a passen-
ger, ordinary eare is not’ the test to
be applied. Denison, etc., Ry. Co. v.
Freeman, 88 Tex. Civ. App. 152, 85
S.-W. 55.

76. Chicago City Ry. Co. v. Carroll,
102 Ill. App. 202; affirmed, 206 Ill.
318, 2 St. Ry. Rep. 124, 68 N. E.
1087; Kirkpatrick. v. Metropolitan St.
Ry. Co., 161 Mo. App. 515, 8 St. Ry.

37

Rep. 252, 143 ‘N. W. 865; Keator v.
Scranton Traction Co., 191 Pa. St.
102, 43 Atl. 86, 44 L. R. A. 546, 44
W.N. C. 128.

77. Chicago City Ry.:Co. v. Car-

noll, 102 Ill. App. 202;; affirmed, 206

Til. 318, 2 St. Ry. Rep. 124, 68 N. E.
1087; Cincinnati Traction ‘Co. v.
Healzenkamp, 74 Oh. St.:379, 5 St. Ry.
Rep. 796, 113 Am. St. Rep. 980, 78
N. E. 529, 6 L. R. A. (N.S.) 800.

78. Newberry v.: Bristol Tramways
& Carriage Co., 107 L. T. (Eng.)- 801,
11 L. G. R. 69, 57 S. J. 172, 29 T.
L.. R. 177.
578 Law oF ELEctTRICITY.

not, in the exercise of proper care, have anticipated some
such accident as the result of the combination of high speed
and a displaced trolley, and have taken measures to pre-
vent it.” The company may also be liable for results of
the falling of the trolley. wheel.*° The fact that the pas-
senger when struck was standing on the platform of the
car, does not establish his contributory negligence as a
matter of law.

Sec. 395. Injuries to Passengers; Ownership of Car.

In order to hold a street railway company for damages
for injuries to a passenger from some defect in the car, it
is not always necessary to show that the defendant com-
pany is the owner of the car. If it is under the defendant’s
control and the plaintiff is a passenger of the defendant,
the liability exists though the car be the property of
another company.”

Sec. 396. Injuries to Travelers; in General.

The liability of an electric railway company to travelers
and persons lawfully on the streets is proportionate to the
dangers existing by reason of its use of the electric current
for motive power. It is, of course, not an insurer of the
safety of other persons using the streets, but it must use
commensurate care to avoid injury to them. If, by its
negligence, its current of electricity is allowed to escape
from its normal path and injury is thereby caused to trav-
elers, it is hable in damages. The company may be liable
where its car causes an unusual noise and smoke, so that
the horse of a traveler is frightened and the traveler is
injured in attempting to hold him. Liability may be

79. Donohue v. Public Service Ry.
Co., 79 N. J. 537, 7 St. Ry. Rep. 350,
78 Atl. 183.

80. Donovan v. Kansas City Ele-
vated Ry. Co., 157 Mo. App. 649, 7
St. Ry. Rep. 190, 138 S. W. 679.

81. Marion St. Ry. Co. v. Shaffer,
9 Ind. App. 486, 4 Am. Electl. Cas.
458, 36 N. E. 861.

82. Beattie v. Boston Elev. Ry. Co.,
201 Mass. 3, 86 N. E. 920. See also,
Blumenthal v. Brooklyn Union Elev.
R. Co., 158 N. Y. App. Div. 558, 143
N. Y. Supp. 811.

83. § 404.

84. Richmond Ry. & Elec. Co. v.
Hudgins, 100 Va. 409, 41 S. E. 736.
Street Rariways. 579
founded upon an injury to a person or horse which receives
a shock upon coming in contact with a rail of the street
railway line.** In many cases, electrical injuries raise a
presumption of negligence under the doctrine of res ipsa
loquitur, which will sustain a verdict though no specific
negligence is shown. Thus, where a horse driven along
a street is injured by the escape of electricity from a street
railway system, a presumption of negligence may arise.”

Sec. 397. Injuries to Travelers; Third Rail.

The use of a third rail in a public street, where travelers
would likely come in contact with it, cannot be authorized.
It would constitute a nuisance, and the owner thereof would
be liable for all the injuries it caused. A third rail whick
unnecessarily projects into a highway at a crossing is a
nuisance which renders the owner liable for all injuries
occasioned thereby.** But where an electric railway has
the exclusive occupation of its right of way, as where its
line is constructed over private property, upon an elevated
structure, or in a tunnel, there is no reason why it should
not be permitted to use the third rail for the conduction of
its motive power. With respect to a third rail so main-
tained, if a person or an animal goes upon the right of way
and comes in contact with the rail, in the absence of statute

85. Wood v. Wilmington City Ry.
Co., 5 Pen. (Del.) 369, 9 Am. Electl.
Cas. 477, 64 Atl. 246; St. Louis v. Bay
State St. Ry. Co., 216 Mass. 255, 103
N. E. 639; Sullivan v. Brooklyn
Heights Ry. Co., 117 N. Y. App. Div.
784, 6 St. Ry. Rep. 850, 9 Am. Electl.
Cas. 1009, 102 N. Y. Supp. 982;
Braham v. Nassau Electric R. Co., 72
N. Y. App. Div. 456, 76 N. Y. Supp.
578; Richmond Passenger & Power
Co. v. Robinson, 100 Va. 394, 41 S. E.
719; Clarke v. Nassau Elec. R. Co.,
9 N. Y. App. Div. 51, 6 Am, Elect].
Cas. 234, 41 N. Y. Supp. 78, %5 N. Y.
St. Rep. 539.

86. §§ 594, 599.

87. Wood v. Wilmington City Ry.

Co., 5 Pen. (Del.) 369, 9 Am. Electl.
Cas. 477, 64 Atl. 246; St. Louis v.
Bay State St. Ry. Co., 216 Mass. 639,
103 N. E. 639; Trenton Pass, Ry. Co.
v. Cooper, 60 N. J. Law 219, 7 Am.
Electl. Cas. 444, 37 Atl. 730, 38 L. R.
A. 637, 64 Am. St. Rep. 592.

88. Bloss v. Oneida Ry. Co., 162
N. Y. App. Div. 200, 147 N. Y. Supp.
728.

Evidence.— To show that the rail
projects unnecessarily in the high-
way, a person injured thereby may
show the distance that rails project
in the highway at other crossings.
Bloss v. Oneida Ry. Co., 162 N. Y.
App. Div. 200, 147 N. Y. Supp. 728.
580 Law or ELecrricrry.

or other regulation in the matter, the company’s liability
is measured by its duty to trespassers. As a general prop-
osition, it is not liable to trespassers, unless the injury is
wilfully or wantonly done. A company which uses elec-
tricity in quantities sufficient to cause serious injuries is
required to protect, by insulation or otherwise, its lines so
that persons who may lawfully come in proximity to its
conductors will not be injured thereby.*® But this duty to
guard its wires is not applied in favor of trespassers.
Thus, in one rather pathetic case, where an electric rail-
road used the third rail through a village, its line being
enclosed iby a fence, a boy eight years of age was attracted
by some flowers on the right of way; he succeeded in open-
ing a gate in the fence and, when attempting to cross the
track, was severely injured by coming in contact with the
third rail. It was held that the company was not liable
for the injury.°° “These facts present a typical case of an
injury to a trespasser. The innocence of the wrongful
trespass does not avail the person injured. There is
nothing about the maintenance of the right of way and
dangerous rail as to constitute an ‘‘ attractive nuisance ”’
under the ‘‘ turntable doctrine.’’** In the same way, where
a child chmbs upon the structure of an elevated railroad
and comes in contact with a live rail, the company is not

them. There is no evidence that
there was anything to allure or en-

89. § 510.
90. ‘Riedel v. West Jersey, etc., ‘R.

Oo., 177 Fed. 374, 101 C. C. A. 428,
28 L. R. A. (WN. S.) 98, 21 Ann. Cas.
746; affirming ‘170 Fed. 616.

91. “ There is nothing in the record
to bring ‘this case ‘within ‘the ‘ratio
decidendi of the so ‘called “turn-
table” cases, and other cases de-
cided on the same principle, to which
the plaintiff réfers. ‘In the present
ease, the railroad -property was
guarded by a statutory fence, and
the gate through which the plaintiff
and his companion entered upon the
railroad premises was fastened by a
bolt, which had been withdrawn by

tice the children to go upon the rail-
road premises at the place where the
accident occurred, and none that. chil-
‘dren had ever been in the habit of en-
‘tering upon the railroad premises
through this gate, or otherwise, for
play or amusement, or for any other
‘purposes. The motive of the children
in attempting to cross the railroad,
as testified by the children them-
selves was to gather flowers on the
other side of the railroad property.”
Reiden v. West Jersey, etc. R. Co.,
177 Fed. 374, 101 C. C. A. 428, 28
L. R. A. (N. 8.) 98, 21 Ann. Cas. 746.
Street Rariways. 981
liable.” As to a passenger or a person rightfully in prox-
imity to the rail, the company must exercise at least reason-
able care to guard the rail and give information as to the
danger.*® If it is required by statute that the third rail
shall be guarded or that the right of way shall be fenced,
a violation of the statute may afford a person thereby
injured a cause of action. At highway crossings the com-
pany is obliged to guard its live rail so as to avoid: injury
to travelers passing along the highway.”

Sec. 398. Injuries to Travelers; Cable Slot.

The use of a cable slot to enable a street railway com-
pany to transmit power from an underground cable or elec-
tric conductor to its cars, is not an unlawful construction,
if authorized by the government. It is possible that the
wheels of vehicles will fall into the slot and that injuries
to property or persons may thereby result, but the com-
pany is not liable for such injuries unless negligence is

shown.

92. McAllister v. Jung,
App. 138.

93. Evicted passenger— A person
who purchases a round-trip ticket
over a railway between two points,
and who, on the return trip, is re-
fused admission to a car operated by
the street railway company, who is
not directed by the company’s em-
ployees as to the manner in which
he might leave the company’s prop-
erty, is not a trespasser in walking
upon the tracks of the company, but
is entitled to reasonable protection
from the hidden or unknown danger
arising from the fact that one of the
rails forming the track was charged
with electricity. The question of the
company’s negligence in failing to
warn him of the danger of coming in
contact with an electrically charged
rail, while walking on the track, after
he had been wrongfully forced to

112 IIL

Negligence is not imputed to a company because
the wheel of a vehicle has fallen into it.”

But negligence

leave a car at a station, is a question
of fact for the jury, as it also the
question of the negligence of such
person, in the absence of knowledge
of the existence of the danger from
contact with such rail, in walking
upon such track. Anderson v. Seattle-
Tacoma Interurban Ry. Co., 36 Wash.
287, 3 St. Ry. Rep. 894, 9 Am. Electl.
Cas. 293, 78 Pac. 1013, 104 Am. St.
Rep. 962.

94, Butler v. Aurora, etc., R. Co.,
250 Ill. 47, 95 N. E. 44; affirming 158
Il. App. 386.

95. See Tarlucki v. West Jersey &
S. R. Co., 82 N, J. L. 138, 81 Atl. 495.

96. Miller v. United Railways &
Elec. Co., 108 Md. 84, 7 St. Ry. Rep.
798, 69 Atl. 636.

97. Miller v. United Railways &
Elec. Co., 108 Md, 84, 7 St. Ry. Rep.
798, 69 Atl. 636.
582 Law or ELectricity.

may be inferred from the fact that the slot was constructed
or permitted to become wider than was necessary.** Like-
wise, a street railway company may be charged with negli-
gence where a pedestrian, while crossing a street, is injured
by an electric shock received when stepping upon a slot
rail.®

Sec. 399. Injuries to Employees.

The liability of a street railway company, as well as other
companies using electricity, for injuries to employees is
discussed in a subsequent chapter.

98. Griveaud v. St. Louis Cable & 99. Ludwig v. Metropolitan St. Ry.
Western Ry. Co., 33 Mo. App. 458; Co., 71 N. Y. App. Div. 210, 75 N. Y.
Brown v. Metropolitan St. Ry. Co., Supp. 667; reversed on other grounds,
60 N. Y. App. Div. 184, 70 N. Y. 174 .N. Y. 546, 67 N. E. 1084.

Supp. 40; affirmed without opinion, 1. See §§ 555, 569, 578.
171 N. Y. 699, 64 N. E. 1109.
InguRiEs to Persons anp PROPERTY. 583

CHAPTER XXII.

INJURIES TO PERSONS AND PROPERTY; DUTY AND LIABILITY OF

SECTION 400.
401.
402.
403.

404,
405.
406.
407.
408.
409.
410.
411.
412.
413.
414,
415.
416.
417.
418.
419,
420.
421.
422.
423.
424.
425.

426.
427.

428.

429.
430.
431.
432.
433.
434,

Sec. 400.

ELECTRIC COMPANIES IN GENERAL.

Electric Company not an Insurer; in General.

—— Rule in Kentucky.

—— Rule of Rylands v. Fletcher. f

—— Analogy Between Electric Companies and Keepers of
Ferocious Animals.

Degree of Care to be Exercised by Electric Company; in General.

—— Ordinary Care.

—— Extraordinary Care.

Contractual Relation Not Essential to Liability.

Duty as to Customers.

Persons on Customer’s Premises.

Duty to Children.

Duty of Telephone or Telegraph Company; in General.

—— As to Dangerous Currents of Other Companies.

—— As to Customers.

—— As to Travelers.

—— As to Persons on Private Property.

Liability Dependent on Ownership of Appliance; in General.

— Defective Appliances of Customers.

—— Successors.

Wires Permitted on Same Pole.

Violation of Ordinance; in General.

Ordinance Does Not Lesson Duty.

—— Proximate Cause.

—— Advisability of Ordinance, Not an Issue.

Violation of Ordinance by Person Injured

Liability of Municipal Corporation; Injuries from Municipal
Plant.

— Care of Highways.

—— Appliances of Other Companies.

Nuisances; in General.

— Power Plant.

-——— Appliances.

— Relief.

Joint Tort-feasors; in General.

Contribution or Indemnity.

Release of One.

 

 

 

 

 

 

Electric Company not an Insurer; in General.

It is a well settled principle of the law of electricity that,
in the absence of a special statute or special contract, an
electric company is not the insurer of the safety of the per-
584

Law oF ELecrricity.

sons who may come in proximity to its appliances and thus

receive an injurious shock of electricity.

The courts, at

times, seem to impose upon electric companies a duty of
vigilance which is practically superhuman; but, neverthe-
less, as an abstract principle of law, its liability is based

not on insurance, but on negligence.’

The company is not

liable for inevitable accidents, blameless casualties, or the

1. United States— City of Denver
v. Sherret, 88 Fed. 226, 31 C. C. A.
499, 60 U. S. App. 104.

Alabama — Alabama City, etc., Ry.
Co. v. Appleton, 171 Ala. 324, 54 So.
638, (1913) A) Aun. Cas. 1181; Bir-
mingham Ry., L. & P. Co. v. Murphy,
2 Ala. App. 588, 56 So. 817.

Arkansas.— City Elec. St. R. Co. v.
Conery, 61. Ark. 381, 6. Am. Electl.
Cas. 217, 33 S. W. 426, 31 L. R. A.
570, 54 Am. St. Rep. 262. “ Electric
companies are bound to use ‘ reason-
able care in the construction and
maintenance of their lines and ap-
paratus — that is, such care as a rea-
sonable man would use under the cir-
cumstances — and will be responsible
for any conduct falling short of this
standard.’ This care varies with the
danger which will be incurred by neg-
ligence. In cases where the wires
carry a strong and dangerous current
of electricity, and the result of negli-
gence might be exposure to death or
most serious accidents, the highest
degree of care is required. This is
especially true of electric railway
wires suspended over the streets of
populous cities or towns. Here the
danger is great, and the care exer-
cised must be commensurate with it.
But this duty does not make them
insurers against accidents, for they
are not responsible for accidents which
a reasonable man, in the exercise of
the greatest prudence, would not un-
der the circumstances have guarded
against.” City Elec. St. R. Co. v.
Conery, 61 Ark. 381, 6 Am. Electl.

Cas. 217, 33 S. W. 426, 31 L. R. A.
570, 54 Am. St. Rep. 262.

Arizona.— Phoenix L. & Fuel Co. v.
Bennett, 8 Ariz. 314, 8 Am. Elect].
Cas. 597, 74 Pac. 48, 63 L. R. A.
219. “ Where a person, proceeding in
a lawful business, exercises reason-
able care, the law does not make him
an insurer against those consequences
of his actions, which reasonable care
and foresight could not have pre-
vented. The law justly ascribes
such consequences to inevitable mis-
fortune or to ‘the act of God,’ and
leaves the harm resulting from them
to be borne by him upon whom it
falls.” Phoenix L. & Fuel Co. v.
Bennett, 8 Ariz. 314, 8 Am. Electl.
Cas. 597, 74 Pac. 48, 63 L. R. A. 219.

California— Pennebaker v. San
Joaquin L. & P. Co., 158 Cal. 579,
112 Pac. 459, 31 L. R. A. (N. S.)
1099,

Colorado. Denver Consol. Elec.
Co. v. Walters, 39 Colo. 301, 9 Am.
Electl. Cas. 1013, 89 Pac. 815.

Connecticut.— Rosenstein v. Fair
Haven & W. R. Co., 78 Conn. 29, 9
Am. Elect]. Cas. 481, 60 Atl. 1061.

Delaware— Cook v. Wilmington
City Elec. Co., 9 Houst. 306, 32 Atl.
643.

Florida — Escambia County Elec-
tric L. & P. Co. v. Sutherland, 61
Fla. 167, 55 So. 83.

Georgia.— Heidt v. Southern Telep.
& Teleg. Co., 122 Ga. 474, 9 Am.
Electl. Cas. 435, 50 S. E. 361.

Tllinois.— Rowe v. Taylorville Elec.
Co., 114 Ill. App. 535; affirmed, 213
Insuries to Persons anp Property.

Nhl. 318, 9 Am. Electl. Cas. 279, 72
N. E. 711; Quincy Gas & Elec. Co. v.
Baumann, 104 Ill. App. 600; affirmed,
203 Ill. 295, 8 Am. Electl. Cas. 460,
67 N. E. 807.

Indiana.— Indianapolis L. & H. Co.
v. Dolby, 47 Ind. App. 406, 92 N. E,
739.

Iowa.— Harter v. Colfax Elec. L.
& P. Co., 124 Iowa 500, 9 Am. Elect.
Cas. 161, 100 N. W. 508; Knowlton
v. Des Moines Edison L. Co., 117 Iowa
451, 8 Am. Elect]. Cas. 800, 90 N. W.
818.

Kentucky.— Union Light, Heat &
P. Co. v. Lakeman, 156 Ky. 33, 160
S. W. 723; Mangan’s Adm’r v. Louis-
ville Elec. L. Co., 122 Ky. 476, 9 Am.
Electl. Cas. 692, 29 Ky. Law Rep. 38,
91S. W. 703, 6 L. R. A. (N. S.) 459.

Maine— Wells v. Northeastern
Telep. Co., 101 Me. 371, 9 Am. Elect].
Cas. 749, 64 Atl. 648.

Maryland.— Walter v. Baltimore
Electric Co., 109 Md. 327, 71 Atl.
953. “It has been held in different
eases that electric companies are not
insurers of the public using the
streets over which their wires are
strung on poles, and are therefore
not liable for all injuries resulting
from contact with their wires, irre-
spective of the circumstances under
which they occur.” Walter v. Balti-
more Electric Co., 109 Md. 327, 71
Atl. 953.

Minnesota — Musolf v. Duluth Edi-
son Elec. Co., 108 Minn. 369, 122 N. W.
499, 24 L. R. A. (N. S.) 451. “The
use of electricty, a ‘silent, deadly,
and instantaneous force,’ is governed
by the law of negligence, not by the
principles of insurance of safety.
* * * In this respect it is an excep-
tion to the general rule of insurance
of safety applied to similarly danger-
ous instrumentalities. The persons
employing so terribly dangerous a
force can exonerate themselves, how-

585

ever, only by showing the exercise of
greatest diligence.” Musolf v. Du-
luth Edison Electric Co., 108 Minn.
369, 122 N. W. 499, 24 L. R. A.
(N. 8.) 451.

Missouri— Wilhite v. City of
Huntsville, 167 Mo. App. 155, 151
S. W. 232; Luehrmann v. Laclede
Gaslight Co., 127 Mo. App. 213, 9
Am, Elect]. Cas. 1092, 104 S. W.
1128.

Nebraska. New Omaha Thomson-
Houston Elec. L. Co. v. Anderson, 73
Neb. 84, 9 Am. Elect]. Cas. 306, 102,
N. W. 89.

New York.— Sullivan v. Brooklyn
Heights Ry. Co., 117 N. Y. App. Div.
784, 6 St. Ry. Rep. 850, 9 Am. Electl.
Cas. 1009, 102 N. Y. Supp. 982.

Oklahoma. Ladow v. Oklahoma
Gas & Elec. Co., 28 Okla. 15, 119 Pac.
250; Shawnee Light & Power Co. v.
Sears, 21 Okla. 13, 95 Pace. 449.
“While the defendant is not an in-
surer, still it is held to the highest
degree of care in keeping its appli-
ances ‘safe.”” Shawnee Light &
Power Co. v. Sears, 21 Okla. 13, 95
Pac. 449.

Oregon.— Boyd v. Portland Elec.
Co., 37 Oreg. 567, 7 Am. Electl. Cas.
605, 62 Pac. 378; Perham v. Portland
General Elec. Co., 33 Oreg. 451, 7
Am. Electl. Cas. 487, 53 Pac. 14, 40
L. R. A. 799, 72 Am. St. Rep. 730.
“An electric light company that has
erected its poles and wires in the
streets of a municipality, with the
consent of the proper authorities, is
not an absolute insurer against acci-
dent therefrom. It is only bound to
exercise care and diligence in the
erection and maintenance of its sys-
tem proportionate to the danger.”
Boyd v. Portland Elec. Co., 37 Oreg.
567, 7 Am. Electl. Cas. 605, 62 Pac.
378.

Pennsylvania.— Delahunt v. United
Telep. & Teleg. Co., 215 Pa. St. 241,
586 Law oF Execrricity.

acts of God.2. The danger of high-tension electric currents
has led some courts to express the opinion that justice
would, perhaps, be better secured if electric companies
were held as insurers or quasi-insurers;? but in this
country the opinion of the judiciary as to the advisa-
bility of a different rule has not affected their decisions.
When the question is presented for determination, lia-
bility of electric companies as insurers is denied. Vagrant
expressions in the opinions of judges may be construed
to impose upon an electric company an absolute duty in
respect to its appliances, but these expressions are to be
construed as inadvertent failures to incorporate the ele-
ment of care in the statement of the duty of the company,
and should not be construed as forming a basis for holding
an electric company liable for injuries as an insurer.* Inas-

9 Am. Electl.
515,

Texas.— Southwestern Teleg. &
Telep. Co. v. Shirley, (Civ. App.) 155
8. W. 663.

Virginia—Norfolk Railway & Light
Co. v. Spratley, 103 Va. 379, 3 St.
Ry. Rep. 859, 9 Am. Elect]. Cas. 329,
49 S. E. 502.

Washington.—White v. Reservation
Elec. Co., 75 Wash. 139, 134 Pac. 807;
Graves v. Washington Water Power
Co., 44 Wash. 675, 9 Am. Electl. Cas.
912, 87 Pac. 956, 11 L. R. A. (N. 8S.)
452.

Canada.— Gloster v. Toronto Elec
L, Co., 38 Can. Sup. Ct. 27, 6 Ann.
Cas. 529, 26 C. L. T. 847; Johnson
v. Clark & Son, 7 D. L. R. 361, 4
O. W. N. 202, 23 O. W. R. 196. “ The
defendant company transmitting such
a dangerous element as electricity
through their wires thus strung along
a public highway fall far short of
being insurers, but are bound to ex-
ercise the greatest possible care and
to use every possible precaution for
the protection of the public.” Gloster

Cas. 792, 64 Atl.

v. Toronto Elec. L. Co., 38 Can. Sup.
Ct. 27, 6 Ann. Cas, 529, 26 C. L. T.
847.

2. §§ 453-461.

3. Denver Consol. Elec. Co. v. Law-
rence, 31 Colo, 301, 8 Am. Electl. Cas.
617, 73 Pac. 39; Metropolitan St. Ry.
Co. v. Gilbert, 70 Kan. 261, 3 St. Ry.
Rep. 254, 9 Am. Electl. Cas. 241, 78
Pac. 807. “ The owner of a ferocious
tiger is bound to confine it, and when
it escapes and kills he is responsible.
The high electric current is more
deadly than any tiger. It kills by
a touch, and its presence is only dis-
covered when the mischief has already
been done, so- that those who generate
such currents ought, on principle, to
be made insurers against damage
thereby done. The authorities do not
go this far, however.” Indianapolis
L. & H. Co. v. Dolby, 47 Ind. App.
406, 92 N. E. 739,

4. See Potts v. Shreveport Belt Ry.
Co., 110 La. 1, 34 So. 103, 98 Am. St.
Rep. 452; Walker v. Southern Bell
Telep. & Teleg. Co., 92 S. Car. 188,
75S. E. 1024,
Insurizs To Persons anp Property. 587
much as electric companies are not insurers, it is tech-
nically error for a trial judge, in an action against such a
company, to charge the jury that it is the duty of the com-
pany to maintain its appliances in such condition as to
prevent injury to persons in proximity thereto,’ or to charge
that it is the ‘‘ absolute ’’ duty of the company to prevent
their wires from becoming dangerous. A charge on the
subject should always include the element of care, and not
impose a duty irrespective of the company’s diligence.

Sec. 401. Electric Company not an Insurer; Rule in Ken-
tucky.

Apparently the courts of Kentucky have come closer to
placing the obligation of an electric company upon an
insurance basis than have the courts of any other American
jurisdiction. In some of the earlier’ cases the doctrine was
enunciated that it is the duty of an electric company to
insulate its wires perfectly at points where persons are
apt to come in contact with them, and to use the utmost

care to keep them insulated.®

5. City of Denver v. Sherrett, 88
Fed, 226, 60 U. S. App. 104, 31 C. C.
A. 499; Citizens’ Ry. Co. v. Gifford,
19 Tex. Civ. App. 631, 47 S. W. 1041.

An instruction that the law im-
poses upon an electric company trans-
mitting electricity over the streets of
a city for gain, the duty of maintain-
ing its wires and other fixtures and
appliances that they will withstand
the ordinary and usual storms of all
parts of the year in that section of
the country where its plant is lo-
cated is erroneous, as it charges the
defendant with the absolute duty of
maintaining its wires so that they
would withstand the ordinary and
usual storms, when the law requires
only ordinary care to accomplish
such result. Quincy Gas & Electric
Co. v. Bauman, 104 Ill. App. 600;
affirmed, 203 Ill. 295, 8 Am, Electl.
Cas. 460, 67 N. E. 807.

The duty of original insula-

6. Home Telep. Co. v. Weir, (Ind.
App.) 101 N. E. 1020.

7. “Earlier” is merely a term of
comparison. In connection with the
law of electricity it does not neces-
sarily take one back even to the
Nineteenth Century.

8. McLaughlin v. Louisville Elec.
Co., 100 Ky. 173, 6 Am, Electl. Cas.
255, 37 S. W. 851, 34 L. R. A. 12,
18 Ky. Law Rep. 693; Overall v.
Louisville E. L. Co., 20 Ky. Law Rep.
759, 7 Am. Electl. Cas. 521, 47 S. W.
442; O’Connell’s Adm’r v. Louisville
Elec. L. Co., 21 Ky. Law Rep. 1362,
7 Am. Electl. Cas. 587, 55 S. W. 202;
Thomas’ Adm’r v. Mayville Gas Co.,
108 Ky. 224, 7 Am. Electl. Cas. 588,
21 Ky. Law Rep. 1690, 56 S. W. 153,
53 L. R. A. 147; Lexington Ry. Co. v.
Fain’s Adm’r, 24 Ky. Law Rep. 1443,
8 Am. Electl. Cas. 499, 71 S. W. 628;
Thomas v. City of Somerset, 30 Ky.
588 Law or HLEctRicity.

tion in such cases was seemingly made an absolute one, and
not one resting on the exercise of diligence. In fact, it was
held that it was not sufficient to charge the jury that it was
the duty of the company to observe the highest degree of
care and skill usually exercised by prudent persons
engaged in the same or similar business, to keep its wires
insulated as to be reasonably safe and free from danger
to persons who might come in contact with them.® But
in later cases the courts limited the doctrine and disclaimed
any intention to hold the company as an insurer.*° The
tule now is that, while an electric company is bound to
exercise the utmost diligence to prevent the escape of its
current to the injury of a person lawfully in proximity to
its appliances, it is not, strictly speaking, an insurer of
safety. Yet the courts recognize that the obligation on the

company is such that it is practically an insurer.”

Law Rep. 131, 9 Am. Electl. Cas. 883,
97S. W. 420,7 L. R. A. (N. 8.) 963.
“It seems clear to us that appellee
should have been required to have
had perfect protection on its wires
at the point and place where appel-
lant was injured. The fact that it
was very expensive or inconvenient is
no excuse for such failure. Very
great care might be sufficient as to
the wires at points remote from pub-
lic passways, buildings or places
where persons need not go for work
or business; but the rule should be
different as to points where people
have the right to go for work, busi-
ness or pleasure. At the latter points
or places the insulation or protection
should be made perfect and the ut-
most care used to keep it so.” Me-
Laughlin v. Louisville Elec. Co., 100
Ky. 173, 6 Am. Elect]. Cas. 255, 37
8S. W. 851, 34 L. R. A. 12, 18 Ky. Law
Rep. 693.

9. Schweitzer’s Adm’r v. Citizens’
Gen. Elec. Co., 21 Ky. Law Rep. 608,
7 Am. Elect]. Cas. 571, 52 S. W. 830.

10. Union Light, Heat & P. Co. v.

Lakeman, 156 Ky. 33, 160 S. W. 723;
Mangan’s Adm’r v. Louisville *Elec.
L. Co., 122 Ky. 476, 9 Am. Electl.
Cas. 692, 29 Ky. Law Rep. 38, 91
S. W. 703, 6 L. R. A. (N. S.) 459.
“They [electric companies] are not
insurers, for the manufacture and
sale of electricity is lawful, but in
handling so dangerous an agency, care
proportionate to the danger must be
observed, and to this end nothing
short of the utmost care is sufficient.
While in some of the cases referred
to expressions are used in argument
which might seem to apply the rule
laid down in Rylands v. Fletcher,
still in all the cases when the court
came to its conclusion it stated the
rule as above quoted.” Union Light,
Heat & P. Co. v. Lakeman, 156 Ky.
33, 160 S. W. 723.

11. “We admit the contention of
the appellee’s able counsel that the
weight of authority is to the effect
that handlers of the mysterious and
deadly agency known as electricity
are practically insurers against dan-
ger to persons who may come in con-
Inzurtes To Pursons anD PROPERTY. 589
Sec. 402. Electric Company not an Insurer; Rule of
Rylands v. Fletcher.

In the case of Rylands v. Fletcher,” the doctrine was pro-
mulgated that, where an owner brings upon his land any-
thing which would not naturally come upon it and which
is in itself dangerous and may become mischievous if not
kept under proper control, though in so doing he may act
without personal wilfullness or negligence, he will be liable
in damages for any mischief thereby occasioned. In other
words, the obligation of such an owner is that of an insurer
against the injurious effects of the escape of the dangerous
substance. In that particular case, the substance was
water, and the owner thereof was held liable for damages
which were occasioned to another by reason of the escape
thereof and the flooding of another’s land. The doctrine
of Rylands v. Fletcher has never been generally adopted
in this country—even as to reservoirs of water. To a
limited extent, the doctrine of that case has, however, been
applied in England to the escape of electricity. Thus,
where a person is using a high-tension electric current and
is permitting its electricity to escape into the ground, it
has been thought that, in the absence of statutory provision,
the injury thereby occasioned to telegraph or telephone
companies would be governed by the rule of Rylands v.
Fletcher,* though, for other reasons, the ability of the
owner of the electricity has been denied.* The rule of
Rylands v. Fletcher has apparently never been extended
even in England to cover the injury which a traveler or
other person receives from contact with an appliance of
an electric company. On the contrary, the lability in such
cases has been denied where negligence was not shown.’®
In Canada, it is likewise held that the company is not liable
for injuries in the absence of negligence.”

tact with their wires.” Capital Gas
& Elec. Co. -v. Davis’ Adm’r, 138 Ky.

(1902) 381; National Telep. Co. v.
Baker, L. R. (41893) 2 Ch. Div. 186.

628, 128 S. W. 1062.
12. L. R. 3 H. LL. C. (Eng.) 330.
13. § 361.
14, Eastern, etc., Teleg. Co. v. Cape
Town Tramways Co., L. R. App. Cas.

15. Dunphy v. Montreal L., H. & P.
Co., (1907) A. C. (Eng.) 454; Cana-
dian Reports (1907) A. C..2000.

16. Gloster v. Toronto Elec. L. Co.,
38 Can. Sup. Ct. 27, 6 Ann. Cas. 529,
590 Law or Etectriciry.

Sec. 403. Electric Company not an Insurer; Analogy Be-
tween Electric Company and Keeper of Ferocious
Animal.

In some of the cases, an electric company in the restraint
of its dangerous currents has been likened to the keeper
of dangerous animals.* The keeper of a wild animal, such
as a tiger or lion, is bound to keep such animal under
restraint so that it will not injure an innocent person.
According to the prevailing view, if such an animal escapes
and injures an innocent person, it does not avail its keeper,

26 Can. L. T. 847; Johnston v. Clark mutilated or killed before he has the

& Son, 7 D. L. R. 361, 4 0. W. N,
202, 23 O. W. R. 196. See also, Ot-
tawa Elec. Co. v. Cunningham, 20
Quebec K. B. 481.

17. “A current of electricity power-
ful enough to destroy human life or
to inflict serious injury may be
likened to a wild beast and defendant
had no right negligently to maintain
a means for the escape from proper
confinement of a thing so dangerous.”
Goodwin v. Columbia Telep. Co., 157
Mo. App. 596, 138 S. W. 940.

“Tt cannot be doubted that the
owner of a ferocious lion would be
bound to keep him securely caged in
order to prevent harm to others;
and even if a negligent or malicious
person should open the door of the
lion’s cage, and allow him to escape,
there should be no unreasonable delay
on the part of the owner in discover-
ing this fact, and in taking diligent
steps looking to the recapture of the
animal. The feed wire of the railway
company, from the very subtlety and
intangible form of the danger that
lurks therein when it is charged with
a powerful current of electricity, is
much more dangerous than a score of
lions. Its death dealing power is not
discoverable by exercising the senses
of sight, hearing or smell. Imper-
ceptibly and noiselessly it strikes
down its victim, and he is either

slightest warning of the terrible dan-
ger so near at hand.” Atlantic Con-
sol. St. Ry. Co. v. Owings, 97 Ga.
663, 6 Am, Electl. Cas. 271, 25 S. E.
377, 33 L. R. A. 798.

“The legal situation of electric
light and power companies sending
this potent fluid along their wires
may be illustrated by comparing it
to that of a showman conveying a
caged tiger through the streets of a
crowded city. The showman must not
only make sure of the cage, and not
himself open the door, but be vigilant
in seeing that nobody else opens the
door. He could hardly expect that
he would be heard to plead that some
negligent person had opened the door.
Of course, the situation is incompar-
ably more complicated in the case of
an electric light or power company
with its system of wires pervading
an entire city, and the appreciation
of the facts in particular cases may
be proportionately more difficult; but
the principle is the same. Indeed,
the prisoner of the company is more
sleepless and subtle and in its stroke
more quick and sure, whence the need
of even greater vigilance in keeping
it safe within its prison wire.” Sim-
mons v. Shreveport Gas, Elec. L. &
P. Co., 116 La. 1033, 9 Am. Electl.
Cas. 760, 41 So. 248.
InguRIEs To Persons aND PROPERTY. 591
when sued for the damage, to show care in the restraint of
the animal. His liability is practically that of an insurer.
A high tension electric current, if allowed to escape and
pass through the body of an innocent person, is, no doubt,
more dangerous than that of a wild beast at large. But
though the keeper of the animal is in some jurisdictions
practically an insurer against the escape of his dangerous
property, an electric company with a more dangerous
product is not held as an insurer.** It may be wrong logi-
cally to impose a different liability on one than on the
other, but the difference has been explained on the ground
that the electric company is engaged in a public service.”

Sec. 404. Degree of Care to be Exercised by Electric
Company; in General.
The primary rule relative to the diligence of an electric
company is that it must observe such care as is commen-
surate with the danger.” It is obvious that commensurate

18. “ The owner of a ferocious tiger
is bound to confine it, or if it escapes
and kills he is responsible. The high
electric current is more deadly than
any tiger. It kills by a touch, and
its presence is only discovered when
the mischief has been done, so that
those who generate such currents
ought, on principle to be made in-
surers against damage thereby done.
The authorities do not go this far,
however.” Indianapolis L. & H. Co.
v. Dolby, 47 Ind. App. 406, 92 N. HE.
739.

19. “In some cases the duty of
electric lighting and power com-
panies to prevent the escape of dan-
gerous currents of electricity is
likened to that of the keeper of a
ferocious animal. * * * But it is
certainly not the rule of law appli-
cable to such cases that the company
is absolutely liable for any injury
done by escaping electricity. Such
a company is engaged in conferring

a public benefit, and, although it is
by the nature of its business bound
to exercise great care, yet the care
required is, after all, only that rea-
sonably consistent with the perform-
ance of its functions.” Knowlton v.
Des Moines Edison L. Co., 117 Iowa
451, 8 Am. ‘Electl. Cas. 800, 90 N. W.
818.

20. United States— Finch v. City
of Ottawa, 190 Fed. 299, 111 C. C. A.
199.

Alabama.— Alabama City, ete., Ry.
Co. v. Appleton, 171 Ala. 324, 54 So.
638 (1913 A) Ann. Cas. 1181; Bir-
mingham Ry. L. & P. Co. v. Murphy,
2 Ala. App. 588, 56 So. 817.

Arkansas.— City Elec. ‘St. R. Co. v.
Conery, 61 Ark. 381, 6 Am. Electl.
Cas. 217, 33 S..°W. 426, 31 L. R. A.

570, 54 Am. St. Rep. 262.

California.— Foley v. Northern Cali-
fornia Power Co., 14 Cal. App. 401,
112 Pac. 467.

Colorado.— ‘Denver Consolidated
592

Law or E.eEctricity.

or, as it might be called, due care in the handling of deadly
electric currents is a different proposition than due care
in the handling of potatoes or other articles of commerce

comparatively harmless.

The statement that ‘‘ commen-

surate ’’ care is the measure of the company’s obligation,
while accurate, is not definite enough to constitute a satis-
factory statement of the degree of care required. The

Elec. Co. v. Simpson, 21 Colo. 371,
5 Am. Elect]. Cas. 278, 41 Pac. 499,
31 L. R. A. 566. i

Delaware-—— Wood v. Wilmington
City Ry. Co., 5 Pen. 369, 9 Am. Elect.
Cas. 477, 64 Atl. 246; Neal v. Wil-
mington & N. E. Elec. Ry. Co., 3
Pen. 467, 8 Am. Elect]. Cas. 497, 53
Atl. 338.

Florida.— Jacksonville Elec, L. Co.
v. Sloan, 52 Fla. 257, 9 Am. Elect.
Cas. 891, 42 So. 516.

Georgia — Denson v. Georgia Ry.
& Elec. Co., 135 Ga. 132, 68 S. E.
1113; Hining v. Georgia Ry. & Elec.
Co., 1383 Ga. 458, 66 8. EH. 237; Heidt
v. Southern Telep. & Teleg. Co., 122
Ga. 474, 9 Am. Electl. Cas. 435, 50
S.E. 361. “ Where wires charged with
a deadly current of electricity are
strung along a public highway, the
degree of care required to prevent in-
jury to property or persons lawfully
on the highway is governed by -the
amount of danger attending such use
of the highways by the owner of the
wires.” ining v. Georgia Ry. &
Elec. Co., 133 Ga. 458, 66 S. E. 237.

Illinois— Hausler v. Common-
wealth Electric Co., 240 Ill. 201, 88
N. E. 561; affirming 144 Ill. App.
643; Commonwealth Elec. Co. v. Mel-
ville, 210 Ill. 70, 9 Am. Electl. Cas.
95, 70 N. E. 1052; Economy Light &
Power Co. v. Hiller, 203 Ill. 518, 8
Am. Electl. Cas. 462, 68 N. E. 72;
Casey v. Chicago City R. Co., 169 IIL.
App. 425; Gents v. Spring Valley Coal
Co., 155 Ill, App. 628; Hausler v.
Commonwealth Elec. Co., 144 Ill. App.
643; affirmed, 240 Ill. 201, 88 N. E.

561; Rowe v. Taylorville Elec. Co.,
114 Ill. App. 535; affirmed, 213 IIl.
318, 9 Am. Electl. Cas. 279, 72 N. E.
711; Quincy Gas & Elec. Co. v. Bau-
mann, 104 Ill. App. 600; affirmed, 203
Tl. 295, 8 Am. Elect]. Cas. 460, 67
N. E. 807; Larson v. Central Ry. Co.,
56 Ill. App., 263.

Indiana.— Valparaiso Lighting Co.
v. Tyler, 177 Ind. 278, 96 N. E. 768;

Cumberland Teélep. & Teleg. :Co. v.

Kranz, 48 Ind. App. 67, 95 N. E.
371; Indianapolis L. & H. Co. v.
Dolby, 47 Ind. App. 406, 92 N. E.
739; City of Logansport v. Smith, 47
Ind. App. 64, 93 N. EH. 883; Michigan
City Gas & Elec. Co. v. Dibka, (Ind.
App.) 100 N. E. 877.

Iowa— Barto v. Iowa Telep. Co.,
126 Iowa 241, 9 Am. Electl. Cas. 255,
101 N. W. 876, 106 Am. St. Rep. 347.
“Unless properly handled it, elec-
tricity, is also exceedingly dangerous
and those utilizing the agency cannot
complain if a degree of.care and skill
in the construction and maintenance
of necessary apparatus and machinery
is exacted commensurate with the
dangers involved. * * * Such isthe
rule with respect to other instrumen-
talities, and no reason can be sug-
gested justifying an exception in
favor of electricity.” Barto v. Iowa
Telep. Co., 126 Iowa 241, 9 Am.
Electl. Cas. 255, 101 N. W. 876, 106
Am. St. Rep. 347.

Kansas.— Metropolitan St. Ry. Co.
v. Gilbert, 70 Kan. 261, 3 St. Ry. Rep.
254, 9 Am. Electl. Cas, 241, 78 Pac.
807.

Kentucky.— Union Light, Heat &
Insuries To Persons AND PROPERTY.

593

courts, in attempting to define more clearly the degree of
care, have used a great variety of expressions. The degree
of care has been stated as ordinary, high, very high, high-
est, very highest, great, very great, greatest, or utmost.
The variation in the statements of the different courts as
to the degree of care to be exercised by companies using
dangerous currents of electricity, is, to a large extent, a

P. Co. v. Lakeman, 156 Ky. 33, 160
S. W. 723.

Louisiana Moren v. New Orleans
Ry. & L. Co., 125 La. 944, 52 So. 106.

Maryland.— Walter v. Baltimore
Electric Co., 109 Md. 327, 71 Atl. 953.

Massachusetts.—-O’Donnell v. Bos-
ton Elevated Ry. Co., 205 Mass. 200,
90 N. E. 977.

Minnesota.— Hoppe v. City of Wi-
nona, 113 Minn. 252, 129 N. W. 57%,
33 L. R. A. (N. S.) 449, Ann. Cas.
(1912 A) 247; Musolf v. Duluth Edi-
son Elec. Co., 108 Minn. 369, 122
N. W. 499, 24 L. R. A. (N. 8.) 451.

Missouri — Davenport v. King Elee.
Co., 242 Mo. 111, 145 S. W. 454.

New York.— O’Leary v. Glens Falls
Gas & Elec. Co., 107 N. Y. App. Div.
505, 9 Am. Electl. Cas. 522, 95 N. Y.
Supp. 232; Wittleder v. Citizens’ Elec.
Illum. Co. of Brooklyn, 47 N. Y. App.
Div. 410, 7 Am. Electl. Cas. 581, 62
N. Y. Supp. 297.

North Carolina.— Horne v. Consol.
Rys., L., H. & P. Co., 144 N. Car.
375, 57 S. E. 19; Haynes v. Raleigh
Gas Co., 114 N. Car. 203, 5 Am.
Electl. Cas. 264, 19 S. E. 344, 26
L. R. A. 810, 41 Am. St. Rep. 786.

Oklahoma.— La Dow v. Oklahoma
Gas & Elec. Co., 28 Okla. 15, 119 Pac.
250.

Oregon.— Carroll v. Grand Ronde
Elec. Co., 47 Oreg. 424, 4 St. Ry. Rep.
908, 9 Am. Electl. Co., 642, 84 Pac.
389, 6 L. R. A. (N. S.) 290; Boyd v.
Portland Elec. Co., 37 Oreg. 567, 7
Am.. Elect]. Cas. 605, 62 Pac. 378;
Perham v. Portland General Elec. Co.,

38

33 Oreg. 451, 7 Am. Electl. Cas. 487,
53 Pac. 14, 40 L. R. A. 799, 72 Am.
St. Rep. 730; Greenwood v. Eastern
Oregon L. & P. Co., 136 Pac. 336, 67
Oreg. 433. “The care which the law
exacts from any person, firm or cor-
poration, engaged in operating an in-
strumentality, is always in propor-
tion to the degree of danger reason-
ably to be apprehended from the use
of the means employed.” Carroll v.
Grand Ronde Elec. Co., 47 Oreg. 424,
4 St. Ry. Rep. 908, 9 Am. Eleetl. Cas.
642, 84 Pac. 389, 6 L. R. A. (N. 8.)
290.

Pennsylvania— Daltry v. Media
Elee. L., H. & P. Co., 208 Pa. St. 403,
9 Am. Electl. Cas. 63, 57 Atl. 883;
Herron v. City of Pittsburgh, 204 Pa.
St. 509, 8 Am. Electl. Cas. 482, 54
Atl. 311, 93 Am. St. Rep. 798. “ Elec-
tricity, when of sufficient voltage for
lighting purposes, is well known by
electricians and others familiar with
ita properties. to be most dangerous,
and likely to cause death to those
who come in contact with its current.
Those who deal with it, or supply it
to the public, are therefore required
to recognize this fact, and to exercise
care commensurate with the danger.
A party responsible for an injury by
reason of failure to observe such care
is guilty of negligence.” Daltry v.
Media Elec. L., H. & P. Co., 208 Pa.
St. 403, 9 Am. Elect]. Cas. 63, 57
Atl. 883.

South Carolina.— Lundy v. South-
ern Bell Telep. & Teleg. Co., 90 S. Car.
25, 72 S. EH. 558; Parsons v. Charles-
594

Law or ELectricity.

mere difference in phraseology. Generally a court which
says that an electric company is bound to exercise the
‘‘ utmost ’’ care or the ‘‘ highest degree of care practi-
cable ’’ does not intend to impose a greater burden upon
the company than does a court which announces the com-

pany’s duty as measured by “‘ ordinary care.’’

In some

instances, the care required has been variously, but not
necessarily inconsistently stated, in the same opinion.”

ton Consol. Ry., G. & E. Co., 69
S. Car. 305, 9 Am. Electl. Cas. 146,
48 S. E. 284, 104 Am. St. Rep. 800.
“The rule as to the degree of care in
the use of electricity is the same as
in the use of steam and other agencies
—the care must be proportionate to
the danger. In determining the dan-
ger it is the duty of those in control
to have in view all the surroundings,
including the contiguity of other
wires, and their liability to fall and
come in contact with the dangerously
charged wire.” Parsons v. Charles-
ton Consol. Ry., G. & E. Co., 69
S. Car. 305, 9 Am. Elect]. Cas. 146,
48 S. E. 284, 104 Am. St. Rep. 800.

Texas.— Wehmer v. Lagerfelt, 27
Tex. Civ. App. 520, 8 Am. Electl. Cas.
486, 66 S. W. 221; Jacksonville Ice &
Elec. Co. v. Moses, (Civ. App.) 134
S. W. 379. “The business of supply-
ing the public with electricity, for
lighting and other purposes, involves
the handling of a highly dangerous
agent, and therefore requires a cor-
responding degree of care on the part
of one who undertakes it, to prevent
injury to persons passing along
streets where his wires are strung.”
Wehmer v. Lagerfelt, 27 Tex. Civ.
App. 520, 8 Am. Electl. Cas. 486, 66
S. W. 221.

Virginia.— Richmond & P. Elec. Ry.
Co. v. Rubin, 102 Va. 809, 3 St. Ry.
Rep. 870, 9 Am. Elect]. Cas. 138, 47
S. E. 834. “It is true, as insisted
by counsel for the defendant com-
pany, that in the construction and

maintenance of its wires under the
telephone wires it was only required
to exercise reasonable or ordinary
care. But what is reasonable or or-
dinary care is to be graduated and
determined by the danger under all
the circumstances of the case. The
danger to persons and property from
permitting 4 telephone wire to come
into contact with a trolley wire, heav-
ily charged with electricity, is very
great, and the care required to avoid
such contact must be commensurate
with the danger.” Richmond & P.
Elec. Ry. Co. v. Rubin, 102 Va. 809,
3 St. Ry. Rep. 870, 9 Am. Electl. Cas.
138, 47 S. E. 834,
Washington.— White v. Reservation
Elec. Co., 75 Wash. 139, 134 Pac. 807.
Wisconsin.—Doyle v. La Crosse City
Ry. Co., 148 Wis. 280, 8 St. Ry. Rep.
178, 134 N. W. 384. “It is true that
greater care is properly demanded of
persons who are handling so danger-
ous an agency as electricity than of
those who handle mere ordinary sub-
stances, yet the criterion of ordinary
care is the same; it is such care as
the majority or great mass of man-
kind exercises under the same or
similar circumstances.” Doyle v. La-
Crosse City Ry. Co., 148 Wis. 280, 8
St. Ry. Rep. 178, 134 N. W. 364.
Canada — Royal Electric Co. v.
Heve, Quebec Rep. (11 K. B.) 436.
21. See Giraudi v. Electric Im-
provement Co., 107 Cal. 120, 5 Am.
Electl. Cas. 318, 40 Pac. 108, 28
L. R. A. 596, 48 Am. St. Rep. 114.
Insupizs To Persons anD Property. 995
Sec. 405. Degree of Care to be Exercised by Electric Com-
pany; Ordinary Care.

Considering the term ‘‘ ordinary care’’ as a relative
expression,” depending for its meaning on the nature of
the substance in question, it is accurate to define the obli-
gation of an electric company, with reference to its danger-
ous currents, as the duty of exercising ordinary care.
Ordinary care is thus construed to have the same meaning
as commensurate, or due, or proper care. Thus a court,
considering the term an elastic one, may properly state
that the obligation of the electric company is to use ordi-
nary care.” Ordinary care by one using a force so potent

22. Denson v. Georgia Ry. & Elec.
Co., 135 Ga. 132, 68 S. E. 1113.

23. United States.— City of Denver
v. Sherrett, 88 Fed. 226, 60 U. S.
App. 104, 31 C. C. A. 499.

Arkansas.— Southwestern Teleg. &
Telep. Co. v. Bruce, 89 Ark. 581, 117
S. W. 564; City Elec. St. R. Co. v.
Conery, 61 Ark. 381, 6 Am. Electl.
Cas. 217, 33 S. W. 426, 31 L. R. A.
570, 54 Am. St. Rep. 262.

Colorado.— Walters v. Denver Con-
sol. Elec. L. Co., 17 Colo. App. 192, 8
Am. Electl. Cas. 555, 68 Pac. 117.

Delaware—— Wood v. Wilmington
City Ry. Co, 5 Pen. 369, 9 Am.
Elect]. Cas. 477, 64 Atl. 246; Neal
v. Wilmington & N. E. Elec. Ry. Co.,
3 Pen. 467, 8 Am. Elect]. Cas. 497,
53 Atl. 338.

Georgia.— Heidt v. Southern Telep.
& Teleg. Co., 122 Ga. 474, 9 Am.
Electl. Cas. 435, 50 S. E, 361. “ Those
who employ, in the prosecution of
their business, a palpably and highly
dangerous agency, such as electricity,
are bound .to exercise such precau-
tions to prevent injury to others as
the emergency would reasonably seem
to require.” Atlantic Consol. St. R.
Co. v. Owings, 97 Ga. 663, 6 Am.
Elect]. Cas. 271, 25 S. E, 377, 33
L. R, A. 798.

Illinois.— Quincy Gas & Electric Co.
v. Baumann, 104 Ill. App. 600; af-
firmed, 203 Ill. 295, 8 Am. Electl.
Cas. 460, 67 N. E. 807.

Indiana— City of Logansport v.
Smith, 47 Ind. App. 64, 93 N. E.
883; Home Telep. Co. v. Weir, (Ind.
App.) 101 N. E. 1020.

Iowa.— Knowlton v. Des Moines
Edison L. Co., 117 Iowa 451, 8 Am.
Electl. Cas. 800, 90 N. W. 818.

Montana — Bourke v. Butte Elec.
& P. Co., 33 Mont. 267, 9 Am. Electl.
Cas. 566, 83 Pac. 470.

Nebraska.— New Omaha Thomson-
Houston Elec. L. Co. v. Anderson, 73
Neb. 84, 9 Am. Elect]. Cas. 306, 102
N. W. 89.

New York.— Wagner v. Brooklyn
Heights R. Co., 69 N. Y. App. Div.
349, 74 N. Y. Supp. 809; affirmed
without opinion, 174 N. Y. 520, 66
N. E, 1117.

New Jersey.—New York & New Jer-
sey Telep. Co. v. Bennett, 62 N. J. L.
742, 7 Am. Elect]. Cas. 543, 42 Atl.
759.

Texas.— Rucker v. Sherman Oil &
Cotton Co., 29 Tex. Civ. App. 419, 8
Am. Electl. Cas. 841, 68 S. W. 818;
Citizens’ Ry. Co. v. Gifford, 19 Tex.
Civ. App. 631, 47 S. W. 1041.

Vermont.— Wetherby v. Twin State
596

Law or Ewecrriciry.

in death-dealing by mere contact as electricity, means a
greater degree of diligence than is required of one handling
bars of pig-iron or other inanimate objects.** As was said

Gas & Electric Co., 83 Vt. 189, 75
Atl. 8, 25 L, R. A. (N. 8.) 1220, 21
Ann. Cas. 1092.

Virginia— Norfolk & P. Traction
Co. v. Dailey’s Adm’r, 111 Va. 665,
69 S. E. 963; Richmond & P. Elec.
Ry. Co. v, Rubin, 102 Va. 809, 3
St. Ry. Rep. 870, 9 Am. Electl. Cas.
138, 47 S. E, 834. “ While ordinary
care may, in some cases, involve the
exercise of greater skill than in
others, as was said in Norfolk Ry. &
L. Co. v. Spratley, 103 Va. 380, 49
8S. E. 502, * * * all that is meant
in that case is that the electrical
business, being a dangerous one, re-
quires a high degree of technical care
and skill in the matter of operation.
* * * Still the measure of care
to be exercised is none the less that
which is spoken of always as ‘ ordi-
nary care,’ the test of which is the
practices or customs of others en-
gaged in like business.” Norfolk &
P. Tract. Co. v. Dailey’s Adm’r, 111
Va. 665, 69 S. E, 963.

Wisconsin— Doyle v. La Crosse
City Ry. Co., 148 Wis. 280, 8 St. Ry.
Rep. 178, 134 N. W. 364.

Due care “is not the same in all
ceases. The term is relative and its
application depends on the situation
of the parties, and the degree of care
and vigilance which the circumstances
reasonably impose. Where the dan-
ger is great, a high degree of care
is necessary and the failure to observe
it is a want of ordinary care under
the circumstances.” Ahern v. Oregon
Telep. Co., 24 Oreg. 276, 4 Am. Elect].
Cas. 349, 35 Pac. 549, 22 L. R. A.
635.

24. Georgia Savannah Elec. Co.
v. Bell, 124 Ga. 663, 53 S. E. 109.

Hlinois.— Commonwealth Electric

Company v. Melville, 210 Tll. 70, 70
N. E. 1052. “Ordinary care, exer-
cised by those who make a business
of using it for profit, to prevent in-
jury to others therefrom, requires
much greater precaution in its use
than where the element used is of a
less dangerous character. As there
is greater danger and hazard in the
use of eleetricity, there must be a
corresponding exercise of skill and
attention, for the purpose of avoiding
injury to another, to constitute what
the law terms ‘ordinary care.’ The
care must be commensurate with the
danger.” Commonwealth Elec. Co. v.
Melville, 210 Hl. 70, 9 Am. Eleetl.
Cas. 95, 70 N. E. 1052.

Oklahoma —Ladow v. Oklahoma
Gas & Elec. Co., 28 Okla, 15, 119
Pac. 250.

Texas.— Citizens’ Ry. Co. v. Gif-
ford, 19 Tex. Civ. App. 631, 47 S. W.
1041. “Ordinary care may require
much greater vigilance and skill in
one case than in another, dependent
upon the elements of danger; but still
it would be ordinary care that the
law would impose upon the person or
company controlling and operating
the agency.” Citizens’ Ry. Co. v. Gif-
ford, 19 Tex. Civ. App. 631, 47 8S. W.
1041.

Wisconsin.— Nagle v. Hahe, 123
Wis. 256, 9 Am. Electl. Cas. 218,
101 N. W. 409.

“The care to be bestowed in every
case, to arise to the degree of ordi-
nary, must be commensurate to the
danger of the injury to be avoided,
and such as generally shown by aver-
age, good business men of the same
class, and especially such as they usu-
ally bestow upon their own protec-
tion under similar circumstances.
Insuries To Persons anp Property. 597
in one case,” ‘‘ Reasonable prudence requires that, where
the danger is known to be great, the care and watchfulness
shall be commensurate with it, and it is a legal truism that
what, under some conditions, will amount to ordinary care
will, under other conditions, amount to even that reck-
less disregard of the rights of others which, in law, is
wantonness.’’

High Care.—In the case of an electric company dealing
in high tension currents for the purpose of profit, a judicial
statement that the company is bound to exercise a ‘‘ high ”’
degree of care, cannot be construed as imposing upon the
company any extraordinary degree of diligence. So long
as the court, by the expression ‘‘ high care,’’ means only
that degree of caution which is commensurate to the danger
of high tension electric currents, it is proper for it to state
that the duty of the company is to exercise a high degree
of care. In many decisions the duty of the company has

been so stated.**

Ordinary care employed in the stor-
age and keeping of dynamite and
other dangerous explosives, if used in
the care of food stuffs, would be con-
sidered utmost care, and of no utility;
and this, we think, illustrates what
is meant when it is said that ordi-
nary care must be commensurate to
the danger to be avoided. The care
and the danger should measure one
to the other; and so it is in every
eondition that may present itself, and
yet the care is but ordinary.” Quincy
Gas & Electric Co. v. Baumann, 104
Ill. App. 600; affirmed, 203 Ill. 295,
8 Am. Electl. Cas. 460, 67 N. E. 807.
“The defendant is required to exer-
cise reasonable care. But what is
reasonable care in handling brick and
mortar may amount to criminal neg-
ligence in handling nitroglycerin; so
that the only rational rule is that
announced by the trial court: That
the care required is measured by and
equal to the danger.” Bourke v.

Butte Elec. & P. Co., 33 Mont. 267,
9 Am. Elect]. Cas. 566, 83 Pac. 470.

25. Birmingham Ry. L. & P. Co. v.
Murphy, 2 Ala. App. 588, 56 So, 817.

26, Arkansas.— Texarkana Telep.
Co. v. Pemberton, 86 Ark. 329, 111
S. W. 257; City Elec. St. R. Co. v.
Conery, 61 Ark. 381, 6 Am. Electl.
Cas. 217, 33 S. W. 426, 31 L. R. AL
570, 54 Am. St. Rep. 262.

Illinois— Alton Railway & Illum.
Co. v. Foulds, 81 Ill. App. 322, 7 Am.
Electl. Cas. 548; affirmed, 190 Il. 367,
60 N. E. 537; Larson v. Central Ry.
©o., 56 Ill. App. 263.

Indiana.— Valparaiso Lighting Co.
v. Tyler, 177 Ind. 278, 96 N. E. 768;
Indianapolis L. & H. Co. v. Dolby, 47
Ind. App. 406, 92 N. E. 739; Michigan
City Gas & Elec. Co. v. Dibka, (Ind.
App.) 100 N. E. 877.

Iowa.— Martin v. Des Moines Edi-
son L. Co., 131 Iowa 724, 9 Am,
Elect]. Cas. 654, 106 N. W. 359;
Knowlton v. Des Moines Edison L.
598

Law oF ELeEctricity.

Very High.—In other decisions, the judges, without
adopting a different rule as to the obligation of an electric

Co., 117 Iowa 451, 8 Am. Electl. Cas.
800, 90 N. W. 818. “It seems, how-
ever, that so far as expressed there is
substantial unity in the holding that
where one undertakes to produce or
deal in a power of such tremendous
potency, so concealed from ordinary
observations, so laden with death-
dealing possibilities, and as yet but
imperfectly understood and _ con-
trolled, reasonable care for the pro-
tection of those who may rightfully
come within the zone of danger re-
quires at his hands a high degree of
prudence and watchfulness propor-
tioned to the magnitude and subtlety
of the peril to be guarded against.”
Martin v. Des Moines Edison L. Co.,
131 Iowa 724, 9 Am. Electl, Cas. 654,
106 N. W. 359. “In view of the
highly dangerous character of an elec-
trical current of such power as to
operate are lights, which was in this
case shown to be about 2,500 voltage,
the exercise of reasonable care on the
part of defendant involved the use of
a high degree of diligence and fore-
sight in the construction and mainte-
nance of its lines in a safe condition.”
Knowlton v. Des Moines Edison L.
Co., 117 Iowa 451, 8 Am. Electl. Cas.
800, 90 N. W. 818.

Massachusetts.— O’Donnell v. Bos-
ton Elevated Ry. Oo., 205 Mass. 200,
90 N. E. 977.

Minnesota.— Gilbert v. Duluth Gen-
eral Elec. Co., 93 Minn. 99, 9 Am.
Elect]. Cas. 166, 100 N. W. 653, 106
Am. St. Rep. 430.

New Jersey.— Rowe v. New York
& N. J. Telep. Co., 66 N. J. L. 19, 7
Am. Electl. Cas. 626, 48 Atl. 523;
Anderson v. Jersey City E. L. Co.,
63 N. J. L. 387, 7 Am. Electl. Cas.
557, 43 Atl. 654; Newark Elec. L. &
P. Co. v. Ruddy, 62 N. J. L. 505, 7

Am. Electl. Cas. 524, 41 Atl. 712, 57
L. R. A. 624; affirmed, 63 N. J. L.
357, 46 Atl. 1100, 57 L. R. A. 624.

North Carolina.— Fisher v. City of
New Bern, 140 N. Car. 506, 9 Am.
Elect]. Cas. 677, 53 S. E. 342, 5 L. R.
A. (N.S.) 543, 111 Am. St. Rep. 857.
“The duty imposed upon persons
and corporations maintaining wires
charged with electricity, upon the
public streets and highways, to exer-
cise « high degree of care for the
protection of persons using such high-
ways, is imperative.” Fisher v. City
of New Bern, 140 N. Car. 506, 9 Am.
Electl. Cas. 677, 53 S. E. 342,5 L. R.
A. (N. 8.) 543, 111 Am. St. Rep. 857.

Tennessee.— Chattanooga Elec. Ry.
Co. v. Mickle, 103 Tenn. 667, 7 Am.
Electl. Cas. 594, 56 S. W. 23.

Virginia— Norfolk Railway &
Light Co. v. Spratley, 103 Va. 379, 3
St. Ry. Rep. 859, 9 Am. Electl. Cas.
329, 49 S. E. 502. “ While electric
companies are not held to be insurers
against accident still it is due to the
citizen that such companies, per-
mitted as they are to use for their
own purposes the streets of a city or
town, should be held to the exercise
of a high degree of care in the con-
struction and maintenance of the
dangerous appliances employed by
them; to the end that travelers along
the highway may not be injured.”
Norfolk Railway & Light Co. v.
Spratley, 103 Va 379, 3 St. Ry. Rep.
859, 49 S. E. 502, 9 Am. Electl. Cas.
329.

Wisconsin.— Wilbert v. Sheboygan
L. P. & R. Co., 129 Wis. 1, 9 Am.
Elect]. Cas. 771, 106 N. W. 1058, 116
Am. St. Rep. 931. “The danger inci-
dent to the use of electricity is im-
minent and lurking in character, and
a high degree of watchfulness for the

_—
Inszurizs To Persons anp Property. 599

company, have stated its obligation to be the duty of exer-
cising a ‘‘ very high ’’ degree of care.”

Great.— Ordinary care in the handling of dangerous elec-
tric currents is sometimes mentioned as ‘‘ great’’ care.”
As stated above, whether the degree of diligence be called
high or great or be described by some other term is largely
a matter of phraseology.

Very Great—No reason is apparent why a court in
speaking of the obligation of an electric company should
not define its duty as one of exercising a ‘‘ very great ”’
degree of caution.” The meaning is the same as though

“

the court had used the words ‘‘ very high.”’

prevention of accidents is imposed on
persons handling it.” Wilbert v.
Sheboygan L. P. & R. Co., 129 Wis. 1,
9 Am. Elect]. Cas. 771, 106 N. W.
1058, 116 Am. St. Rep. 931.

27. Connecticut.— McAdam v. Cen-
tral Ry. & Elec. Co., 67 Conn. 445, 6
Am. Electl. Cas. 348, 35 Atl. 341.

Indiana— Cumberland Telep. &
Teleg. Co. v. Kranz, 48 Ind. App. 67,
95 N. E. 371. “Electricity is an
agency of the greatest danger, and of
a secret, deadly character, and those
persons who employ it must use care
to prevent injury, proportionate to
the dangerous character of the
agency, thus imposing upon them a
very high degree of care.” Cumber-
“ Jand Telep. & Teleg. Co. v. Kranz, 48
~ Ind. App. 67, 95 N. E, 371.

North Carolina— Harrington  v.
Com’rs of Wadesboro, 153 N. Car.
437, 69 S. E. 399.

Ohio.— Citizens’ Elec. Ry. L. & P.
Co. v. Bell, 26 Ohio Cir. Ct. R. 691;
affirmed without opinion, 70 Oh. St.
482, 72 N. E. 1155; Katafiasz v.
Toledo Consol. Elec. Co., 24 Ohio Cir.
Ct. Rep. 127.

Oregon. “The dangerous char-
acter of the business imposed upon
the defendant a very high degree of
care in the maintenance of its ap-
paratus and appliances in a secure

and safe condition, and thus to guard
against the danger of accident to
those in the lawful use and enjoy-
ment of the streets.” Chaperon v.
Portland General Elec. Co., 41 Oreg.
39, 8 Am. Electl. Cas. 468, 67 Pac.
928.

Pennsylvania— Crowe v. Nanti-
coke L. Co., 209 Pa. St. 580, 9 Am.
Electl. Cas. 195, 58 Atl. 1071.

South Carolina Lundy v. South-
ern Bell Telep. & Teleg. Co., 90 S.
Car. 25, 72 S. E. 558.

West Virginia— Snyder v. Wheel-

ing Elec. Co., 43 W. Va. 661, 7 Am.
Electi. Cas. 473, 28 8S. E. 733, 39 L. R.
A. 499, 64 Am. St. Rep. 922.
- 28. Cutler v. Putnam L. & P. Co.,
80 Conn. 470, 68 Atl. 1006; Wagner v.
People’s Ry. Co., 7 Pen. (Del.) 393, 75
Atl. 610; United Railways & Electric
Co. v. Corbin, 109 Md. 442, 72 Atl.
606; New York & New Jersey Telep.
Co. v. Bennett, 62 N. J. L. 742, 7 Am.
Electl. Cas. 543, 42 Atl. 759. “One
factor in the measure of reasonable
care is the probable result of negli-
gence. In the use of a powerful elec-
tric current in the public streets, rea-
sonable care is great care.” New
York & New Jersey Telep. Co. v. Ben-
nett, 62 N. J. L. 742, 7 Am. Elect.
Cas. 548, 42 Atl. 759.

29. Thomas v. Wheeling Elec. Co.,
600 Law or E.ectrictry. °
Sec. 406. Degree of Care to be Exercised by Electric Com-
pany; Extraordinary Care.

In some cases, the judges, when discussing the obligation
of a company using deadly electric currents, are not satis-
fied with the formula that ‘‘ ordinary ’’ care is ‘‘ commen-
surate’’ care, but state that something more than ‘‘ ordi-
nary ’’ care is required of such company. Whether they
are right or wrong is a matter of words rather than of
substance. If the term ‘‘ ordinary care’’ is considered
elastic so as to be synonymous with ‘‘ highest ’’ or
‘‘ utmost ’’ care when reference is had to the handling of
high tension currents of electricity, there is no objection to
the use of such term. If, however, a judge considers the
term one that cannot be stretched to cover the greater
caution required in the handling of such currents, as to
him, the duty of the electric company is to use an extraor-
dinary degree of care.*° Extraordinary care, if deemed
the measure of the company’s duty, is the result of the
dangerous product in which it deals; to avoid injuries other
than from its current, ordinary care is the criterion of its
liability. For example, if one of the poles of a company
falls so as to strike and injure a person, it is not proper to
hold that the company is required to exercise extraordinary
caution to avoid such an occurrence.”

Highest.— In many cases, the duty of an electric com-
pany is defined as the obligation to use the ‘‘ highest ’’

54 W. Va. 395, 8 Am. Electl. Cas. 528,
46 S. E. 217. “ Defendant was using
a dangerous force, and one not gen-
erally understood. It was required
to use very great care to prevent in-
jury to person or property.” Giraudi
v. Electric Improvement Co., 107 Cal.
120, 5 Am. Elect]. Cas. 318, 40 Pace.
108, 28 L. R. A. 596, 48 Am. St. Rep.
114.

30. “Although it is everywhere
recognized that it is the duty of users
of electricity to employ a high degree
of diligence to prevent its causing in-
jury to others, in many cases this
principle is treated merely as an ap-

plication of the general rule, and is
expressed by the formula that ordi-
nary care is required, proportioned to
the danger to be guarded against.
But the peculiar conditions involved
in cases of injuries by electricity
have given rise to a special doctrine,
somewhat analogous to that requir-
ing operators of railways to use all
possible skill and care for the protec-
tion of passengers.” Metropolitan St.
Ry. Co. v. Gilbert, 70 Kan. 261, 3 St.
Ry. Rep. 254, 9 Am. Electl. Cas. 241,
78 Pac. 807.

31. Savanah Elec. Co. v. Bell, 124
Ga. 663, 53 S. E. 109.
Inzguries to Persons AND PROPERTY.

601

degree of care to avoid injury to persons who may come

in contact with its appliances.*

When the doctrine is

stated in this meagre form, the question naturally arises:

32, Arizona.—Phoenix L. & Fuel Co.
v. Bennett, 8 Ariz. 314, 8 Am. Electl.
Cas. 597, 74 Pac. 48, 63 L. R. A. 219.
“In the conduct of an electric light-
ing business, the defendant was en-
gaged in handling a most dangerous
agency, and, in the generation and
distribution of electricity from its
plant to its patrons, was unquestion-
ably bound to exercise the highest
degree of skill and care for the pro-
tection of life and property.” Phoenix
L. & Fuel Co. v. Bennett, 8 Ariz, 314,
8 Am. Electl. Cas. 597, 74 Pac. 48,
63 L. R. A. 219.

Colorade.— Denver Consol Elec. Co.
v. Walters, 39 Colo. 301, 9 Am. Electl.
Cas. 1013, 89 Pac. 815; Denver Con-
solidated Elec. Co. v. Simpson, 21
Colo. 371, 5 Am. Electl. Cas. 278, 41
Pac. 499, 31 L. R. A. 566.

Illinois.— Larson v. Central Ry. Co.,
56 Ill. App. 263.

Iowa.— Harter v. Colfax Elec. L. &
P. Co., 124 Iowa 500, 9 Am. Elect.
Cas. 161, 100 N. W. 508.

Kansas.— Metropolitan St. Ry. Co.
v. Gilbert, 70 Kan. 261, 3 St. Ry. Rep.
254, 9 Am. ElectlL Cas. 241, 78 Pac.
807.

Kentucky.— Bowling Green Gas-
light Co. v. Dean’s Ex’x, 142 Ky. 678,
134 S. W. 1115; Macon v. Paducah St.
Ry. Co., 110 Ky. 680, 7 Am. Electl.
Cas. 630, 23 Ky. Law Rep. 46, 62 S.
W. 496; Lewis Adm’r v. Bowling
Green Gaslight Co., 117 8. W. 278.
“When a company is using in the
conduct of its business an agency so
subtle and deadly as electricity, in

places where persons have the right:

to go and be, the highest degree of
skill and care attainable should be
exercised to protect them from
danger.” Bowling Green Gaslight

Co. v. Dean’s Ex’x, 142 Ky. 678, 134
S. W. 1115.

Michigan.— Hodgins v. Bay City,
156 Mich. 687, 121 N. W. 274, 16 Det.
Leg. N. 222.

Mississippi— Cumberland Telep. &
Teleg. Co. v. Cosnahan, 62 So. 824.

Missouri.— Davenport v. King Elec.
Co., 242 Mo. 111, 145 S. W. 454;
Wilhite v. City of Huntsville, 167 Mo.
App. 155, 151 8. W. 232; Hoover v.
Kansas City Elev. Ry. Co., 159 Mo.
App. 416, 140 S. W. 321; Day v. Con-
solidated Light, Power & Ice Co., 136
Mo. App. 274, 117 8. W. 81; Byerly
v. Consolidated Light, Power & Ice
Co., 130 Mo. App. 593, 109 8S. W.
1065; Brubacer v. Kansas City- Elec.
L. Co., 130 Mo. App. 439, 110 8. W.
12. “The highly dangerous and
subtle nature of electricity has com-
pelled the courts of this state to re-
quire of persons who make mer-
ehandise of it and who transmit it
along the public thoroughfares of
populous communities the exercise of
the highest degree of care to prevent
its escape from appointed channels.”
Day v. Consol. Light, Power & Ice Co.,
136 Mo. App. 274, 117 8S. W. 81.

North Carolina.— Benton v. North
Carolina Public Service Co., 165 N.
Car. 354, 81 S. E. 448.

Ohio.— Citizens’ Elec. Ry. L. & P.
Co. v. Bell. 26 Ohio Cir. Ct. R. 691;
affirmed without opinion. 70 Oh. St.
482, 72 N. EH. 1155.

Oklahoma. Ladow v. Oklahoma
Gas & Elec. Co., 28 Okla. 15, 119 Pac.
250; Shawnee Light & Power Co. v.
Sears, 21 Okla. 13, 95 Pac. 449. “We
do hold an electric light company,
using the public streets of a munici-
pality for its poles, wires, and appli-
ances in conducting its business, is
602 Law or Exectriciry.

Highest. of what? With what conditions, or what com-
panies, has comparison been made that the court may say
the duty of an electric company is to use the ‘‘ highest
degree of care?’’ Clearly the court does not mean that the
duty of an electric company is higher than that of persons
or companies engaged in any other business; for, under
some circumstances, persons and companies are insurers,
and it is clearly the rule that electric companies are not
insurers.* If it is the intention of the court to promulgate
the rule that the duty of the company is to exercise the
highest degree of care ‘‘ possible,’’ it imposes a burden
on the company which the courts do not expressly require.
If such is the meaning, the court carelessly expresses itself
when it leaves the important word ‘“‘ possible’’ to be
implied. In some cases the courts have been more specific
and have stated the obligation to be the duty of exercising
the ‘‘ highest degree of care practicable.’’** It is thought

required to exercise the highest
degree of care, and to maintain in
the best possible condition the best
appliances known to the science, to
render its business safe, and to use
that degree of care, caution, and cir-
cumspection in keeping with the
dangerous character of its business;
but it is not an insurer against un-
foreseen and unavoidable accidents.”
Shawnee Light & Power Co. v. Sears,
21 Okla. 13, 95 Pac. 449.

Pennsylvania.— Yeager v. Edison
Elec. Co. 242 Pa. St. 101, 88 Atl. 872;
Mullen v. Wilkes-Barre Gas & Elec-
tric Co., 229 Pa. St. 54, 77 Atl. 1108;
Weir v. Haverford Electric Light Co.,
221 Pa. St. 611, 70 Atl. 874; Dela-
hunt v. United Telep. & Teleg. Co.,
215 Pa. St. 241, 9 Am. Electl. Cas.
792, 64 Atl. 515. is

Tennessee.— Memphis Street Rail-
way Co. v. Kartright, 110 Tenn. 277,
8 Am. Electl. Cas. 430, 1 St. Ry. Rep.
763, 75 S. W. 719.

Texas.— Cole v. Parker, 27 Tex.
Civ. App. 563, 66 S. W. 135.

V

Washington.— Abrams v. City of
Seattle, 60 Wash. 356, 111 Pac. 168.

West Virginia.— Bice v. Wheeling
Electrical Co., 62 W. Va. 685, 59 S. E.
626.

33. § 400.

34. Younie v. Blackfoot Light &
Water Co., 15 Idaho 56, 96 Pac. 193;
Blackburn v. Southwest Missouri R.
Co., (Mo. App.) 167 S. W. 457; Weir
v. Haverford Electric Light Co., 221
Pa. St. 611, 70 Atl. 874; Haertel v.
Pennsylvania L. & P. Co., 219 Pa. St.
640, 69 Atl. 282; Stark v. Lancaster
Elec. L., H. & P. Co., 218 Pa. St. 575,
67 Atl. 909; Mullen v. Wilkes-Barre
Gas & Elec. Co., 38 Pa. Super Ct. 3.
“Electric companies are held to the
highest degree of care practicable to
avoid injuries to persons who may
accidentally or otherwise come in con-
tact with their wires.” Younie v.
Blackfoot Light & Water Co., 15
Idaho 56, 96 Pac. 193. “Companies
using electricity are held te the high-
est degree of care practicable and are
required to take every reasonable
Insunies to Persons AND PRopErry.

603

that this is what is generally intended by the abbreviated

expression ‘‘ highest degree of care.’’

It has also been

stated that the duty of the company is to exercise the
highest degree of care which skill and foresight can obtain,
consistent with the practical conduct of its affairs.*®

Very Highest—In a few cases, the courts, with an
extravagance of expression, have stated the duty of an
electric company using high tension currents to be the
exercise of the ‘‘ very highest ’’ degree of care.**

Greatest.— The burden on an electric company using a
high pressure current has been said to be the exercise of

precaution suggested by experience
and known dangers.” Stark v. Lan-
easter Elec. L., H. & P. Co., 218 Pa.
St. 575, 67 Atl. 909. “There is im-
posed on those who handle and dis-
tribute so highly dangerous a force
as electricity the duty of exercising
the highest degree of care practicable
to protect those from danger who,
through business or pleasure, may
rightfully go into places that may
bring them in contact with wires and
other instrumentalities which convey
and carry the energy; and this is the
degree of care that an ordinarily pru-
dent person will exercise.” Blackburn
v. Southwest Missouri R. Co., (Mo.
App.) 167 S. W. 457.

85. Denver v. Consol. Elec. Co. v.
Lawrence, 31 Colo. 301, 8 Am. Electl.
Cas. 617, 73 Pac. 39.

36. Tackett v. Henderson Bros. Co.,
12 Cal. App. 658, 108 Pace. 151;
Temple v. McComb City Elec. L. & P.
Co., 89 Miss. 1, 9 Am. Electl. Cas.
969, 42 So. 874, 11 L. R. A. (N. 8.)
449, 10 Ann. Cas. 924; Daltry v.
Media Elec. L., H. & P. Co., 208 Pa.
St. 403, 9 Am. Elect]. Cas. 63, 57 Atl.
883. “Corporations, private or mu-
nicipal, engaged in the business of
transmitting electricity along high-
ways, are charged with the very high-
est degree of care for the safety of

persons lawfully using the highway.”
Potera v. City of Brookhaven, 95
Miss. 774, 49 So. 617. “The corpora-

tions handling the dangerous agency

of electricity are bound, and justly
bound, to the very highest measure
of skill and care in dealing with these
deadly agencies.” Temple v. McComb
City Elec. L. & P. Co., 89 Miss. 1, 9
Am. Electl. Cas. 969, 42 So. 874, 11
L. R. A. (N. 8.) 449, 10 Ann. Cas.
924.

Very highest degree practicable—
“Tt has been uniformly held that
those using this new and dangerous
agent are bound to the very highest
degree of care practicable to avoid
injury to every one who may be law-
fully in proximity to the wires, and
liable to come, accidentally or other-
wise, in contact with them.” Emery
v. City of Philadelphia, 208 Pa. St.
492, 9 Am. Electl. Cas. 80, 57 Atl.
977. “The company, however, which
uses such a dangerous agent, is bound
to know not only the extent of the
danger, but to use the very highest
degree of care practicable to avoid in-
jury to every one who may be law-
fully in proximity to its wires.”
Fitzgerald v. Edison Elec. Illum. Co.,
200 Pa. St. 540, 7 Am. Elect]. Cas.
642, 50 Atl. 161, 86 Am. St. Rep. 732.
604

the ‘‘ greatest ’’ diligence.*”

Law or Execrricity.

In Canada it has been said

that its duty is to exercise the ‘‘ greatest possible ’’ care.”

Utmost.— In some jurisdictions the rule has been stated
that an electric company is under the obligation of exer-
cising the ‘‘ utmost care’’ in the construction and oper-
ation of its electric system.*® ‘‘ Utmost ’’ seems to be the

87. Musolf v. Duluth Edison Elec.
Co., 108 Minn. 369, 122 N. W. 499,
24 L. R. A. (N. 8.) 451.

38. Gloster v. Toronto Elec. L. Co.,
38 Can. Sup. Ct. 27, 6 Ann. Cas. 529,
26 C. L. T. 847.

39. California— “It is the duty of
those making a profit from the use
of so dangerous an element as elec-
tricity to use the utmost care to pre-
vent injury to any class of people
composing the public which exists in
any considerable numbers.” Giraudi
v. Electric Improvement Co., 107 Cal.
120, 5 Am. Elect]. Cas. 318, 40 Pac.
108, 28 L. R. A. 596, 48 Am. St. Rep.
114.

Colorado.— Denver Consol. E. Co. v.
Simpson, 21 Colo. 371, 5 Am. Electl.
Cas. 278, 41 Pac. 499, 31 L. R. A.
566.

Kentucky.— Paducah Light & P.
Co. v. Parkman’s Adm’r, 156 Ky. 197,
160 8. W. 931; Union Light, Heat &
P. Co. v. Lakeman, 156 Ky. 33, 160
S. W. 723; Mangan’s Adm’r v. Louis-
ville Elec. L. Co., 122 Ky. 476, 9 Am.
Electl. Cas. 692, 29 Ky. Law Rep. 38,
91 S. W. 703, 6 L. R. A. (N. S.) 459;
McLaughlin v. Louisville Elec. Co.,
100 Ky. 173, 6 Am. Electl. Cas. 255,
37 S. W. 851, 34 L. R. A. 12, 18 Ky.
Law Rep. 693. “Electricity is a
powerful and subtle force, and its
nature and manner of use not well
understood by the public, nor is its
presence easily ascertained or deter-
mined, Its use for private gain is
very extensive, and becoming more
and more so. The daily avocation of
many thousands, of necessity, brings

them near to the subtle force, and it
seems clear that the electric com-
panies should be held to the use of
the utmost care to avoid injuring
those whose business or pleasure re-
quires them to come near such a
death dealing force.’ McLaughlin v.
Electric L. Co., 100 Ky. 173, 6 Am.
Elect]. Cas. 255, 37 S. W. 851, 34
L. R. A. 812, 18 Ky. Law Rep. 693.

Missouri.— Clark v. St. Louis, ete.,
Ry. Co., 234 Mo. 396, 137 8. W. 583;
Geismann v. Missouri Edison Elec.
Co., 173 Mo. 654, 8 Am. Electl. Cas.
569, 73 S. W. 654; Clonts v. Laclede
Gaslight Co., 160 Mo. App. 456, 140
S. W. 970; Booker v. Southwest Mis-
souri R. Co., 144 Mo. App. 273, 128
S. W. 1012; Winkleman v. Kansas
City Elec. L. Co., 110 Mo. App. 184,
9 Am. Electl. Cas. 335, 85 S. W. 99;
Brown v. Consolidated Light, Power
& Ice Co., (Mo. App.) 109 S. W. 1032.
“Electricity is the most dangerous
and deadly agency known to man,
subtle and invisible, and ordinarily
incapable of being detected by the un-
skilled in electricity. For those rea-
sons, the law imposes the utmost care
upon those who use and maintain
that deadly agency at all places
where persons have the right to go
for business or pleasure.” Clark v.
St. Louis, etc., Ry. Co., 234 Mo. 396,
137 S. W. 583.

North Carolina.— Horne v. Consol.
Rys. L. & P. Co., 144 N. Car. 375, 57
8. E. 19. “It is due to the citizen
that electric companies that are per-
mitted to use for their own purposes
the streets of a city or town shall be
Insurtes To Persons anD PROPERTY. 605
most extravagant expression used by the courts to define
the degree of care to be used, and some courts refuse to
sanction its use.*°

Sec. 407. Contractual Relation Not Essential to Liability.

The basis of an action for negligence is the violation of
a duty owed by the defendant to a person sustaining injury
therefrom. This duty may be, and frequently is, created
by contract between the parties. But it is clear that no
contractual relation need exist between an electric com-
pany and a person injured in order that a duty be created
in favor of the latter." The duty need not be one assumed

Tequired to exercise the utmost
degree of care in the construction, in-
spection and repair of their wires
and poles, to the end that travelers
along the highway may not be in-
jured by their appliances. The dan-
ger is great, and care and watchful-
ness must be commensurate to it.”
Haynes v. Raleigh Gas Co., 114 N.
Car. 203, 5 Am. Electl. Cas. 264, 41
Am. St. Rep. 786, 19 8S. E. 344, 26
L. R. A. 810. “It is further an ac-
cepted principle that in the applica-
tion and control of a dangerous
agency like electricity the term
‘ordinary care’ means the utmost
degree of care in the construction, in-
spection and repair of their appli-
ances, poles and wires.” Horne v.
Consol. Rys. L. & P. Co., 144 N. Car.
375, 57 S. E. 19.

Oregon.— Gentzkow v. Portland Ry.
Co., 54 Oreg. 114, 6 St. Ry. Rep. 642,
102 Pac. 614; Perham v. Portland
General Elec. Co., 33 Oreg. 451, 7 Am.
Electl. Cas. 487, 53 Pac. 14, 40 L. R.
A. 799, 72 Am. St. Rep. 730. “ Elee-
tric companies, of course, are not
bound to have perfect apparatus or
perfect construction, but they are re-
quired to exercise a degree of care
and prudence in the construction and
maintenance of their wires commen-

surate with the danger; and where
their wires are designed to carry a
strong and powerful current of elec-
tricity, so that persons coming in
contact with them are certain to be
seriously injured, if not killed, the
law imposes upon the company the
duty of exercising the utmost care
and prudence to prevent such injury.”
Perham v. Portland’ General Elec. Co.,
33 Oreg. 451, 7 Am. Electl. Cas. 487,
53 Pac. 14, 40 L. R. A. 799, 72 Am.
St. Rep. 736.

Tennessee.— Memphis Street Rail-
way Co. v Kartright, 110 Tenn. 277,
1 St. Ry. Rep. 763, 8 Am. Electl. Cas.
430, 75 8. W. 719.

Virginia— City of Danville v.
Thornton, 110 Va. 541, 66 S. E. 839.

40. Calumet Elec. St. R. Co. v.
Gross, 70 Ill. App. 381; Lundy v.
Southern Bell Telep. & Teleg. Co., 90
S. Car. 25, 72 S. E. 558.

41. Arizona—Phoenix L. & Fuel Co.
v. Bennett, 8 Ariz. 314, 8 Am. Elect.
Cas. 597, 74 Pac. 48, 63 L. R. A. 219.

Indiana.— Indiianapolis L. & H. Co.
v. Dolby, 47 Ind. App. 406, 92 N. E.
739; City of Logansport v. Smith, 47
Ind. App. 64, 93 N. E. 883; Michigan
City Gas & Elec. Co. v. Dibka, (Ind.
App.) 100 N. E. 877.

Maryland.— Walter v. Baltimore
606 Law or Execrriciry.

by contract; it may be one imposed by law. The victim of
the accident may be a traveler upon the highway, a person
lawfully on the premises of another, or on the property of
a third person in such a manner as to be a trespasser
against such third person, and yet he may recover from
the company.

Sec. 408. Duty as to Customers.

Added to the duty of exercising commensurate care,
which an electric company owes to travelers and other
persons who come in contact with its wires and appliances,
in the case of its own customers, is a contractual duty.
Thus, in the case of a patron who receives an excessive
charge of electricity while engaged in the usually harmless
act of turning on an electric light, it may be argued with
considerable force that the company agreed to send to the
lamp a current large enough merely to give the required
light, and that, by sending a greater voltage, it has violated.

its contract.“* Thus, it was

Electric Co., 109 Md. 327, 71 Atl. 953.
“The courts agree that outside of
any contractual relation the very
nature of the business of trans-
mitting such currents along the high-
ways imposes upon those engaged in
it the legal duty to exercise, for the
protection of all persons lawfully
using the highways, the high degree
of care commensurate with the dan-
ger incident to the proximity thereto
of the wires charged with their in-
visible but deadly power.” Walter v.
Baltimore Electric Co., 109 Md. 327,
71 Atl. 953.

Montana.—Mize v. Rocky Mountain
Bell Telep. Co., 38 Mont. 521, 16 Ann.
Cas. 1189, 100 Pac. 971.

New York.— Ennis v. Gray, 87
Hun 355, 5 Am. Electl. Cas. 325, 34
N. Y. Supp. 383, 68 N. Y. St. Rep.
312. See also, McMullen v. Edison
Elec. Ilum. Co., 13 Mise. 392, 5 Am.
Electl. Cas. 332, 34 N. Y, Supp. 248.

stated in an opinion of the

“The defendant was engaged in the
business of supplying electricity for
lighting purposes in houses and
streets of the city, and considering
the high voltage which it was neces-
sary to carry over the wires, thus
rendering the business in the highest
degree dangerous unless handled with
eare and skill, we think that outside
of any contractual relation a duty
was created on the part of the de-
fendant, not only towards the public
generally who in the streets might
be likely to come in contact with the
wires, but also with respect to any
individual engaged in a lawful occu-
pation in a place where he was
entitled as of right to be.” Ennis v.
Gray, 87 Hun 355, 5 Am. Electl. Cas.
325, 34 N. Y. Supp. 383, 68 N. Y. St.
Rep. 312.

42. § 463.

48. Denver Consol. Elec. Co. v. Law-
rence, 31 Colo. 301, 8 Am. Electl. Cas.
Inzunizes To Persons anp Property. 607
United States Supreme Court: ‘‘ The defendant engaged
to supply a current of low voltage, reasonably safe and
suitable for lighting, while the current delivered on this
occasion was of high voltage, extremely dangerous and
unsuitable for lighting purposes.’’* It is difficult, however,
to see how the measure of the company’s liability is
increased in such case. Its duty is to use care commen-
surate with the danger arising from the dangerous electric
current. This is the same obligation which is imposed as
to persons with whom it sustains no contractual relations.
However this may be, it is clear that an electric company
is required to exercise considerable diligence to protect its

customers from injurious shocks of electricity.*

617, 73 Pac. 39; Turner v. Southern
Power Co., 154 N. Car. 131, 69 S. E.
767, 32 L. R. A. (N. 8.) 848; Alex-
ander v. Nanticoke L. Co.,.209 Pa. St.
571, 9 Am. Electl. Cas. 188, 58 Atl.
1068, 67 L. R. A. 475; Royal Electric
Co. v. Heve, Quebec Rep. (11 K. B.)
Can. 436. “Customers who contract
for a harmless current to light their
houses are entitled to rely on such
inspection and repair as will effectu-
ally guard them against a dangerous
current.” Memphis Consol.. Gas &
Elec. Co. v. Letson, 135 Fed. 969, 9
Am. Electl. Cas. 367, 68 C. C. A. 453.
“The implied contract between the
appellants and deceased was that
they should supply his premises with
a safe electrical current for lighting
purposes by the lamps which they
furnished. They failed in this
respect, and in the use of their lamp
he received a current of electricity by
which he was instantaneously killed.”
Royal Electric Co. v. Heve, Quebec
Rep. (11 K. B.) 436.

Action not on contract.— Though
there is a contract between the com-
pany and the customer injured, an
action for his injuries is not an action
on contract. Waller v. Leavenworth
L. & H. Co., 9 Kan. App. 301, 61 Pac.

In one

327; Crompton v. British Columbia
Elec. Ry. Co., 10 W. L. R. (Canada)
377.

44. San Juan L. & Transit Co. v.
Requena, 224 U. S. 89, 32 S. Ot. 399,
56 L. ed. 680; affirming, 4 Porto Rico
Fed. Rep. 356.

45. Colorado.—Denver Consol. Elec.
Co. v. Lawrence, 31 Colo. 301, 8 Am.
Elect]. Cas. 617, 73 Pac. 39.

Illinois— Alton Railway & Ilum.
Co. v. Foulds, 81 Ill. App. 322, 7 Am.
Electl. Cas. 548; affirmed, 190 Ill.
367, 60 N. E. 537.

Minnesota.— Gilbert v. Duluth Gen-
eral Elec. Co., 93 Minn. 99, 9 Am.
Electl. Cas. 166, 100 N. W. 653, 106
Am. St. Rep. 430.

New York.— Morhard v. Richmond
L. & R. Co., 111 N. Y. App. Div. 353,
9 Am. Elect]. Cas. 687, 98 N. Y.
Supp. 124.

North Carolina—Turner v. South-
ern Power Co., 154 N. Car. 131, 69
8. E. 767, 32 L. R. A. (N. S.) 848

Ohio.— Katafiasz v. Toledo Consol.
Elec, Co., 24 Ohio Cir. Ct. 127.

Pennsylvania.—Alexander v. Nanti-
coke L. Co., 209 Pa. St. 571, 9 Am.
Elect]. Cas. 188, 58 Atl. 1068, 67
L. R, A. 475.
608 Law or ELectricity.

case, after a review of the authorities upon the zare
required of an electric company as to its customers, the
court laid down the rule, ‘‘ that such a company, while
not an insurer against all possible accidents to those whose
right or duty it is to use its electricity, yet it is under
obligation to do all that human care, vigilance, and fore-
sight can reasonably do, consistent with the practical oper-
ation of its plant to protect those who use its electricity.’’*°
The current suppplied for the lighting of incandescent
lights is, under ordinary circumstances, of low voltage and
comparatively harmless, but many cases have arisen where
a person touching or attempting to turn on such a light has
received an injurious shock. The accident may be the
result of different causes. If the transformer used to
‘“step down ’’ the current from a high to a low voltage is
out of repair so that it does not properly perform its func-
tion, the heavier charge comes to the interior wiring.**
The accident may also arise, as it frequently does, from a
crossing of the primary wires carrying the high power
with the wires passing from the transformer to the building
lighted.** Under the doctrine of res ipsa loquitur, which is
generally applied in such cases,** the person injured is not
required to show the cause of the accident in the first
instance, but the burden is imposed upon the company of
explaining that the accident was not due to its negligence.
Where a customer touches an incandescent light and
receives a shock from an excessive current, the presump-
tion arises that the electricity causing the injury came over
the same system and from the same source as that by which
the ordinary supply was delivered to the customer. The
burden of proof is upon the company to show the con-
trary. Generally, however, it would be of little avail to
the company to show that the injurious current originated
at a source for which it was not responsible. More is
required of the company than to show that the current was

46. Escambia County Elec. L. & P. 48. § 498.

Co. v. Sutherland, 61 Fla. 167, 55 So. 49. § 597.

83. 50. Royal Electric Co. v. Heve, Que-
47. § 492. bec Rep. (11 K. B.) 436.
Insuries to Persons and Propsrry. 609
generated in the power-house of another enterprise. The
mere fact that the current was generated in the power-
house of another enterprise does not establish the freedom
from negligence of the defendant company conducting such
eurrent to the building of its customers. It must show that
the connection between its system and that of the concern
generating the dangerous current was not caused by its
negligence. Moreover, if an electric company knows that
another company is using high tension currents in the same
general locality as its wires run, it is not unreasonable to
charge the defendant with knowledge that such currents
may pass beyond their proper bounds and to require that
it should, by some appropriate device, exercise due care to
prevent such stray currents from entering upon the prem-
ises of its customers. The patron has a right to assume
that an excessive current will not be conveyed into his
buildings,” and that such appliances as are within his reach
are properly insulated or guarded so:that injury will not
arise from contact with them.*?

Injury to Property—An excessive current of electricity
conducted into a building may result, not only in injuries
to the customer or his family therein, but may cause dam-
age to the building or personal property therein. The duty
of the company is to use due care not to send a deadly cur-
rent into any building. This duty of the company is not
affected because, as it subsequently develops, property,

51. Alabama City, etc., Ry. Co. v.
Appleton, 171 Ala. 324, 54 So. 638,
(1918 A) Ann, Cas. 1181; Denver
Consol. Elec. Co. v. Lawrence, 31 Colo.
301, 8 Am. Elect]. Cas. 617, 73 Pac.
39. “The patrons of the company
have the right to presume that they
will not be injured in attempting to
use that which the company sells,
and that it will do all that human
care, vigilance and foresight can rea-
sonably do, consistent with the prac-
tical operation of its plamt, to pro-
tect those who use its electric light.”
Denver Consol. Elec. Co. v. Lawrence,

39

81 Colo. 301, 8 Am. Hlectl. Cas. 617,
%3 Pac. 39.

52. “The patrons of the company
have the right to assume that every-
thing that is open ‘to the touch con-
cerning the appliances by which the
electricity is conveyed can be touched
with safety, and that the company
has done all that human care, vigi-
lance, and foresight can reasonably do
consistent with the practical opera-
tion of its. plant, to render such ap-
pliances safe.” White v. Reservation
Elec. Co., 75 Wash. 139, 134 Pac.
807.
610 Law or Evectricity.

rather than the person, of the inhabitants was injured. In
other words, the company cannot neglect its duty and rely
upon the chance that only property rights will be damaged
by its acts or omissions. The law imposes a certain high
degree of care as the standard for the maintenance of the
electric business; the results of its failure to conduct itself
in accordance therewith do not lessen the degree of care.
Thus, in actions to recover damages for injury to animate™
or inanimate objects, no different degree of care is applied
than in cases of personal injuries.

Sec. 409. Duty as to Customers; Persons on Customer’s
Premises.

The duty of an electric company not to transmit a
dangerous current of electrcity into the building of its
customer, applies also to members of his family, his
servants and employees,® and other persons who may
rightfully be on the premises.® Aside from the contractual
element existing between a patron and an electric company
(which seems to have little practical effect), the liability
of the company to the customer’s servant is the same as to
the customer himself. That degree of care which is reason-
ably required, in view of the danger of the current, is to
be observed.” An employee, like the customer himself,*
is entitled to assume, in the absence of notice to the con-
trary, that the company’s appliances are free from defects

58. Injury to horse.—In an action
for injury to horses of the plaintiff,
the court applied the rule, that it is
the duty of the company to exercise
the “highest degree of care practi-
cable.” Younie v. Blackfoot Light &
Water Co., 15 Idaho 56, 96 Pac. 193.

54. Denver Consol. Elec. Co. v. Law-
rence, 31 Colo, 301, 8 Am. Electl. Cas,
617, 73 Pac. 39.

55. Union L. H. & P. Co. v. Arns-
ton, 157 Fed. 540, 87 C. C. A. 1; Es-
cambia County Elec. L. & P. Co, v.
Sutherland, 61 Fla. 167, 55 So. 83.

56. “ Defendant owed a duty to its
patron Stone to exercise a proper de-
gree of care to prevent a dangerous
eurrent of electricity from entering
his dwelling. This duty on the
plainest principles of law and com-
mon sense extended to his family,
his servants, his employees, and
others who might rightfully be upon
his premises.” Union L., H. & P. Co.
v. Arnston, 157 Fed. 540, 87 C. C. A.1.

57. Bice v. Wheeling Electrical Co.,
62 Ww. Va. 685, 59 S. E. 626.

58. § 408.
Inguries to Persons aND PROPERTY. ‘611
and will not cause an excesive current to be conducted on
the interior wiring.”

Sec. 410. Duty to Children.

Electric companies are not the insurers of children any
more than they are of adults. But the burden of the com-
pany toward members of society requires at least as great a
diligence in the case of persons of immature age as of older
and more experienced persons. It must continually con-
sider the thoughtlessness, inexperience, lack of judgment,
and misjudgment of children.“ Children are not charged
with contributory negligence to the same extent as are per-
sons who have a better understanding of the danger of
charged electric wires.” 'The propensity of children to go
upon premises where they have no legal right to go and
thus to become trespassers as to the owner of such prem-
ises, is recognized by the law. If they are trespassers upon
the property of an electric company, they will not generally
be permitted to recover for injuries they receive. To this
broad doctrine is the important exception that if the com-
pany maintains on its premises an ‘“‘ attractive nuisance,’’
and a child of immature age is thereby injured, he may be
permitted to recover for his injuries though he is a tres-

59. Mangan’s Adm’r v. Louisville
Elec. L. Co., 122 Ky. 476, 9 Am.

75 Atl. 8, 25 L. R. A. (N. S.) 1220,
21 Ann. Cas. 1092.

Elect]. Cas. 692, 29 Ky. Law Rep. 38,
91 S. W. 703, 6 L. R. A. (N. 8S.) 459.

60. Wetherby v. Twin State Gas &
Electric Co., 83 Vt. 189, 75 Atl. 8, 25
L. R. A. (N. 8.) 1220, 21 Ann. Cas.
1092. “The courts cannot make
electric companies insurers of the
safety of children, more than of
others, nor require of such com-
panies in the circumstances of their
business, a degree of care, prudence,
and foresight beyond that which it is
given to careful and prudent men to
have and exercise in such or like cir-
cumstances.” Wetherby v. Twin
State Gas & Electric Co., 83 Vt. 189,

61. Wetherby v. Twin City Gas &
Electric Co., 83 Vt. 189, 75 Atl. 8, 25
L. R. A. (N. S.) 1220, 21 Ann, Cas.
1092. “The business of transmitting
electricity, while indispensable to so-
ciety, must be conducted with a very
high regard for the safety of the
public, and the thoughtlessness, in-
experience, lack of judgment, and
misjudgment of children of tender
years must be taken into account.”
Wetherby v. Twin City Gas & Elec-
tric Co., 83 Vt. 189, 75 Atl. 8, 25
L. R. A. (N. S.) 1220, 21 Ann. Cas.
1092.

62. § 541.

63. § 467.
612 Law oF Exscrricrry.
passer. In a few cases this doctrine has been applied to
electrical appliances.*

Sec. 411, Duty of Telephone or Telegraph Company; in
General.

The special diligence required of an electric company is
based on the great danger of the current it employs in its
business. Compared with the high tension current of an
electric company, the current used by a telegraph or tele-
phone company is so feeble that it is not to be placed in the
same class. So far as its own appliances and current are
concerned, a telegraph or telephone company is charged
with the duty of using only ordinary care to avoid injury
to innocent persons.” The company is not an insurer.

Sec. 412. Duty of Telephone or Telegraph Company; as
to Dangerous Currents of Other Companies.

While, under ordinary circumstances, the dangers sur-
rounding telegraph or telephone appliances are not seri-
ous,” such a company, if it maintains wires and appliances
in the same street or highway as is used by wires carrymg
a high voltage, is bound to know that its wires may become
the conductor of a -dangerous current. To prevent such
an occurrence, it is the duty of the telephone company to
exercise the same degree of care as is imposed upon an

64, §§ 468-471.

65. “Those handling _ electricity
where the voltage is such as to en-
danger human life must exercise a
very high degree of care for the safety
of others, but where a Jess voltage
is used which is not of itself danger-
ous those who use it are only liable
for ordinary care. * * * A telephone
company is a common carrier of mes-
sages, and not of persons. The duty
it owes to a customer using one of
its instruments is not different from
that due to their customers by other
persons inviting the public upon their
premises for the transaction of busi-

ness. In all such cases the person so
inviting the public is not an insurer,
but must use such care as may be
reasonably expected of a person of
ordinary prudence under the cirenm-
stances.” Brucker v. Gainesboro
Telep. Co., 125 Ky, 92, 9 Am. Electl.
Cas, 1011, 30 Ky. Law Rep. 1162,
100 S. W. 240.

66. Southwestern Teleg. & Telep.
Co. v. Beatty, 63 Ark. 65, 37 S. W.
570.

67. § 411.

68. Delahunt v. United Telep. &
Teleg. Co., 215 Pa. St. 241, 9 Am.
Elect]. Cas. 792, 64 Atl. 515.
Inguries to Persons AND PROPERTY.

613:

electric company. This degree of care is that care which
is commensurate with the dangers to be anticipated.” It
may, depending on the meaning attached to: the expression,
be stated as ordinary,” high,” or the highest™ degree of
care. As is stated above in reference to the duty of electric
companies,” the meaning of these different terms is elastic.

69. Citizens’ Telep. Co. v. Thomas,
45 Tex. Civ. App. 20, 9 Am. Elect.
Cas. 950, 99 S. W. 879.

70. Southwestern Teleg. & Telep.
Co. v. Bruce, 89 Ark. 581, 117 S. W.
564.

“ Defendant [a telephone company]
knew that high voltage currents were
carried over the city on overhead
wires and that its telephone wires
in many places. were in close prox-
imity to such wires. In the construc-
tion and maintenance of its leads and
lines, defendant was bound to an-
ticipate the likelihood of contracts

between its wires and those carrying

‘powerful currents, and even ordinary
care imposed on defendant the duty
of doing all that a reasonably care-
ful and prudent person in its situa-
tien would have done to guard its
uninsulated wires against the inva-
sion of foreign currents.” Goodwin
vy. Columbia Telep. Co., 157 Mo. App.
596, 138 S. W. 940.

71. Economy Light & Power Co. v.
Hiller, 203 Ill. 518, 8 Am. Electl. Cas.
462, 68 N. E. 72; Mize v. Rocky
Mountain Telep. Co., 38 Mont. 521,
16 Ann. Cas. 1189, 100 Pac. 971; Hand
v. Central Pennsylvania Telephone &
Supply Co., 1 Lack. Leg. N. (Pa.)
351. “It was the duty of the three
companies maintaining the telegraph
wire to use reasonable care to pre-
vent their wire from coming in con-
tact with the highly charged elec-
trie light wire, and remain in con-
tact therewith in such a way and for
so long a time as to wear off the
insulation and divert the current to
its own wire, to the danger of those

who should touch it, or touch another
wire with which it might: come in.
contact.” Hamilton v. Bordentown.
Elec. L. & Motor Co., 68 N. J. Law
85, 8 Am. Elect]. Cas. 524, 52 Atl.
290.

72. Rowe v. New York & N. J.
Telep. Co. 66 N. J. L. 19, 7 Am.
Elect]. Cas. 626, 48 Atl. 523; Dela-
hunt v. United Telep. & Teleg. Oo.,
215. Pa. St. 241, 9 Am. Electl. Cas:
792, 64 Atl. 515.

73. Cumberland Telep. &. Teleg. Co.
v. Cosnahan, (Miss.) 62 So, 824;
Ahern v. Oregon Telep. Co., 24 Oreg.
276, 4. Am. Electl. Cas. 349, 35 Pac.
549, 22 L. R. A. 635; Delahunt v.
United Telep. & Teleg. Co., 215 Pa.
St. 241, 9 Am. Elect]. Cas. 792, 64
Atl. 515. “Its [the defendant tele-
phone company’s] duty to its. patrons
was to exercise at all times-the high-
est degree of care and vigilance to
protect them from a dangerous elec-
tric current over its wires from any
source.” Delahunt v. United Telep.
& Teleg. Co., 215 Pa, St. 241, 9 Am.
Electl. Cas. 792, 64 Atl 515. “It
was the duty of the telephone com-
pany to keep its lines and poles free
from contact with dangerous and
deadly currents of electricity not
properly protected, and this duty
rested upon it no matter whether
the dangerous currents were pro-
duced by the telephone company or
by some other company generating
electricity.” Combs v. Delaware &
Atlantic Teleg. & Telep..Co., 218 Pa.
St. 440, 67 Atl. 751.

74, § 404.
614 Law or Exectriciry.

Though the telephone company is first in the street, due
care requires that it make at least reasonable efforts to
protect its line from subsequent dangerous wires.”

Sec. 413. Duty of Telephone or Telegraph Company; as
to Customers.

A telephone company for the transmission of speech uses
but a light current of electricity. Its wires, however,
thickly cover a large territory, and they sometimes come in
contact with heavily charged wires.” Moreover, in case of
electrical storms, its wires frequently become charged with
lightning, and serious results occur.” A telephone com-
pany does not insure that one having a telephone installed
in his premises will suffer no injury to his person or prop-
erty,”* but it is required to exercise that due care which the
present state of scientific knowledge, as well as common
observation of the nature of electricity and the enormous
power of lightning, would suggest as reasonably necessary
for the protection of-life and property along its line.”

Sec. 414. Duty of Telephone or Telegraph Company; as
to Travelers.

Along the side of many city streets and of nearly every
rural highway, a telephone line has been constructed. The
poles eventually rot and fall unless replaced with new ones,
and the wires sometimes break. An obstruction to the
street or highway from such causes frequently arises. A
telephone company is not an insurer and does not guarantee

75. §§ 498, 499.

76. §§ 498, 499.

77. §§ 457-461,

78. Wells v. Northeastern Telep.
Co., 101 Me. 371, 9 Am. Electl. Cas.
749, 64 Atl. 648; Delahunt v. United
Telep. & Teleg. Co., 215 Pa. St. 241,
9 Am. Elect]. Cas. 792, 64 Atl. 515.

79. Wells v. Northeastern Telep.
Co., 101 Me. 371, 9 Am. Electl. Cas.
749, 64 Atl 648; Texas Teleg. &
Telep. Co. (Tex. Civ. App.) 127 S. W.
587. “The company was not obliged
by law to guaranty the safety of its

system under all possible conditions
and circumstances, but it was required
to exercise that due and ordinary
care which the present state of scien-
tifie knowledge, as well as common
observation of the nature of elec-
tricity and the enormous power of
lightning would suggest as reason-
ably necesary for the protection of
life and property along its line.”
Wells v. Northeastern Telep. Co., 101
Me. 371, 9 Am. Electl. Cas, 749, 64
Atl. 648,
Insurres to Persons anp Property. 615
that travelers may pass along without receiving injury
from its poles and wires.*° And, inasmuch as the electric
current used in the transmission of speech is feeble, there
is no reason, generally, for imposing as high a degree of
care upon such a company as is placed upon a company
using, in its business, a current of high potential. The
degree of care may be enlarged when the telephone wire
is maintained close to a dangerous wire, but, under ordi-
nary circumstances, in the erection and maintenance of its
line, it is not required to exercise extraordinary or unusual
care. It must, however, exercise reasonable care; that is,
such care as an ordinarily prudent person is supposed to
exercise in connection with his personal business and trans-
actions.*? The care must be commensurate to the danger.*

Sec. 415. Duty of Telephone or Telegraph Company; as
to Persons on Private Property.

Where a telephone company maintains a wire across the
premises of a third person in such a location that persons
may come in contact therewith and receive injury, its duty
is practically the same as though the wire was maintained
in a public way.™* Itis true that injury is less likely to arise
from negligence in the maintenance of such a wire than
from the maintenance of a wire in a public highway where
more persons are necessarily present. But in all cases, the
duty of the company is to exercise care commensurate with
the danger. If a telephone wire maintained across a vacant
lot falls and comes in contact with a highly charged wire

80. Heiberger v. Missouri & Kan-
sas Telep. Co., 133 Mo. App. 452, 113
S. W. 730.

81. § 412.

82. Cynthia Telep. Co. v. Asbury,
147 Ky. 307, 143 8. W. 1050; Ensign
v. Central N. Y. Telep. & Teleg. Co.,
79 N. Y. App. Div. 244, 79 N. Y¥.
Supp. 799; affirmed without opinion,
179 N. Y. 539, 71 N. E. 1130; Harton
v. Forest City Telep. Co., 146 N. Car.
429, 59 S. EB. 1022, 14 L. R. A. (N. 8.)
956, 14 Ann. Cas. 390. “ Telephone

.companies must exercise reasonable

care not only in the original location
and construction of their lines, but
must maintain them in such manner
as to prevent injuries to persons us-
ing the highway over which they are
constructed.” North Arkansas Telep.
Co. v. Peters, (Ark.) 148 S. W. 273.

83. Davisdon v. Utah Independent
Telep. Oo., 34 Utah 249, 97 Pac. 124.

84. Southwestern Teleg. & Telep.
Co. v. Bruce, 89 Ark. 581, 117 S. W.
564.
616 Law or ELectriciry.

of another company, so that serious injury is caused to a
workman, on the lot, who touches the telephone wire, the
company will generally be liable for the injury.*

Sec. 416. Liability Dependent on Ownership of Appliance;
in General.

A person is not to be muleted in damages on account of
an injury for which he is blameless. Thus, an electric
company is not generally liable for an injury which a per-
son receives by coming in contact with an electrical appli-
ance when the appliance is not controlled by it, and the
electricity passing over the appliance was not generated by
it, and its negligence in no way caused the current to pass
to such appliance.** The burden is upon the person injured
to show some connection between the party sued and the
injury.*’ On the other hand, liability is frequently imposed
though the party sued does not own the appliance which
proximately caused the injury. Thus, if an electric com-
pany negligently permits its current to pass from its wires
to the wire of a telephone company and a person who comes.

85. Southwestern Teleg. & Telep.
Co. v. Bruce, 89 Ark. 581, 117 S. W.
564,

86. Pressley v. Kinloch-Blooming-
ton Telep. Co. 164 Il. App. 167; Bru-
baker v. Kansas City Electric Light
Co.,. 130 Mo. App: 439, 110 S. W. 12.

Trial of case on assumption that
defendant is the owner of the appli-
ance.— Where an action for the in-
jury to a person coming in contact
with a dangerous wire or other ap-
pliance is tried upon the assumption
that the defendant is the owner of
the wire, but slight proof of owner-
ship is necessary to sustain the ver-
dict. Freeman v. Missouri & K.
Telep. Co., 160 Mo. App. 271, 142
S. W. 733; South Texas Telep. Co. v.
Tabb, 52 Tex. Civ. App. 213, 114
S. W. 448. But this rule does not
apply where the defendant on the ex-
amination of the plaintiff’s witnesses

clearly evinces a purpose of contest-
ing the issue. Brubaker v. Kansas
City Electric Light Co., 130 Mo. App.
439, 110 S. W. 12.

87. Wood v. Wilmington City Ry.
Co., 5 Pen. (Del.) 369, 9 Am. Electl.
Cas. 477, 64 Atl. 246; O'Donnell v.
Kavanagh, 158 Ill. App. 599.

Injury to pedestrian falling over
concealed wire.— It appeared that the
plaintiff crossing a street caught her
foot in a wire lying concealed in the
grass, but attached at one end to a
pole, and that she was thereby
thrown to the ground and injured.
In the absence of evidence as to who
was the owner of the wire or re-
sponsible for it being in the place
where the accident occurred, the
plaintiff could not recover. Lee v.
Maryland Telep. & Teleg. Co., 97 Md.
692, 8 Am. Elect]. Cas. 419, 55 Atl.
680.
InzuREs To Persons anp Property. 617
in contact with a telephone appliance is thereby injured,
it is clearly no defense for the electric company, when sued
for the damages, to set up that it did not own or control
the telephone appliance.** Likewise, though an electric
wire be constructed and owned by another, if a company
uses it for the purpose of conducting its electric current
and makes it a part of its system, it is liable for its negli-
gent maintenance thereof. So, too, if a wire is fastened
to the defendant’s system in such a way as to cause injury
to an innocent person, and if the company fails to remove
such wire after it has become chargeable with knowledge
thereof, it is not material that it does not own the wire.
Its failure to properly inspect® and repair™ its lines ren-
ders it liable though the foreign wire belongs to another
who wrongfully attached it to the line. If, however, the
company had no actual knowledge of the presence of the
foreign wire and it had not been in dangerous contact with
its wire so long as to charge it with construetive knowledge

thereof, the company is not liable.”

88. §§ 498, 499. “That the own-
ership of the wire is not controlling
as to the liability for an injury by
coming in contact with it is deter-
mined by the principle announced
in that class of cases in which it is
held that an electric railway company
or an electric light company is re-
sponsible for an injury where it neg-
ligently permits its wire to come in
contact with another company’s tele-
phone or telegraph wire which trans-
mits the current, and thereby causes
an accident.” Daltry v. Media Elec.
L., H. & P. Co., 208 Pa. St. 403, 9
Am. Electl. Cas. 63, 57 Atl. 883.

89. Blackburn v. Southwest Mis-
souri R. Co., (Mo. App.) 167 S. W.
457; Herbert v. Hudson River Elec.
Co., 136 N. Y. App. Div. 107, 120
N. Y. Supp. 672; Daltry v. Media
Elec. L., H. & P. Co., 208 Pa. St. 403,
9 Am. Elect]. Cas. 63, 57 Atl. 883.
“ This proof tended to show that the
defendant had some connection with

the wire even if it did not own or
control it. It is clear that it was
making use of it in transmitting a
powerful and dangerous current of
electricity over it and even if it did
not in fact own it, still it wag not
free from fault and it might prop-
erly be held liable for injuries aris-
ing by sending such a current through
a defective, improperly insulated or
broken wire and that its negligence
consisted in making use of such a
wire for the purpose or in not know-
ing, by reason of its failure to prop-
erly inspect, that it. was in an im-
proper and unsafe condition for such
transmission.” Herbert v. Hudson
River Elec. Co., 136 N. Y. App. Div.
107, 120 N. Y. Supp. 672.

90. § 473.

91. § 478.

92. Jones v. Union Ry. Co., 50 Mise.
N. Y. 651, 9 Am. Electl. Cas. 784, 98
N. Y. Supp. 757.
618 Law or Ewsectriciry.
Sec. 417. Liability Dependent on Ownership of Appliance;
Defective Appliances of Customers.

There seems to be some conflict of authority on the ques-
tion whether an electric company is under any duty as to
the safety of appliances owned and maintained by its cus-
tomer but through which it conducts its current. The
weight of authority supports the view that, if the appli-
ances of the customer are not constructed or owned by the
company generating the electricity, the company is not
bound to inspect the same, and it is not liable for an injury
that is received by reason of defects in such appliances,
where it has no knowledge of the defect, though the elec-
tricity which causes the injury comes from its plant.
Thus, if one electric company generates a current and sells
it to another for street lighting or distribution to the
patrons of the latter, the generating company is not liable
for the escape of the current due to the negligence of the
latter in insulating or otherwise protecting its appliances.”

93. United States— Minneapolis
General Elec. Co. v. Cronon, 166 Fed.
651, 92 ©. C. A. 345, 20 L. R. A. (N.
S.) 816.

Arkansas.— Byrd v. Pine Bluff
Corporation, 102 Ark. 631, 145 S. W.
562.

California.— Hill v. Pacific Gas &
Elec. Co., 22 Cal. App. 788, 136 Pac.
492.

Colorado.— National Fire Insurance
Co. v. Denver Consol. Elec. Co., 16
Colo. App. 86, 7 Am. Electl. Cas. 715,
63 Pac. 949.

Kansas.— Hoffman v. Leavenworth
Light, Heat & Power Co., 91 Kan.
450, 138 Pac. 632.

Massachusetts.— Brunelle v. Lowell
Electric Light Corp., 188 Mass. 493,
9 Am. Elect]. Cas. 494, 74 N. E. 676.

Iowa.— Harter v. Colfax Elec. L. &
P. Co., 124 Iowa 500, 9 Am. Elect.
Cas. 161, 100 N. W. 508.

Pennsylvania.— Bube v. Weatherly
Borough, 28 Pa. Super. Ct. 88.

Rhode Island.— Keefe v. Narragan-
sett Elec. L. Co., 21 R. I. 575, 43 Atl
542.

Tennessee.— Memphis Consol. Gas
& Elec. Co. v. Spears, 113 Tenn. 83,
9 Am. Elect]. Cas. 129, 81 S. W. 595.

Virginia. Peters v. Lynchburg
Light, ete., Co., 108 Va. 333, 61 S. E.
745, 22 L. R. A. (N. S.) 1188.

West Virginia— Perry v. Ohio
Valley Elec. Ry. Co., 70 W. Va. 697,
74 S. E. 993; Fickeison v. Wheeling
Electrical Co., 67 W. Va. 335, 27 L.
R. A. (N. 8.) 893, 67 S. E. 788.

94. Hoffman v. Leavenworth Light,
Heat & Power Co., 91 Kan. 450, 138
Pac. 632; Perry v. Ohio Valley Elec.
Ry. Co., 70 W. Va. 697, 74 S. E. 993;
Fickeison v. Wheeling Electrical Co.,
67 W. Va. 335, 27 L. R. A. (N. 8.)
893, 67 S. E. 788.

Same officers—That some of the
officers of the company selling the
electric energy were also officers of
the purchasing company, does not, of
Insurnres to Persons AND Property.

619

Similarly, where the interior wiring of a customer’s prem-
ises is not done or owned by the company, it is not generally
required to inspect such wiring before sending its current
into the building, and if it carries a current into the build-
ing with no knowledge of defects in the wiring, it is not
liable for an injury received by a person from such
defects.** A fortiori, there is no liability for an injury re-
ceived by a customer who has, surreptitiously and contrary
to his contract, extended his line and who receives a shock
while using such extended line.* A different situation is,

itself, render the former liable for
the injury. Fickeison v. Wheeling
Electrical Co., 67 W. Va. 335, 67 S. E.
788, 27 L. R. A. (N. S.) 893. It is
not to be inferred that two corpora-
tions are in legal effect one and the
same, so as to make one liable for the
negligence of the other, simply be-
eause they have the same men as
officers, employ the same laborers and
apportion between themselves the
charges therefor. Perry v. Ohio Val-
ley Elec. Ry. Co., 70 W. Va. 697, 78
S. E. 692.

95. Minneapolis General Elec. Co.
v. Cronon, 166 Fed. 651, 92 C. C. A.
345, 20 L. R. A. (N. S.) 816; Byrd
v. Pine Bluff Corporation, 102 Ark.
631, 145 S. W. 562; Hill v. Pacific
Gas & Elec. Co., 22 Cal. App. 788, 136
Pac. 492; National Fire Insurance Co.
v. Denver Consol. Elec. Co., 16 Colo.
App. 86, 7 Am. Elect]. Cas. 715, 63
Pae 949; Harter v. Colfax Elec. L.
& P. Co., 124 Iowa 500, 9 Am. Electl.
Cas. 161, 100 N. W. 508; Bube v.
Weatherly Borough, 28 Pa. Super. Ct.
88; Peters v. Lynchburg Light Co.,
108 Va. 333, 61 S. BE. 745, 22 L. R. A.
(N. 8.) 1188. “We are quite ready
to concede that, when an electric light
company undertakes to supply a dan-
gerous current to a dwelling house
or to a building, they are bound to
see that the wires they put in and
the connections they make are prop-

erly insulated and protected, so that
no harm will come to the property.
Where, however, they are only em-
ployed to deliver the current by con-
nection with wiring already made by
the individual who owns the property,
it seems to us that their responsi-
bility ends when the connection is
properly made under proper condi-
tions, and they deliver the current
in a manner which will protect both
life and property. We do not believe
any such responsibility rests on the
company as to require them to advise
the persons who apply for the con-
nection that they must see to it that
the wiring is of a certain class or
description, that it is insulated in a
particular manner, and that there is
no connection between it and the
woodwork, and, failing in this, that
they will be liable for any damages
which may happen because of the
negligent or unskillful nature of the
construction. When parties wire
houses, they are supposed to have
done it intelligently, and to have
hired competent persons for the pur-
pose, to whom alone they must look
in case the work is improperly and
unskillfully done.” National Fire In-
surance Co. v. Consolidated Elec. Co.,
16 Colo. App. 86, 7 Am. Elect]. Cas.
715, 63 Pac. 949.

96. Brunelle v. Lowell Elec. L.
Corp., 194 Mass. 407, 9 Am. Electl.
620 Law or ELEcTRICITY.

of course, presented where the interior wiring is done or
is maintained by the electric company furnishing the cur-
rent.” Where a child, while walking along the jet on a
house, is injured by an electric wire belonging to the owner
of the house, he cannot recover from the electric company
for his injuries.** So, too, an electric company, furnishing
current for the illumination of a sign and having no inter-
est in or control over the wires or appliances connected
with the sign, is not liable for the death of a horse which
receives a shock from the sign post. If the electric com-
pany has knowledge of a defect in interior wiring and it
sends a high current into the building without taking any
steps to avert injury, a different situation is presented.’
Such knowledge is not, however, to be imputed from the
fact that a superintendent of construction of the company,
not shown to be an officer or director or to have examined
the wires, or to have been in the company’s employ when
the loss occurred, casually saw the work as it was

going on.?

Cas. 1005, 80 N. E. 466; Brunelle v.
Lowell Electric Light Corp., 188
Mass. 493, 9 Am. Elect]. Cas. 494,
74 N. E. 676; Montreal L., H. & P.
Co. v. Lawrence, 39 Can. Sup. Ct.
326.

97. § 494.

“We are aware that there are au-
thorities which tend to sustain the
contrary view; but we believe it to
be unjust, as well as unsound in
principle, to say that a lighting com-
pany is compelled to maintain in
good repair appliances on the inside
of a private building which the owner
has a right to install for himself, or
by some one else of his own selection,
and who does, in fact, install and
maintain the same. An obligation
on the part of the lighting com-
pany to inspect and maintain the
wires and other appliances on the
inside of the building necessarily ex-
cludes the right of the owner to as-
sume that responsibility himself. Of

course it would be different where
the company was employed to put in
the appliances and maintain them;
for then there would be a continuing
duty to exercise proper care to see
that they are kept in safe condition.
We think it sound to hold that the
owner has the right to have his own
building wired, and to contract with
the lighting company merely to fur-
nish the electricity; and under those
circumstances, the company is not
responsible for the condition of the
wires on the inside of the building.”
Byrd v. Pine Pluff Corporation, 102
Ark. 631, 145 S. W. 562.

98. Keefe v. Narragansett Elec. L.
Co., 21 R. I. 575, 43 Atl. 542.

99. Memphis Consol. Gas & Elec.
Co. v. Spears, 113 Tenn. 83, 9 Am.
Electl. Cas, 129, 81 S. W. 595.

1. See Benson v. American Tlum.
Co. (N. Y. Co. Ct.) 9 Am. Electl.
Cas. 961, 102 N. Y. Supp. 206.

2. National ‘Fire Insurance Com-
Insuries To Persons anp PRopERTY. 621

Contrary View.—A view imposing a greater liability
upon an electric company sending currents to defective
appliances of others, has been maintained. It has been
thought by some courts that it is the duty of an electric
company, before transmitting its electrie currents into
wires of another, to use due care to inspect such wires;
and, if it fails to make such inspection and injury is thereby
caused to another, the electric company is liable.* Not only
that, but in at least one case it has been thought that the
duty of the company required it to exercise proper care to
see that the owner of such wires performs his duty in the

maintenance thereof.’

pany v. Denver Consol. Elec. Co., 16
Colo. App. 86, 7 Am. Electl. Cas. 715,
63 Pac. 949.

An electric lighting company is
not responsible for the statement of
a mere workman, sent to repair a
fixture, that the same was safe, it
not appearing that the workman was
competent or authorized to advise, or
that the person to whom the state-
ment was made was authorized to
make inquiry. National Fire Insur-
anee Company v. Denver Consol. Elec.
Co., 16 Colo. App. 86, 7 Am. Electl.
Cas. 715, 63 Pac. 949.

3. Hoboken Land & Imp, Co. v.
United Elec. Co. of N. J., 71 N. J.
Law 430, 9 Am. Electl. Cas. 212, 58
Atl. 1082. Thomas’ Adm’r v. May-
ville Gas Co., 108 Ky. 224, 7 Am.
Elect]. Cas. 588, 21 Ky. Law Rep.
1690, 56 S. W. 153, 53 L. R. A. 147;
Lewis Adm’r v. Bowling Green Gas-
light Co., 135 Ky. 611, 117 S. W. 278.
See also, Yates v. Brush Elec. L. &
P. Co., 40 La. Ann. 467,-4 South.
250; Blackburn v. South West Mis-
souri R. Co., (Mo. App.) 167 S. W.
457.

4, Thomas Adm’r v. Mayville Gas
Co., 108 Ky. 224, 7 Am. Electl. Cas.
588, 21 Ky. Law Rep. 1690, 56 S. W.
153, 53 L. BR. A. 147. In Minneapolis

Thus, in a leading case on this

General Elec. Co. v. Cronon, 166 Fed.
651, 92 C. C. A. 345, 20 L. R. A.
(N. S.) 816, the court, disapproving
the above cited Kentucky case, said:
“No considerate authority supports
this proposition. Its recognition and
enforcement by the courts would im-
pose upon the company furnishing
electricity under contract with the
owner of a building, who had wired it
and owned and controlled the wires
inside, an intolerable burden. Take
such a city as Minneapolis, with per-
haps 20,000 dwelling and business
houses wired inside, under an inde-
pendent contract. The contract of
the electrical company is to furnish
the required amount of electricity to
ght these buildings. Can the com-
pany, unbidden, enter at will the pri-
vate house of the citizen and pass
into its various rooms to inspect these
wires every day to.see that they are
in proper condition for the reception
ef the electricity it has contracted
to sell? If so, it must employ a
large retinue of competent men to
do this work; and, as absolute in-
surers under the rule contended ‘for,
the necessities of the situation would
demand that they should have free
access to these buildings at all hours
and under all conditions. Such a rule
622 Law or ELectriciry.

question, it appeared that a gas company operating an
electric plant furnished electricity to a street railway com-
pany for the running of its street cars; the street railway
line fell in the street and a boy was killed thereby. It was
held that the gas company furnishing the motive power
for the railway was liable for the boy’s death.’ So, too,
it has been held that it is the duty of the generating com-
pany to inspect apparatus installed in a building by another
party before sending its current into the building.*

Sec. 418. Liability Dependent on Ownership of Appliance;
Successors.

If, before an injury is caused by a defective electric

appliance, the company operating the same transfers the

of law would tend to put concerns
furnishing , electricity to private
houses out of business.”

5. Thomas Adm’r v. Mayville Gas
Co., 108 Ky. 224, 7 Am. Electl. Cas.
588, 21 Ky. Law Rep. 1690, 56 S. W.
153, 53 L. R. A. 147, wherein it was
said: “By the machinery in use by
the gas company, it produced and con-
trolled the electricity. It is pre-
sumed to, and did, know the dan-
gerous force it was putting in mo-
tion, and that it constantly im-
periled the lives of those who passed
along the streets where the wires
were in use, unless they were prop-
erly swung and insulated. Knowing
the dangerous character of the force
it supplied, it was bound to use the
care commensurate with the danger
of its employment, so as to protect
those who passed along the streets or
places where the wires were placed.
The electric current went in a con-
tinuous stream from the power
house through the wires. Its flow
could only be stopped by the agency
at its source. That agency controlled
the electric current at the furthest
point from the power house as it
did at the point where the wires

of the street railway company con-
nected with the generator. From the
instant the force was generated, it
remained under the control of the
appellee. As it were, the hand that
controlled the generator applied the
deadly force to the body of the in-
testate. Considering the dangerous
character of the force produced by
the gas company, there was a duty
imposed on each to see that the wires
into which it was sent were properly
insulated. The danger was exactly
the same whether the wires were
owned by one or both of the com-
panies. When one through the in-
strumentality of machinery can ac-
cumulate or produce such a deadly
force as electricity, he should be com-
pelled to know that the means of its
distribution are in such condition
that those whose business or pleasure
may bring them in contact with it
may do so with safety.”

6. Hoboken Land & Imp. Co. v.
United Elec. Co. of N. J., 71 N. J.
Law 430, 9 Am. Electl. Cas. 212, 58
Atl, 1082. In this case, it appeared
that the tenant of a saloon em-
ployed an electrician to install a me-
ter in order that he might get cur-
InsuniEs To Persons AND PROPERTY. 623
electric system to another who has had an opportunity to
ascertain and correct defects in the system, the liability
for the injury, if any, is on the transferee.’ Thus, where
a telegraph company owned a pole with an arm and pin
thereon but turned them over to another company to use,
and such latter company owned and controlled the wires
and insulators thereon, the former company is not liable
for an injury several years afterward caused by the falling
of an insecure insulator from the pole.’ It has been held
that transferee is not liable for the defect which he did
not create and which he has not had an opportunity to
correct. Where one corporation acquires in good faith,
by purchase, all of the property and franchises of another
corporation and the transaction does not amount to a con-
solidation of the corporations, the purchasing corporation
is not liable for the obligations of the seller, unless made
so by statute or by the terms of the agreement.”

Sec. 419. Liability Dependent on Ownership of Appliance;
Wires Permitted on Same Pole.

While two companies, one of which uses a high tension
current, must exercise commensurate care to avoid contact
with their wires, it is not necessarily negligence for one,
owning a pole, to permit the other to maintain its wire
thereon." If negligence is not to be inferred from the
giving of a license to use the pole, the owner is not liable
for the negligence of the other company im the maintenance

rent of an electric lighting company.
The company, without inspecting the
installation of the meter, supplied
the current, and, on account of the
defective installation, the saloon was
set on fire. It was held that the
company was liable.

7. See Griffin v. Jackson L. & P.
Co., 128 Mich. 653, 7 Am. Electl. Cas.
657, 87 N. W. 888, 55 L. R. A. 318,
92 Am, St. Rep. 496, 8 Det. Leg. N.
822; Gordon v. Ashley, 191 N. Y. 186,
83 N. E. 686; Crown v. Nanticoke L.
Co., 206 Pa. 374, 55 Atl. 1038.

8. Quill v. Empire State Telep. &
Teleg. Co., 159 N. Y. 1, 7 Am. Elect.
Cas. 761, 53 N. E. 679, 6 Am. Neg.
Rep. 174; reversing, 92 Hun 539, 6
Am. Electl. Cas. 303, 37 N. Y. Supp.
1149.

9. Scheiber v. United Telep. Co.,
153 Ind. 609, 55 N. E. 742; Cole v.
Parker, 27 Tex. Civ. App. 563, 66. S.
W. 135.

10. Ohase v. Michigan Teleg. Co.,
121 Mich. 631, 80 N. W. 717.-

11. § 498.
624 Law or Execrriciry.

of its wires.’? Thus, where a telegraph company permitted
a messenger service company to string its wires on the
poles of the telegraph company, and the two companies
occupied only the relation of licensor and licensee, it was
held that the telegraph company was not liable for the
negligence of the messenger service company in permitting
its wire to fall to the pavement and remain there to the
injury of a passer-by.”? So, too, where a city required, as
a part of the consideration for the permission granted to
a telephone company to erect poles, that it be given the
right to use a portion therefor for its wires, it was held
that the company was not liable for an injury resultmg
from a falling wire owned and controlled ‘by the city.“

Sec. 420. Violation of Ordinance; in General.

As is shown in a preceding chapter,’* electric and otber
companies having poles and wires in municipal streets are
subject to reasonable regulations by the state and munici-
pal divisions. The power to regulate such companies is
based on their public character and on the police power
which authorizes the safeguarding of persons and property.
In case the company fails to comply with a reasonable
regulation for the avoidance of injuries from its appliances
and injury thereby results, there are several possible posi-
tions which a court may take as to the effect to be given
to the regulation. In an action for the injuries, the court
may take the position that the violation of the regulation
is merely evidence of negligence to be considered in con-
nection with the other facts and circumstances in the case.**

12. Chicago Telep. Co. v. Hayes,
121 Tl. App. 313; Holmes v. Union
Teleg. & Telep. Co., 16 N. Y. Supp.
563, 7 Am. Electl. Cas. 765; affirmed,
without opinion, 139 N. Y. 651, 35
N. E. 207.

18. Holmes v. Union Teleg. &
Telep. Co., 16 N. Y. Supp. 563, 7 Am.
Elect]. Cas. 765; affirmed without
opinion, 139 N. Y. 651, 35 N. E. 207.

14. Chicago Telep. Co. v. Hayes,
121 TH. App. 313.

‘15. §§ 323 et seq.

16. Olson v. Nebraska Telep. Co.,
87 Neb. 593, 127 N. W. 916.

An ordinance of a city requirmg
telephone wires to be suspended 16
feet above the street level of all
streets is admissible in evidence on
an issue of negligence of the owner
in a suit by an emnibus driver who
was injured by a sagging wire.
Thompson v. Reed, 29 S. Dak. 85, 135
N. W. 679.
InsuRIEs To PERSONS AND: PROPERTY.

625

Some courts (there are but few adopting this rule) hold
that the person injured is not’ a party to the regulatory
ordinance, and that it is not even admissible in an action
for the injuries. But the view generally adopted is that the
violation of the ordinance presents a prima facie case of
negligence, or is negligence per se; and, in the absence of
contributory negligence or the establishment of some other
defense, the company is held liable, though no other negli-

gence is shown.’

17, Arkansas—Southwestern
Teleg. & Telep. Co. v. Myane, 86 Ark.
548, 111 S. W. 987. “The. passage

of the ordinance was a municipal.

regulation, authorized by the laws of
the state, and has the force of a
statute within the limits of the city.
It was the duty of the defendant
companies to comply with the ordi-
nance, and a failure to do so is prima
facie evidence of negligence on their
part.” Southwestern. Telegraph &
Telep. Co. v. Myane, 86 Ark. 548,
111 S. W. 987.

Illinois— Conrad vy. Springfield
Consol. Ry. Co., 240 Ill. 12, 88 N. E.
180; Com. Elec. Co. v. Rose, 214 Ill.
545, 9 Am. Electl. Cas. 381, 73 N. E.
780; Hausler v. Co. Elec. Co., 144
Il. App. 643; affirmed, 240 Ill. 201,
88 N. E. 561.

Iowa.— Knowlton v. Des Moines
Edison L. Co., 117 Iowa. 451, 8 Am.
Electl. Cas. 800, 90 N. W. 818.

Louisiana.— Moran v. New Orleans
Ry: & L. Co., 125 La. 944, 52 So. 106;
Clements v. Louisiana Elec. L. Co.,
44 La. Ann. 692, 4 Am. Electil. Cas.
381, 11 So. 51,16 L. R. A. 43, 32 Am.
St. Rep. 348.

Montana.— Mize v. Rocky Moun-
tain Bell Telep. Co., 38 Mont. 521,
100 Pac. 971, 16 Ann. Cas. 1189.

North Carolina— Mitchell v. Ra-
leigh Elec. Co., 129 N. Car. 166, 7 Am.
Electl. Cas. 644, 39 S. E. 801, 55
L. R. A. 398, 85 Am. St. Rep. 735.

40

According to the prevailing view, the

Oklahoma.— Ladow v. Oklahoma
Gas & Elec. Co., 28 Okla. 15, 119 Pac.
250.

Texas.—Burnett v. Ft. Worth L. &.
P. Co., 102 Tex. 31, 112 S. W. 1040,
19 L. R. A. (N. S.) 504; San. Antonio
Gas & Elec. Co., v. Badders, 46 Tex.
Civ. App. 559, 9 Am. Electl. Cas.
1079, 103 S. W. 229.

An ordinance providing that, in the
ease of fire, an electric company
should send a lineman to the fire who
shall report to the chief of the fire
department or the city electrician,
and shall disconnect and remove any
wires which may become: a menace
to life and property, has- been: con-
strued as imposing no duty on the
company except to furnish a compe-
tent lineman, and that such lineman
is not under the duty of: deciding:
what wires are a menace. New
Omaha Thomson-Houston Elec. L. Co.
vy. Anderson, 73 Neb. 84, 9 Am. Electl.
Cas. 306; 102 N. W. 89.

Trolley wire.—A city ordinance de-
claring that no switch, lamp, motor;
dynamo, or other electrical conductor;
having exposed uninsulated parts,
shall be erected where any person un-
acquainted with the dangers of the
same could easily come in contact:
therewith, has no application to a
trolley wire of a street car company
suspended in its yards at a height
such that it could be reached and
touched by 4 man standing on the
626 Law or Ezctriciry.

ordinance is deemed for the protection of the inhabitants
of the municipality, and they may take advantage of the
company’s failure to observe the regulations.”®

Sec. 421. Violation of Ordinance; Ordinance Does Not
Lessen Duty.

An ordinance prescribing that a company shall do certain
things does not excuse the company from doing those things
for the safety of travelers and others which it would be
bound to do in the absence of any regulation.*® Thus, an
ordinance requiring a company, erecting wires in a street
where wires have already been strung, to erect guard wires
as against the other wires, does not necessarily excuse the
company first in the field from guarding against the con-
tact of the wires.” It is not proper for a trial judge to
charge the jury that, if the company complied with the
ordinance, it was not negligent.” But the company’s com-
pliance with the ordinance may properly be considered by
the jury in connection with the other evidence of the com-
pany’s care.”

Sec. 422. Violation of Ordinance; Proximate Cause.

The violation of a municipal ordinance does not render
an electric company an outlaw. It may, nevertheless, inter-

ground and using a hoe with a handle
three or four feet long. Proctor v.
San Antonio St. Ry. Co., 26 Tex. Civ.
App. 148, 62 S. W. 939.

18. Clements v. Potomac Elec.
Power Co., 26 App. D. C. 482, 9 Am.

of the public it is essentially the leg-
islative exercise of the police power
of the city and designed to afford,pro-
tection to the public against injuries
such as appellee received.” Conrad
v. Springfield Consol. Ry. Co., 240

Electl. Cas. 938; Conrad v. Spring-
field Consol. Ry. Co., 240 Tl. 12, 88
N. E. 180; Clements v. Louisiana Elec.
L. Co., 44 La. Ann, 692, 4 Am. Electl.
Cas. 381, 11 So. 51, 16 L. R. A. 43,
32 Am. St. Rep. 348. “ Undoubtedly
the ordinace in question for some
purposes is regarded as a contract
between the city and the railway
company; but in so far as it lays
duties upon appellant in the interest

Ill. 12, 88 N. E. 180.

19. Postal Teleg. Cable Co. v. Likes,
225 Ill. 249, 9 Am. Electl. Cas. 986,
80 N. E. 136.

20. Birmingham Ry. L. & P. Co. v.
Cockrum, (Ala.) 60 So. 304.

21. Southwestern Teleg. & Telep.
Co. v. Myane, 86 Ark. 548, 111 S. W.
987,

22. Presley v. Kinlock-Blooming-
ton Telep. Co., 158 Tll. App. 220.
Inzurizs To Persons anp PRopErrTy. 627
pose a pertinent defense, such as, that the person injured
was guilty of contributory negligence. Though the viola-
tion of the ordinance is deemed negligence per se, the per-
son injured cannot recover without showing that the
injuries were the proximate result of the violation.” Thus,
an electric company which has failed to maintain guard
wires as required by an ordinance may, when sued for an
injury, show that the failure to maintain the guard wires
did not cause the particular injury in question.* The
failure of an electric light company to comply with an
ordinance providing that its wires should be supported
twenty-five feet above the ground, does not raise the pre-
sumption that it caused or contributed to the injury of a
child who received a shock from a broken telephone wire
which had been thrown against an electric light wire by a
playmate.” But, where a person has been killed by shock
from a wire improperly insulated and maintained con-
trary to a municipal ordinance, the mere fact that the loca-
tion of the wire had been changed by some extraneous
cause, after it had been originally and unlawfully put in
position, does not defeat a recovery by his representatives.”

Sec. 423. Violation of Ordinance; Advisability of Ordi-
nance Not an Issue.
While the company has a clear right to show that a
particular injury was not the proximate result of its viola-
tion of the ordinance, it cannot show that the ordinance

23. Conrad v. Springfield Consol. could not be said but that it would

Ry. Co., 240 Il. 12, 88 N. E. 180.
Proximate cause.—As to matters
pertaining to the doctrine of proxi-
mate cause, see §§ 435-452.
Violation of statute— Where the
charter of a company required that
its wires be elevated a distance of
22 feet, and it fails to do so, and
injury is received through the moving
of a building 25 feet high through
the street, the injury has been held
not to be the proximate result of
the violation of the charter, for it

have happened had the wires been
elevated the required distance. How-
ard v. Corporation of St. Thomas, 19
Ont. (Canada) 719.

24, Conrad v. Springfield Consol.
Ry. Co., 240 Ill. 12, 88 N. E. 180,

25. Stark v. Muskegon Trac. & L.
Co., 141 Mich. 575, 9 Am. Electl. Cas.
548, 104 N. W. 1100, 1 L. R. A.
(N. 8.) 822, 12 Det, Leg. N. 550.

26. Wales v. Pac. Elec. Motor Co.,
130 Cal. 521, 7 Am. Electl. Cas. 609,
62 Pac. 932.
628 Law or ELECTRICITY.

itself is unwise or that the requirement thereof is not
generally adapted for the prevention of injury.” If any
injury results from its failure to use guard wires, it cannot
show that the use of guard wires is a menace rather than a
protection, and that the use thereof has generally been
discontinued.”®

Sec. 424. Violation of Ordinance; Violation of Ordinance
by Person Injured.

The violation of an ordinance by a person seeking to
recover damages for an electric shock, may constitute con-
tributory negligence.”? In other words, the rule relative
to the violation of ordinances works both ways. Thus,
where a customer of an electric light company violates a
municipal ordinance in failing to secure a permit and to
notify the inspector of wires of an extension of the wires
in his building, and such violation contributes to his injury,
he cannot recover.*® But a contrary view has been taken.
Thus, in one case,** where a person, who was moving a
house through a street without a municipal permit as
required by an ordinance, came in contact with a defectively
insulated electric wire and was injured, it was held that
he was not necessarily guilty of contributory negligence,
as the violation of the ordinance was not the proximate
cause of the injury.

Sec. 425. Liability of Municipal Corporation; Injury from
Municipal Plant.

A municipality may properly be authorized by a state
legislature to build, purchase, maintain and operate an
electrie plant, not only to light its public buildings, but also
to furnish light, heat and power to private corporations and

27. Conrad v. Springfield Consol. 80. Brunelle v. Lowell Electric

Ry..Co., 240 Ill. 12, 88 N. E. 180. Light Co. 188 Mass, 493, 9 Am.
28. Conrad v. Springfield Consol. Elect]. Cas. 494, 74 N. E.-676.
Ry. Co., 240 Ill. 12, 88 N. E. 180. 31. Blackburn v. Southwest Mis-

29. Brunelle v. Lowell Elee. L. Co., souri R. Co., (Mo. App.) 167 S. W.
194 Mass. 407, 9 Am. Hlectl. Cas. 457.
1005, 80 N. E. 466.
Insunies to Persons AND PROPERTY. 629

individuals. And, as a practical proposition, it will be
found that nearly all municipalities have actually received
a grant of this nature from the law making body of the
state. When a municipality has such power and com-
mences to exercise it, it is deemed to conduct the electric
system by virtue of its proprietary powers, not by virtue
of its governmental powers. The division of municipal
powers into two classes, and the placing of the power in
question under the category of proprietary powers, forms
the basis of its lability for personal injuries received on
account of defects in its system.** 'Thus it is, that the
great weight of authority supports the view that a munici-
pal corporation is liable for injuries received on account
of defects in its electric system or on account of the negli-
gence of its employees engaged in the operation of its
system, to practically the same extent as private corpora-

tions are liable for injuries.*

32. § 147.

33. “In so far as a municipal cor-
poration is engaged in the discharge
of powers and duties imposed upon
it by the Legislature as governmental
agencies of the State, they are not
liable for breach of duty by their
officers; in that respect, the officers
are the agents of the State, although
selected by the municipality. When
acting in their ministerial or corpo-
rate character in the management of
property used for their own benefit
or profit, discharging powers and
duties voluntarily assumed for their
own advantage, they are liable to an
action to persons injured by the negli-
gence of their servants, agents, and
officers; and it is immaterial whether
such servant, agent, or officer be a
corporation or an individual.” Fisher
v. City of New Bern, 140 N. Car. 506,
9 Am. Elect]. Cas. 677, 53 S. E. 342,
5 L. R. A. (N. 8.) 543, 111 Am. St.
Rep. 857. “These cases undoubtedly
establish the rule in this State, al-
though it has been held differently in

Municipal ownership carries

some other jurisdictions, that a mu-
nicipal corporation, when exercising
governmental functions as an agent
of the sovereign power, is not liable
for damages caused by the negligence
of its employees, unless it is ex-
pressly so made liable by statute.
But this rule applies to a municipal
corporation only when acting in its
governmental, political, or public
capacity as an instrumentality in-
trusted by the State with the subor-
dinate control of some public affair.
Such a corporation, however, has a.
double character — governmental, and.
also proprietary and private — and
when acting in the latter capacity its
liabilities arising out of either con.
tract or tort are the same as those
of natural persons or private corpo-
rations.” Davoust v. City of Ala-
meda, 149 Cal. 69, 9 Am. Electl. Cas.
698, 84 Pac. 760, 5 L. R. A. (N.S)
536.

34, Alabama.— Darby v. City of
Union Springs, 173 Ala. '709, 55 So.
889. See also, Posey v. Town of North
630

Law oF Eectriciry.

with it the same duty, responsibility and liability on
account of negligence, that is imposed upon and attaches
to private owners of similar enterprises.**> In some juris-
dictions, it has been thought that, if the electric plant is
used solely for the purpose of lighting public places, its

Birmingham, 154 Ala. 511, 45 So. 663,
15 L. R. A. 711,

California. Davoust v. City of
Alameda, 149 Cal. 69, 9 Am. Electl.
Cas. 698, 84 Pac. 760, 5 L. R. A,
(N. 8S.) 536. /

Georgia.—Adepe v. City of Thomas-
ville, 9 Ga. App. 880, 72 S. E. 478.

Idaho.— Eaton v. City of Weiser,
12 Idaho 544, 9 Am. Electl. Cas. 831,
86 Pac. 541, 118 Am. St. Rep. 225.

Illinois— Village of Palestine v.
Siler, 128 Ill. App. 309; affirmed, 225
Ill, 630, 9 Am. Electl. Cas. 977, 80
N. E. 345, 8 L. R. A. (N: 8.) 205.

Indiana— City of Richmond v.
Lincoln, 167 Ind. 468, 79 N. EH. 445;
Aiken v. City of Columbus, 167 Ind.
139, 9 Am. Electl. Cas. 843, 78 N. E.
657, 12 L. R. A. (N. S.) 416.

Kansas.—City of Emporia v. White,
74 Kan. 864, 9 Am. Electl. Cas. 830,
86 Pac. 295.

Kentucky.— City of Owensboro v.
Knox’s Adm’r, 116 Ky. 451, 25 Ky.
Law Rep. 680, 76 S. W. 191.

Massachusetts.— Dickinson v. City
of Boston, 188 Mass. 595, 75 N. E.
68,11. R. A. (N. 8S.) 664. See also,
O’Donnell v. Inhabitants of North
Attleborough, 212 Mass. 243, 98 N. E.
1084.

Missouri— Wilhite v. City of
Huntsville, 167 Mo. App. 155, 151
S. W. 232; Bullmaster v. City of St.
Joseph, 70 Mo. App. 60; Asher v. City
of Independence, 163 S. W. 574, 177
Mo. App. 1.

Mississippi — Yazoo City v. Birch-
ett, 89 Miss. 700, 9 Am. Electl. Cas.
885, 42 So. 569. “When a city
embarks in the management of any

utility for profit, it is liable, or not
liable, by precisely the same rules ap-
plicable to private corporations or
individuals conducting such enter-
prises.” Yazoo City v. Birchett, 89
Miss. 700, 9 Am. Electl. Cas. 885, 42
So. 569.

Nebraska.— Todd v. City of Crete,
79 Neb. 671, 113 N. W. 172.

New Jersey.— Karpenski v. Bor-
ough of South River, 83 N. J. L. 149,
83 Atl. 639.

North Carolina.— Terrell v. City of
Washington, 158 N. Car. 281, 73 S.E.
888; Harrington v. Com’rs of Wades-
boro, 153 N. C. 437, 69 S. E. 399;
Fisher v. City of Newbern, 140°N. Car.
506, 9 Am. Electl. Cas. 677, 53 S. E.
342, 5 L. R. A. (N. S.) 543, 111 Am.
St. Rep. 857.

Canada.—Young v. Town of Graven-
hurst, 24 Ont. L. R. 467, (1912 B)
Ann. Cas. 812, 19 Ont. W. R. 925.

An irrigation district, which has
installed a private telephone system
for its own convenience, may be
liable for an injury to a private per-
son, due to the negligence of its offi-
cers in failing to install lightning
arrestors. Noon v. Gem Irrigation
District, 205 Fed. 402.

In South Carolina, it is held that
a municipality is liable for injuries
caused by defects in its electric sys-
tem, unless such liability is imposed
by statute. Irvine v. Town of Green-
wood, 89 S. Car. 511, 72 S. E. 228, 36
L. R. A. (N.S.) 363.

35. Eaton v. City of Weiser, 12
Idaho 544, 9 Am. Electl. Cas. 831, 86
Pac. 541, 118 Am. St. Rep. 225.
InsuRies To Persons anp PROPERTY. 631
maintenance is a governmental function;** but this view,
if accepted at all, is limited strictly to electric systems
used exclusively for public lighting. If used in part for
private lighting, the fact that it is used also for public
lighting does not relieve the municipality from liability.”

Grant of Power to Board of Municipality— In deter-
mining the liability of a municipality for injuries occa-
sioned by its municipal electric plant, it is not material
that the grant of the right to operate such a plant is given
to a board or commission of the municipality, rather than
directly to the municipality.* The municipality may be
liable though the management of the electric system is
lodged in a board of trustees,*® or in a board of electric
light commissioners.“

Police and Fire Department Wires.— While the manage-
ment of a municipal electric plant is an exercise of the
business, or proprietary, powers of a municipal corpora-
tion, the maintenance of police and fire departments is a
function based on its governmental powers. From this
it follows that, as a general proposition, a city or village is
not liable for injuries occasioned by reason of the negli-
gence of the members of its fire or police departments.*
Thus, it has been held that a city is not liable for injuries
to a lineman employed on its fire alarm system, occasioned
by the breaking of a pole on which he was working.” And
it has been held that a city is not liable for injuries caused
by the fall of wires put up by the fire department in the

36. Hodgins v. Bay City, 156 Mich.
687, 121 N. W. 274, 16 Det. Leg. N.
222,

87. Sykes v. Village of Portland,
177 Mich. 290, 143 N. W. 326. See
also, Brantman v. City of Canby,
119 Minn. 396, 138 N. W. 671.

38. Young v. Town of Gravenhurst,
24 Ont. L. R. (Canada) 467 (1912 B)
Ann, Cas. 812, 19 Ont. W. R. 925.

39. Davoust v. City of Alameda,
149 Cal. 69, 9 Am. Elect]. Cas. 698,
84 Pac. 760, 5 L. R. A. (N. 8.) 536,

40. City of Richmond v. Lincoln,
167 Ind. 468, 79 N. E. 445.

41. Gaetjens v. City of New York,
132 N. Y. App. Div. 394, 116 N. Y.
Supp. 759. Compare, Herron v. City
of Pittsburg, 204 Pa. 509, 8 eAm.
Electl. Cas. 482, 54 Atl, 311, 93 Am.
St. Rep. 798.

42. Peaty v. City of New York, 33
Mise. (N. Y.) 231, 67 N. Y. Supp.
276; Pettingill v. City of Chelsea, 161
Mass. 368, 5 Am. Electl. Cas. 358,
37 N. E. 380, 24 L. R. A. 426.
632 Law or Eecrriciry.

discharge of its duties.“* But the general doctrine is sub-
ject'to various limitations. For example, it has been held
that a city owning a telegraph wire for‘the use of its fire
department is liable to.a'person injured by coming in con-
tact with the wire, where the ‘injury was caused by the
negligence of the city in removing or authorizing it to be
moved from its original position for a purpose not con-
nected with the fire department.** ‘So, too, where a city
was discharging its duty of repairing the fire department
wires through the instrumentality of agencies other than
the fire department and its officers, and an employee was
injured by reason of the negligence of the superintendent
having charge of the work, it was held that the city was
liable.* And it has been held that a city is liable for
injuries to a pedestrian occasioned by a patrol wire falling
on a heavily charged wire and carrying the dangerous cur-
rent to the street, where the maintenance of the wire is a
duty of the city rather than of the police department.*
Likewise, a municipality, under its duty to avoid injury to
travelers along the public highway, may be liable for in-
juries occasioned to a traveler coming in contact with a
fire or police wire which forms an obstruction to passage
along the highway.”

Liability of Municipality Having no Power to Operate
‘Plant.— It is held that, where a municipality has no author-
ity to run an electric plant, the acts of its officers in relation
thereto are ultra vires, and, therefore, the municipality is
not liable for their acts or omissions.** But in a Canadian
case“ it was held that in an action against a municipality
for an injury occasioned from its electric plant, it is no

48. Gaetjens v. City of New York, affirmed without opinion, 165 N. Y.
132 N. Y. App. Div. 394, 116 N. Y. 619, 59.N. E. 1131.

Supp. 759. 47. § 426.
44, Neuert v. City of Boston, 120 48. Posey v. Town of North Bir-
Mass. 338. mingham, 154 Ala. 511, 45 So. 663,

45. Wagner v. City of Portland, 40 15 L. R. A. 711. See-also, Village of
Oreg. 389, 8 Am. Electl. Cas. 671, 67 Palestine v. Siler, 225 Ill. 630, 9 Am.
Pac. 300. Electl. .Cas. 977, 80 N. E. 345, 8 L. R.

46. Twist v. City of Rochester, 37 A. (N. S.) 205.

App. Div. 307, 55 N. Y. Supp. 850; 49. Young v. Town of Gravenhurst,
Insuries to Persons AND Property. 633
defense that the plant was operated in an ultra vires
manner.

Sec. 426. Liability of Municipal Corporation; Care of
Highways.

Irrespective of the liability of a municipality for injuries
occasioned by reason of defects existing in its own elec-
tric system, as to an injury occurring on a public highway,
lability may be founded on another ground. Where a
.dangerous condition exists in a publie highway, and the
municipality charged with the care of the highway has
actual or constructive knowledge of the danger, it is its
duty to use due care to correct the difficulty; and, if it fails
in this duty, it may be liable for injuries resulting from
its failure. Thus, if wires of its electric system, of its
police or fire departments, or of any other department of
the municipal government, have fallen to the surface of the
street or are so maintained in the street as to be a source
of danger to travelers, and the municipality has actual
knowledge of the danger, or if the dangerous condition has
existed for such a time as to charge it with constructive
knowledge thereof, and it fails to use the required care
to obviate the danger, it is liable for injuries resulting
therefrom.” Liability on this ground is to be distinguished
from the liability set forth in the preceding section. For
liability under the preceding section to exist, it is not neces-
sary that the municipality have actual or constructive
knowledge of the danger. To take a concrete example, if
an electric wire of a municipal lighting plant falls in a
public highway and a pedestrian is thereby injured, the
municipality may be liable though it had no actual notice

24 Ont. L. R. 467 (1912 B) Ann. Cas.
812, 19 Ont. W. R. 925.

50. Village of Palestine v. Siler,
225 Il. 630, 9 Am. Blectl. Cas. 977,
80 N. E. 345, 8 L. BR. A. (N. 8.) 205;
Gaetzens v. City of New York, 146
N. ¥. App. Div. 495, 131 N. Y. Supp.
169; Twist v. City of Rochester, 37
App. Div. 307, 55 N. Y. Supp. 850;

affirmed without opinion, 165 N. Y.
619, 59 N. E. 1131; Emery v. City of
Philadelphia, 208 Pa. St. 492, 9 Am.
Electl. Cas. 80, 57 Atl. 977; Irvine v.
Town of Greenwood, 89 S. Car. 511,
72 8S. E, 228, 36 L. R. A. (N. S.) 363;
Giuricevie v. City of Tacoma, 57
Wash. 329, 106 Pac. 908, 28 L. R. A.
(N. S.) 533,
634 Law or Evecrricirty.

of the prostration of the wire and no time in which to
repair the difficulty. Upon the municipal corporation was
imposed the duty of using due care in the inspection and
discovery of defects in its system and in the reparation
thereof, and its liability is determined by solving the prob-
lem whether it has fulfilled these duties, and is not deter-
mined by the question whether it had reasonable time to
obviate the danger to travelers after it acquired knowledge
thereof." But when liability is sought to be enforced on
the theory that the municipality has failed in its duty rela-.
tive to the care of its streets, as an essential ingredient of
the liability, the injured person must show that the munici-
pal corporation had actual knowledge of the danger or that
the dangerous conditions had existed for such a time that,
in the exercise of reasonable care, it should have acquired
knowledge thereof.

Sec. 427. Liability of Municipal Corporation; Appliances
of Other Companies.

The duty imposed on a municipality of caring for its
streets and highways requires it to exercise due care to
avoid injury to travelers from the appliances of other com-
panies as well as from its own appliances.” If a munici-

51. City of Owensboro v. Knox’s
Adm’r, 116 Ky. 451, 25 Ky. Law Rep.
680, 76 S.-W. 191.

Notice of defect.— In order to hold
a city liable for an injury to an em-
ployee occasioned by # defect in a
pole of its line of wires conveying
electricity to its citizens, which the
city was engaged in the business of
furnishing, it is required that the
plaintiff prove that the city had
actual notice of the particular defect,
or notice thereof implied from the ex-
isting circumstances and conditions.
Terrell v. City of Washington, 158
N. Car. 281, 73 S. E. 888.

52. “Though the law authorizes
the construction of electric light lines,
power lines, telephone lines, and simi-

lar structures along the streets and
highways, that does not relieve the
municipality from its duty to see that
the streets and highways are kept
reasonably safe and secure for the
public using them. But this doctrine
is not to be carried to the extent of
holding that the obligation of the mu-
nicipality is coextensive with that of
the company which maintains the
line. Principally the duty of a mu-
nicipality is to see that its streets
and tighways are kept. safe and
secure for passage over the surface,
for the primary object of highways is
to enable the public to travel thereon.
Therefore it must always be alert to
prevent or guard obstructions in the
highways. Where, however, the dan-
Insuries to Persons anp PRoPERTY.

635

pality knowingly permits a private corporation to maintain
wires or poles in such a position that they are a menace
to the safety of the public, it may be liable for injuries
arising therefrom.* Thus, if a city or village permits an
electric or other public service corporation to maintain a
pole in the highway in such a position as to form an
obstruction to travel, after the city or village has acquired
actual or constructive knowledge of its dangerous location,
it is liable practically to the same extent as is the owner
of the pole for injuries occasioned thereby to a traveler.

ger to the traveler is not in the
nature of an obstruction, but proceeds
from the negligence of a third party
in the use of the highway in a man-
ner authorized by law, the municipal-
ity should not be held liable for that
negligence unless it has notice thereof,
or the condition is apparent and the
danger obvious.” Fox v. Village of
Manchester, 183 N. Y. 141, 9 Am.
Electl. Cas. 559, 75 N. HE. 1116, 2
L. R. A. (N. 8.) 474.

A village is bound to see that its
public streets are not improperly
used, encroached upon or rendered
dangerous by electric lighting wires
and poles, and ib does not matter
whether a municipal corporation, a
private corporation or an individual
owns the electric lighting plant. Vil-
lage of Palestine v. Siler, 225 Ill. 630,
9 Am. Elect]. Cas. 977, 30 N. E. 345,
8L. R.A. (N.S.) 205.

53. City of Shawnee v.
(Okla.) 137 Pac, 107.

Electric lamp—A city may be
liable for permitting a defectively in-
sulated electric lamp to be maintained
within the reach of passers-by on the
sidewalk. Schmidt v. City of Chi-
cago, 107 Ill. App. 64.

54. City of Denver v. Sherret, 88
Fed. 226, 60 U. S. App. 104, 31 C. C.
A. 499; American Dist. Teleg. Co. v.
Oldham, 148 Ky. 320, 146 S. W. 764;
McKim v. City of Philadelphia, 217

Sears,

Pa. St. 243, 6 St. Ry. Rep. 163, 66
Atl. 340,19 L. R. A. (N.S.) 506.

Collision between vehicle and trol-
ley pole— Where one driving a
vehicle through a city street at night
was thrown to the pavement and
killed, by reason of collision between
said vehicle and a trolley pole stand-
ing on a base 2% feet in diameter at
the street level and about 18 inches
high, there being no light in the im-
mediate vicinity, held, that it was a
question for the jury, whether the
city had been negligent in permitting
the maintenance of the obstruction in
the street. McKim v. City of Phila-
delphia, 217 Pa. St. 243, 6 St. Ry.
Rep. 163, 66 Atl. 340, 19 L. R. A.
(N. 8.) 506.

Driving out of road—A_ person
driving a vehicle on a stormy night,
who, in order to avoid an approaching
automobile, pulls out of the road,
with which he is perfectly familiar,
and collides with a telephone pole
which was set with other poles in
line with the guardrail of a bridge
and from one to twenty inches from
the traveled portion of the highway,
leaving a roadbed over nineteen feet
wide at the place of the collision, can-
not recover from the town on the
theory that the highway commission-
ers were negligent. Scofield v. Town
of Poughkeepsie, 122 N. Y. App: Div.
868, 107 N. Y. Supp. 767.
636

Law or ELecrTriciry.

So, too, if the wire of an electric or other private corpora-
tion falls or sags to the surface of the street, or near to a
public place, though the municipality is not liable for the
original misplacement of the wire, if it remains in the
street for such a length of time as to charge the munici-
pality with constructive knowledge thereof, or if it has
actual knowledge thereof, and fails to remedy the situation,
it may be liable for injuries to a traveler caused by such

wire.®®

Two and one-half feet outside
traveled highway.—The commissioner
of highways was not negligent so as
to charge the town by allowing the
telegraph poles to remain two and
one-half feet outside the traveled
highway. Bailey v. Bell Telep. Co. of
Buffalo, 147 N. Y. App. Div. 224, 131
N. Y. Supp. 1000.

An electric street railway company
which laid its track and erected its
poles with municipal consent, placed
the poles so near the track that a
passenger standing on the running
board of an open car was struck by
a pole and injured. Held that the
city was not liable upon the theory
that the pole was an obstruction in
the street. Kennedy v. City of Lan-
sing, 99 Mich. 518, 4 Am. Electl. Cas.
460, 58 N. W. 470.

Telegraph pole located by selectmen
of town — Where a pole is erected
within the limits of a highway by a
telegraph company in a place pre-
scribed by the selectmen of the town,
it was held that the town was not
liable for damages sustained by a
traveler by reason of such pole.
Young v. Inhabitants of Yarmouth, 9
Gray (Mass.) 386.

55. Delaware.— Colburn v. City of
Wilmington, 4 Pen. 443, 8 Am. Electl.
Cas. 457, 56 Atl. 605.

District of Columbia.— District of
Columbia v. Dempsey, 13 App. D. C.
533, 27 Wash. Law Rep, 87.

But it is to be remembered that the liability of

Illinois.— City of Decatur v. Hamil-
ton, 89 Ill. App. 561.

Kansas.— City of Kansas City v.
File, 60 Kan. 157, 7 Am. Electl. Cas.
539, 55 Pac. 887.

Kentucky.— West Kentucky Telep.
Co. v. Pharis, 25 Ky. Law Rep. 1838,
78 S. W. 917.

Massachusetts.— Bourget v. City of
Cambridge, 156 Mass. 391, 4 Am.
Electl. Cas. 374, 31 N. E. 390.

Minnesota Hoppe v. City of
Winona, 113 Minn. 252, 129 N. W.
577, 33 L. R. A. (N. 8S.) 449, Ann.
Cas. (1912 A) 247; Nichols v. City of
Minneapolis, 33 Minn. 430, 1 Am.
Elect]. Cas. 762, 23 N. ‘W. 868.

Boys playing in street— The fact
that the plaintiffs, who were boys,
had been playing “tag” just before
the first of them came in contact with
a live electric wire which the defend-
ant negligently suffered to hang near
the street, upon which the other plain-
tiffs coming to the aid of the first
were also injured, does not prevent
them from recovering against the city
under a statute which requires mu-
nicipal corporations to keep their
streets in such condition as to
be reasonably safe for “ travelers.”
Graham v. City of Boston, 156 Mass.
75, 4 Am. Electl. Cas, 372, 30 N. E.
170.

Wire placed by municipal officer
near bridge—A telephone wire
crossed a charged electric light wire,
Insurizs To Persons anp PROPERTY. 637
the municipality is not the same as the liability of the
owner of the appliance causing the injury. The munici-
pality is not generally obliged to make any inspection of
the apparatus of another company; its liability com-
mences only when it has actual knowledge that injury may
result from the appliances or when the danger thereof is
obvious and has existed for such a time that the munici-
pality is charged with constructive knowledge of the situa-
tion, and the municipality has had an opportunity of cor-
recting the difficulty, but has failed.”

Sec. 428. Nuisances; in General.

When one is aggrieved by the structures or appliances
of an electric or other public service corporation, he secures
an important advantage if he succeeds in establishing that
the structure or appliance is a nuisance. If one is injured
by a nuisance maintained by another, it is not necessary
for his recovery that he show negligence. If the structure
or appliance causing an injury can be shown to be a
nuisance, a recovery for damages sustained thereby may
be had though no negligence in the maintenance thereof
is shown. Speaking in general terms, that which is author-
ized by law is not a public nuisance. ‘Thus, if an electric,
a telegraph, or a telephone company receives the proper

in close proximity thereto. It had ough of Luzerne, 186 Pa. St. 161, 7

been in the same place fifteen years.
For several months it had been un-
used and sagged so as to interfere
with travel. Finally it was cut by
a municipal officer, and one end
wrapped around a post within reach
of pedestrians upon a bridge, with
one end resting upon the ground or
in the water. On the same night,
plaintiff’s intestate came in contact
with the telephone wire, received a
shock and was killed. Held, sufficient
evidence to warrant a verdict against
the municipality, upon the ground
that the death was the natural and
probable consequence of the manner
in which the telephone wire was fast-
ened to the post. Mooney v. Bor-

Am. Elect]. Cas. 505, 40 Atl. 311, 40
L. B. A. 811, 42 W. N.C. 279.

56. American Dist. Teleg. Co. v.
Oldham, 148 Ky. 320, 146 S. W. 764;
Fox v. Village of Manchester, 183
N. Y. 141, 9 Am. Elect]. Cas. 559, 75
N. E. 1116, 2 L. R. A. (N. S.) 474;
City of Shawnee v. Sears, (Okla.) 137
Pac. 107. Compare, Kost v. Ashland
Borough, 236 Pa. St. 164, 84 Atl.
691.

57. City of Denver v. Sherret, 88
Fed. 226, 31 0. ©. A. 499, 60 U. S.
App. 104; City of Decatur v. Hamil-
ton, 89 Ill. App. 561.

58. Towaliga Falls Power Co. v.
Sims, 6 Ga. App. 749, 65 S. E. 844;
People v. Transit Development Co.,
638 Law or Etecrriciry.

governmental consent for the maintenance of poles and
wires in a street or highway, an adjoining landowner or
other person adversely affected thereby cannot complain
of their maintenance on the ground that they constitute a
public nuisance. The appliances may violate the rights
of the landowner so that he may be entitled to some relief,
but that relief is not proceedings for the abatement of a
public nuisance. But this doctrine gives immunity only
so far as the law justifies the erection and maintenance of
the structure or appliance. Thus, the fact that a street
railway company is given the right to maintain a power-
house for the generation of its motive power, does not
empower it to place such house at a place where it injures
private property or materially affects the comfort of
nearby residents.”

Sec. 429. Nuisances; Power Plant.

Whether an electric power plant is a nuisance depends
on many circumstances. It is clear that what may con-
stitute a nuisance in a residential section of a city, may be
merely an ordinary incident in a manufacturing district.
There are several things connected with the maintenance of
an electric generating plant that may cause it to constitute
a nuisance. Smoke,” noise,* and vibration™ are the chief

131 N. Y. App. Div. 174, 115 N. Y.
Supp. 297; Scofield v. Town of Pough-
keepsie, 122 N. Y. App. Div. 868, 107
N. Y. Supp. 767.

59. Hewett v. Western Union Teleg.
Co., 4 Mackey (D. C.) 424, 2 Am.
Elect]. Cas. 222; Mull v. Indianapolis
& C. Traction Co., 169 Ind. 214, 6 St.
Ry. Rep. 192, 81 N. E, 657.

60. Towaliga Falls Power Co. v.
Sims, 6 Ga. App. 749, 65 S. B. 844.

61. Townsend v. Norfolk Ry. & L.
Co., 105 Va. 22, 9 Am. Electl. Cas.
939, 52 8. E. 970,4 L. R. A. (N. 8.)
939.

62. Montreal St. Ry. Co. v. Gareau,
21 C. L. T. 128, 10 Que. K. B. 417.

63. Noise which is necessarily and
usually incident to the proper work-

ing of machinery is not a nuisance.
Noise constituting 4 nuisance must
be such as materially interferes with
and impairs the ordinary comfort of
existence of ordinary people. Peck
v. Newburgh L., H. & P. Co., 132 N.
Y. App. Div. 82, 116 N. Y. Supp. 433.

The test as to whether a noisy
trade is a nuisance in a particular
locality and to particular person is:
Will it be likely to be physically
annoying to a person of ordinary
sensibilities, or is it carried on at
such unreasonable hours as to dis-
turb the repose of people dwelling
within its sphere? McCann v. Strang,
97 Wis. 551, 72 N. W. 1117.

64. Peck v. Newburgh L., H. & P.
Co., 132 N. Y. App. Div. 82, 116 N.Y,
Insuries To Persons anp Property. 639
complaints made by persons living or owning property in
the proximity of an electric power-house; though there may .
be such minor annoyances, as soot, dirt, dust, cinders,
steam, ashes, bad odors, etc.*° If any of these annoyances
are present to such an extent that the comfort of residents
of nearby buildings is seriously impaired, or such buildings
are materially injured, the power plant may constitute a
nuisance. The noise from electric machinery may, to a
certain extent, be subdued; the discomforts from smoke
may be largely obviated; but the vibration from machinery
continuously in operation seems to be more difficult for
electric companies to control. Vibration which seriously
affects the comfort of nearby residents or which seriously

Supp. 433; Montreal St. Ry. Co. v.
Gareau, 21 Canada L. T. 128, 10 Que.
K. B. 417.

Shaking walls An electric light
company which so operates its plant
as to cause the walls of an adjoining
building to shake and crack, the con-
tinuance of which operation will in
time result in the destruction of the
building, is maintaining a nuisance
and is liable in damages. Ganster v.
Metropolitan Elec. Co., 214 Pa. 628,
9 Am. Elect]. Cas. 764, 64 Atl. 91.

65. Hyde Park Thomson-Houston L.
Co. v. Porter 167 Ill. 276, 47 N. E.
206.

Soot, cinders, etc., may be material
in establishing that the electric plant
is a nuisance. See Pritchard v. Edi-
son Elec. Tum. Co., 179 N. Y. 364,
72 N. E. 243.

66. Illinois Hyde Park Thomson-
Houston L. Co. v. Porter, 64 Ill. App.
152; affirmed, 167 Ill, 276, 47 N. E.
206.

New York.— Pritchard v. Edison
Elec. Ill. Co., 92 App. Div. 178, 87
N. Y. Supp. 235; affirmed, 179 N. Y.
364, 72 N. E. 243; Yocum v. Hotel St.
George Co., 18 Abb. N. C. 340.

Pennsylyania.— Ganster v. Metro-

politan Elec. Co., 214 Pa. 628, 9 Am.
Elect]. Cas. 764, 64 Atl. 91.

Virginia— Townsend v. Norfolk
Ry. & L. Co, 105 Va. 22, 9 Am.
Electl. Cas. 939, 52 8. E. 970, 4 L. R.
A. (N. 8.) 939.

England.— Shelfer v. City of Lon-
don Elec. L. Co., (1895) 1 Ch. 287.

Canada.— Gareau v. Montreal St.
Ry. Co., 22 C. L. T. 4, 31S. C. R. 463;
Hopkin v. Hamilton Elec. L., ete., Co.,
21 C. L. T. 441, 2 0. L. R. 240; af-
firmed, 22 C. L. T. 284, 1 O. W. R.
486.

In public street.— A village has no
right to erect an electric lighting
plant in the center of a public street
to the annoyance and injury of abut-
ting owners, and an injunction should
be granted restraining such improper
use of the streets. MelIlhinny v. Vil-
lage of Trenton, 148 Mich. 380, 9 Am.
Electl. Cas. 1073, 111 N. W. 1083.

Evidence.— In an action for dam-
ages from the maintenance of an
electric plant, evidence of similar
damage to other adjacent property
is incompetent. Hughes v. Gen. Elec.
L. & P. Co., 107 Ky. 485, 21 Ky. Law
Rep. 1202, 54 8S. W. 723.
640 Law or ELectrictry.

injures walls of other buildings, may warrant relief. More-
over, it is sometimes held that an electric power-house,
on account of the vibration it causes, may be a nuisance,
though it occasions no actual structural injury to other
buildings.” To constitute a nuisance it is not necessary
that the adjoining occupant be driven from his dwelling by
reason thereof, but it is enough that his enjoyment of life
and property is rendered uncomfortable thereby. The
fact that it is impossible to operate the plant in the locality
without creating a nuisance is no defense to the electric
company; if it exercises such poor judgment in the selec-
tion of the site for its power plant that its operation neces-
sarily causes material discomfort and injury to other per-
sons, it must stand the expense of changing the location
of the plant.” If a power-house for the generation of elec-
tricity is lawfully maintained without negligence on the
part of the company, and the plant is not, of itself, a
nuisance, the company is not liable for personal annoyance
or inconvenience which the plant causes to persons in its
vicinity.” To hold the company liable, the generation of
electricity must be done negligently or in such a manner
as to create a nuisance. An electric light plant which,
although it makes a buzzing noise and is operated late into
the night, does not cause any material discomfort or injury
to a neighboring resident or any material damage to his
property, will not be abated by the courts as a nuisance.”

A dam for the creation of water power to run an electric
plant may constitute a nuisance. Where such a dam is an
obstruction to a navigable river it creates a public nuisance
and the maintainer thereof may be prosecuted by indiet-
ment.” ‘So, too, a dam so constructed as to create stagnant

67. Hopkin v. Hamilton Elec. L., 70. Sherman Gas & Electric Co. v.
ete., Co., 21 C. L. T. 441,20. L. R. Belden, 103 Tex. 59, 123 S. W. 119;
240; affirmed, 22 C. L. T. 284, 10. reversing 115 S. W. 897; Uvalde

W. R. 486. Elec. L. Co. v. Parsons, (Tex. Civ.
68. Yocum v. Hotel St. George Co., App.) 138 S. W. 163.

18 Abb. N. C. 340. 71, McCann v. Strang, 97 Wis. 551,
69. Pritchard v. Edison Elec. Ill. 72 N. W. 1117.

Co., 92 App. Div. 178, 87 N. Y. Supp. 72. MceMeekin v. Central Carolina

225; affirmed, 179 N. Y. 364,72 N. E. Power Co., 80 S. Car. 512, 61 S. E.
243. 1020.
Insuries To Persons anp PRoperry. 641
ponds, polluted pools of water, or places in which mos-
quitoes may breed in unusual numbers to the endangering
of the health of the surrounding residents, may constitute
a nuisance.”

Sec. 430. Nuisances; Appliances.

Where an electric or other public service corporation is
authorized by law to maintain its poles, wires, and other
appliances in a public highway, their maintenance cannot
be said to constitute a public nuisance,” though in some
cases the manner of their maintenance may result in a

private nuisance.”

783. Towaliga Falls Power Co. v.
Sims, 6 Ga. App. 749, 65 S. E. 844,
wherein it was said: “If the con-
tour of the country is such that the
ponding causes the water to collect
in lagoons and low places and to be-
come stagnant and infested with dis-
ease bearing mosquitoes, some rem-
edy must be devised: for the protection
of the health of those who live within
range of the evil. If some small
amount of stagnant water is neces-
sary, and if, as a result of this stag-
nant water, it is dangerous to life
and health for persons to occupy the
lands adjacent, the corporation has
no right to say that the persons
must, at their own loss, desert their
homes or other places where they
have « right to be. The corporation

must find a remedy or must acquire.

by purchase or condemnation the
lands lying within range of the noxi-
ous places, and in this way confine
the harm to their own property.”
74, Hewett v. Western Union Teleg.
Co., 4 Mackey (D. C.) 424, 2 Am.
Elect]. Cas. 222; Simonds v. Maine
Telep. & Teleg. Co., 104 Me. 440, 72
Atl. 175, 28 L. R. A. (N. 8S.) 942;
Paterson R. Co. v. Grundy, 51 N. J.

41

But, on the other hand, it is equally

Eq. 213, 4 Am. Elect]. Cas. 173, 26
Atl. 788; Hudson River Tel. Co. v.
Watervliet Turnpike Co., 135 N. Y.
393, 4 Am. Elect]. Cas. 275, 32 N. E.
148, 17 L. R. A. 674, 31 Am. St.
Rep. 838; Hollis v. The Brooklyn
Heights Ry. Co., 128 N. Y¥. App. Div.
821, 113 N. Y. Supp. 4; Scofield v.
Town of Poughkeepsie, 122 N. Y.
App. Div. 868, 107 N. Y. Supp. 767;
People v. Metropolitan Telep. &
Teleg. Co., 31 Hun (N. Y.) 596, 1 Am.
Elect]. Cas. 604, 11 Abb. N. C. 304,
66 How. Pr. 66. See also, Regina v.
United Kingdom Elec. Teleg. Co., 9
Cox. OC, GC. 174, 6 L. T. (N. 8.) 378,
31 L. J. (Mag. Cas.) 166, 3 F. & F.
73, 8 Jur. (N.S.) 1152, 10 W. R. 538.

75. A third rail, unnecessarily pro-
jecting into a highway, is a nuisance.
Bloss v. Oneida Ry. Co., 162 N. Y.
App. Div. 200, 147 N. Y. Supp. 728.

A telephone pole directly in front
of a door of a business house, twenty-
three inches from the steps, consti-
tutes a private nuisance. Merchant’s
Mut. Telep. Co. v. Hirschman, 43 Ind.
App. 283, 87 N. E. 238,

Large poles and high tension wires
in a public street, of themselves, do
not constitute a nuisance, if author-
642 Law or Execrriciry.

true that, if the maintenance of such appliances is not
authorized by the government, they constitute a nuisance.”
As a public nuisance their maintenance may be abated by
the municipal or other governmental officers; and, as a
private nuisance, any person adversely affected thereby
may secure relief. Electric appliances, though originally
located in a municipal street with proper permission from
the municipal officers, may become nuisances after the ex-
piration of the permission.” A wire maintained across a
navigable body of water in such a manner as to form an
obstruction to vessels, may constitute a nuisance.”* Where
a bank maintained a brass rail on the front of its windows
four or five feet above the sidewalk, and charged such rail
with a current of electricity for the purpose of protecting
the windows and front of the building from persons con-

ized by the state or municipality.
City of Passaic v. Public Service Corp.
of N. J., 75 N. J. Eq. 379, 73 Atl.
122.

76. Indiana.— Cumberland Telep. &
Teleg. Co. v. City of Mt. Vernon, 176
Ind. 177, 94 N. E. 714.

Massachusetts.— Banks v. High-
land St. Ry. Co., 136 Mass. 485; Com-
monwealth v. City of Boston, 97
Mass. 555.

Nebraska.— Nebraska Telep. Co.
v. Western Ind. Long Distance Telep.
Co., 68 Neb. 772, 8 Am. Elect]. Cas.
32, 95 N. W. 18.

New Jersey.— Paterson R. Co. v.
Grundy, 51 N. J. Eq. 213, 4 Am.
Electl. Cas. 173, 26 Atl. 788.

New York.— Village of Hempstead
v. Ball Elec. L. Co., 9 N. ¥. App. Div.
48, 6 Am. Electl. Cas. 38, 41 N. Y.
Supp. 126, 75 N. Y. St. Rep. 582.

Ohio.— Newman v. Village of Avon-
dale, 31 Week. Law Bull. 123, 4 Am.
Electl. Cas. 82.

Texas.— Jacksonville Ice & Elec.
Co. v. Moses, (Civ. App.) 134 8S. W.
379.

Wisconsin.— Krueger v. Wisconsin

Telep. Co., 106 Wis. 96, 7 Am, Electl.
Cas. 285, 81 N. W. 1041, 50 L. R. A,
298.

77%. Coverdale v. Edwards, 155 Ind.
374, 7 Am. Elect]. Cas. 15, 58 N. E.
495; American Rapid Teleg. Co. v.
Hess, 125 N. Y. 641, 3 Am. Electl.
Cas. 142, 26 N. E. 919, 21 Am. St.
Rep. 764, 13 L. R. A. 454; Village
of Hempstead v. Ball Elec. L. ©o., 9
N. Y. App. Div. 48, 6 Am. Electl. Cas.
38, 41 N. Y. Supp. 126, 75 N. Y. St.
Rep. 582.

Condition precedent.—Where a tele-
phone company fails to perform a
condition precedent in a contract with
a borough to complete the construc-
tion of its lines within a time speci-
fied, the borough may treat the poles
and wires erected in the streets as a
nuisance and remove them after
notice without a breach of the peace,
and without unnecessary injury to
the company’s other property. Key-
stone State Telep. & Teleg. Co. v. Bor-
ough of Ridley, 28 Pa. Super. Ct. 645.

78. Blanchard v. Western Union
Teleg. Co., 1 Am. Electl. Cas. 176, 60
N. Y. 510.
InzuRiEs To Persons anp PRopPeErry. 643
gregating on the sidewalk, it was held that the maintenance
of the rail under such circumstances constituted a nuisance
and rendered it liable to one injured thereby, irrespective
of any question of its negligence.”

Sec. 431. Nuisances; Relief.

Public nuisances are remedied by the state; private
nuisances, by the individuals injured thereby. A private
person cannot prosecute an action for the abatement of a
public nuisance unless he has sustained some peculiar or
specific damage therefrom.” If a private person is injured
by the maintenance of a nuisance by an electric company,
such as a power plant near his residence or a line of poles
and wires near his buildings, he may maintain a suit in
equity for the abatement thereof. The maintenance of a
private nuisance may be enjoined by the owner of the prop-
erty injured thereby,* or by a lessee thereof.” Buta rival
company has no standing to claim that a company’s appli-
ances are nuisances, where such rival company sustains
no injury therefrom except such as is caused by the com-
petition between the two companies. Where a person
buys a dwelling-house in the neighborhood of an electric
light plant already in operation, and thereafter suffers the
plant to operate for a number of years without objection,
having knowledge that the owner during the time has ex-

79. Whaley v. Citizens’ Nat. Bank,
28 Pa. Super. Ct. 531, 9 Am. Electl.
Cas. 608.

80. People v. Transit Development
Co., 131 N. Y. App. Div. 174, 115 N.
Y. Supp. 297.

81. Shelfer v. City of London Elec.
L. Co., (1895) 1 Ch. 287.

A preliminary injunction will not
be granted at the suit-of a private
individual, who has an adequate
remedy at law, restraining the opera-
tion of an electric plant in a city,
where it appears that the plant is
used merely for storing, transform-
ing and transmitting electric current

generated miles distant, that it sup-
plies over 5,000 customers, and the
range of its service takes in the light-
ing of streets and public schools, and
that river bridges obtain light there-
from, and where it further appears
that said plant was constructed on
the very highest plane and no negli-
gence is shown to exist. Floyd Jones
v. United Electric Light Co., 55 Mise.
(N. Y.) 529, 106 N. Y. Supp. 648.

82. Shelfer v. City of London Elec.
L. Co., (1895) 1 Ch. 287.

83. Fulton L., H. & P. Co. v. Oswego
River P. Transmission Co., 128 N. Y.
Supp. 290.
644 Law or Exectrictry.

pended money in improvements, he is not entitled to an
injunction restraining the operation of the plant, unless
the use thereof is unreasonable. An adjoining landowner
is not, however, limited in his remedy to the procurement of
an injunction. He may maintain an action at law for the
recovery of such damages as he has sustained by reason
of the nuisance. Where the nuisance is of a permanent
rather than of a transient nature, the complainant can bring
but one action for the damages he has sustained. In such
a case the entire damage accrues from the time of the
creation of the nuisance, and but one recovery can be had.
In that recovery is to be included both past and future
damages.* If, however, the nuisance can be classed as a
continuing instead of a permanent nuisance, every continu-
ance thereof is deemed a separate wrong for which a sepa-
rate action will lie.**° The damages which may be recov-
ered are, not only the depreciation in the value of the plain-
tiff’s interest in the real estate, but also such damages as
are sustained by reason of sickness caused by the nuisance.*”
A tenant at will® or a lessee of real estate may maintain
an action for the damages he has sustained by reason of
the operation of an electric light plant in the vicinity of
the property. The fact that an electric light plant which
was erected and placed in operation by one party is trans-

84. Peck v. Newburgh L., H. & P. covered in one action. Wolf v. Cin-

Co., 182 N. Y. App. Div. 82, 116 N. Y.
Supp. 433.

85. Hyde Park Thomson-Houston
L. Co. v. Porter, 167 Ill. 276, 47 N. E.
206; affirming 64 Ill. App. 152;
Uvalde Elec. L. Oo. v. Parsons, (Tex.
Civ. App.) 138 8. W. 163.

86. Uvalde Elec. Co. v. Parsons
(Tex. Civ. App.) 138 S. W.:163. See
also, Hughes v. Gen. Elec. L. & P. Co.,
107 Ky. 485, 21 Ky. Law Rep. 1202,
54 S. W. 723.

87. Towaliga Falls Power Co. vw
Sims, 6 Ga. App. 749, 65 S. E. 844.

Damages for depreciated market
value are allowed only when the
action is in its nature permanent, and
the whole damage is sought to be re-

cinnati Elec. Co., 6 Ohio Dec. 159.

Lessee of hotel_— The measure of
damages in an action by the lessee of
a hotel against an electric company
for the maintenance of a nuisance is
the injury to the usable value of the
hotel, which consists of the diminu-
tion in the room rent of the hotel
and the loss in consequence of the in-
ability of the lessee to supply re-
freshments to those whose presence
was prevented by the nuisance.
Pritchard v. Edison Elec. Il. Co., 92
N. Y. App. Div. 178, 87 N. Y. Supp.
225; affirmed, 170 N. Y. 364, 72 N. E.
243.

88. Towaliga Falls Power Co. v.
Sims, 6 Ga. App. 749, 65 S. E. 844.
Insuries to Persons anp Property. 645

ferred to another, who continues to operate it, does not
deprive a property owner of his remedy for damages result-
ing from the operation of the plant; he is entitled to sue
either party, or both, at his election.”

Sec. 432. Joint Tort-feasors; in General.

In many instances more than one corporation or person
may be responsible for an injury. For example, two com-
panies maintain their wires in such proximity to each other
that a high voltage current on one escapes to the other and
causes an injury. Both companies may be negligent, and
both may be liable as joint tort-feasors for the injury.”
So, too, an employee of one company while working on the
pole of his master comes in contact with a defectively insu-
lated electric wire of another company. The two companies
may be liable for the injury as joint-tort feasors; the
master because of his failure to furnish a reasonably safe
working place for the servant, the other company on the
theory that it was guilty of negligence in permitting the
insulation of its wire to become defective at a place where
persons were likely to go in the pursuit of their work.
Likewise, a railroad employee while riding on the top of
a car in the course of his employment, may collide with a
wire strung across the track. Both the owner of the wire
and the railroad may be liable for the ensuing injury; the
owner for his negligent construction or maintenance of the
wire, the railroad on the ground that it failed to furnish
the employee a safe working place.” Similarly, where the
wire or appliance of a public service corporation becomes
misplaced and creates an obstruction to travel along a pub-
lic highway, after the lapse of reasonable time for notice
thereof to be brought to the municipal corporation having
charge of the highway, both the municipality and the owner
of the appliance may be liable for injuries arising from the
obstruction. These are but illustrations of a number of

89. Hyde Park Thomson-Houston 90. § 499.
L. Co. v. Porter, 167 Ill. 276, 47 N. E. 91. §§ 309, 310.
206; affirming 64 Ill. App. 152. See 92. § 427.
also, Capital Elec. Co. v. Hauswald,
78 Ill. App. 359.
646 Law or Evecrrictry.

different situations which may arise whereby the liability
for an injury may be placed on two or more different
entities. In personal injury cases, it will be found that the
liability is both joint and several—that is, one company
may be sued separately, or, at the election of the injured,
both may be joined in the same action. If the person
injured chooses to sue both companies in the same action,
it by no means follows that their liability is to be deter-
mined by the same rules of law. Each defendant is respon-
sible for his own acts or omissions, and not for those of
his co-defendant,“ and neither can advance the wrong of

his co-defendant as justification for his neglect.”

93. Cumberland Telep. & Teleg. Co.
v. Ware’s Adm’r, 115 Ky. 581, 8 Am.
Electl. Cas. 811, 24 Ky. Law Rep.
2519, 74 S. W. 289; Drown v. New
England Telep. & Teleg. Co., 80 Vt.
1, 9 Am. Electl. Cas. 1053, 66 Atl.
801; same case, 81 Vt. 358, 70 Atl.
599.

Separate trials— Under the prac-
tice codes of most states, the court
in its discretion may grant separate
trials to the tort-feasors,ewhen they
are sued jointly. Reference to the
particular statutes in the state
should be made on this question. See
East Tennessee Telep. Co. v. Carmine,
29 Ky. Law Rep. 479, 9 Am. Electl.
Cas. 802, 93 S. W. 903; Clark v. St.
Louis & S. Ry. Co., 234 Mo. 396, 137
S. W. 583.

One judgment.—Where the tort-
feasons are sued jointly, the plaintiff
is entitled to but one judgment; the
taking of judgment against one of
the defendants is final as to all the
parties, though a separate action
against each of the defendants could
have been maintained to judgment
against each. Indianapolis Tract. &
Terminal Co. v. Holtsclaw, 40 Ind.
App. 311, 81 N. E. 1084.

94. Bergin v. Southern New Eng-

To illus-

land Telep. Co., 70 Conn. 54, 38 Atl.
888, 39 L. R. A. 192; Economy L. &
P. Co. v. Hiller, 203 Tl. 518, 8 Am.
Elect]. Cas. 462, 68 N. E. 72. “The
rule is that all persons who join in
the commission of a wrong are jointly
and severally liable, and the injured
party may sue all or any of them.
The joint liability in such a case is
not of the same nature as a joint
liability for the breach of a contract,
but, where two or more are sued, the
wrong complained of must be joint
in its character. One is never liable
for the wrong of another, and if
their acts are entirely distinct and
separate there cannot be joint lia-
bility. * *  * There are some
wrongs, like slander, which cannot be
joint, but the great majority of torts
may be committed jointly, and where
different persons owe the same duty,
and their acts naturally tend to the
same breach of that duty, the wrong
may be regarded as joint, and both
be held liable.” Economy L. & P.
Co. v. Hiller, 203 Ill. 518, 8 Am.
Elect]. Cas. 462, 68 N. E. 72.

95. Byerly v. Consolidated Light,
Power & Ice Co., 130 Mo, App. 593,
109 S. W. 1065.
Insupies To Persons AnD PROPERTY. 647
trate, a servant of one company is injured by a defective
condition created in part by the negligence of another com-
pany. In an action against both companies, it may be held
that, as to his master, the servant assumed the risk of the
injury he received, and, consequently, there could be no
recovery against the master; but the court in the same
action may, in view of the fact that the doctrine of assumed
risks has but slight application outside of the relation of
master and servant, hold that the servant did not assume
the risk as to the other defendant, and the latter may be
held liable therefor.° There may be a contractual relation
between the plaintiff and one of the defendants, and its
liability will be determined according to the principles
relating to such relation; while as to another defendant,
in the absence of any contractual relation, its liability may
be determined by solving the question whether it has ful-
filled its duty as to the public in general.

Sec. 433. Joint Tort-feasors; Contribution or Indemnity.

Where two or more parties are joint tort-feasors under
the circumstances suggested in the preceding section, their
liability is both joint and several. If the injured person
elects to proceed against two corporations jointly, and the
courts hold that both are liable for the injury, the judg-
ment should be against both; the verdict should not be
split and half thereof levied against each of two co-defend-
ants.” If a judgment is recovered and collected from one
of several tort-feasors, he is not, as a general proposition,
entitled to indemnity or contribution from the others.®
Thus, where a brakeman on a freight car was injured by a
telephone wire suspended too low over the railroad track,

96. Anglea’s Adm’x v. East Ten-
“nessee Telep. Co., 142 Ky. 539, 134
S. W. 1119; Carr v. Manchester Elec.
Co., 70 N. H. 308, 7 Am. Electl. Cas.
746, 48 Atl. 286.

97. Citizens’ Ry. & L. Co. v. Case,
(Tex. Civ. App.) 138 8S. W. 621.

98. Dow v. Sunset Telep. & Teleg.
Co., 162 Cal. 136, 121 Pac. 379; Dil-

lingham v. Crank, 87 Tex: 104, 5 Am.
Electl. Cas. 342, 27 S. W. 93; Temple
Elec. L. Co. v. Halliburton, (Tex. Civ.
App.) 136 S. W. 584; Wright v. Port
Hope Elec. Co., 13 0. W. R. (Canada)
210; Atkinson v. Chatham, 29 Ont.
(Canada) 518; Sutton v. Town of
Dundas, 17 0. L. R. (Canada) 556,
13 O. W. R. 126.
648 Law or ELectriciry.

it was held that the receiver of the railroad could not re-
cover over against the telephone company the amount of
the judgment paid by him.” So, too, where a telegraph
lineman came in contact with a live wire of an electric com-
pany, it was held that neither the electric company nor the
telegraph company was entitled to indemnity as against
the other. Likewise, where a telegraph pole was main-
tained in a city street so that a traveler was injured
thereby, it was held that the city was not entitled to indem-
nity from the telegraph company.’ In the same way, where
a telephone lineman was injured by reason of the mainte-
nance of telephone and electric wires in undue proximity,
it was held that the electric company was not entitled to
contribution as against the telephone company, though the
latter strung its wires after the electric wires were in place,
it having appeared that the electric company had knowl-
edge of the situation and failed to make repairs.* Simi-
larly, where a fire alarm wire of a municipality fell on an
electric wire and death resulted to one touching the alarm
wire, it was held that the municipality was not entitled to
contribution from the electric company, though there was
an agreement whereby the company undertook to indem-
nify and hold the municipality harmless against all actions,
etc., by reason of any danger or injury from the company’s
electric system if incurred by or consequent on the negli-
gence of the electric company.* Again, where a telephone
company negligently permitted one of its employees to
lower a wet rope against an electric wire which was defec-
tively insulated, it was held that the light company was
under no obligation to indemnify the telephone company.®
But to the general rule there are some exceptions.* For

99. Dillingham v. Crank, 87 Tex.
104, 5 Am. Electl. Cas. 342, 27 8. W.
93.

1. Wright v. Port Hope Elec. Co.,
13 O. W. R. (Canada) 210.

2. Atkinson v. City of Chatham, 29
Ont. Rep. (Canada) 518.

3. Dow v. Sunset Telep. & Teleg.
fo. 162 Cal. 136, 121 Pac. 379,

4. Sutton v. Town of Dundas, 17
O. L. R. (Canada) 556, 13 O. W. R.
126.

5. Southwestern Teleg. & Telep. Co.
v. Sanders, (Tex. Civ. App.) 138 S. W.
1181.

6. “The general rule that there
can be no contribution or indemnity
as between wrongdoers is founded on
Insunizs to Persons anD Property. 649
example, it is sometimes held that where the negligence of
one is merely passive while the negligence of the other is
active, the former may be entitled to indemnity against the
latter." In other words, where one is primarily negligent,
but the other is only secondarily or incidentally negligent,
the latter may require the former to bear the burden.*? But
one is not entitled to contribution from another unless the
latter would have been liable in an action by the person
injured.® An electric lighting company, which merely uses,
with the consent of a municipal corporation, a pole which
had been placed by another company, is not liable to recov-
ery over at the suit of the municipality upon the latter’s
being defeated and the pole adjudged a nuisance as to its

the maxim that no one can make his
own misconduct the ground for an
action in his own favor. If he suf-
fers because of his own wrongdoing,
the law will not relieve him, for it
cannot recognize wu right as spring-
ing from a wrong in favor of one
concerned in its commissions. * * *
But there is an exception to this
rule, under which, although the law
holds all the parties liahle as wrong-
‘doers to the injured party, if, as
between themselves, one of them is
blameless, equity requires the one
guilty of the wrong to indemnify the
one who is guiltless for all damages
that may be recovered against him
by reason of his (wrongdoer’s)
wrongful acts. This exception is as
well established as the rule itself.”
Galveston, etc., Ry. Co. v. Pigott, 54
Tex. Civ. App. 367, 116 S. W. 841.
7. Fulton Co. Gas & Elec. Co. v.
Hudson River Telep. Co., 130 N. Y.
App. Div. 343, 114 N. Y. Supp. 642.
“The general rule, which denies in-
demnity or contribution to joint
wrong-doers, is elementary. The
cases in which recovery over is per-
mitted in favor of one who has been

compelled to respond to the party in-
jured are exceptions to the general
rule, and are based upon principles of
equity. Such exceptions obtdin in
two classes of cases: First, where
the party claiming indemnity has not
been guilty of any fault except
technically or constructively, as
where an innocent master is held to
respond for the tort of his servant
acting within the scope of his em-
ployment; or, second, where both
parties have been in fault, but not in
the same fault, towards the party in-
jured, and the fault of the party
from whom indemnity is claimed was
the primary and efficient cause of the
injury.” Trustees of Village of Ge-
neva v. Brush Elec. L. Co., 50 Hun
(N. Y.) 581, 2 Am. Electl. Cas. 303,
3 N. Y. Supp. 595, 20 N. Y. St. Rep.
422; affirmed without opinion, 130
N. Y. 670, 29 N. E. 1034.

8. Dillingham v. Crank, 87 Tex. 104,
5 Am. Electl. Cas. 342, 27 S. W. 93.

9. San Antonio Edison Co. v. Dixon,
17 Tex. Civ. App. 320, 42 S. W. 1009;
Southwestern Telep. & Teleg. Co. v.
Sanders, (Tex. Civ. App.) 138 S. W.
1181.
650 Law or Buzcraicrry.
location but not as to its use, in an action brought by one
who had received personal injuries because of it.’°

Sec. 434. Joint Tort-feasor; Release of One.

Though it is alleged that an injury was caused by the
negligence of two or more different parties, it is not neces-
sary that such an allegation be strictly proved. If evidence
sustains the negligence of one of the companies, its liability
may be upheld, though the action be dismissed as to other
defendants." One of joint tort-feasors cannot complain
because the action has been dismissed as against his co-
defendant.* But where the liability of one rests on the
negligence of another, the dismissal of the action as to the
latter necessarily decides that there is no cause of action
against either. For example, where an action was main-
tained against a telephone company and a city for a death
resulting from a telephone wire in the control and posses-
sion of the city, it was held that the liability of the tele-
phone company rested on the alleged negligence of the city,
and a judgment in favor of the city released the telephone
company from liability.* But an injured person is entitled
to recover only compensation for his injuries; if he receives
compensation from one, his cause of action is extinguished,
and he cannot recover from another. Thus, to the extent
of the consideration received, a formal release of one tort-
feasor releases the other wrong-doers.'* If the considera-

10. Trustees of Village of Geneva
v. Brush Elec. L. Co., 50 Hun (N.,Y.)
581, 2 Am. Electl. Cas. 303, 3 N. Y.
Supp. 595, 20 N. Y. St. Rep. 422;
affirmed without opinion, 130 N. Y.
670, 29 N. E. 1034,

11. Postal Teleg. Cable Co. v. Likes,
225 Ill. 249, 9 Am. Electl. Cas. 986,
80 N. E. 136.

12. Staab v. Rocky Mt. Bell Telep.
Co., 23 Idaho, 314, 129 Pac. 1078;
Turton v. Powelton Elec. Co., 185 Pa.
St. 406, 7 Am. Electl. Cas. 483, 39
Atl. 1053; Temple Elec. L. Co. v. Hal-
liburton, (Tex. Civ. App.) 136 S. W.
584; Staunton Mut. Telep. Co. v.

Buchanan, 108 Va. 810, 62 8. E. 928;
Metz v. Washington Water Power
Co., 72 Wash. 188, 130 Pac. 343.

18. Hayes v. Ohicago Telep. Co.,
218 Til. 414, 75 N. E. 1003.

14, Partial release.—Where injury
from contact with an electric wire
was caused by the negligence of a
railway company and a telephone
company, a release of the former ex-
pressly stating that it is not a re-
lease of the latter, releases the tele-
phone company from liability only
pro tanto. Home Telep. Co. v. Fields,
150 Ala. 306, 9 Am. Electl. Cas. 1030,
43 So. 711.
Ingunies To Persons anp PRopPERtY.

651

tion paid, though, perhaps, not as large as might have been
recovered in a suit, is intended in full settlement of the
cause of action, it acts as a release of the liability of all the

tort-feasors.*®

A covenant, for a consideration, not to sue

one of the wrongdoers for the injury sustained, is valid
and does not release any other party.”

15. Snyder v. Mutual Telep. Co.,
135 Towa 215, 112 N. W. 776, 14 L. R.
A. (N. 8.) 321. “The English au-
thorities are clear; that, if there be
a satisfaction and an extinguishment
of a cause of action ex contractu or
ex delicto by an absolute or uncondi-
tional release executed to one of a
number of persons jointly liable, the
eause of action is released as to all;
however, where it is agreed that one
of the parties is not to be sued, the
instrument is not a release. Such
words are quite as applicable to a
covenant not to sue as to a release.”
Musolf v. Duluth Edison Elec. Co.,
108 Minn. 369, 122 N. W. 499, 24
L. R. A. (N. 8.) 451.

Injury to brakeman from trolley
wire.— In an action against a street
railway company, for personal in-
juries to plaintiff, a brakeman, whose

duty is was to ride on top of freight
ears, and who was thrown from a
car by coming in contact with one of
defendant’s trolley wires, alleged to
have been strung at an unsafe dis-
tance above the railroad tracks, held,
that a release, given by plaintiff to
the railroad company upon the pay-
ment to plaintiff of certain benefits
‘trom such railroad company’s relief
department, did not discharge the de-
fendant from liability, as the railroad
company was not shown to be liable
as a joint tort-feasor. Chapman v.
Pittsburgh Rys. Co., 140 Fed. 784, 4
St. Ry. Rep. 932; affirmed, 145 Fed.
886, 76 C. C. A. 418.

16. Texarkana Telep. Co. v. Pember-
ton, 86 Ark. 329, 11 S. W. 257;
Musolf v. Duluth Edison Elec. Co.,
108 Minn. 369, 112 N. W. 499, 24
L. R. A. (N. 8.) 451.
652 Law oF HLectRrIciry.

CHAPTER XXIII.

PROXIMATE CAUSE.
SEcTION 435. In General.
436. Concurring Negligence.
437. Injury Not Anticipated; in General.
438. —— Anticipation of Particular Injury Not Required.
439, —— Unlawful Acts of Others.
440. Distance Unimportant.
441. Intervening Agency; in General.

 

 

442, Act of God.

443,.—— Fastening Wire to Defendant’s Wire.

444, ——JIntervening Act of Third Person. :
445. ——— Third Person Caring for Wire in Street.
446. —— Interference with Poles.

447, —_— Frightened Horses.

448, After Time to Remedy Condition.

449. Primary Cause an Accident.

450. Negligence Charged Not a Cause.
451. Contributory Negligence.

452. Function of Court and Jury.

Sec. 435. In General.

Assuming that an electric or other company has failed to
perform its duty of exercising commensurate care, for what
injuries is it liable? It is obvious that liability, even if
negligence is shown, does not follow to every chain of events
that imagination may trace to the negligence proved. Neg-
ligence being shown, some results are so directly associated
therewith that the negligence is said to be the proximate
cause of such results. Other results are so distantly con-
nected that they are said to be remote results. Speaking
in general terms, for the former the person guilty of the
negligence in question is liable; for the latter, he is not
liable. Causa proxima, non remota, spectatur. This is
easily stated, but the difficulty is in the determination of
what are the proximate and what are the remote results.
The determination of what are the proximate results of an
act of negligence depends necessarily on the circumstances
involved in each particular case. Proximate cause may be
stated as that cause which, in natural and continuous
ProximatEe Cause. 653
sequences, unbroken by any efficient intervening cause, pro-
duces the injury, and without which the injury would not
have occurred.t_ There may be more than one proximate
cause of an injury, as where the injury is the result of con-
curring negligence of two or more persons. In such a case
more than one person or corporation may be answerable
therefor.’ In one of the leading cases on the question,’ the
rules relative to proximate cause were categorically stated
as follows: ‘‘ The negligent act or omission must be the
cause which produces the injury, but it need not be the sole
cause, nor the last or nearest cause. It is sufficient if it con-
curs with some other cause acting at the same time, which, in
combination with it, causes the injury, or if it sets in motion
a chain of circumstances and operates on them in a con-
tinuous sequence, unbroken by any new or independent
cause. The question is not determined by the existence or
nonexistence of intervening events, but by their character
and the natural connection between the original act or
omission and the injurious consequences. ‘To constitute
proximate cause the injury must be the natural and prob-
able consequence of the negligence, and be of such a char-
acter as an ordinarily prudent person ought to have fore-
seen might probably occur as a result of the negligence.
It is not necessary that the person guilty of a negligent
act or omission might have foreseen the precise form of
the injury; but, when it occurs, it must appear that it was a
natural and probable consequence of his negligence. If
the negligence does nothing more than furnish a condition
by which the injury is made possible, and that condition
causes an injury by the subsequent independent act of a
third person, the two are not concurrent, and the existence

out which the injury would not have
occurred.” Mize v. Rocky Mountain
Bell Telep. Co., 38 Mont. 521, 16 Ann.
Cas. 1189, 100 Pac. 971.

2. § 436,

1. Mize v. Rocky Mountain Bell
Telep. Co., 38 Mont. 521, 16 Ann. Cas.
1189, 100 Pac. 971; Harton v. For-
rest City Telep. Co., 141 N. C. 455,
54 S, E. 299. “The ‘proximate

cause’ of an injury is that which in
a natural and continuous sequence,
unbroken by any new, independent
cause, produces the injury, and with-

8. Seith v. Commonwealth Elec.
Co., 241 Ill. 252, 89 N. E, 425, 24
L. R. A. (N. 8.) 978.
654 Law or ELectriciry.

of the condition is not the proximate cause of the injury.
Where the intervening cause is set in operation by the
original negligence, such negligence is still the proximate
cause, and where the circumstances are such that the inju-
rious consequences might have been foreseen as likely to
result from the first negligent act or omission, the act. of
the third person will not excuse the first wrongdoer. When
the act of a third person intervenes, which is not a conse-
quence of the first wrongful act or omission, and which
could not have been foreseen by the exercise of reasonable
diligence, and without which the injurious consequence
could not have happened, the first act or omission is not the
proximate cause of the injury. The test is whether the
party guilty of the first act or omission might reasonably
have anticipated the intervening cause as a natural and
probable consequence of his own negligence, and, if so, the
connection is not broken; but if the act of the third person,
which is the immediate cause of the injury, is such as in
the exercise of reasonable diligence would not be antici-
pated, and the third person is not under the control of the
one guilty of the first act or omission, the connection is
broken, and the first act or omission is not the proximate
cause of the injury.”’

Sec. 436. Concurring Negligence.

If an injury is the result of the concurring negligence of
two persons, it avails neither of them to say that, without
the negligence of the other, no accident would have hap-
pened.* Thus, where two different corporations negligently

4, United States.— Pacific Telep. &
Teleg. Co. v. Parmenter, 170 Fed. 140,
95 C. C. A. 382.

Alabama. Home Telep. Co. v.
Fields, 150 Ala. 306, 9 Am. Electl.
Cas. 1030, 43 So. 711; Jones v. Finch,
128 Ala.-217, 8 Am. Elect]. Cas. 497,
29 So. 182.

Arizona.—Crandall v. Consol. Telep.
& Teleg. & Elec. Co., 14 Ariz. 322, 127
Pac. 994.

Arkansas— City Elec. St. R. Co. v.
Conery, 61 Ark. 381, 6 Am. Electl.
Cas. 217, 33 S. W. 426, 31 L. R.A.
570, 54 Am. St. Rep. 262.

Delaware.— Neal v. Wilmington &
N. C. Elec. Ry. Co. 3 Pen. 467,
8 Am. Elect]. Cas. 497, 53 Atl. 338.

Maine.— O’Brien v. J. G. White &
Co., 105 Me. 308, 74 Atl. 721.

Michigan.— Sykes v. Village of
Portland, 177 Mich. 290, 143 N.W,
PrRoxIMaTE Cause. 655
maintain their wires so that they come in contact and injury
thereby is occasioned to an innocent third party, they are
both liable, and neither can show as a defense that the acci-
dent would not have happened had the other company kept
its wires a safe distance away.’ Likewise, where a person
taking down a dead wire is injured by such wire breaking
and coming in contact with a defectively insulated wire of
the defendant, it has been held that the negligence in
insulation is concurring negligence and the defendant may
be liable though the accident would not have happened
except for the breaking of the other wire.®

Sec. 437. Injury Not Anticipated; in General.

Negligence renders the guilty person or corporation
liable only for such injuries as may be naturally anticipated
to result from the failure to exercise the proper degree of
care.” No one can be charged with a negligent omission of
duty for failure to anticipate and guard against some

326; Warren v. City Elec. Ry. Co.,
141 Mich. 298, 4 St. Ry. Rep. 487,
9 Am. Elect]. Cas. 527, 104 N. W.
613, 12 Det. Leg. N. 415.

Mississippi— Cumberland Telep. &
Teleg. Co. v. Woodham, 99 Miss. 318,
54 So. 890.

North Carolina— Harton v. For-
rest City Telep. Co., 141 N. Car. 455,
54 S. E. 299.

Texas.— San Antonio Gas & Elec-
tric Co. v. Speegle, 60 S. W. 884;
Snyder Ice, L. & P. Co. v. Bowron,
(Civ. App.) 156 S. W. 550.

5. City Elec. St. Ry. Co. v. Conery,
61 Ark. 381, 6 Am. Elect]. Cas. 217,
33 8. W. 426, 31 L. R. A. 570, 54 Am.
St. Rep. 262; Cumberland Telep. &
Teleg. Co. v. Kranz, 48 Ind. App. 67,
95 N. E. 371; City of Logansport v.
Smith, 47 Ind. App. 64, 93 N. E. 883;
Simmons v. Shreveport Gas, Elec. L.
& P. Co., 116 La. 1033, 9 Am. Elect.
Cas. 760, 41 So. 248; Herbert v. Lake
Charles Ice, L. & Waterworks Co.,
111 La, 522, 35 So. 731, 64 L. R. A.

101, 100 Am. St. Rep. 505; Sykes v.
Village of Portland, 177 Mich. 290,
143 N. W. 326. Compare, City of
Albany v. Watervliet, etc., R. Co., 76
Hun (N. Y.) 136, 4 Am. Electl. Cas.
367, 27 N. Y. Supp. 848, 57 N. Y. St.
Rep. 453; Cleburne Electric & Gas
Co. v. McCoy, (Tex. Civ. App.) 128
S. W. 457.

6. San Antonio Gas & Electric Co.
v. Speegle, (Tex.) 60 S. W. 884.

7. Consol. Elec. L. & P. Co. v.
Koepp, 64 Kan. 735, 68 Pac. 608;
Clonts v. Laclede Gaslight Co., 144
Mo. App. 582, 129 S. W. 238; Rowley
v. Newburgh L., H. & P. Co., 151
N. Y. App. Div. 65, 135 N. Y. Supp.

.944; McMullen v. Edison Elec. Illum.

Co., 13 Mise. (N. Y.) 392, 5 Am.
Elect]. Cas. 332, 34 N. Y. Supp. 248;
Cincinnati Gas & Elec. Co. v. Arch-
deacon, 80 Oh. St. 27, 88 N. E. 125.
“The negligence is not the proximate
cause * of the accident unless, under
all the circumstances, the accident
might have been reasonably foreseen
656 Law or Exzcrriciry.

contingency which would not have arisen save under excep-
tional circumstances.* Thus, in one case it appeared that
an electric company permitted a person to attach his pri-
vate telephone line to its poles; their wires came in contact
causing a fire in a private house; on account of the fire the
telephone wire fell to the ground and a spectator at the
fire came in contact therewith and was injured. It was held
that the electric company could not be held to have antici-
pated the chain of circumstances that caused the injury,
and its negligence, if any, in permitting the owner of the
telephone wire to affix it to its poles was not the proximate
cause of the injury to the spectator.’ Likewise, where the
trolley pole of a street railway car negligently came in con-

by a man of ordinary intelligence and
prudence. It is not enough to prove
that the accident is the natural con-
sequence of the negligence. It must
also have been the probable conse:
quence.” Huber v. La Crosse City
R. Co., 92 Wis. 636, 6 Am. Electl.
Cas. 285, 66 N. W. 708, 31 L. R. A.
583.

Accident not anticipated.— Plain-
tiff received injuries from an electric
shock received under the following
circumstances: The electric light
company by which he was employed
was engaged, at the expense of the
defendant, in removing a lamp which
interfered with the erection or exten-
sion of defendant’s trolley road; and
plaintiff, a lineman of experience and
acquainted with the location, was en-
gaged in the work. The electric light
pole was of wood and an iron trolley
post stood very close to it, touching
it at one place. The span wire was
insulated from the trolley wire, and
was also provided with circuit break-
ers near the posts. The railway was
completed to the point in question
and had been in operation about a
week. The end of the trolley wire,
awaiting the extension of the line,
was coiled and thrown over the span

wire; this was plainly visible and
clearly uninsulated. The span wire
was thus liable to become charged as
far as the circuit breaker. With ac-
tual or presumptive knowledge of all
these facts, plaintiff touched with one
hand the iron trolley post and with
the other the span wire beyond the
circuit breaker, the only way in which
he could complete the circuit, and
thus received the shock and injury.
Held, that the defendant could not
have reasonably anticipated such an
accident, and that its negligence was
not the proximate cause of plaintiff’s
injury. Huber v. La Crosse City R.
Co., 92 Wis. 636, 6 Am. Electl. Cas.
285, 66 N. W. 708, 31 L. R. A. 583.

8. Trout v. Philadelphia Elec. Co.,
236 Pa. St. 506, 84 Atl. 967, 42 L. R.
A. (N. 8.) 713; Chittick v. Philadel-
phia Rapid Transit Co., 224 Pa. St.
13, 6 St. Ry. Rep. 671, 73 Atl. 4, 22
L. R. A. (N. S.) 1073; Wilbert v.
Sheboygan L., P. & R. Co., 129 Wis.
1, 9 Am. Elect. Cas. 771, 106 N. W.
1058, 116 Am. St. Rep. 931; Huber
v. La Crosse City R. Co., 92 Wis. 636,
6 Am. Electl. Cas. 285, 66 N. W.
708, 31 L. R. A. 583.

9. Consol. Elec. L. & P. Co. v.
Koepp, 64 Kan. 735, 68 Pac. 608.
Proxrmate Causa. 657
tact with a steel brace which was being raised for the
construction of an elevated railroad, and there ensued a
brilliant electrical explosion which temporarily blinded and
rendered nervous a woman seated in a window several
hundred feet away, but the glass in the window was not
broken and nothing in the room was disturbed, it was held
that the railway company was not liable for the injury,
because the accident was of an extraordinary character
from which no such results could have been anticipated.”

A company, however, which negligently permits its
dangerous current to be diverted to other wires, or a
company which negligently takes from wires of another
a dangerous current and conducts it upon its own wires, is
chargeable for the consequences which attend the conduc-
tion of the dangerous current along wires not intended to
carry it." A company having a dangerous current upon
its wire is bound to know that it may escape if the insu-
lation is defective and that it will go wherever there is a
conductor to carry it.” ‘Thus, in one case,* it appeared
that a telephone wire along a municipal street fell upon an
electric light wire carrying a current of 2,000 volts; this
current was carried along the telephone wire and out of
the municipality a distance of nine or ten miles to a pole,
to which was attached a guy wire in such a manner that the
current could pass along the guy and to a wire fence; it
then followed this fence for a short distance and then along
another fence for about three-quarters of a mile to a place
where a laborer working in an irrigation ditch touched the
wire fence and was killed. It was held that the death of the
workman was the proximate result of the negligence of the

10. Chittick v. Philadelphia Rapid
Transit Co., 224 Pa. St. 13, 6 St. Ry.
Rep. 671, 73 Atl. 4, 22 L, R. A. (N.
8.) 1073.

11. Musolf v. Duluth Edison Elec.
Co., 108 Minn. 369, 122 N. W. 499,
24 L. R. A. (N. 8.) 451.

12. Cumberland Telep. & Teleg. Co.
v. Kranz, 48 Ind. App. 67, 95 N. E.

42

3%1; Musolf v. Duluth Edison Elec.
Oo., 108 Minn. 369, 122 N. W. 499, 24
L. R. A. (N. S.) 451; Mize v. Rocky
Mountain Bell Telep. Co., 38 Mont.
521, 100 Pac. 971, 16 Ann. Cas, 1189.

18. Mize v. Rocky Mountain Bell
Telep. Co., 38 Mont. 521, 100 Pac.
971, 16 Ann. Cas, 1189.
658 Law or Evscrrictry.

telephone company in failing to use due care to prevent
contact between its wire and the wire of the electric
company.

Sec. 438. Injury Not Anticipated; Anticipation of Par-
ticular Injury Not Required.

The reverse of the foregoing doctrine is also generally
considered true. That is, when an ordinarily prudent man
ought reasonably to have anticipated that injury would
probably result from a negligent act, such act is considered
the proximate cause of the injury.** In this connection, it
is not necessary that the particular injury be anticipated;
where the injury is not the result of the intervention of a
new agency, it may be considered the proximate result of
an act of negligence, though it cannot be said that the par-
ticular way in which the injury was received was reasonably
to be anticipated.** Thus, where, by reason of the negli-
gence of the telephone company, telephone and electric
Wires came in contact close to the house, and the electric
company turned off its current in order to enable the pro-
prietor to clear the telephone wire away but turned it on
again while he was so engaged, it was held that the tele-
phone company was liable for the injury.** In the same
way, where the servants of a telegraph company had negli-

14. Cumberland Telep. & Teleg. Co.
v. Woodham, 99 Miss. 318, 54 S. W.
890.

15. Cumberland Telep. & Teleg. Co.
v. Woodham, 99 Miss. 318, 54 S. W.
890; Huber v. La Crosse City R. Co.,
92 Wis. 636, 6 Am. Elect]. Cas. 285,
66 N. W. 708, 31 L. R. A. 583.

16. Cumberland Telep. & Teleg. Co.
v. Woodham, 99 Miss. 318, 54 So.
890, wherein the court said: “With-
out attempting to define proximate
eause in such terms as will be ap-
plicable to all states of fact — for to
do so is practically impossible — it
will be sufficient to say that the
negligent act of a person, resulting in
injury, is the proximate cause

thereof, and creates liability therefor,
when the act is of such character
that, by the usual course of events,
some injury, not necessarily the par-
ticular injury, or injury received in
the particular manner complained of,
would result therefrom, provided the
attendant circumstances are such
that an ordinarily prudent man ought
reasonably to have anticipated that
some injury would probably result
from the act done. In order that a
person may be liable for damages re-
sulting from his negligence, it is not
necessary that his negligence should
have been the sole cause of the
injury.”
Proximate Cause. 659

gently caused the high tension wire of a power company to
fall to the ground, the telegraph company was held liable
for injuries arising from the act of the power company in
turning on its current in order to test the line for breaks.”
This rule is not intended to affect the doctrine that, where
the negligent act of the defendant is simply the causa sine
qua non, and the act of omission of a third party is the
causa causans, the defendant is not liable.*®

Sec. 439. Injury Not Anticipated; Unlawful Acts of
Others.

Within certain limitations an electric company is bound
to anticipate that others may meddle with its appliances
and it must exercise watchfulness to prevent accidents
which may arise from the trespass of others.’® If, however,
the act of another is not reasonably anticipated, it may con-
stitute an intervening cause for which the company is not
liable.?°

Sec. 440. Distance Unimportant.

In applying the doctrine of proximate cause to electrical
injuries, it is clear that the distance in feet or miles between
the negligent act and an injury is not generally important.
The tremendous speed with which an electric current passes
over a wire or other conductor, annihilates distances. If
an electric or other company wrongfully or negligently
charges a wire with a high tension current of electricity,
it is liable for an injury to a person innocently coming in
contact therewith, though such contact is a considerable
distance away.”

17. Metz v. Washington Water 1, 7 Am. Electl. Cas. 761, 53 N. E.
Power Co., 72 Wash. 188, 130 Pac. 679.
343. 20. § 444.
18. § 444. 21. Western Union Teleg. Co. v.
19. Quill v. Empire State Telep. & Thorn, 64 Fed. 287, 5 Am. Electl. Cas.
Teleg. Co., 92 Hun (N. Y.) 539,6 Am. 283, 12 C. C. A. 104, 28 U. S. App.
Electl. Cas. 303, 37 N. Y. Supp. 1149; = 123.
reversed on other grounds, 159 N. Y.
660 “Law or HLEctRICcITY.

Sec. 441. Intervening Agency; in General.

Though a person be guilty of negligence, if an injury is
caused, not directly by such negligence, but through the
intervention of another agency for which such person is
not responsible, and the intervention of such agency is not
a circumstance reasonably to be anticipated and the injury
would not have occurred except for such intervening
agency, the injury is not the proximate result of the negli-
gence. Thus, where a severe windstorm causes a tree to
fall so as to break a telephone pole, the fact that the tele-
phone line was maintained in the highway without proper
governmental authority is not the proximate cause of an
injury by reason of the falling of the pole; the proximate
cause is the windstorm and the falling of the tree.” So,
too, where a telephone wire crossing a street was attached
to a chimney so that a derrick which was moved through
the street came in contact with the wire and pulled the
chimney over and the falling bricks injured a traveler in
the street, it was held (by a divided court) that the moving
of the derrick was an intervening cause and that the tele-
phone company was not liable for such injury, though it
may have been negligent in the maintenance of its wire.”
Where a workman on private property receives an injury
from an electric shock, the ownership of the property in
one other than the defendant company is not an intervening
agency which will permit it to escape liability for its negli-
gence. But, on the other hand, where a person was injured
by shock from an improperly insulated electric lamp upon
the premises of a third party, and it was shown that such
third party knew of the defect and continued to use the
lamp, it was held (it seems erroneously) that such owner-
ship and continuance of use was an intervening agency
which saved the electric company from liability to the
injured person.” ,

22. Burton v. Cumberland Telep. & 25. Griffin v. Jackson L. & P. Oo,

Teleg. Co., (Ky.) 118 S. W. 287. 128 Mich. 653, 7 Am. Electl. Cas. 657,
23. Leeds v. New York Telep. Co., 87 N. W. 888, 55 L. R. A. 318, 92 Am.
178 N. Y. 118, 70 N. E. 219. St. Rep. 496, 8 Det. Leg. N. 822.

24, Union L., H. & P. Co. v. Arn-
ston, 157 Fed. 540, 87 C. C. A. 1.
ProxtmMate Cause. 661

Sec. 442. Intervening Agency; Act of God.

The question whether the intervention of an Act of God,
such as a violent storm, a stroke of lightning, etc., is the
proximate cause of an injury, and the liability of the owner
of poles and wires for injuries arising out of such agencies,
is discussed in the following chapter.”

Sec. 443. Intervening Agency; Fastening Wire to Defend-
ant’s Wire.

If a third person fastens a wire to the wire of another
company without the knowledge or consent of such com-
pany and injury is thereby occasioned to another before
such company is chargeable with notice of the defect, the
act of such third person is deemed the sole proximate cause
of the injury.2”. Thus where an electric company main-
tained an electric wire with defective insulation near the
top of some coal sheds, and some boys climbed on the sheds
and pushed a bailed hay wire along the electric wire to a
point where the insulation was off, the hay wire hanging
down in the street and causing the death of a horse, it was
held that the defective insulation was not the proximate
cause of the death of the horse.** So, too, where an electric
company’s wires were about two feet over the wire of a
telephone company, and the telephone wire broke and while
one boy was holding one end of the broken telephone wire,
the other end was thrown against the electric company’s
wires at a place where it was defectively insulated, the
company is not liable.” If, however, the company has
actual knowledge of the interference with its system, or if
the trespassing wire remains for such a length of time that
the company in the exercise of due care should have
acquired knowledge thereof, a new element enters into the

26. §§ 453-461. 28. Luehrmann v. Laclede Gas

27. Harrison v. Kansas City Elee- Light Co., 127 Mo. App. 213, 9 Am.
tric Light Co., 195 Mo. 606, 9 Am. HJlectl. Cas. 1092, 104 S. W. 1128.
Electl. Cas. 729, 93 S. W. 951, 7 29, Stark v. Muskegon Trac. & L.
L. R. A. (N. 8.) 293; Jones v. Union Co., 141 Mich. 575, 9 Am. Electl. Cas.
Ry. Co. 50 Misc. N. Y. 651, 9 Am. 548, 104 N. W. 1100,1 L. BR. A. (N.
Elect]. Cas. 784, 98 N Y. Supp. 757. S.) 822, 12 Det. Leg. N. 550.
662 Law oF Exectriciry.

situation. In such a case failure to remove the wire may
be considered negligence which is a proximate cause of the
injury.*° Likewise, if the company knows that there is
trouble along the line and turns on the current without
attempting to remedy the matter, its negligence may be the
proximate cause.** The attachment of a wire is not deemed
the sole proximate cause, where the wire to which it is
attached is a guy wire or other wire not dangerous and
normally there is insulation between such guy wire and
the conductors of the dangerous current but the insulation
is negligently permitted to become defective so that the
current passes along the guy wire.”

Sec. 444. Intervening Agency; Intervening Act of Third
Person.

Though an electric company may be negligent, if the act
of a third person intervenes between the negligence and
an injury, and the company is not responsible for the act
of such third person, and the act is one which may not
reasonably be anticipated, the company is not liable. For
example, a small girl went upon the track of a trolley com-
pany with her brother; the wire of an electric company had
fallen to the ground and he picked it up. It came in con-
tact with one of the rails and a flash ensued which set fire
to the girl’s dress. It was held that injuries to the child
from the burning of the dress were not the proximate
result of the electric company’s negligence.** So, too,
where a traveler was thrown from a carriage by colliding
with a feed-wire reel in the highway, it was held that the
company was not liable for its negligence in leaving it in
the highway, when it was shown that the reel had been
moved by some boys from its original location to the place

30. § 480.

31. Harrison v. Kansas City Elec-
tric Light Co. 195 Mo. 606, 9 Am.
Elect. Cas. 729, 93 S. W. 951, 7 L. R.
A. (N. 8.) 293.

82. Campbell v. United Rys. Co. of
St. Louis, 243 Mo. 141, 8 St. Ry. Rep.

626, 147 S. W. 788 See also, Wil-
bert v. Sheboygan L., P. & Ry. Co,
129 Wis. 1, 9 Am. Electl. Cas. 771,
106 N. W. 1058, 116 Am. St. Rep.
931.

33. Kiser v. Colonial Coal & Coke
Co., (Va.) 79 S. E. 348.
Proximate Causs. 663
where the accident happened.** Likewise, where a trolley
pole slipped off the trolley wire and struck an electric light
globe and caused it to fall and injure a pedestrian, the
electric light company is not liable on the theory that it
maintained its lamp too close to the trolley wire, for the
slipping of the pole and not the proximity of the lamp is
the proximate cause of the accident.** Where a wire is
maintained along a highway without negligence, the owner
is not liable to injuries arising from the cutting thereof by
third parties, if it had no reasonable opportunity to remedy
the defect before the injury.*® The non-liability in such a
case may be sustained on the ground, either that the owner
of the wire was not negligent, or that the acts of the third
persons were the sole proximate cause of the injury.*’

Cutting Tree.— Where, however, a person fells a tree or
cuts a limb therefrom and a pole or wire is thereby caused
to fall to the ground, and a third person is injured by such
pole or wire, the cutting of the tree is not always deemed
the sole proximate cause of the injury.** The owner of a

34. Glassey v. Worcester Consoli-
dated Railway Co., 185 Mass. 315,
2 St. Ry. Rep. 457, 70 N. E. 199.

35. Nelson v. Narragansett Elec. L.
Co., 26 R. I. 258, 58 Atl. 802, 67 L. R.
A. 116, 106 Am. St. Rep. 711.

36. Guy wire cut—%In Johnson v.
Northwestern Telep. Exch. Co., 48
Minn. 433, 51 N. W. 225, it appeared
that a telephone company secured a
license from the owner to fasten its
guy wire to a building. Thereafter
the owner revoked the license and
cut the guy without notice to the
company, and the pole thereby sus-
tained, fell and injured a traveler.
It was held that the telephone com-
pany was liable. On a subsequent
appeal in the same litigation (John-
gon v. Northwestern Telep. Exch. Co.,
54 Minn. 37, 55 S. W. 829), the
opinion was intimated that the act
of the owner was the sole proximate
cause of the injury, and that the

prior decision wag erroneous, but the
court held that the question had been
settled on the former appeal and
would not interfere with that holding.

37. Sullivan v. Narragansett Elec-
tric Lighting Co., (R. I.) 73 Atl. 306;
Morgan v. Bell Telep. Co., 11 Quebec
Superior Ct. 103.

88. Injury from wire in highway
dislodged by falling tree— The evi-
dence tended to show that the de-
fendant was negligent in stringing
wires on the inside of poles placed on
the outside of the curve in a highway
at the place of the accident, and in
using improper brackets to support
the wires, and not providing guards
to catch them is detached. It was
shown that the wire causing the acci-
dent might have been dislodged by a
tree felled against it by the owner of
abutting land. It was held that the
defendant was liable, although the
wire was so dislodged, since from the
664 Law or ELectriciry.

line is bound to exercise reasonable care to protect its line
from the falling of trees or limbs in proximity thereto; and,
if it fails in this duty, its negligence may be deemed con-
current with that of the person cutting the tree and it will
not be relieved from liability. Moreover, it may be deemed
negligent in permitting its pole to decay, and injury from
the falling thereof may be a proximate result of its negli-
gence.*® Where a limb from a tree was cut and caused an
electric wire to come in contact with a telephone wire, the
negligence of the telephone company in failing to protect
its wire from the electric wire and failing to install an
arrestor, was held to be the proximate cause of an injury
to its customer from the electric current passing along the
telephone wire.

Sec. 445. Intervening Agency; Third Person Caring for
Wire in Street.

A negligent act may be the proximate cause of an injury,
although not the sole or immediate cause, where the inter-
vening act is set in motion or induced by the negligent act,
and the consequence is one that should have been foreseen.**
If an electric or other company negligently permits its
wire to fall in a street or highway and to become a source
of danger to travelers, it should anticipate that someone
will attempt to care for the wire.” The attempt of a third

evidence it was properly inferrable
that the defect in the hanging of the
wire was the proximate cause of its
falling. Ela v. Postal Teleg. Cable
Co., 71 N. H. 1, 8 Am. Electl. Cas.
423, 51 Atl. 281.

39. Pacific Telep. & Teleg. Co. v.
Parmenter, 170 Fed. 140, 95 C. ©. A.
382.

40. Crandall v. Consol. Telep. &
Teleg. & Elec. Co., 14 Ariz. 322, 127
Pac. 994.

41, Dannenhower v. Western Union
Teleg. Co. 218 Pa. 216, 9 Am. Electi.
Cas. 1063, 67 Atl. 207.

42. “Given the circumstance of the
wire lying in the street, an obstruc-

tion, and as shown by the accident to
the mule « dangerous obstruction, to
travel, it was reasonably to be anti-
cipated as a thing likely to occur that
some thoughtful and considerate pas-
serby would take up the wire and en-
deavor to put it out of the way. It
would be absurd to hold that appel-
lant had a right to assume that the
fallen wire would be allowed to re-
main upon the street, and that it
could not reasonably anticipate that
some one would remove it.” Citizen’s
Telep. Co. v. Thomas, 45 Tex. Civ.
App. 20, 9 Am, Elect]. Cas. 950, 99
S. W. 879,
Proximate Cause. 665
person to care for the wire is the natural result of the
company’s negligence; and, if such person, in his attempt
to care for the wire, places it in a position where it causes
injury to a traveler, the company’s negligence in permitting
the wire to fall is deemed the proximate cause of the
injury.** Though the wire originally fell without negli-
gence on the part of its owner, negligence may be inferred
from permitting it to remain in the street an unreasonable
time,** and it will be liable for injuries therefrom, though
the position of the wire in the street was in the meantime
changed by a third person.** Thus, where a telephone com-
pany allowed a broken telephone wire, dangerous from
contact with an electric lighting wire, to remain in the
street, and a passer-by, after a mule had been injured
thereby, wound the wire around a post, it was held that the
negligence of the company was the proximate cause of the
death of a person receiving a shock while hitching his horse
to the post.** Where a telephone company which had strung
a wire upon a pole of an electric light company, having
ceased to use the wire, hung it upon the electric light pole
instead of removing it, and the electric company moved it
to a telephone pole where it became charged from an elec-
tric light wire and caused injury to a traveler, it was held
that the failure of the telephone company to remove the
wire was the proximate cause of the injury.’ Where, how-
ever, a live electric wire fell into the street and a policeman
struck it with his club and knocked it against a pedestrian,
the injury to such pedestrian has been held not to be the

48. Kansas City v. Gilbert, 65 Kan.
469, 70 Pac. 350; Smith v. Missouri
& K. Telep. Co., 113 Mo. App. 429, 9
Am. Electl. Cas. 455, 87 S. W. 71.

44, §§ 479, 480.

45. District of Columbia v. Demp-
sey, 13 App. D. OC. 533, 27 Wash. Law
Rep’ 87, 31 Chi. L. News 217; Twist
v. City of Rochester, 37 App. Div.
307, 55 N. Y. Supp. 850; affirmed
without opinion, 165 N. Y. 619, 59
N, E. 1131; Dannenhower v. Western
Union Teleg. Co., 218 Pa. 216, 9 Am.

Electl. Cas. 1063, 67 Atl. 207; Citi-
zens’ Telep. Co. v. Thomas, 45 Tex.
Civ. App. 20, 9 Am. Elect]. Cas. 950,
99 S. W. 879. See also, Home Telep.
Co. v. Fields, 150 Ala. 306, 49 Am.
Elect]. Cas. 1030, 43 So. 711.

46. Citizens’ Telep. Co. v. Thomas,
45 Tex. Civ. App. 20, 9 Am. Elect].
Cas. 950, 99 S. W. 879.

47, Ahern v. Oregon Telep. Co., 24
Oreg. 276, 4 Am, Electl. Cas, 349, 33
Pac. 403, 35 Pac. 549, 22 L. R. A.
635.
666 Law or Evectriciry.

proximate result of the electric company’s negligence.*
This case is distinguished from the doctrine of the fore-
going authorities on the ground that, while it is reasonable
to anticipate that persons will attempt to care for a wire
which has fallen in a street, it is not reasonable to antici-
pate that a person will strike it so as to knock it against
another.

Sec. 446. Intervening Agency; Interference with Poles.

The interference by a third person with the poles of an
electric or other company is similar, so far as the question
of proximate cause is concerned, as the interference by a
third person with wires.” If the maintenance of a pole is
without negligence and a third person interferes therewith
so that injury is caused to another, the interference is
deemed the sole proximate cause of the injury. Where,
however, a pole was so decayed that it fell and injured a
person when a nearby tree was cut down and came against
the line, the liability of the owner of the pole was sus-
tained.” And if the pole has become decayed or is other-
wise negligently maintained and it falls in the highway,
in analogy to the rule relative to wires, the act of a third
person in caring for the pole in such a manner that injury

48. Seith v. Commonwealth Elec.
Co., 241 Ill. 252, 89 N. E. 425, 24
L. R. A. (N. S.) 978, wherein the
court said: “It is clear that the de-
fendant might reasonably anticipate,
in case a wire should fall upon the
sidewalk, or where persons using the
sidewalk or roadway would be likely
to be injured, that a policeman or
some other person might attempt to
remove it to prevent injury, and if
in so doing, or as a result of the
policeman’s act, some other person
should be injured, the defendant
would be liable, since such effort to
remove the cause of danger might
naturally be anticipated. * * *
The defendant would be liable, al-
though there was some intervening

cause, if it were such as would natur-
ally be anticipated as the result of
the wire falling to the ground; but
it seems inconceivable that the de-
fendant ought to have anticipated
that a policeman would throw the
wire upon the plaintiff by striking
it with his club when it. was lying
where no injury would be done by it
either to a person on the sidewalk or
the roadway. There is no evidence
tending in the slightest degree to
prove that the policeman struck the
wire for the purpose of removing it
as a source of danger.”

49, § 445.

50. Postal Telegraph-Cable Co. v.
Kelly, 184 Ga. 218, 67 S. E. 803.
Proxrmate Cause. 667
results therefrom, is not the sole proximate cause, but his
negligence and the company’s negligence are concurrent
and both may be liable.*

Sec. 447. Intervening Agency; Frightened Horses.

Where a wire or other appliance of an electric company
has negligently been permitted to fall into the traveled
portion of the highway so as'to form an obstruction which
might cause injury to a traveler, the fact that a traveler’s
horse was frightened and beyond control when it collided
with such obstruction, does not necessarily release the com-
pany from liability. The negligence of the company may be
considered a proximate cause of the injury, though the
accident would not have happened had the horse been under
control. That horses will sometimes get beyond the con-
trol of their drivers, is a circumstance to be anticipated by
a company placing its poles and wires along a public high-

way.**

51. Harton v. Forest City Telep.
Co., 141 N. Car. 455, 54 S. E. 299.
It is realized that upon a subsequent
appeal in the same litigation, a re-
sult apparently to the contrary was
reached. Harton v. Forest City
Telep. Co., 146 N. Car. 429, 59 S. E.
1022, 14 L. R. A. (N. S.) 956, 14
Ann. Cas. 390. On the second appeal
the court attempts to draw a distinc-
tion between the facts as they then
appeared and as they appeared upon
the first trial, but it is evident that
no reasonable distinction can be
drawn. The rule adopted on the
first appeal is stated in the text for
the reason that it appears more con-
sonant with reason.

52. City of Emporia v. White, 74
Kan. 864, 9 Am. Electl. Cas. 830,
86 Pac. 295; Jackson-Hazard Telep.
Co. v. Holliday’s Adm’r, 143 Ky. 149,
136 S. W. 135; Cleveland v. Bangor,
87 Me. 259, 5 Am. Electl. Cas. 346,
47 Am. St. Rep. 326, 32 Atl. 892.
See also, Alice, etc., Telep. Co. v.

If the failure of the driver to have control of the

Billingsley, 33 Tex. Civ. App. 452, 77
S. W. 255. Compare, Roberts v. Wis-
consin Telep. Co., 77 Wis. 589, 3 Am.
Electl. Cas. 471, 46 N. W. 800, 20
Am. St. Rep. 143.

53. “Where a party has a horse
and buggy hitched or standing se-
curely in the public street, and an-
other party unhitches and turns it
loose, and the horse becomes fright-
ened and runs away and breaks the
buggy and injures the horse by his
running against some object which
another or third party has unlaw-
fully placed in the street, perma-
nently or otherwise, and of a dan-
gerous character to ordinary travel,
such third party is in no wise liable
for any injuries that result there-
from. Such damages can only be
looked for from the party who im-
properly unloosed the horse or caused
the fright, he being the proximate
cause of such damage.” “ But where
a party is engaged in driving a gen-
tle horse and buggy on the public
668 Law or Eecrriciry.

horse is due to his contributory negligence, a different
situation is presented. The question then is not one of
proximate cause, but of contributory negligence.** Where
a post with a guy wire for the support of an electric light
pole was placed in the street so as to constitute an obstruc-
tion thereof, and a horse became frightened and collided
with and broke the guy wire, and such guy wire recoiled
and wound itself around another horse, throwing to the
ground the plaintiff who was riding on such horse, it was
held that the fright of the horse and the wrongful obstruc-
tion were both proximate causes of the injury, and the
liability of the electric company was sustained.** Where
a traveler collided with a telephone pole which was negli-
gently located in proximity to the traveled part of the road
and his horse ran away and collided with a pole which was
properly placed, it was held that the negligent location of
the first pole was the proximate cause of the injury. On
the other hand, it has been held, where a telegraph pole
was placed so as to be safe from the ordinary danger of
a collision from horses and vehicles, but .was broken by a
collision with a runaway team, that the telegraph company
was not liable for an injury from the breaking of the pole,
though it may have been negligent in maintaining a pole in
a weak condition.”

streets, as he lawfully may, and the
horse becomes frightened from any
cause, or becoming unmanageable, and
such party still remains in the buggy,
using every effort in his power to
guide and manage him, and to sub-
due him, and take him to his desti-
nation as he lawfully may, and while
so engaged, if he unwittingly strikes
some fixed and permanent object of a
character dangerous to the safe travel
of the public, located in a public
street, and suffers damage thereby,
he may recover such damages from
the party placing such dangerous ob-
ject in the street, or from any one
aiding, assisting, or permitting the
same to be done, and while he may

so recover against either or all, he
can have satisfaction of but one judg-
ment. On the other hand, had such
party abandoned his buggy before
such collision, then, and in such ease,
he could not have recovered.” Wolfe
v. Erie Teleg. & Telep. Co., 33 Fed.
320,

54. § 529.

55. Lundeen v. Livingston Elec.
Light Co., 17 Mont. 32, 6 Am. Elect].
Cas. 322, 41 Pac. 995.

56. Watts v. Southern Bell. Telep.
& Teleg. Co., 100 Va. 45, 8 Am.
Electl. Cas. 455, 40 S. E. 107.

57. Allen v. Atlantic & P. Teleg.
Co, 21 Hun (N. Y.) 22, 1 Am.
Electl. Cas. 310,
Proxmmate , Cause. 669
Sec. 448. Intervening Agency; After Time to Remedy
Condition.

Where an intervening agency has altered the condition
of the electric appliances so that injury may result there-
from, regardless of the original negligence of the owner
of the appliances, if such dangerous conditions exist for
such time that. the owner is charged with notice thereof,
negligence may be based on its failure to remedy the situa-
tion.* The original cause of the dangerous conditions is
not material, and the negligence of the owner in failing to
make seasonable repairs may be deemed the proximate
cause of injuries resulting from appliances.” Thus, where
a third person connects a wire to a defectively insulated
wire of an electric company in such a condition that injury
may result therefrom, and the wires remain in such danger-
ous condition for about two months, the company is guilty
of negligence in failing to remedy the defect, and such negli-
gence is the proximate cause of an injury arising from
contact with the foreign wire.

Sec. 449. Primary Cause an Accident.

Where the primary cause of an injury is a pure accident,
occasioned without the fault of the injured party, if the
negligent act of the defendant is a co-operating or culminat-

58. §§ 479, 480. it. Possessing either actual or im-

59. Wehner v. Lagerfelt, 27 Tex. puted knowledge of the fact that the
Civ. App. 520, 8 Am. Electl. Cas. 486, wire was there, defendant will not

66 S. W, 221.

60. Brubaker v. Kansas City Elec-
tric Light Co., 130 Mo. App. 439,
110 S. W. 12, wherein it was said:
“Whether or not it had actual
knowledge of the situation, it is a
fair inference to say defendant had
constructive knowledge of it, and the
jury was entitled to indulge in the
inference that in the course of so
long a period of time an ordinarily
careful and prudent person in the ex-
ercise of the highest degree of care
would have discovered the presence

of the menacing wire and removed

be heard to excuse itself on the
ground that some trespasser put it
there. No matter by what means the
danger arose, it was the duty of de-
fendant to act with due care to
detect and abate it, and its negligent
failure to do this can appear in no
other light than as negligence which
superseded that of the trespasser in
the chain of causation. Knowing
that the wire was there and given a
reasonable time in which to remove
it, defendant, in legal effect, adopted
the act of the trespasser as its own,
and thereafter became liable for its
670 Law oF Evzcraiciry.

ing cause of the injury, or if the accident would not have
resulted in injury except for the negligent act, the negli-
gence is the proximate cause of the injury, for which dam-
ages may be recovered.™ In other words, where two causes
contribute to an injury, one of which is directly traceable
to the defendant’s negligence, and for the other of which
neither party is responsible, the defendant will be held
liable, provided the injury would not have been sustained
but for such negligence. Thus, where a person is working
close to a defectively insulated wire of the defendant, and
he slips and involuntarily throws up his hands so that they
touch the wire and he receives a shock, the defective insula-
tion may be considered the proximate cause of the injury.”

Sec. 450. Negligence Charged not a Cause.

The burden is on the person injured to show that the
negligence of which he complains is the proximate cause of
the injury. If the negligence which is made the gravamen
of the case is not a causa causans of the injury, there can
be no recovery. Hence, where a traveler collided with a
guy wire used to support a telephone pole along a highway,
and the negligence was claimed to be the failure of the
company to encase the wire or otherwise make it visible,
and it appears that the accident happened in the night when
it would have been impossible for the plaintiff to have
seen the wire had it been encased, it was held that the negli-
gence complained of was not the proximate cause of the
injury. So, too, where a person in moving a house twenty-
five feet high along a city street comes in contact with wires
placed nineteen and a half feet above the street, it was held
that the acts of the owner of the wires, in violating its char-
ter requiring its wires to be elevated at least twenty-two
feet, and the negligence of the city in permitting the wires
injurious consequences to the same ing Co. v. Monahan, 162 Fed. 276, 89

extent it would have been had it ex- OC. C. A. 256; Birsch v. Citizens’ Elec.
pressly authorized the hanging of the Co., 36 Mont. 574, 93 Pac. 940,

wire.” . 68. Bentley v. Missouri & Kansas
61. Birsch v. Citizens’ Elec. Co., 36 Telep. Co., 142 Mo. App. 215, 125
Mont. 574, 93 Pac. 940. S. W. 533.

62. Colusa Parrot Mining & Smelt-
ProximaTE Cause. 671
to be so maintained, are not the proximate cause of an
injury arising from such contact, for the house would have
come in contact with the wires had they been elevated
twenty-two feet.

Sec. 451. Contributory Negligence.

Questions pertaining to contributory negligence are dis-
cussed in a subsequent chapter.** In some cases the courts
have used the term ‘‘ proximate cause ’’ in a loose sense.
Thus, sometimes, when the court has meant that a person
injured was not guilty of contributory negligence, it has
said that the negligence of the defendant company was the
proximate cause of the injury rather than the negligence
of the plaintiff.°° Similarly, where the court has deemed
the injured guilty of contributory negligence, it has some-
times indicated that opinion by stating that the negligence
of the plaintiff, rather than that of the defendant, was the
proximate cause of the injury.”

Sec. 452. Function of Court and Jury.

The question whether certain injuries are the proximate
result of an act of negligence, if the evidence is conflicting,
is for the jury.® So, too, if more than one inference may
properly be drawn from the established facts, the jury
may decide the question of proximate cause.*° Whether
the act of an intervening agency is one which might reason-
ably have been anticipated, is generally submitted to the

64. Howard v. Corporation of St. 14 L. R. A. (N. 8.) 956, 14 Ann.

Thomas, 19 Ont. (Can.) 719.

65. §§ 523 et seq.

66. Leavenworth Coal Co. v. Ratch-
ford, 5 Kan. App. 150, 7 Am. Electl.
Cas. 433, 48 Pac. 927.

67. Borell v. Cumberland Teleg. &
Telep. Co., 133 La. 630, 63 So. 2475
Wood v. Diamond Elec. Co., 185 Pa.
St. 529, 39 Atl. 1111; Newnom v.
Southwestern Teleg. & Telep. Co.,
(Tex.) 47 S. W. 669.

68. Harton v. Forest City Telep.
Co., 146 N. Car. 429, 59 S. E. 1022,

Cas. 390; Huber v. La Crosse City
R. Co., 92 Wis. 636, 6 Am. Electl.
Cas. 285, 66 N. W. 708, 31 L. R. A.
583.

69. Sykes v. Village of Portland,
177 Mich. 290, 143 N. W. 326; Har-
ton v. Forest City Telep. Co., 146
N. Car. 429, 59 S. E, 1022, 14 L. R.
A, (N. 8.) 956, 14 Ann. Cas. 390;
Huber v. La Crosse City R. Co., 92
Wis. 636, 6 Am. Elect]. Cas. 285, 66
N. W. 708, 31 L. R. A, 583.
672 Law or ELEctTRICITY.

jury.” Thus, it was held to be a question for the jury
whether the maintenance of a guy wire in the highway was
the proximate cause of an injury to an automobile, where
the car struck a railroad crossing at a high rate of speed
and then struck the guy wire in question.” Where it
appeared that a lineman, killed by a shock, may have
slipped from the cable or stand on which he was standing,
and the shock aided and contributed to his fall, it is a ques-
tion for the jury whether or not the shock was a concurrent
and efficient cause of the fall.” If, however, the facts are
not in controversy and the conclusion to be drawn there-
from is clear, the court should decide whether the injuries

are the proximate result of the negligence charged.”

70. Ela v. Postal Teleg. Cable Co.,
71 N. H. 1, 8 Am. Electl. Cas. 423,
51 Atl. 281,

Except in cases so clear that there
can be no two opinions among men
of fair minds, the question should be
left to the jury to determine whether
the intervening act and the resultant
injury were such that the author of
the original wrong could have reason-
ably expected them to occur as a re-
sult of his own negligent act. Har-

ton v. Forest City Telep. Co. 141
N. Car. 455, 54 S. E. 299.

71. Pacific Telep. & Teleg. Co. v.
Hoffman, 208 Fed. 221, 125 ©. C. A.
421.

72. Com. Elec. Co. v. Rose, 214 Il.
545, 9 Am. Electl. Cas. 381, 73 N. E.
780.

78. Harton v. Forest City Telep.
Co., 146 N. Car. 429, 59 S. E. 1022,
14L. R. A. (N, S.) 956, 14 Ann.
Cas. 390.
Act oF Gop.

673

CHAPTER XXIV.
ACT OF GOD.

SEcTION 453.
454,
455.
456.
457.
458.
459.
460.
461.

In General.

 

—— Licensee.

 

Sec. 453. In General.

Anticipation of Act of God.

Negligence Concurring with Act of God.

Timely Repairs to be Made.

Lightning; Conduction into Building.

—— Burning of Buildings in Proximity to Line.
Injury to Person Passing Near Wire.

Warning Not to Use Telephone During Storm.

The rule of the Law of Negligence that there is no lia-
bility for an injury where the sole proximate cause thereof
is an act of God, such as a stroke of lightning or a violent
storm, applies to the maintenance of electrical appliances.’
Thus, if, without any negligence by an electric or other com-
pany having appliances in a street, an unusual sterm pros-
trates or displaces its poles or wires so that injury ensues
therefrom,’ or a shock is received by lightning conducted

1. Colburn v. City of Wilmington,
4 Pen. (Del.) 443, 8 Am. Electl. Cas.
457, 56 Atl. 605; Boyd v. Portland
Elec. Co., 40 Oreg. 126, 7 Am. Electl.
Cas. 661, 66 Pac. 576, 57 L. R. A.
619; Southwestern Teleg. & Telep. Co.
v. Ingrando, 27 Tex. Civ. App. 400,
8 Am. Elect]. Cas. 447, 65 S. W.
1085.

2. California— Foley v. Northern
Cal. Power Co., 14 Cal. App. 401,
112 Pac. 467. “If the storm was
so violent that it would have broken
the wire regardless of its condition,
then the storm could be said to be
the sole cause of the breaking of the
wire, and, if the jury so believed, it
would be immaterial if they also
found that there was fault in the con-
struction and maintenance.” Foley v.
Northern Cal. Power Co., 14 Cal. App.
401, 112 Pac. 467.

43

Delaware.— Wagner v. People’s Ry.
Co., 7 Pen. 393, 75 Atl. 610; Colburn
v. City of Wilmington, 4 Pen. (Del.)
443, 8 Am. Elect]. Cas. 457, 56 Atl.
605.

Georgia.— Heidt v. Southern Telep.
& Teleg. Co., 122 Ga. 474, 9 Am.
Electl. Cas. 435, 50 8. E. 361.

Kentucky.— Burton v. Cumberland
Telep. & Teleg. Co., 118 S. W. 287.

Missouri.— Strack v. Missouri, etc.,
Telep. Co., 216 Mo. 601, 116 S. W.
526.

New York.— Ward v. Atlantic &
Pac. Teleg. Co., 71 N. Y. 81, 1 Am.
Elect]. Cas. 259, 27 Am. Rep. 10.
“The defendant is not absolutely
bound to make its line safe to the
public, to have its posts in the streets
so strong and secure that they can-
not be blown down or broken by any
storm. It does not insure the safety
674

Law or Eectriciry.

over its wires,® there is no liability. Though it may be
that a company could have procured poles strong enough
to have withstood any storm, it is not its duty to do so.
Its duty is to furnish poles and to so locate and maintain
them that they will sustain storms such as reasonably may

be anticipated.*

of travelers in the streets from in-
juries by its posts lawfully placed
there. It is bound ,to use reasonable
care in the construction and main-
tenance of its line, so that no traveler
shall be injured by it, and the amount
of care must be proportioned to the
amount of danger and the liability
to accident. The poles must be strong
enough to withstand such violent
storms as may be reasonably ex-
pected, but they are not required to
be so strong that no storm can break
them, or to withstand such storms
as reasonable foresight and prudence
could not anticipate.” Ward v. At-
lantic & Pacific Teleg. Co., 71 N. Y.
81, 1 Am. Elect]. Cas. 259, 27 Am.
Rep. 10.

Oregon.— Boyd v. Portland Elect.
Co., 37 Oreg. 567, 7 Am. Elect]. Cas.
605, 62 Pac. 378.

Pennsylvania.— Aument v. Penn.
Telep. Co., 28 Pa. Super. Ct. 610, 9
Am. Elect]. Cas. 605.

Texas.— Southwestern Teleg. &
Telep. Co. v. Ingrando, 27 Tex. Civ.
App. 400, 8 Am. Elect]. Cas. 447,
85 S. W. 1085.

Virginia.— Richmond & P. Elec. Ry.
Co. v. Rubin, 102 Va. 809, 9 Am.
Elect]. Cas. 138, 3 St. Ry. Rep. 870,
47 S. E. 834.

Sleet— “If the electric wire in
question was the property of the de-
fendant, and was broken down and
suspended in the street by reason of
the sleet adhering to it, and without
any neglect or default of the defend-
ant, the defendant would not be re-
sponsible for such breaking or sus-

In an action for injury from the falling

pension, as this would be what is
called an ‘act of God.” Colburn
v. City of Wilmington, 4 Pen. (Del.)
443, 8 Am. Elect]. Cas. 457, 56 Atl.
605.

3. Phenix L. & Fuel Co. v. Ben-
nett, 8 Ariz. 314, 8 Am. Electl. Cas.
597, 74 Pac. 48, 63 L. R. A. 219;
Cumberland Teleg. & Telep. Co. v.
Martin’s Adm’r, 116 Ky. 554, 8 Am.
Electl. Cas. 604, 25 Ky. Law Rep.
787, 76 S. W. 394, 77 S. W. 718, 63
L. R. A. 469, 105 Am. St. Rep. 229;
Epperson v. Postal Teleg. Cable Co.,
155 Mo. 346, 7 Am. Elect]. Cas. 736,
50 8. W. 795, 55 8. W. 1050; Rocap v.
Bell Telep. Co. of Philadelphia, 230
Pa. St. 597, 79 Atl. 769, 36 L. R. A.
(N. 8.) 279.

4. Southwestern Teleg. & Telep. Co.
v. Ingrando, 27 Tex. Civ. App. 400, 8
Am. Electl. Cas. 447, 65 S. W. 1085,
wherein it was said: “It is unneces-
sary to cite authority upon the prop-
osition that if the pole was, under
ordinary conditions, suitable and suf-
ficient for the purpose for which it
was used, the fact that it was not
strong enough to resist a storm of
such unusual and unprecedented vio-
lence as that in which it was broken,
would not show negligence on the
part of defendant in using said pole,
because the defendant was not re-
quired to foresee such an occurrence,
or to construct its lines with refer-
ence to same. The mere fact that it
was possible for the defendant to
have procured poles of sufficient
strength to withstand the storm, as
shown by the fact that some of the
Act oF Gop. 675
of a pole, the mere fact that sound poles did not withstand
the force of the storm does not, of itself, show that the
storm was beyond reasonable anticipation; other conditions
of soil and protection might have caused the fall of other
poles.®

Sec. 454, Anticipation of Act of God.

Weather conditions within certain limitations are to be
anticipated and guarded against by a company maintaining
poles and wires along streets and other places.° While not
bound to anticipate a storm of a severity never before
known, it is bound to use reasonable care to guard against
the wind and sleet storms usually encountered in the cli-
mate where the line is constructed.’ Failure to exercise a
reasonable degree of care to protect its lines from such
storms may be a ground of negligence and may charge the
company with liability for injuries resulting from its fail-
are to use such care.* As was said in one case:® ‘‘ It was
the duty of the defendant, in erecting that pole, to take into

poles erected by it were not broken
by the storm, did not require it to
use only poles of sufficient strength
to withstand a storm of this char-
acter, and its failure to do so was
not negligence.”

5. Claussen v. Cumberland Telep. &
Teleg. Co., 126 La. 1087, 53 So. 357.

6. Boyd v. Portland Elec. Co., 40
Oreg. 126, 7 Am. Elect]. Cas. 661, 66
Pac. 576, 57 L. R. A. 619.

7% Quincy Gas & Electric Co. v.
Baumann, 104 Ill. App. 600; affirmed,
203 Ill. 295, 8 Am. Elect]. Cas. 460,
67 N. E. 807; Anthony v. Case
County Home Telep. Co., 165 Mich.
388, 130 N. W. 659, 18 Det. Leg. N.
193; Smith v. Missouri & K. Telep.
Co., 113 Mo. App. 429, 9 Am. Electl.
Cas. 455, 87 S. W. 71. “ The electric
light company, in the construction of
its line, was bound to adopt all rea-
sonable precautions for the protection
of the public, to prevent casualties

which might be reasonably antici-
pated. This obligation would require
it to anticipate the influence of the
ordinary storms customary to the
locality. But if the falling of the
electrically charged wire was caused
by a storm of unusual severity, which
could not have been reasonably fore-
seen and its consequences guarded
against, the company would not be
liable, if it was not otherwise negli-
gent.” Heidt v. Southern Telep. &
Teleg. Co., 122 Ga. 474, 9 Am. Electl.
Cas. 435, 50 S. E. 361.

8. Heidt v. Southern Telep. &
Teleg. Co., 122 Ga. 474, 9 Am. Electl.
Cas. 435, 50 S. E. 361; Smith v.
Missouri, ete., Telep. Co., 113 Mo.
App. 429, 9 Am. Electl. Cas. 455, 87
S. W. 71.

9. Smith v. Missouri, ete., Telep.
Co., 113 Mo. App. 429, 9 Am. Electl.
Cas. 455, 87 S. W. 71.
676 Law or ELEcTRICITY.

consideration the probable results of the usual elemental
action. It is not enough to exonerate it from blame to
show that the guy pole as it stood was a safe construction
in fair weather. Severe storms are a normal condition,
and any construction is not reasonably safe, and cannot
be denominated the result of proper care, that will not with-
stand them.’’ In practically the same way, it is the duty
of a company maintaining wires near private property to
anticipate the ravages of lightning conducted over its wires,
not only as to the probable effects of ordinary lightning
discharges, but also of such extraordinary thunder storms
as, aceording to the common observation of men, are known
to oecur, not necessarily once every year, but once in sev-
eral years, and at no regular intervals.

Sec. 455. Negligence Concurring with Act of God.
While there can be no liability for an act of God, speak-
ing broadly, every person is hable for the proximate results
of his own negligence; and, if an accident is due to the com-
bined effects of a person’s negligence and an act of God,
the injury is considered the proximate result of the negli-
gence, and recovery therefor may be had.“ If a wire is

10. Wells v. Northeastern Telep. against those which are ordinary and
Co., 101 Me. 371, 9 Am. Electl. Cas. usual.” Jacksonville Ice & Elec. Co.
749, 64 Atl. 648. See also, Jackson- -v. Moses, (Tex. Civ. App.) 134 8. W.
ville Ice & Elec. Co. v. Moses, (Tex. 379.

Civ. App.) 134 8S. W. 379; Jackson v. 11, California— Foley v. Northern
Wisconsin Telep. Co., 88 Wis. 243, 5 Cal. Power Co., 14 Cal. App. 401, 112
Am. Electl. Cas. 335, 60 N. W. 430, Pac. 467.

26 L. R. A. 101. “* While electric Georgia.— Heidt v. Southern Telep.
light companies are not expected to‘ & Teleg. Co, 122 Ga. 474, 9 Am.
build their lines 30 as to stand ex- LElectl. Cas. 435, 50 S. E. 361.
traordinary and unusual weather con- Mlingis— Quincy Gas & Elec. Co.
ditions, they are expected to guard, so v. Schmitt, 123 IIL App. 647, 9 Am.
far as may be reasonably practicable, Electl. Cas. 932.

against ordinary and usual condi- Indiana.— Central Union Telep. Co.
tions. And, while they may not be vv. Sokola, 34 Ind. App. 429,°9 Am.
able to construct their lines and fix Electl. Cas. 323, 73 N. E. 143.

their wires so that they will with- Iowa— Brown v. West Riverside
stand extraordinary atmospheric elec- Coal Co., 143 Iowa 662, 120 N. W.
trical currents, it is certainly their 732, 28 L. R. A. (N. 8.) 1260.

duty to use ordinary care to guard Kentucky.— Evans y. Eastern Ken-
Act or Gop. 677
negligently secured and it breaks or falls to the street in
a storm of not unusual severity, the company is liable for
the injury, though it would not have happened had not the
storm occurred.” If the wires of two companies are negli-
gently maintained in such proximity that a storm causes
them to come in contact and injury is thereby caused to a
third person, the negligence of the companies may be con-
sidered the proximate cause of the injury.“ If its poles
originally were frail or became decayed so that they were
blown down in a storm, it may be liable, though the pole
would have remained standing in fair weather.* Where
an electric wire has fallen in a street so as to be a source
of danger to travelers, it is the duty of the company having
knowledge of the danger to shut off the current or to keep
people from contact with the wire until the condition is
remedied. Its failure in this respect may be deemed a
proximate cause of injury from eontact with the wire.*®
If lightning is conducted to or into™a building through the
negligence of the owner of wires entering such building,
the owner may be liable; though the lightning may be con-

tucky Telep. & Teleg. Co., 124 Ky.
620, 9 Am. Electl. Cas. 967, 30 Ky.
Law Rep. 833, 99 S. W. 936.

Louisiana.— Borell v. Cumberland
Teleg. & Telep. Co., 133 La. 630, 63
So. 247; Herbert v. Lake Charles Ice,
L. & Waterworks Co., 111 La. 522,
35 So. 731, 64 L. R. A. 101, 100 Am.
St. Rep. 505.

Michigan.— Warren v. City Elec.
Ry. Co., 141 Mich. 298, 4 St. Ry. Rep.
487, 9 Am. Electl. Cas. 527, 104 N. W.
613, 12 Det. Leg. N. 415.

Missouri.— Wilhite v. City of
Huntsville, 167 Mo. App. 155, 151 S.
W. 232; Booker v. Southwest Mis-
souri R. Co., 144 Mo. App. 273, 128
S. W. 1012.

New York.— Paine v. Elec. Ium.
& P. Co. of Long Island City, 64
N. Y. App. Div. 477, 7 Am. Elect].
Cas. 651, 72 N. Y. Supp. 279.

12. Central Union Telep. Co. v.

Sokola, 34 Ind. App. 429, 9 Am.
Elect]. Cas. 323, 73 N. E. 143; Boyd
v. Portland Elec. Co., 40 Oreg. 126,
7 Am. Electl. Cas. 661, 66 Pac. 576,
57 L. RB. A. 619.

13. Warren v. City Elec. Ry. Co.,
141 Mich. 298, 4 St. Ry. Rep. 487,
9 Am. Elect]. Cas. 527, 104 N. W. 613,
12 Det. Leg. N. 415; Wilhite v. City
of Huntsville, 167 Mo. App. 155, 151
S. W. 232; Toledo Rys. & L. Co. v.
Rippon, 28 Oh. Cir. Ct. Rep. 561, 9
Am. Elect]. Cas. 939; affirmed with-
out opinion, 75 Oh. St. 609, 80 N. E.
1133. Compare, Stark v. Pennsyl-
vania Telephone Co., 225 Pa. St. 390,
74 Atl. 222; Stark v. Lancaster Elec.
L. H. & P. Co., 218 Pa. St. 575, 67
Atl. 909.

14, Claussen v. Cumberland Telep.
& Teleg. Co., 126 La. 108%, 53 So.
357.

15. § 484.
678 Law or Evecrriciry.

sidered an act of God, the carrying of it into the building
may be an act of the owner.’* Likewise, where an employer
stores dynamite in a room provided for the use of his
employees, in which room a telephone is also installed, the
master is liable for the death of a workman from the explo-
sion of such dynamite, though the explosion may have been
caused by the entrance of lightning along the telephone
wire.”

Sec. 456. Timely Repairs to be Made.

Irrespective of the question whether an electric company
is liable for the original derangement of its system, the
commensurate care it is required to exercise imposes upon
it the duty of making timely repairs.** Thus, though its
wires or poles are prostrated by a storm not to be antici-
pated, it must exercise proper care in the making of re-
pairs; and, if it fails to make such repairs within a reason-

16. Evans v. Eastern Kentucky
Telep. & Teleg. Co., 124 Ky. 620, 9
Am. Electl. Cas. 967, 30 Ky. Law
Rep. 833, 99 S. W. 936; Jackson v.
Wisconsin Telep. Co., 88 Wis. 243, 5
Am. Electl. Cas. 335, 60 N. W. 430,
26 L. R. A. 101. “It is insisted that
the loss was due to the act of Ged,
and that the plaintiff was as much
responsible for the trouble as the de-
fendant. While lightning is the act
of God, the carrying of the lightning
in the plaintiff’s house on its wire
which it had left in the house was
the act of the defendant, and it was
a question for the jury whether the
defendant had used such care as
might be reasonably expected of a
person of ordinary prudence under
the circumstances.” Evans v. Eastern
Kentucky Telep. & Teleg. Co., 124
Ky. 620, 9 Am. Elect]. Cas. 967, 30
Ky. Law Rep. 833, 99 S. W. 936.
“The further argument is made that
the stroke of lightning was the * act
of God,’ for which no one is responsi-
ble. Certainly a stroke of lightning

is an ‘act of God, but that is not
the question here presented, or
rather another element—i. e., the
negligence of man — is added to the
question, which materially alters its
scope. If I, owning a high mast or
building, which I know is so situated
as to be very likely to be etruck by
lightning, construct an attractive
path for the lightning to my neigh-
bor’s roof, so that his house is
destroyed by a bolt which strikes my
mast or building, shall I escape lia-
bility for my negligent or wrongful
act by pleading that the lightning
was the act of God? Certainly not.
I invited the stroke of one of the
most destructive powers of nature,
and negligently turned its course to
my neighbor’s property.” Jackson v.
Wisconsin Telep. Co., 88 Wis. 243,
5 Am, Elect]. Cas. 335, 60 N. W. 430,
26 L. R. A. 101.

17. Brown v. West Riverside Coal
Co., 143 Iowa 662, 120 N. W. 732, 28
L. R. A. (N. S.) 1260.

18. §§ 478-482.
Act oF Gop. 679
able time, such negligence, not the storm, is the proximate
cause of injury occasioned thereby.’® Actual notice of
defective conditions is not always required; by the lapse
of time the company is deemed to have constructive know]l-
edge thereof upon the theory that if the company had acted
with due diligence it would have acquired actual knowl-
edge.” But where the wires of an electric light company
supplying a large city have been prostrated in numerous
places at the same time by reason of an unusual and unex-
pected storm, it is not, as a matter of law, negligent for the
company to leave one of its wires for several hours so hang-
ing as to inflict injury upon a passerby.”

Sec. 457. Lightning; Conduction into Building.

The tendency of lightning to follow the course of least
resistance frequently results in its coming into buildings
along electric or telephone wires. The frequency of in-
juries from this source indicates that the danger is one that
should be guarded against. Injuries of this character arise
more often from telephone wires than from wires of other
companies. Telephone wires are more widely scattered;
they are seldom insulated; and they are not generally as
cautiously constructed as the lines of other companies. The
possibility of atmospheric electricity being conducted into
a building by telephone or other wires seems to be a matter
of common knowledge, of which the court will require no
proof.” While a company whose wires enter a building

19. Colburn v. City of Wilmington,
4 Pen. (Del.) 443, 8 Am. Electl. Cas.
457, 56 Atl. 605; Brown v. Consoli-
dated L. Power & Ice Co., (Mo. App.)
109 S. W. 1032; Claussen v. Cumber-
land Telep. & Teleg. Co., 126 La.
1087, 53 So. 357; Cumberland Telep.
& Teleg. Co. v. Hunt, 108 Tenn. 697,
8 Am. Electl. Cas. 498, 69 S. W. 729.

20. Friesenhan v. Michigan Telep.
Co., 134 Mich. 292, 96 N. W. 501, 10
Det. Leg. N. 479; Wagner v. People’s
Ry. Co., 7 Pen. (Del.) 393, 75 Atl.
610; District of Columbia v. Demp

sey, 13 App. D. C. 533, 27 Wash.
Law Rep’r, 87, 31 Chi. L. News 217;
Mitchell v. Charleston L. & P. Co.,
45 S. C. 146, 6 Am. Electl. Cas. 245,
22 S. E. 767, 31 L. R. A. 577, 41
Cent. L. J. 364; Godfrey v. The
Streator R. Co., 56 Ill. App. 378.

21. Foley v. Northern Cal. Power
Co., 14 Cal. App. 401, 112 Pac. 467;
Boyd v. Portland Elect. Co., 37 Oreg.
567, 7 Am. Electl. Cas. 605, 62 Pac.
378.

22. § 587.
680: Law or Exscrriciry.

is not an insurer of persons or property from the effects of
atmospheric electricity passing along such wires,” and
while, as a general proposition, it is not required to insulate
its wires so as to render them inaccessible to such elec-
tricity,” it is required to exercise such care as is commensu-
rate with the danger from lightning entering the building.
It is bound to anticipate that, unless devices are installed
‘to prevent it, lightning may follow its wires into a building,
and that very serious personal injuries may result there-
from to the occupants of the house and that the building
may be set on fire by such current.”> Inasmuch as light-
ning arrestors or other devices for the prevention or lessen-
ing of danger from lightning may be installed by a telephone
or other company at a moderate expense, it seems reason-
able to hold that its failure to install such devices presents
a case of negligence which renders it liable for such dam-

ages as result from its failure.”

28. § 400.

24. Phoenix L. & Fuel Co. v. Ben-
nett, 8 Ariz. 314, 8 Am. Electl. Cas.
597, 74 Pac. 48, 63 L. R. A. 219.

25. Southern Teleg. & Telep. Co. v.
Evans, 54 Tex. Civ. App. 63, 116 8S.
W. 418.

26. United States—— Noon v. Gem.
Irr. Dist., 205 Fed. 402.

Alabama.— “If, by the exercise of
such reasonable precautions as a man
of ordinary care and prudence would
exercise in respect of such a danger-
ous agent, injuries to persons and
property from the conduction along
the wires and into houses of currents
of atmospheric electricity may be
avoided, it is the duty of companies
engaged in this business to employ
devices and appliances to that end.
If the danger cannot be wholly
avoided, due care should be taken to
minimize it.” Southern Bell Telep.
& Teleg. Co, 137 Ala. 601, 8 Am.
Electl. Cas. 591, 34 So. 1020, 97 Am.
St. Rep. 62.

Arkansas.— Southwestern Teleg. &

The question whether the

Telep. Co. v. Abeles, 94 Ark, 254, 126
S. W. 724, 21 Ann. Cas. 1006.

Florida. Peninsular Telep. Co. v.
McCaskill, 64 Fla. 420, 60 So. 338.

Georgia— Southern Bell Telep. &
Teleg. Co. v. Parker, 119 Ga. 721, 9
Am. Elect]. Cas. 1137, 47 S. E. 194.

Texas.— Southern Teleg. & Telep.
Co. v. Evans, 54 Tex. Civ. App. 63,
116 S. W. 418; Southwestern Teleg.
& Telep. Co. v. Davis, (Tex. Civ.
App.) 156 S. W. 1146,

Virginia Norfolk & P. Tract. Co.
v. Daily’s Admr., 111 Va. 665, 69 S.
E. 963. ‘

Vermont.—Griffith v. New England
Telep. & Teleg. Co., 72 Vt. 441, 7 Am.
Elect]. Cas. 707, 48 Atl. 643, 52 L. R.
A. 919. “ Having undertaken to place
and maintain the instrument in the
house, and connect it with its tele-
phone line for the use of the de-
ceased, in so doing it was under a
duty to exercise the care of a prudent
man in like circumstances. If, while
in the exercise of such care, it had
reasonable grounds to apprehend that
Act oF Gop. 681
company was negligent in failing to equip its lines with
devices to exclude lightning, is generally for the jury.” If
a telephone company takes its telephone from a building
without removing the wires and lightning is conducted into
the building by the wires, an additional ground of liability
may be urged. Negligence may be inferred, not only from
the failure to have a lightning arrestor on the line, but
also from the act of the company in not removing its dead
wires upon the discontinuance of the service.* Negligence
may also be inferred from the act of the telephone com-
pany in maintaining the ground wire in such proximity
to combustible material around the house that lightning
passing along the same causes a fire.” It Has been held,
however, that where a telephone company uses on its line
the best known device in general use for the protection of
its patrons against abnormal or atmospheric electricity and
is not otherwise negligent, it is not liable for injuries re-

lightning would be conducted over its
wires to and into the house, and
there do injury to persons or prop-
erty, and there were known and ap-
proved devices for arresting or divid-
ing such lightning so as to prevent
injury therefrom to the house or per-
sons therein, then it was the de-
fendant’s duty to exercise due care in
selecting, placing and maintaining, in
connection with its wires and instru-
ments, such known and approved ap-
pliances as were reasonably necessary
to guard against accidents that might
‘fairly be expected to occur from
lightning when conducted to and into
the house over its telephone wires.”
Griffith v. New England Telep. &
Teleg. Oo., 72 Vt. 441, 7 Am. Electl.
Cas. 707, 48 Atl. 643, 52 L. R. A. 919.
27. Southwestern Teleg. & Telep.
Co, v. Abeles, 94 Ark. 254, 126 S. W.
724, 21 Ann. Cas. 1006; Byron Telep.
Co. v. Sheets, 122 Ill. App. 6; Evans
v. Eastern Kentucky Telep. & Teleg.
Co., 124 Ky. 620, 9 Am. Electl. Cas.

967, 30 Ky. Law Rep. 833, 99'S. W.
936; Griffith v. New England Telep.
& Teleg. Co., 72 Vt. 441, 7 Am. Electl.
Cas. 707, 48 Atl. 643, 52 L. R. A. 919.

28. Southern Bell Telep. & Teleg.
Co. v. McTyer, 137 Ala. 601, 8 Am.
Elect]. Cas. 591, 34 So. 1020, 97 Am.
St. Rep. 62; Evans v. Eastern Ken-
tucky Telep. & Teleg. Oo., 124 Ky.
620, 9 Am. Electl. Cas. 967, 30 Ky.
Law Rep. 833, 99 S. W. 936; Texas
Teleg. & Telep. Co. (Tex. Civ. App.)
127 S. W. 587. See also, Owens v.
Chicago Telep. Co., 159 Ill. App. 80;
Scheiber v. United Telep. Co. 153
Ind. 609, 55 N. E. 742; Norfolk & P.
Tract. Co. v. Daily’s Admr., 111 Va.
665, 69 S. E. 963.

Dead or abandoned wires.— The
liability of an electric company for
injuries from dead or abandoned
wires is discussed in another place.
See § 509.

29. Byron Telep. Co. v. Sheets, 122
Ill. App. 6.
682 Law or HectRiciry.

ceived by one while using the telephone during a violent
thunder storm.

Sec. 458. Lightning; Burning of Buildings in Proximity
to Line.

It is, perhaps, doubtful if an electric or other line of
wires can be so constructed that a bolt of lightning will
not pass along it for a greater or less distance. By the use
of arrestors, ground wires, and other devices, the lightning
may be conducted into the earth or dispersed so that the
chances of material damage to persons or buildings are
lessened. The company is bound to know that electricity
may be earried along its wires and to use at least reason-
able care to prevent injury to buildings in proximity
thereto. Injury to buildings may best be avoided by
constructing its lines a sufficient distance therefrom that
atmospheric electricity will not readily pass from the wire
to the buildings. If it fails to exercise proper care in con-
structing and maintaining its wires a reasonably safe dis-
tance from buildings, and as a consequence thereof, light-
ning is carried along its wires and a building is inflamed,
the jury is justified in finding that the company is guilty
of negligence." The owner of the building will not neces-
sarily fail to secure damages because the wires were erected
before the building, where the building was erected entirely
on the owner’s premises.” Negligence of a telephone com-
pany may be inferred from its act in permitting its guy
wire to come in contact with a building with no appliance
to divert currents of electricity from passing along such
guy wire.**

30. Rocap v. Bell Telep. Co. of 82. Miles v. Postal Teleg. Cable Co.,
Philadelphia, 230 Pa. St. 597, 79 Atl. 55 S. Car. 403, 7 Am. Electl. Cas. 696,
769, 36 L. R. A. (N. 8.) 279. 33 8S. E. 493.

31. Miles v. Postal Teleg. Cable Co., 33. Wells v. Northeastern Telep.
55 S. Car. 403, 7 Am. Electl. Cas. 696, Co., 101 Me. 371, 9 Am. Electl. Cas.
33 8. E. 493; Jackson v. Wisconsin 749, 64 Atl. 648.

Telep. Co., 88 Wis. 243, 5 Am. Elect}.
Cas. 335, 60 N. W. 430, 26 L. R. A.
101.
Act or Gop. 683

Sec. 459. Lightning; Injury to Person Passing Near Wire.

Where a company maintaining a wire along a street or
over private property negligently permits it to sag or fall
toward the ground or to remain in such a position for an
unreasonable length of time, and a person passing near
such wire is injured by reason of a bolt of lightning passing
down the same, the company’s negligence may be said to
be the proximate cause of the injury.** However, it has
been held that where the falling of a wire to the street is
occasioned by a bolt of lightning, and a horse is killed
thereby before the owner of the wire has had a reasonable
opportunity to remedy the condition, such owner is not
liable, as the bolt of lightning is the proximate cause of the
injury, and the negligence, if any, of the owner in failing
to insulate its wire or to maintain guard wires to prevent
its becoming charged from the high-tension wires of other
companies is not negligence concurring with the act of God.*

Sec. 460. Lightning; Licensees.

In another place the liability of an electric company for
injuries to trespassers and licensees arising from the use
of its dangerous current, is discussed.** A person who is
on the property of another, either as a trespasser or a
licensee, is not outside of the pale of the law, and if an
electric company is negligent in the care of its dangerous
current and injury is thereby caused to such person, it is
not generally a defense that he was at the time of the injury
a trespasser upon the premises of a third party. The
application of this rule to a person injured by lightning
passing over the line of a telephone company, has been
denied. Thus, in what seems to be the only decision upon

34. Southwestern Teleg. & Telep.
Co. v. Robinson, 50 Fed. 810, 4 Am.
Electl. Cas. 342, 1 C. C. A. 684, 2 U.
S. App. 205; Western Union Teleg.
Co. v. Harris, 6 Ga. App. 260, 64 S. E.
1123; Anthony v. Cass County Home
Telep. Co., 165 Mich. 388, 130 N. W.

659, 18 Det. Leg. N. 193; Harrington
v. Com’rs of Wadesboro, 153 N. Car.
437, 69 S. E. 399.

35. Southwestern Teleg. & Telep
Co. v. Keys & Casey, 50 Tex. Civ.
App. 648, 110 S. W. 767.

36. §§ 462-471.
684 Law or Evectriciry.

the precise question,®’ it appeared that the plaintiff’s intes-
tate took refuge from a rain storm on the porch of a store
building, sitting upon a box with his back against the
grating over a window. A telephone wire ran over the
roof of the porch and within two or three inches of it.
Lightning struck a telephone pole close to the store and
was conducted by the wire to the porch, and part of it
passed to the iron roof of the porch and to the grating and
into the body of the deceased. It was held that the dece-
dent was a bare licensee on the porch, and the telephone
company was under no obligation to such a licensee to prop-
erly maintain the wire.

Sec. 461. Lightning; Warning not to Use Telephone Dur-
ing Storm.

Where a person is injured while using a telephone during
a storm, he cannot base an action for his injuries on the
failure of the company to place a warning on the telephone
against its use during the continuance of electrical storms.
Such failure does not constitute a ground of negligence
sufficient to warrant its submission to the jury.

$7. Cumberland Teleg. & Telep. Co.
v. Martin’s Adm’r, 116 Ky. 554, 8
Am, Electl. Cas. 604, 25 Ky. Law
Rep. 787, 76 S. W. 394, 77 S. W.
718, 68 L. R. A. 469, 105 Am. St.
Rep. 229, wherein it was said: ‘“ He
who handles an agency which is of
itself dangerous to human life is re-
sponsible for injuries therefrom not
caused by extraordinary occurrences
or the interposition of strangers.
* * * But as to things which are
not of themselves essentially instru-
ments of danger the rule is different,
and for them, the negligent party is
not responsible to strangers. * * *
If the telephone company had used
over its wires a current of electricity
which was of itself dangerous to life,

a different question would be pre-
sented; but the electricity which
killed the intestate came from the
clouds and was the act of God. The
current which the telephone company
used in its business was harmless.
It owed the intestate no duty to fur-
nish him a safe shelter from the rain.
When he used the porch as a shelter
he took it as he found it. The wire
of the telephone company was not in
or of itself an instrumentality dan-
gerous to human life, and there was
no duty violated to the public in a
matter whereof the intestate had the
right to avail himself.”

88. Rocap v. Bell Telep. Co. of
Philadelphia, 230 Pa. St. 597, 79
Atl. 769, 36 L. R. A. (N. S.) 279,
T RESPASSERS AND’ LICENSEES.

685

CHAPTER XXV.

TRESPASSERS AND LICENSEES.

Section 462. In General.
463. Licensees,

464. Premises of Electric Company.

465. Firemen.
466. Peace Officers.

 

467. Children.

468.

469. Poles.

470. —— Wires.

471. ——Guy Wires.
Sec. 462. In General.

Doctrine of Attractive Nuisances; in General

The well-established principle in the Law of Negligence
that there is no liability to trespassers except for injuries
wilfully or wantonly inflicted, is applicable to electric com-

panies and electric appliances.

‘Though an electric com-

pany may have been guilty of some neglect in the care of
its apparatus, it is not liable for an injury resulting to one
who is a trespasser as against the company, unless the in-

jury is wilfully imflicted.*

1, Kentucky.— Thompson v. Cum-
berland Telep. & Teleg. Co., 138 Ky.

109, 127 S. W. 531; Mayfield Water.

& L. Co. v. Webb’s Adm’r, 33 Ky.
Law Rep. 909, 9 Am. Elect]. Cas.
1122, 111 8S. W. 712; Rodgers’* Adm’r
v. Union Light, Heat & Power Co.,
(Ky.) 123 8S. W. 293.

Massachusetts.— Sias v. Lowell, L.
& H. St. Ry. Co., 179 Mass. 343, 7
Am. Electl. Cas. 639, 60 N. E. 974.

Michigan.— McCaughna v. Owosso
& Corunna Elec. Co., 129 Mich. 407,
8 Am. Electl. Cas. 568, 89 N. W. 73,
8 Det. Leg. N. 1000, 95 Am. St. Rep.
441,

New Jersey.— Newark, E. L. &
Power Co. v. McGilvery, 62 N. J. L.
451, 7 Am. Electl. Cas. 529, 41 Atl.
955; affirmed, 63 N. J. L. 591, 44
Atl. 637.

But, on the other hand, it is to

New York.— Heskell v. Auburn L.,
H. & P. Co. 209 N. Y. 86, 102
N. E. 540; Hickok v. Auburn L., H.
& P. Co., 200 N. Y. 464, 93 N. E.
1113.

Texas.— Burnett v. Ft. Worth L.
& P. Co., 102 Tex. 31, 112 S. W.
1040, 19 L. R. A. (N. 8.) 504; City
of Greenville v. Pitts, 102 Tex. 1,
107 S. W. 50, 14 L. R, A. (N. 8S.)
979; Simonton v. Citizens’ Elec. L. &
P. Co., 28 Tex. Civ. App. 374, 8 Am.
Elect]. Cas. 450, 67 S. W. 530.

Washington.— Graves v. Washing-
ton Power Co., 44 Wash. 675, 9 Am.
Elect]. Cas. 912, 87 Pac. 956, 11L. R.
A. (N. S.) 452.

A telephone company maintained
its wires on the poles of an electric
street railway company, under a con-
tract by which it agreed to assume
686 Law oF ELrEctricity.

be remembered that an electric company’s poles, wires, and
other appliances are generally placed in streets and places
other than its own premises. If the company is guilty of
negligence in the maintenance of such appliances and an
injury thereby results to one not a trespasser as against
the company, it is not material that the person was, when
injured, on the premises of a third party, so long as the
company was bound to anticipate that persons in the pur-
suit of business or pleasure would go upon such premises

and come in proximity to its appliances.’

all risks of injuries to the employees
of the telephone company. An em-
ployee of the telephone company,
while voluntarily repairing a wire
of the railway company, received a
shock. It was held that he had no
cause of action against the electric
company. Sias v. Lowell, L. & H.
St. Ry. Co., 179 Mass. 343, 7 Am.
Elect]. Cas. 639, 60 N. E.- 974.

2. United States— Newark Elec.
L. & P. Co. v. Garden, 78 Fed. 74,
6 Am. Elect]. Cas. 275, 39 U. S&S.
App. 416, 23 C. C. A. 649, 37 L. R.A.
725.

Alabama,— Sheffield Co v. Morton,
161 Ala, 153, 49 So. 772.

California.—Davoust v. City of Ala-
meda, 149 Cal. 69, 9 Am. Electl. Cas.
698, 84 Pac. 760, 5 L. R. A. (N. S.)
536.

Ilinois—— Commonwealth Elec. Co.
v. Melville, 210 Ill. 70, 9 Am. Electl.
Cas. 95, 70 N. E. 1052.

Indiana.— Cumberland Telep. &
Teleg. Co. v. Kranz, 48 Ind. App.
67, 95 N. E. 371,

Iowa.— Connell v. Keokuk Elec. Ry.
& P. Co., 131 Iowa 622, 9 Am. Electl.
Cas. 862, 109 N. W. 177.

Massachusetts.— Griffin v. United
Elec. L. Co., 164 Mass. 492, 6 Am.
Elect]. Cas. 252, 41 N. E. 675, 49
Am. St. Rep. 477, 32 L. R. A. 400,

Missouri.— Day v. Consolidated L.,

This principle is

P. & Ice Co., 136 Mo, App. 274, 117
S. W. 81.

Montana.— Mize v. Rocky Moun-
tain Bell Telep. Co., 38 Mont. 521,
100 Pac. 971, 16 Ann. Cas. 1189.

Nebraska.— New Omaha Thomson-
Houston Elec. L. Co. v. Johnson, 67
Neb. 393, 8 Am. Electl. Cas. 517, 93
N. W. 778.

New Hampshire— Thompson  v.
Tilton Elec. L. & P. Co., 88 Atl. 216.

New Jersey.— Guinn v. Delaware
& A. Telep. Co., 72 .N J. Law 276,
9 Am. Electl. Cas. 552, 62 Atl. 412,
111 Am. St. Rep. 668.

New York.— Heskell v. Auburn L.,
H. & P. Co., 209 N. Y. 86, 102.N. E.
540; Wittleder v. Citizens’ Elec.
Illum. Co. of Brooklyn, 47 N. Y. App.
Div. 410, 7 Am. Electl. Cas. 581, 62
N. Y. Supp. 297.

South Carolina— Walker v. South-
ern Bell Telep. & Teleg. Co., 92 S. Car.
188, 75 S. E. 1024,

Texas.— Rucker v. Sherman Oil &
Cotton Co., 29 Tex. Civ. App. 418,
8 Am. Elect]. Cas. 841, 68 S. W. 818;
Panhandle Telep. & Teleg. Co., (Civ.
App.) 136 8. W. 1129.

Virginia— Lynchburg Telep. Co. v.
Booker, 103 Va. 594, 9 Am. Elect].
Cas. 406, 50 S. E. 148.

Wisconsin— Meyer v. Menominee
L. & Tract. Co., 151 Wis. 279, 138
N. W. 1008.
TRESPASSERS AND LICENSEES. 687
illustrated by the care required of the company in the
insulation of its wires. The company is bound to exercise
due care to prevent injuries to persons whose presence in
proximity to its appliances may reasonably be anticipated,
and recovery may be had where the company fails in its
duty of insulation, though the person injured be on the
premises of a third party,* or, in some cases, on the poles’
or property of the negligent company. But, where a per-
son comes in contact with a dangerous wire in a place where
the presence of persons is not reasonably to be anticipated,
though the better ground for non-liability is the absence of
a duty to insulate its wires as against such accident, the
courts sometimes place their decisions on the ground that
the persons injured were tréspassers.°

Wilful or Wanton Injury.— Though a person is a tres-
passer, he must not be wilfully or intentionally injured.’
Thus, where it appeared that a girl nearly nine years old
went upon the power-house lot of an electric railway com-
pany; while she was standing on a track near which was
operated a wire cable, an employee of the company went
past her and into the power-house and in a few seconds the
machinery was put in motion and the cable started and the
girl’s clothing was caught on the cable and she was injured.
It was held that the liability of the company was a question
for the jury.’ So, too, if a street railway company permits
children and other persons to pass along a path over its
premises, where it knows that electricity in dangerous quan-
tities is escaping, and takes no steps to warn such persons

8. §§ 510-522.

4, § 521.

5. § 518.

6. Mayfield Water & L. Co. v.
Webb’s Adm’r, 33 Ky. Law Rep. 909,
9 Am. Electl. Cas. 1122; Simonton v.
Citizen’s Elec. L. & P. Co., 28 Tex.
Civ. App. 374, 8 Am. Electl. Cas.
450, 67 S. W. 530; Wetherby v. Twin
State Gas & Electric Co., 83 Vt. 189,
75 Atl. 8, 25 L. R, A. (N. 8.) 1220,
21 Ann. Cas. 1092; Graves v. Wash-

ington Power Co., 44 Wash. 675, 9
Am. Elect]. Cas. 912, 87 Pac. 956, 11
L. R. A. (N. 8.) 452.

7. Riedel v. West Jersey, etc., R.
Co., 177 Fed. 374, 101 C. GC. A. 428,
28 L. R, A. (N. 8S.) 98, 21 Ann. Cas.
746; affirming 170 Fed. 816; Walsh
v. Pittsburg Ry. Co., 221 Pa. St. 463,
70 Atl. 826, 32 L. R. A. (N. S.) 559.

8. Walsh v. Pittsburg Ry. Co., 221
Pa, St. 463, 70 Atl. 826, 32 L. R. A.
(N. S.) 559.
688 Law or Execrriciry.
or to stop the escaping of the electricity, it may be liable
for an ensuing injury.®

Sec. 463. Licensees.

Where a person is permitted to go upon the premises of
a third party with the consent or acquiescence of the owner,
and the place is one where the presence of persons may
reasonably be anticipated, an electric company having its
appliances in such a place is bound to use due care to pro-
tect such persons from injury. The law may term such
persons ‘‘ licensees,’’ ‘‘ implied licensees,’’ ‘‘ invitees,’’ or
‘‘not trespassers,’’ but, by whatever legal terminology
they may be described, they are entitled to protection.”
The situation as to persons using the poles or going upon
other property of the company is somewhat different.
Where there is an understanding between two or more com-
panies having their appliances in a public highway or other
place that the employees of one may use the poles of
another in the pursuit of their occupation, each company
is bound to use due care to prevent injury to the employees
of the other company. They are not to be classed as mere
licensees as to whom there is no duty of protection." On
the other hand, where a company has given no authority

9. Romana v. Boston Elev. Ry. Co.,
(Mass.) 105 N. E. 598, wherein it
was said: “The force which the de-
fendant knew was liberating itself in
and around the pole was one which
the defendant had brought thither for
its own use. It was harmless while
confined to the system of wires which
the defendant had provided for it.
It was no less dangerous than a wild
and ferocious animal would have
been, if allowed to escape from those
wires into the pole. The defendant
had notice that the electricity was
escaping, and yet neither withdrew
the license which it had given for the
use of the path, nor made any effort
to guard against the danger which
it was creating. Under such circum-

stances the jury could say that its
negligence was wanton or reckless.
Its conduct in doing nothing to with-
draw the license which it had given,
or to check the escape of electricity
which constantly was creating a new
danger and one more than ordinarily
serious, or to give any warning to
those who were using the path by its
license, could be found to be inten-
tional conduct through its authorized
representative, such as had a natural
tendency to injure others, which was
known or ought to have been known
to the defendant, accompanied by a
wanton and reckless disregard of its
probable consequences.”

10. § 462.

11. Newark Elec. L. & P. Co. v.
TRESPASSERS AND LICENSEES. 689
to the employees of another company to go upon its poles
and they do so without its knowledge, they are in the posi-
tion of trespassers and cannot recover for injuries not wil-
fully or wantonly inflicted by the company.” Thus, where
a contracting company was erecting a smokestack on prem-
ises adjoining an electric line and it fastened a guy wire to
a pole of the electric company, and thereafter an employee
of the contracting company, who was directed to loosen
the wire from the pole, went upon the pole, fell, and came
in contact with an uninsulated wire of the electric company,
it was held that the electric company was not liable."
Extent of License.— If a license is given to do a certain
act in a certain place, the license gives, as a general propo-
sition, no authority to do the same act in another place, or
to do a different act in the same place.** Thus, where an

Garden, 78 Fed. 74, 6 Am. Electl.
Cas. 275, 39 U. S. App. 416, 23 C. C.
A. 649, 37 L. R. A. 725; Beaming v.
South Bend Elec. Co., 45 Ind. App.
261, 90 N. E. 786; Aaron v. Missouri
& K. Telep. Co., 89 Kan, 186, 131
Pac. 582; Downs v. Missouri & Kan-
sas Telep. Co., 161 Mo. App. 274, 143
S. W. 889; Downs v. Andrews, 145
Mo. App. 173, 130 S. W. 472; Moers-
dorf v. N. Y. Telep. Co., (N. J. L.)
87 Atl. 473; Gentzkow v. Portland
Ry. Co., 54 Oreg. 114, 6 St. Ry. Rep.
642, 102 Pac. 614; Standard Light &
P. Co. v. Muncey, 33 Tex. Civ. App.
416, 8 Am. Electl. Cas. 714, 76 S. W.
931. Compare, San Antonio Edison
Co. v. Dixon, 17 Tex. Civ. App. 320,
42 S. W. 1009

On master’s pole A lineman on
the pole of his employer who is in-
jured by a contact between the wires
of his employer and another com-
pany, is not a trespasser as against
the latter company. Musolf v. Du-
luth Edison Elec. Co., 108 Minn. 369,
122 N. W. 499, 24 L. R. A. (N. S.)
451. See also, Trammell v. Columbus
R. Co., 9 Ga. App. 98, 70 S. E. 892.

44

12, Augusta Ry. Co. v. Andrews, 89
Ga. 653, 4 Am. Electl. Cas. 378, 16
8. E. 203; Louisville Home Telep. Co.
v. Beeler’s Adm’r, 125 Ky. 366, 101
S. W. 397; Heskell v. Auburn L., H.
& P. Co., 209 N. Y. 86, 102 N, E. 540;
Denison L. & P. Co. v. Patton, (Tex.)
154 S. W. 540,

13. Rodgers Adm’r v. Union Light,
Heat & Power Oo., (Ky.) 123 S. W.
293.

14: Sufficiency of cross-arms.— In
New York & New Jersey Telep. Co. v.
Speicher, 59 N. J. L. 23, 39 Atl. 661;
affirmed without opinion, 60 N. J. L.
242, 41 Atl. 1116, it appeared that
a telephone company used the lower
two cross-bars attached to a telegraph
pole to carry its wires. The city of
Jersey City used the topmost cross-
bar on the same pole to carry the
wires of a fire alarm. A city line-
man, descending the pole, supported
himself by one of the lower cross-
bars, which gave way and caused
him to fall to the ground. It was
held that, assuming that the tele-
phone company invited the agents of
the city to use the pole for the pur-
690 Law or ELsectricity.

electric company permitted a telephone company to main-
tain its wires upon a standard erected by the electric com-
pany upon the roof of one building, it was held that such
license did not authorize the employees of the telephone
company to go upon the roof of an adjoining building and
come in contact with the electric wires there maintained.”
So, too, it has been held that a license to go upon a pole
for the repair of telephone wires thereon does not authorize
a telephone lineman to interfere with an electric wire upon
the same pole.*®

Sec. 464. Premises of Electric Company.

A person going upon the premises of an electric company
of which it has the sole possession and occupancy, such as
the location of its power plant, without the invitation or
license of the electric company, is generally considered a
trespasser, as to whom the company is under no obligation
except to refrain from wilful or intentional injury.” Thus,
where a person went into the power-house of an electric
company to purchase junk and was injured by coming in
contact with some electrical machinery, it was held that the
electric company was not liable.* So, too, where a boy
went upon the roof of a railroad shed to recover a ball and
was killed by coming in contact with naked wires attached
to the shed and used in the ordinary lawful business of the

pose of putting up or repairing the Elect]. Cas. 568, 89 N. W. 73, 8 Det.

city wires, it owed no duty to them
to maintain the cross-bars of suffi-
cient strength to support them in
ascending and descending the pole.

15. Hector v. Boston Elec. L. Co.,
161 Mass. 558, 5 Am. Electl. Cas. 301,
37 N. E. 773, 25 L. R. A. 554; same
case, 174 Mass. 212, 7 Am. Electl.
Cas. 568, 54 N. H. 539.

16. Mangan v. Hudson River Telep.
Co., 50 Mise. (N. Y.) 388, 9 Am.
Electl. Cas. 804, 100 N. Y. Supp.
539.

17. McCaughna v. Owosso & Co-
runna Elec. Co., 129 Mich. 407, 8 Am.

Leg. N. 1000, 95 Am. St. Rep. 441.

18. Edmundson v. Monongahela
Light & Power Co., 223 Pa. St. 93,
72 Atl. 268, wherein it appeared that
the plaintiff, with the idea of pur-
chasing junk, entered defendant’s
transformer room which, on account
of the making of repairs, was ex-
posed to the street, and told the
superintendent he would like to
speak to him and was told to wait
a@ minute. While the plaintiff was
waiting, he backed against some ma-
chinery and was injured. It was
held that a nonsuit was proper.
TRESPASSERS AND LICENSEES. 691
railroad, it was held that there could be no recovery for
his death.*® Likewise, where an electric company main-
tained a dangerous wire on the inside of its building within
a few inches of a window and a child placing its hand
through the window was injured, it was held that the com-
pany was not liable.*” Buta contractor painting the power-
house and workmen under the supervision of such a con-
tractor, are not to be considered trespassers. They are
lawfully upon the premises, and, if they are injured by the
negligence of the electric company, they are entitled to
recover.”

Sec. 465. Firemen.

In the absence of a statute or a municipal ordinance
changing the legal position of firemen, when they enter a
burning building without special authority or invitation
from the owner, they are mere licensees who must take the
premises as they find them.” Thus, if a fireman goes into
a burning building and comes in contact with a defectively
insulated electric wire, the electric company is, as a general
proposition, not liable for the injury.” Likewise, if a fire-
man, while working in the yard or street around a burning
structure, receives a shock of electricity, negligently per-
mitted by the electric company to escape from its appli-

ances, the company is not liable.

19. Sullivan v. Boston & A. R. Co.,
156 Mass. 378, 31 N. E. 128.

20. Rumovicz v. Scranton Elec.
Co., 44 Pa. Super. Ct. 582. But see,
Hayes v. Southern Power Co., (S. Car.)
78 S. E. 956.

21, Dunn v. Cavanaugh, 185 Fed.
451, 107 C. C. A. 521.

22. New Omaha Thomson-Houston
Elec. L. Co. v. Anderson, 73 Neb.
84, 9 Am. Elect]. Cas. 306, 102 N. W.
89. “In the absence of ordinance or
statute changing the common-law
rule in this regard, a fireman enter-
ing a building under imperative pub-
lie necessity is but a licensee, who

But in one case, where

assumes the risks as he finds them,
and to whom the owner of the prem-
ises owes no special duty to maintain
those premises in a safe condition.”
Pennebaker v. San Joaquin L. & P.
Co., 158 Cal. 579, 112 Pac. 459, 31
L. R. A. (N. 8.) 1099.

23. Minneapolis General Elec. Co.
v. Cronon, 166 Fed. 651, 92 C. C. A.
345, 20 L. R. A. (N. S.) 816.

24, Pennebaker v. San Joaquin L.
& P. Co., 158 Cal. 579, 112 Pac. 459,
31 L. R. A. (N. 8S.) 1099; New Omaha
Thomson-Houston Elec. L. Co. v. An-
derson, 73 Neb. 84, 9 Am. Electl. Cas.
306, 102 N. W. 89; followed, Trouton
692 fiaw or HELEctTRICcITY.

it appeared that an electric light wire had been attached
to an iron bar projecting from an iron storefront over an
iron awning, and, after detachment from its lamp, had been
allowed to hang for several months, during which time
sparks had been seen to issue from the wire, and the awning
was burned by electricity, and the occupant of an adjoining
fruit store, in attempting to put out the fire, came in contact
with the iron storefront and was killed, it was held that the
liability of the electric company was a question for the
jury.”

Sec. 466. Peace Officers.

Policemen and other peace officers who go upon the prem-
ises of another for the purpose of detecting crime are prac-
tically in the same legal position as firemen. They are
mere licensees, as to whom the owner of the premises is
under no obligation except to refrain from wilful or inten-
tional injury. Thus, where a policeman, without the knowl-
edge of the owner of a building, climbed upon the roof at
night to look for gambling in an adjoining building and
came in contact with a defectively insulated wire of the city,
it was held that he could not recover from the city for his
injuries, though the mayor of the city assented to his plan
of operation.”

Sec. 467. Children.

If a child receives an injury while trespassing, he is not
entitled to relief any more than is an adult,” except pos-

v. New Omaha Thomson-Houston Elec. FP. Co., 28 Tex. Civ. App. 374, 8 Am.
L. Co., 77 Neb. 821, 9 Am. Elect]. Elect]. Cas. 450, 67 S. W. 530; Kiser
Cas. 927, 110 N. W. 569. v. Colonial Coal & Coke Oo., (Va.)

25. Caglione v. Mt. Morris Elec. L. 79 S. E. 348. See also, Stark v.
Co., 56 N. Y. App. Div. 191, 7 Am. Muskegon Trac. & L. Co., 141 Mich.
Elect]. Cas. 622, 67 N. Y. Supp. 660. 575, 9 Am. Electl. Cas. 548,1L. R. A.

26. City of Greenville v. Pitts, 102 (N. S.) 822, 104 N. W. 1100, 12 Det.
Tex. 1, 107 S. W. 50, 14 L. R. A. Leg. N. 550. “Children, no less than
(N. S.) 979. adults, when they trespass upon the

27. Thompson v. Cumberland Telep. property of another, take the risk
& Teleg. Co., 138 Ky. 109, 127 S. W. unless the circumstances bring the
531; Simonton v. Citizens’ Elec. L. & case within the principle of what is
TRESPASSERS AND LICENSEES. 693
sibly where the injury is occasioned by what is known as
an ‘‘ attractive nuisance.’’** The company, however, is
required to anticipate that children will go where adults
will not go, and hence it may be required to insulate its
wires for the protection of children near trees,” bridges,”
and other places where children are, to the knowledge of
the company, accustomed to play, though the premises be-
long to third parties and the children might be considered
trespassers as against such owners.”

Sec. 468. Doctrine of Attractive Nuisances; in General.
'That a trespasser receiving injuries is of immature age,
is, as a general proposition, of no importance in an action
for the injuries. The general rule is, that minor as well
as adult trespassers are precluded from recovering, where
their injuries are not wilfully or wantonly inflicted. To the
general doctrine there is one exception in favor of children.
Where a person maintains on his premises a device or
structure capable of causing serious injury to one who
comes in proximity to it, and the maintainer of such device
or structure knows, or should know, that it is dangerous

known as the Turntable Cases, where
a dangerous instrumentality is main-
tained, with knowledge, actual or
constructive, that it is alluring to
children and endangers them.” May-
field Water & L. Co., 33 Ky. Law
Rep. 909, 9 Am. Elect]. Cas. 1122, 11
S. W. 712. “It has never laid down
one rule with respect to children and
another respecting adults, but has
many times said that the former,
like the latter, when trespassers ‘in
every sense of the word,’ are to be re-
garded as wrongdoers, to whom the
owner ot the premises is under no
obligation.” Newark Elec. L. & P.
Co. v. Garden, 78 Fed. 74, 6 Am.
Elect]. Cas. 275, 39 U. S. App. 416,
23 C. C. A. 649, 37 L. R. A. 725.
28. §§ 468-471.
29. § 512.

30. § 516.

31. Sheffield Co v. Morton, 161
Ala. 153, 49 So. 772; Commonwealth
Elec. Co. v. Melville, 210 Ill. 70, 9 Am.
Electl. Cas. 95, 70 N. E. 1052; Day
v. Consol. L., P. & Ice Co., 186 Mo.
App. 274, 117 S. W. 81; Thompson
v. Tilton Elec. L. & P. Co., (N. H.)
88 Atl. 216; Meyer v. Menominee L.
& Tract. Co., 151 Wis. 279, 138 N. W.
1008.

A grass plat between a side walk
and curb is a part of the street, and
a child thereon is not a trespasser as
against the city which has permitted
a dangerous wire to fall to ground
in such a place. Johnson v. Bay
City, 164 Mich. 251, 129 N. W. 29,
17 Det. Leg. N. 1074, Ann. Cas.
(1912 B) 866.
694 Law or Evecrricity.

and attractive to children, and he fails to guard it from the
trespasses of children, he may be held liable for the injury.”
This is what is known as the doctrine of ‘‘ attractive
nuisances,’’ or the ‘‘ turntable ’’ doctrine. It is not essen-
tial for liability that the defendant own the attractive
nuisance; it is sufficient if he maintains it.** But, for lia-
bility on this theory, it is necessary that the child injured
show that the defendant maintained the instrumentality
causing the injury, and that he knew or, in the exercise of
reasonable care, should have known that it was attractive
and dangerous to children.** Where a child passed through
-a fence and upon the right of way of an electric railway,
where it went to pick flowers, and was injured by contact
with a third rail, it was held that the child was a trespasser
and that the doctrine of ‘‘ attractive nuisances ’’ did not

apply.*

Sec. 469. Doctrine of Attractive Nuisances; Poles.

Though children may play around the poles of an electric
company, there is nothing alluring in the poles themselves,

32. Consol. Elec. L. & P. Co. v.
Healy, 65 Kan. 798, 8 Am. Electl.
Cas. 548, 70 Pac. 884; Ferrell v. Dixie
Cotton Mills, 157 N. Car. 528, 73
S. E. 142, 37 L. R. A. (N. 8S.) 64;
Harris v. Eastern Wis. Ry. & L. Co.,
152 Wis. 627, 140 N. W. 288. “ The
little boy was a trespasser upon the
defendant’s wire, and, being a tres-
passer, he cannot complain that the
premises were unsafe. Children, no
less than adults, take the risk unless
the circumstances bring the case
within what is known as the Turn-
table Cases, where a dangerous in-
strumentality is maintained, with
knowledge, actual or constructive,
that it is alluring to children and
endangers them.” Mayfield Water &
L. Co. v. Webb’s Adm’r, 33 Ky. Law
Rep. 909, 9 Am. Electl. Cas. 1122,
11 8. W. 712.

33. Harris v. Eastern Wis. Ry. &
L. Co., 152 Wis. 627, 140 N. W. 288.

34. Thompson v. Cumberland Telep.
& Teleg. Co., 188 Ky. 109, 127 S. W.
531. “The real question in this case
is whether or not the pole, with the
guy wire attached and prongs ex-
posed, constituted an attractive or
dangerous trap for little children.
The tendency of the more recent
cases is to restrict, rather than to
enlarge, the principle laid down in
what are called the ‘turntable
cases,’ and to hold that the defend-
ant is not liable unless he knows, or
ought in the exercise of reasonable
care to know, that his structure was
and is alluring to children and en-
dangers them.” Thompson v. Cum-
berland Telep. & Teleg. Co., 138 Ky.
109, 127 S. W. 531.

85. Reidel v. West Jersey & S. R.
Co., 177 Fed. 374, 101 ©. C. A. 428,
28 L. R. A. (N. S.) 98, 21 Ann. Cas.
746,
TRESPASSERS AND LICENSEES. 695

and the ‘‘ turntable ’’ doctrine does not apply to the main-
tenance thereof. There may, however, be connected with
a pole some device which is attractive to children and which
will give an opportunity for the application of the doctrine
now under consideration. The spikes or steps which are
frequently fastened to poles in order to allow easy ascent
for employees, though it is a recognized fact that children
frequently play upon them, do not render the pole an
attractive nuisance.**

Sec. 470. Doctrine of Attractive Nuisances; Wires.

Electric wires maintained in a place that requires a tres-
pass in order to come in contact with them, are generally
not an attractive nuisance.** A different situation, how-
ever, is presented where an electric company maintains
dangerous wires in a place which, irrespective of the pres-
ence of the wires, is attractive to children. The question
is one which should be solved by determining whether the
place is one to which it is reasonably anticipated that chil-
dren will go; wherever upon the premises of another it may
be reasonably anticipated that children will congregate, as
a general rule, an electric company must use due care to
avoid injury from its dangerous current.** In some cases,
however, the courts have preferred to approach the prob-
lem from another point of view. To illustrate with a con-
crete case, uninsulated wires are maintained close to a
bridge, but yet far enough away so that a person traveling
along the same in the ordinary course of travel would not
possibly come in contact with them, but a child, in playing
around the bridge, climbing railings, or getting in some
other place where travelers are not expected to go, is in-
jured by contact with the wire. It is obvious that the court

36. Simonton v. Citizens’ Elec.L.& Rep. 909, 9 Am. Electl. Cas. 1122,
P. Co., 28 Tex. Civ. App. 374, 8 Am. 111 S. W. 712; Johnston v. New
Elect]. Cas. 450, 67 S. W. 530. Omaha, etc., Elec. Light Co., 78 Neb.

37. Commonwealth Elec. Co. v. Mel- 24, 110 N. W. 711,17 L. R. A. (N. 8.)
ville, 210 Ill. 70, 9 Am. Electl. Cas. 435, affirmed on rehearing, 78 Neb.
95, 70 N. E. 1052; Mayfield Water & 27, 113 N. W. 526.

L. Co. v. Webb’s Adm’r, 33 Ky. Law 38. See §§ 510 et seq.
696 Law or ELectriciry.

could decide the liability of the company by passing upon
the question whether the place where the dangerous wires
were maintained was one where it was reasonably antici-
pated that children would play; if the company should
anticipate the presence of children there, it must exercise
due care to keep its wire insulated; if the presence of chil-
dren was not reasonably to be anticipated, it was not neces-
sarily bound to insulate the wire.*® But, in some cases, the
courts have preferred to determine the liability on the issue
whether the electric company was, together with the owner
of the bridge, maintaining an attractive nuisance. The
liability of a company maintaining a dangerous wire in
proximity to a place which is alluring to children has been
sustained as a question for the jury.*® On the other hand,
liability has been denied where a boy was injured by coming
in contact with a live wire while he was climbing on the
pier of a public bridge.*

Sec. 471. Doctrine of Attractive Nuisances; Guy Wires.
A guy wire for the support of a pole, if such guy is
maintained in its accustomed place, is not an ‘‘ attractive
nuisance.’? Thus, if a child climbs up a guy wire which
is maintained from a pole to the ground at an angle of
about forty-five degrees and is injured by contact with a
defectively insulated electric wire, the owner of the wire
is not liable upon the theory that he has maintained an
attractive nuisance.*? Likewise, where it appeared that a
child attempting to climb a pole slipped and caught his
finger on a prong on.a guy wire, it was held that the com-
pany was not liable.** On the other hand, it is recognized
that a guy wire, which the company has permitted to

839. § 516.

40. Consol. Elec. L. & P. Co. v.
Healy, 65 Kan. 798, 8 Am. Elect}.
Cas. 548, 70 Pac. 884. See also,
Hayes v. Southern Power Co., (S.
Car.) 78 S. EB. 956.

41. Graves v. Washington Power
Co., 44 Wash. 675, 9 Am. Electl. Cas.

912, 87 Pac. 956, 11 L. R. A. (N. S.)
452.

42. Mayfield Water & L. Co. v.
Webb’s Adm’r, 33 Ky. Law Rep. 909,
9 Am. Elect]. Cas. 1122, 111 S. W. 712.

43. Thompson v. Cumberland Telep.
& Teleg. Co., 138 Ky. 109, 127 S. W.
531.
TRESPASSERS AND LICENSEES.

697

become unloosened and hang down in the street from a pole,

will be an object of play with children.

If, therefore, a

child in playing with such guy wire moves it so that it
comes in contact with an electric wire and an injury is
thereby caused, the liability of the company is generally a

question for the jury.

44. Pierce v. United Gas & Elec.
Co., 161 Cal. 176, 118 Pac. 700;
Ferrell v. Dixie Cotton Mills, 157
N. Car. 528, 73 S. E. 142, 37
L. R. A. (N. 8.) 64. “Bearing in
mind that this pole was located on
a public highway, and at a place
where children of the neighborhood
might reasonably be expected to play,
and recognizing the well known at-
tractiveness to children of anything
in the nature of a swing, we are
of the opinion that there was enough
in the evidence to support a con-
clusion on the part of the jury that
the guy wire, hanging as it did, would
reasonably be calculated to attract
children and lead them to play with

it, and that in such play it might
reasonably be expected to be brought
in contact with the high-power elec-
tric wires. There was also enough in
the evidence to support the conclu-
sion that the defendant by the exer-
cise of reasonable care would have
known of the condition of the guy
wire. Under such circumstances,
there would be enough to support a
conclusion of negligence on the part
of the defendant in so maintaining
the guy wire, for the defendant, as
a reasonable person, would be
charged, under such circumstances
with notice of all these things.”
Pierce v. United Gas & Elec. Co., 161
Cal. 176, 118 Pae. 700.
698 Law or ELEcTRICITY.

CHAPTER XXVI.

APPLIANCES; IN GENERAL.

Section 472. In General.
473. Inspection; in General.

 

474. —— Municipality.
475. —— Sufficiency of Inspection.
476. After Storm.

477. Notice of Defects.
478. Repairs; in General.

 

479. —— Constructive Knowledge of Defects.

480. ——- After Creation of Conditions for which Company Is not
Responsible.

481. Negligence in Making Repairs.

482, —— Municipality.

483. ‘Duty upon Discontinuance of Service.
484. Duty to Shut off or Turn on Current; in General.
485. ——Injury to Employees of Other Companies.

 

 

 

 

486. In Case of Fire.
487. Poles; Location.

488. Soundness.

489. —— Abandoned Poles.
490. Cross-arms.

491. Electric Shock.

492. Transformers.
493. Street Lights.
494. Interior Wiring.

Sec. 472. In General.

With reference to its appliances, an electric company is
bound to use such degree of care as is commensurate with
the dangers to be apprehended from the use of the appli-
ances and the dangerous electric current.’ If a dangerous
electric current is conveyed along a public street, it is bound
to use a high degree of care to the end that the current will
not escape from the appliances intended to carry it. An
electric company is required to exercise a high degree of
care, not only in the original construction of its appliances
and apparatus, but also in the subsequent inspection? and
repair® of defects therein.

1. § 404. 3. §§ 478-482.
2. §§ 473-476.
699

APPLIANCES; IN GENERAL.

Sec. 473. Inspection; in General.

The duty of an electric company in reference to keeping
its appliances in safe condition is a continuing one. Not
only must it exercise a high degree of care in the original
selection and installation of its electric apparatus, but
thereafter it must use commensurate care to keep the same
in a proper state of repair. The obligation of repairing
defects does not mean merely that the company is required
to remedy such defective conditions as are brought to its
actual knowledge. The company is required to use active
diligence to discover defects in its system. In other words,
an electric company is bound to exercise due care in the
inspection of its poles, wires, transformers, and other

appliances.*

4. Alabama.— Alabama City, etc.,
Ry. Co. v. Appleton, 171 Ala. 324, 54
So. 638, (1913A) Ann. Cas. 1181.

California.— Foley v. Northern Cal.
Power Co., 14 Cal. App. 401, 112
Pac. 467; Tackett v. Henderson
Bros. Co., 12 Cal. App. 658, 108 Pac.
151.

Colorado.— Denver Consol. Elec. Co,
v. Lawrence, 31 Colo. 301, 8 Am.
Elect]. Cas. 617, 73 Pac. 39.

Connecticut.— Bergin v. Southern
New England Telep. Co., 70 Conn.
54, 38 Atl. 888, 39 L. R. A. 192.

Georgia— Trammell yv. Columbus
R. Co., 9 Ga. App. 98, 70 S. E. 892.

Iowa.— Barto v. Iowa Telep. Co.,

-126 Iowa 241, 9 Am. Electl. Cas. 255,
101 N. W. 876, 106 Am. St. Rep. 347.

Massachusetts.— Lutolf v. United
Electric L. Co., 184 Mass. 53, 8 Am.
Electl. Cas. 506, 67 N. E. 1025.

Michigan. Warren v. City Elec.
Ry. Co., 141 Mich. 298, 9 Am. Electl.
Cas. 527, 4 St. Ry. Rep. 487, 104
N. W. 613, 12 Det. Leg. N. 415.

Minnesota.— Musolf v. Duluth Edi-
son Elec. Co., 108 Minn. 369, 122
N. W. 499, 24 L. R. A. (N. 8.) 451.

Missouri.—Wilhite v. City of Hunts-
ville, 167 Mo. App. 155, 151 S. W.

232; Freeman v. Missouri & K. Telep.
Co., 160 Mo. App. 271, 142 S. W.
733; Hoover v. Kansas City Elev. Ry.
Co., 159 Mo. App. 416, 140 S. W. 321;
Brubaker v. Kansas City Electric
Light Co., 130 Mo. App. 439, 110
S. W. 12; Luehrmann v. Laclede Gas-
light Co., 127 Mo. App. 213, 9 Am.
Electl. Cas. 1092, 104 S. W. 1128.
“The duty imposed on it [an electric
company] by law of exercising the
highest degree of care required that
reasonable diligence be employed in
the inspection of the line from time
to time to discover defects in the
appliances used to prevent the es-
cape of current and to replace or
repair such defective appliances at
places where a diversion of the cur-
rent might cause it to inflict injuries
to persons on the street.” Hoover v.
Kansas City Elev. Ry. Co., 159 Mo.
App. 416, 140 S. W. 321.

Montana.— Bourke v. Butte Elec. &
P. Co., 33 Mont. 267, 9 Am. Electl.
Cas. 566, 83 Pac. 470.

New York.— Huscher v. New York
& Queens Elec. L. & P. Co., 158 App.
Div. 422, 143 N. Y. Supp. 639; Wag-
ner v. Brooklyn Heights R. Co., 69
App. Div. 349, 74 N. Y. Supp. 809;
700 Law oF ELEctTRICITY.
Sec. 474. Inspection; Municipality.

A municipality, in whose streets electric appliances are
maintained, though it may be liable for defects in the appli-
ances which make the highway dangerous,’ is, nevertheless,
not bound to inspect the appliances of such company.’ Its
liability, if any, commences only when it has either actual
or constructive notice of defects in the highway. A differ-
ent situation is, of course, presented as to electric appli-
ances maintained by the municipality. If a city or village
embarks upon the municipal ownership of an electric plant,
it is, as a general proposition, bound to use the same dili-
gence in the care of its appliances as a private corporation

is bound to exercise.’

Sec. 475. Inspection; Sufficiency of Inspection.
The frequency and thoroughness of inspection depends

to a large extent upon the circumstances.

The company

should consider the voltage on its wires, their proximity to

affirmed without opinion, 174 N. Y.
520, 66 N. E. 1117; Dwyer v. Buffalo
Gen. Elec. Co., 20 App. Div. 124, 7
Am. Elect]. Cas. 456, 46 N. Y. Supp.
874.

Oregon.— Gentzkow v. Portland Ry.
Co., 54 Oreg. 114, 6 St. Ry. Rep. 642,
102 Pac. 614.

Pennsylvania Dugan v. Erie
County Elec. Co., 241 Pa. 259, 88 Atl.
437; Berstein v. Philadelphia Elec.
Co., 235 Pa, St. 53, 83 Atl. 612.

Texas.— Citizens’ Telep. Co. v.
Thomas, 45 Tex. Civ. App. 20, 9 Am.
Electl. Cas. 950, 99 S. W. 879; Jack-
sonville Ice & Elec. Co. v. Moses,
(Civ. App.) 134 8. W. 379, wherein
it was said: “Among the primary
duties of a corporation operating an
electric light plant and using wires
for the distribution of a dangerous
current of electricity is that of exer-
cising a proper degree of care, not
only in the erection of its lines and
instrumentalities, but in maintaining

them thereafter in a reasonably safe
condition. The performance of the
latter obligation carries with it an-
other equally absolute — that of mak-
ing such an inspection of the con-
dition of its property as may be
practicable and reasonably essential
to the accomplishment of that end.
By this means alone can the corpora-
tion vouchsafe to the public that de-
gree of protection which the law re-
quires it to render.”

West Virginia— Bice v. Wheeling
Electrical Co., 62 W. Va. 685, 59
S. E. 626.

Wisconsin.— Herlitzke v. La Crosse
Inter-Urban Telep. Co., 145 Wis. 185,
130 N. W. 59.

5. § 427,

6. City of Denver v. Sherrett, 88
Fed. 226, 5 Am. Neg. Rep. 529, 60
U. 8. App. 104, 31 C. C. A, 499.

7. City of Owensboro v. Knox’s
Adm’r, 116 Ky. 451, 25 Ky. Law Rep.
680, 76 S. W. 194.
APPLIANCES; IN GENERAL. 701
other wires and objects, the security of their fastenings,
the age and original condition of the appliances, and the
probability of danger from defects.* If the only inspec-
tion made by an electric lighting company is to see if the
lights are burning properly, and no examination is made
to determine the sufficiency of the insulation or to detect
leaks of the current, it cannot be said that the company
has performed its duty. Not only must the inspection be
made to avoid the escape of its own current, but a company
having wires in proximity to other wires must make
reasonable inspections to protect its line from the invasion
of other currents.” An electric company, according to
the view generally adopted is not obliged to inspect interior
wiring installed by another person, where it has not agreed
to keep the same in repair.** Where a telephone wire had
sagged in a rural highway for three or four days, but the
transmission of messages over the wire had not been inter-
fered with and the company had acquired no knowledge
of the defective conditions, it was held that the company
had not failed in its duty of inspection and repair.”? But
the correctness of this decision has been questioned in
another jurisdiction, and the view taken under somewhat
similar circumstances, that the negligence of the telephone
company is a question for the jury.* Whether an electric
company has performed its duty in reference to the inspec-

8. “The frequency and care re-
quired in inspections depend much
upon the character of the apparatus,
or machinery, or other agent from
which danger is to be feared, and as
its destructiveness and danger is in-
creased the duty of care increases.
In other words, the degree of hazard
attending the use of a dangerous ar-
ticle has a direct relation to the care
which is requisite in its use.” War-
ren v. City Elec. Ry. Co., 141 Mich.
298, 4 St. Ry. Rep. 487, 9 Am. Electl.
Cas. 527, 104 N. W. 613, 12 Det. Leg.
N. 415. “Diligence in making in-
spections is usually to be measured
by the opportunity coupled with the

probable demands for a necessity of
making them.” Jacksonville Ice &
Elec. Co. v. Moses, (Tex. Civ. App.)
134 S. W. 379.

9. Lutolf v. United Electric L. Co.,
184 Mass. 53, 8 Am. Elect]. Cas. 506,
67 N. E. 1025.

10. Freeman v. Missouri & K.
Telep. Co., 160 Mo. App. 271, 142
8. W. 733.

11. See § 417.

12. Fitch v. Central N. Y. Teleg. &
Telep. Co., 42 N. ¥. App. Div. 321,
7 Am. Electl. Cas. 565, 59 N. Y.
Supp. 140. ;

13. Crawford v. Standard Telep.
Co., 139 Iowa 331, 115 N. W. 878.
702 Law oF ELecrricity.

tion of its appliances, is ordinarily a question for the
jury,* though the absence of material dispute as to the
facts and the inferences to be drawn therefrom may make
the question one of law for the court.

Sec. 476. Inspection; After Storm.

While an electric company is not liable for injuries caused
solely by an act of God,” such as a storm of unusual vio-
lence, if its wires are disarranged by a storm, it is its duty
to make immediate repairs. After a storm of any consider-
able vigor, though it is not of extraordinary violence, the
company is bound to anticipate that its system may be out
of order, and it should make an inspection thereof as soon
as practicable.** Thus, where an electric company knew
of the occurrence of a severe electrical storm, and of the
likelihood of damage to its poles and wires, and it made no
inspection the same night of the storm, it was held that
the company was negligent and liable for the death of a
person coming in contact with a charged wire in the street
on the following morning.” So, too, where an electric com-
pany failed to make any inspection of its appliances for
nearly 36 hours after the fall of a heavy snow, it was held
responsible for an injury caused by wires in the streets."

Sec. 477. Notice of Defects.
If a defective electric appliance is installed, or a sound
appliance is defectively installed, or thereafter becomes

14, Alabama City, ete, Ry. Co. v.
Appleton, 171 Ala. 324, 54 So. 638,
(1913 A) Amn. Cas. 1181; Warren v.
City Elec. Ry. Co., 141 Mich. 298,
9 Am. Electl. Cas. 527, 4 St. Ry. Rep.
487, 104 N. W. 613, 12 Det. Leg. N.
415; Musolf v. Duluth Edison Elec.
Co., 108 Minn. 369, 122 N. W. 499,
24 L. R. A. (N. S.) 451; Dugan v.
Erie County Elec. Co., 241 Pa. 259,
88 Atl. 437.

15, § 453.

16. Foley v. Northern Cal. Power
Co., 14 Cal. App. 401, 112 Pac. 467;
Warren v. City Elec. Ry. Co., 141

Mich. 298, 4 St. Ry. Rep. 487, 9 Am.
Elect]. Cas, 527, 104 N. W. 613, 12
Det. Leg. N. 415; Wilhite v. City of
Huntsville, 167 Mo. App. 155, 151
8. W. 232; Brown v. Consolidated
Light, Power & Ice Co., (Mo. App.)
109 S. W. 1032; Jacksonville Ice &
Elec. Co. v. Moses, (Tex. Civ. App.)
134 8. W. 379,

17. Brown v. Consolidated Light,
Power & Ice Co., (Mo. App.) 109
S. W. 1032.

18. Foley v. Northern Cal. Power
Co., 14 Cal. App. 401, 112 Pac. 467.
APPLIANCES; IN GENERAL. 703
defective through want of proper inspection or repair, the
company is liable for its neglect of duty irrespective of its
actual knowledge of the dangerous conditions. An electric
company cannot fail in its duty of construction, inspection,
or repair; and then, when an injury has been sustained by
reason of its failure, say as a matter of defense that it had
no knowledge of the defect.*® To sustain such a defense
would be to place a premium upon careless construction
and maintenance. Where a defective situation is created
by the negligence of an electric company, it is not entitled
to a reasonable time in which to remedy the situation, but
liability attaches at once.”? It is otherwise where the dan-
gerous situation is not the result of any neglect traceable
to the owner of the appliance; in such a case it is not liable
until after a reasonable opportunity to remedy the defect.”

Sec. 478. Repairs; in General.

An electric company is bound to use due care, commen-
surate with the danger,” in the repairing of such defects

19. United States—Western Union
Teleg. Co. v. Engler, 21 C. C. A. 246,
44 U. S. App. 517, 75 Fed. 102.

Indiana.— Home Telep. Co. v. Weir,
(Ind. App.) 101 N. E, 1020.

Missouri— Trout v. Laclede Gas
Light Co., 151 Mo. App. 207, 132
S. W. 58; Politowitz v. Citizens’
Telep. Co., 115 Mo. App. 57, 90 S. W.
1031.

Montana.— Bourke v. Butte Elec.
& P. Co., 33 Mont. 267, 9 Am. Electl.
Cas. 566, 83 Pac. 470.

Oregon.—Chaperon v. Portland
Gen. Elec. Co., 41 Oreg. 39, 8 Am.
Elect]. Cas. 468, 67 Pac. 928.

South Carolina.— Parsons v.
Charleston Consol. Ry., G. & E. Co.,
69 S. Car. 305, 9 Am. Electl. Cas. 146,
48 §. E. 284, 104 Am. St. Rep. 800.

South Dakota.— Thompson v. Reed,
29 S. Dak. 85, 135 N. W. 679.

But see Smith v. East End Elec.

L. Co., 198 Pa. St. 19, 47 Atl. 1123;
Hand v. Central Pennsylvania Telep.
& Supply Co., 1 Lack. Leg. N. 351;
Pennsylvania Telep. Co. v. Varnau, 5
Lance. Law Review (Pa.) 401, 15 Atl.
624,

20. Hoover v. Kansas City Elev. Ry.
Co., 159 Mo. App. 416, 140 S. W.
321; Chaperon v. Portland Gen. Elec.
Co., 41 Oreg. 39, 8 Am. Electl. Cas.
468, 67 Pac. 928.

21. § 480.

Notice of an employee of an elec-
tric company is generally considered
notice to the company. Temple Elec.
L. Co. v. Halliburton, (Tex. Civ. App.)
136 S. W. 584. But notice to a day
laborer working on a municipal
lighting plant, is not notice to the
municipality operating the plant.
Monds v. Town of Dunn, 163 N. Car.
108, 79 S. E. 303.

22. § 404.
704

Law or Evectricity.

as may from time to time exist in its appliances.» Where
it may be anticipated that persons will come in contact with
an electric appliance and receive a dangerous shock of

23. United States.—Western Union
Teleg. Co. v. Engler, 75 Fed. 102, 21
C. OC. A. 246, 44 U. S. App. 517.

Alabama.— Postal Teleg. Cable Co.
v. Jones, 133 Ala. 217, 8 Am. Elect].
Cas. 409, 32 So. 500.

Arkansas. City Elec. St. Ry. v.
Conery, 61 Ark. 381, 6 Am. Elect}.
Cas. 217, 33 S. W. 426, 31 L. RB. A
570, 54 Am, St. Rep. 262.

California Dow v. Sunset Telep.
& Teleg. Co., 157 Cal. 182, 106 Pac.
587.

Delaware— Cook v. Willmington
City Elec. Co., 9 Houst. 306, 32 Atl.
643.

Georgia.—Atlanta Consol. St. R.
fo. v. Owings, 97 Ga. 663, 6 Am.
Electl. Cas. 271, 25 S. E. 377, 33 L.
R, A. 798; Western Union Teleg. Co.
v. Harris, 6 Ga. App. 260, 64 S. E.
1123.

Illinois.— Economy L. & P. Co. v.
Hiller, 203 Til. 518, 8 Am. Electl. Cas.
462, 68 N. E, 72; Godfrey v. The
Streeter R. Co., 56 Ill. App. 378.

Indiana.— Central Union Telep. Co.
v. Sokola, 34 Ind. App. 429, 9 Am.
Electl. Cas. 323, 73 N. E. 143.

Kansas.— City of Emporia v.
White, 74 Kan. 864, 9 Am. Electl. Cas.
830, 86 Pac. 295; City of Kansas
City v. File, 60 Kan. 157, 7 Am.
Electl. Cas. 539, 55 Pac. 877; Leaven-
worth Coal Co. v. Ratchford, 5 Kan.
App. 150, 7 Am. Electl. Cas. 433, 48
Pac. 927.

Kentucky.— Macon v. Paducah St.
Ry. Co.,.110 Ky. 680, 7 Am. Electl.
Cas. 630, 23 Ky. Law Rep. 46, 62
S. W. 496; West Kentucky Telep. Co.
v, Pharis, 25 Ky. Law Rep. 1838, 78
S. W. 917; Citizens’ Telep. Co. of
Kentucky v. Wakefield, (Ky.) 126
S. W. 127.

Louisiana.— Claussen v. Cumber-

land Telep. & Teleg. Co., 126 La. 1087,
53 So. 357; rbert v. Lake Charles
Ice, L. & Waterworks Co., 111 La.
522, 35 So. 731, 64 L. R. A. 101, 100
Am. St. Rep. 505.

Maryland.— State v. Crisfield Ice
Mfg. Co., 118 Md. 521, 85 Atl. 615;
Consolidated Gas, Electric L. & P. Co.
v. State, 109 Md. 186, 72 Atl. 651.

Massachusetts.— Lutolf v. United
Elec. L. Co., 184 Mass. 53, 8 Am.
Electl. Cas. 506, 67 N. E. 1025.

Minnesota.— Nichols v. City of
Minneapolis, 33 Minn. 430, 1 Am.
Elect]. Cas. 762, 23 N. W. 868.

Missouri.— Strack v. Missouri, etc.,
Telep. Co., 216 Mo. 601, 116 S. W.
526; Freeman v. Missouri & K. Telep.
Co., 160 Mo. App. 271, 142 S. W. 733;
Hoover v. Kansas City Elev. Ry. Co.,
159 Mo. App. 416, 140 S. W. 321;
Goodwin v. Columbia Telep. Co., 157
Mo. App. 596, 138 S. W. 940; Trout
v. Laclede Gas Light Co., 151 Mo.
App. 207, 132 S. W. 58; Brubaker
v. Kansas City Electric Light Co., 130
Mo. App. 439, 110 S. W. 12; Polit-
witz v. Citizens’ Telep. Co., 115 Mo.
App. 57, 90 S. W. 1031; Winkelman
v. Kansas City Elec. L. Co., 110
Mo. App. 184, 9 Am. Elect]. Cas. 335,
85 S. W. 99.

Nebraska.— Wilkins v. Water & L.
Co. of Nebraska City, 92 Neb. 513,
138 N. W. 754.

New Jersey—N. Y. & N. J. Tel.
Co. v. Bennett, 62 N. J. L. 742, 7 Am.
Electl. Cas. 548, 42 Atl. 759.

New York.— Dutcher v. Rockland
Electric Co., 123 App. Div. 765, 108
N. Y. Supp. 567, affirmed without
opinion, 195 N. Y. 540, 88 N. E.
1118; Caglione v. Mt. Morris Elec.
L. Co., 56 App. Div. 191,-7 Am. Elect.
Cas. 622, 67 N. Y. Supp. 660.

Oregon.— Gentzkow v. Portland Ry.
APPLIANCES; IN GENERAL.

705

electricity, the permitting of such appliance to remain in
a defective condition for such a period as, six months,™*
four months,”> two months,” three weeks,” two weeks,”
eighteen days,” twelve days,*? four days,** two days,*?

Co., 54 Oreg. 114, 6 St. Ry. Rep. 642,
102 Pac. 614; Carroll v. Grande
Ronde Elec. Co., 47 Oreg. 424, 9 Am.
Electl. Cas. 642, 4 St. Ry. Rep. 908,
84 Pac. 389, 6 L. R. A. (N. S.) 290;
Chaperon v. Portland Gen. Elec. Co.,
41 Oreg. 39, 8 Am. Electl. Cas. 468,
67 Pac. 928.

Pennsylvania.— Dannenhower v.
Western Union Teleg. Co., 218 Pa.
216, 9 Am. Electl. Cas, 1063, 67 Atl.
207; Turton v. Powelton Elec. Co.,
185 Pa. St. 406, 7 Am. Electl. Cas.
483, 39 Atl. 1053.

South Carolina—Laughlin  v.
Southern Public Service Corp., 83 S.
Car. 62, 64 S. E. 1010; Parsons v.
Charleston Consol. Ry. G. & E. Co., 69
S. Car. 305, 9 Am. Elect]. Cas. 146,
48 S. E. 284, 104 Am. St. Rep. 800;
Mitchell v. Charleston L. & P. Co., 45
S. C. 146, 6 Am. Electl. Cas. 245, 22
S. E. 767, 31 L. R. A. 577, 41 Cent.
L. J. 634.

South Dakota—Fish v. Kirlin-
Gray Electric Co., 18 S. Dak. 122, 9
Am. Electl. Cas. 132, 99 N. W. 1092,
112 Am. St. Rep. 782.

Texas.— San Antonio Gas & Elec.
Co. v. Badders, 46 Tex. Civ. App. 559,
9 Am. Elect]. Cas. 1079, 103 S. W.
229; Houston Lighting Power Co. v.
Hooper, 46 Tex. Civ. App. 257, 9 Am.
Elect]. Cas. 1050, 102 S. W. 133;
Citizens’ Telep. Co. v. Thomas, 45
Tex. Civ. App. 20, 9 Am. Electl. Cas.
950, 99 S. W. 879; Wehmer v. Lager-
felt, 27 Tex. Civ. App. 520, 8 Am.
Electl. Cas. 486, 66 S. W. 221.

Washington.— Metz v. Postal
Teleg. Cable Co., 72 Wash. 188, 130
Pac. 343; Garretson v. Tacoma Ry.
and P. Co., 50 Wash. 24, 96 Pac. 511.

Wisconsin— Lomoe v. Superior

45

Water, L. & P. Co., 147 Wis. 5, 132
N. W. 623.

Canada.— Gloster v. Toronto Elec.
L. Co., 38 Can. Sup. Ct. 27, 6 Ann.
Cas. 529, 26 Can. L. T, 847; Caron v.
La Cite De St. Henri, 9 Quebec Su-
perior Ct. 490.

24, Freeman v. Missouri & K. Telep.
Co., 160 Mo. App. 271, 142 S. W. 733.

25. District of Columbia v. Demp-
sey, 13 App. D. C. 533, 27 Wash. Law
Rep’r 87, 31 Chic. L. News 217.

26. Brubaker v. Kansas City Elec.
tric Light Co., 130 Mo. App. 439, 110
S. W. 12; Lomoe v. Superior Water,
L. & P. Co., 147 Wis. 5, 132 N. W. 623.

27. City of Kansas City v. File, 60
Kan. 157, 7 Am, Electl. Cas. 539, 55
Pac. 877.

28. Henning v. Western Union
Teleg. Co., 41 Fed. 864; Macon v.
Paducah St. Ry. Co., 110 Ky. 680,
7 Am. Electl. Cas. 630, 23 Ky. Law
Rep. 46, 62 S. W. 496; Consolidated
Gas, Electric L. & P. Co. v. State, 109
Md. 186, 72 Atl. 651; Western Union
Teleg. Co. v. State, Nelson, 82 Md.
293, 6 Am. Electl. Cas. 210, 33 Atl.
763, 51 Am. St. Rep. 464, 31 L. R. A.
572,

29. Western Union Teleg. Co. v.
Harris, 6 Ga. App. 260, 64 8. E. 1123.

30. Goodwin v. Columbia Telep.
Co., 157 Mo. App. 596, 138 S. W. 940.

31. State v. Crisfield Ice Mfg. Co.,
118 Md. 521, 85 Atl. 615.

From Saturday to Wednesday.—
To leave an electric wire of high
voltage hanging in a public thorough-
fare from Saturday to Wednesday,
almost touching the ground, is negli-
gence. State v. Crisfield Ice Mfg. Co.,
118 Md, 521, 85 Atl. 615.

32. Tackett v. Henderson Bros. Co.,
706 Law oF HLEctRICITY.

thirty-six hours,** twenty hours, fifteen hours,** or nine
hours,** has been held a sufficient omission of duty to
authorize a verdict for injuries resulting from the defective
condition. To permit a wire, capable of causing injury to
a pedestrian, to remain for two days in a street where per-
sons are continually passing, in the absence of any reason-
able explanation, is sufficient to warrant a finding of negli-
gence.*7 Where the superintendent of an electric light
plant was informed at 2 a. m. that the wires of the system
were badly grounded, but he nevertheless directed the
power to be kept up, and an injury arose from a live wire
in the street at 6 a. M., it was held that the company was
liable.** What failure to make repairs is sufficient to con-
stitute negligence depends upon the circumstances involved
in each particular case. Where the negligence claimed is
the failure to make repairs, rather than the construction
of the appliances in the first instance, the plaintiff cannot,
it has been held, recover unless it is shown that the com-
pany failed within a reasonable time to make the necessary
repairs.

Sec. 479. Repairs; Constructive Knowledge of Defects.

An electric company is required to use due care in the
inspection of its apparatus to detect defects ;*° and, after

12 Cal. App. 658, 108 Pac. 151; Postal
Teleg. Cable Co. v. Jones, 133 Ala.

Co., 47 Oreg. 424, 9 Am. Electl. Cas.
642, 4 St. Ry. Rep. 908, 84 Pac. 389,

217, 8 Am. Elect]. Cas. 409, 32 So.
500.

38. Wilkins v. Water & L. Co. of
Nebraska City, 92 Neb. 513, 138 N. W.
754; Gentzkow v. Portland Ry. Co.,
54 Oreg. 114, 6 St. Ry. Rep. 642, 102
Pac. 614.

84. Permitting a wire, charged with
23,000 volts of electricity, to remain
for about 20 hours fastened to a
picket fence beside a public highway,
in such a condition that any living
creature coming in contact with such
wire must necessarily suffer death,
affords prima facie evidence of negli-
gence. Carroll v. Grande Ronde Elec.

6 L. R. A. (N.S.) 290.

35. Citizens Telep. Co. v. Thomas,
45 Tex. Civ. App. 20, 9 Am. Electl.
Cas. 950, 99 S. W. 879.

86, Caron v. La Cite De St. Henri,
9 Quebec Superior Ct. 490.

87. Fisher v. City of New Bern, 140
N. Car. 506, 9 Am. Elect]. Cas. 677,
53 8. E. 342, 5 L. R. A. (N. S.) 542,
111 Am. St. Rep. 857.

38. Texarkana Gas & Elec. L. Co.
v. Orr, 59 Ark. 215, 5 Am. Electl.
Cas. 272, 27 S. W. 66.

39. Home Telep. Co. v. Weir, (Ind.
App.) 101 N. E. 1020.

40. § 473.
APPLIANCES; IN GENERAL. 707
the discovery thereof, must remedy dangerous conditions
as soon as practicable. It cannot avoid the duty of repara-
tion by a neglect to make proper inspections. Though it
has not acquired actual knowledge of a defect in its wires
or other appliances, if a defect has existed therein for such
a length of time that in the exercise of due care it should
have acquired knowledge thereof, it is chargeable with con-
structive knowledge thereof, and is held liable for its fail-
ure to keep the appliances in a proper state of repair the
same as though it had actual knowledge of the defective

conditions.

41. California.—Tackett v. Hender-
son Bros. Co., 12 Cal. App. 658, 108
Pac. 151.

Delaware.— Wagner v. Peoples Ry.
Co., 7 Pen. 393, 75 Atl. 610.

Georgia.— Atlanta Consol. St. R.
Co. v. Owings, 97 Ga. 63, 6 Am. Electl.
Cas. 271, 25 S. E. 377, 33 L. R. A.
798.

Illinois— Godfrey v. The Streeter
R. Co., 56 Til. App. 378.

Kansas.— City of Kansas City v.
File, 60 Kan. 157, 7 Am. Electl. Cas.
539, 55 Pac. 877.

Kentucky.— West Kentucky Telep.
Co. v. Pharis, 25 Ky. Law Rep. 1838,
78 8S. W. 917.

Louisiana.— Clements v. Louisiana
Elec. L. Co., 44 La. Ann. 692, 4 Am.
Elect]. Cas. 381, 11 So. 51, 16 L. R. A.
43, 32 Am. St. Rep. 348.

Maryland.— Consolidated Gas,
Electric Light & Power Co. v. State,
109 Md. 186, 72 Atl. 651.

Missouri— Goodwin v. Columbia
Telep. Co., 157 Mo. App. 596, 138 8.
W. 940; Luehrmann v. Laclede Gas-
light Co., 127 Mo. App. 213, 9 Am.
Electl. Cas. 1092, 104 S. W. 1128.

Montana.— Bourke v. Butte Elec.
& P. Co., 33 Mont. 267, 9 Am. Electl.
Cas. 566, 83 Pac. 470.

North Carolina.— Mitchell v. Ra-
leigh Elec. Co., 129 N. Car. 166, 39
S. E. 801, 55 L. R. A. 398, 85 Am.

St. Rep. 735. See also, Harton v.
Forest City Telep. Co., 146 N. C. 429,
59 S. E. 1022, 14 L. R. A. (N. S.)
956, 14 Ann. Cas. 390.

Oregon.— Gentzkow v. Portland
Ry. Co., 54 Oreg. 114, 6 St. Ry. Rep.
642, 102 Pac. 614.

Pennsylvania.— Berstein v. Phila-
delphia Elec. Co., 235 Pa. St. 53, 83
Atl, 612; Turton v. Powelton Elec.
Co., 185 Pa. St. 406, 7 Am. Electl.
Cas. 483, 39 Atl. 1053.

South Carolina.— Mitchell v.
Charleston L. & P. Co., 45 S. C. 146,
6 Am. Electl. Cas. 245, 22 S. E. 767,
31 L. R. A. 577, 41 Cent. L. J. 364.

South Dakota.—Thompson v. Reed,
29 S. D. 85, 135 N, W. 679.

Washington.— Garretson v. Tacoma
Ry. and P. Co., 50 Wash. 24, 96 Pac.
511,

Wisconsin.— Ryan v. Oskosh Gas-
light Co., 138 Wis. 466, 120 N. W.
264.

“Actual notice is not necessary
when the defect or danger could have
been discovered by the use of ordi-
nary care, and when the condition
has existed a sufficient time to have
enabled the owner to discover it.”
Thompson v. Reed, 29 S. Dak. 85,
135 N. W. 679.

Where a street light had been low-
ered about an hour and a half in a
position so that a pedestrian came
708 Law or ELectriciry.
Sec. 480. Repairs; After Creation of Conditions for Which
Company is not Responsible.

Though an electric company is not liable for defects in
its system which are caused solely by an act of God* or
the wrongful act of a third party,** it may be charged with
negligence for failure to remedy dangerous situations
within a reasonable time after their creation by a force for
which it was not responsible. Irrespective of its liability
for the existence of the faults in its apparatus, it is bound
to remedy defective conditions within a reasonable time.
So, where a wire is prostrated or some other appliance is
rendered defective by a storm, the company may be respon-
sible if it fails to correct the difficulty within a reasonable
time.** Where the wires of an electric light company sup-
plying a large city have been prostrated in numerous places
at the same time by reason of an unusual and unexpected
storm, it is not, as a matter of law, negligent for the com-
pany to leave one of the wires for several hours so hanging
as to inflict injury upon a passer-by; but such question of

in contact with it, and there was
nothing at the power house to indi-
cate the situation of the lamp, the
electric company is charged with con-
structive notice of the obstruction in
the highway. Huscher v. N. Y. &
Queens Elec. L. & P. Co., 139 N. Y.
Supp. 537.

42. § 453.

43. § 444.

44. California.— Foley v. Northern
Cal. Power Co., 14 Cal. App. 401, 112
Pac. 467.

Delaware.— Wagner v. Peoples Ry.
Co., 7 Pen. 393, 75 Atl. 610.

District of Columbia.—District of
Columbia v. Dempsey, 13 App. D. C.
533, 27 Wash. Law Rep’r, 87%, 31
Chic. L. Laws, 217.

Illinois — Economy L. & P. Co. v.
Hiller, 203 Tl. 518, 8 Am. Electl. Cas.
462, 68 N. E. 72; Godfrey v. The
Streator R. Co., 56 Ill. App. 378.

Kansas.— Leavenworth Coal Co. v.
Ratchford, 5 Kan. App. 150, 7 Am.
Electl. Cas. 433, 48 Pac. 927.

Louisiana.—Claussen v. Cumberland
Telep. & Teleg. Co., 126 La. 1087, 53
So. 357. a

Missouri.— Strack v. Missouri, ete.,
Telep. Co., 216 Mo. 601, 116 S. W.
526; Wilhite v. City of Huntsville,
167 Mo. App. 155, 151 S. W. 232;
Goodwin v. Columbia Telep. Co., 157
Mo. App. 596, 138 S. W. 940; Brown
v. Consolidated Light, Power & Ice
Co., (Mo. App.) 109 S. W. 1032.

Oregon.— Chaperon v. Portland
Gen. Elec. Co., 41 Oreg. 39, 8 Am.
Electl. Cas. 468, 67 Pac. 928.

A telephone company is not negli-
gent in failing to discover and repair
a break in its line within an hour
and a half after a storm. Aument
v. Penn. Telep. Co., 28 Pa. Super. Ct.
610, 9 Am. Electl. Cas. 605.
APPLIANCES; IN GENERAL. 709
negligence is for the jury.** Where a third person connects
a wire to a defectively insulated electric wire, and the wires
remain in this dangerous condition for two months or so,
the electric company may be considered negligent and a
recovery permitted for injuries caused by the defect.** But,
as to an accident happening within a few minutes after the
intrusion of a foreign wire, there is no liability.*7 Where
the apparatus of an electric company was originally main-
tained so as to be free from danger, but thereafter was
made dangerous from the intrusion of other companies, as
where another company stretches a wire close to or in
contact with one already maintained in a street, it becomes
the duty of the company first in the field as well as the
second company to remove the dangerous conditions.** The
first company, no doubt, is entitled to a reasonable time for
obviating the danger, but if it fails to take steps to remedy
the situation within a reasonable time, its liability is, as a
general proposition, co-extensive with that of the company
creating the dangerous conditions.

45. Boyd v. Portland Elec. Co., 37
Oreg. 567, 7 Am. Electl. Cas. 605, 62
Pac. 378.

46. Brubaker v. Kansas City Elec-
tric Light Co., 130 Mo. App. 439, 110
S. W. 12.

Two weeks.—Where a wire was
permitted to hang from defendant’s
pole for a period of two weeks, and
was connected with the defendant’s
wire at a point where the insulation
thereof was defective, it was held
that the company was liable for in-
juries to a pedestrian coming in con-
tact with the hanging wire. Wehmer
v. Lagerfelt, 27 Tex. Civ. App. 520, 8
Am. Electl. Cas. 486, 66 S. W. 221.

47. Jones v. Union Ry. Co., 50
Misc. (N. Y.) 651, 9 Am. Electl. Cas.
794, 98 N. Y. Supp. 757.

48. Macon v. Paducah St. Ry. Co.,
110 Ky. 680, 7 Am. Electl. Cas. 630,
23 Ky. Law Rep. 46, 62 S. W. 496;
Simmons v. Shreveport Gas, Elec. L.

& P. Co., 116 La, 1033, 9 Am. Electl.
Cas. 760, 41 So. 248; Herbert v. Lake
Charles Ice, L. & Waterworks Co.,
111 La. 522, 35 So. 731, 64 L. R. A.
101, 100 Am. St. Rep. 505; Wilkins
v. Water & L. Co. of Nebraska City,
92 Neb. 513, 138 N. W. 754; Lomoe
v. Superior Water L. & P. Co., 147
Wis. 5, 132 N. W. 623.

49. “The duty of preventing, if
possible, a contact between this dan-
gerous feed wire and the wires be-
longing to other companies can hardly
be denied. The duty of providing
against its continuance, when oc-
easioned solely by the act of others,
is, of course, less stringent, but never-
theless, where such a contact exists,
the company ought to discover it
within a reasonable time, and take
prompt and efficient measures to cor-
rect and remedy the evil. Exactly
what period will constitute a reason-
710 Law or E.ecrricity.
Sec. 481. Repairs; Negligence in Making Repairs.

A public service corporation may be charged with negli-
gence on the ground that it failed to use.due care in the
method employed in the making of repairs. For example,
if an electric company making alterations in its line allows
a dangerous wire to lie on the pavement in a much-traveled
part of a city without guard or warning to passers-by, it
is liable for an injury resulting therefrom.” So, too, lia-
bility may be imposed upon the operator of an electric
plant for an injury occasioned by the act of an employee
throwing an object from a pole.™

Sec. 482. Repairs; Municipality.

If a municipality operates an electric plant for the lighting
of public or private places, it is bound to exercise the same
care as a private electric company. Upon it is imposed the
same duty to exercise due care in the making of necessary
repairs to its appliances; and, if it fails in this duty, it is
liable the same as a private corporation. Where, however,
a municipality is sought to be held responsible for the
negligence of a private electric company, upon the theory
that it has rendered the streets dangerous and the munici-
pality has failed to remedy the situation, its liability, if
any, commences with notice, either actual or constructive,
of a dangerous situation in the street.** Its control over
the highways may require the municipality to remedy
dangerous conditions created by other companies, but it is
not required to make inspections or search for defects; its
sole duty is to use proper care in making repairs after
acquisition of notice of defects.

able time cannot be accurately de-
fined. Each case must depend almost
entirely upon its own peculiar facts
and attending circumstances; and
whether or not the proper degree of
diligence has been observed will, in
every instance, be a question for the
determination of the jury.” Atlantic
Consol. St. Ry. Co. v. Owings, 97 Ga.

663, 6 Am. Electl. Cas. 271, 25 S. E.
377, 33 L. R. A. 798.

50. Devlin v. Beacon L. Co., 192
Pa. St. 188, 7 Am. Electl. Cas. 563, 43
Atl. 962, 44 Wky. Notes Cases 340.

51. Adepe v. City of Thomasville,
9 Ga. App. 880, 72 S. E. 478.

52. § 427.

53. §§ 427, 474.
711

APPLIANCES; IN GENERAL.

Sec. 483. Duty Upon Discontinuance of Service.

Upon the discontinuance of telephone or electric light
service, the company is bound to use reasonable care to
remove the wires leading to the house and to protect them
so that injury to person or property will not result there-
from. If it leaves electric wires running to a house in such
condition that a person in or about the premises may
receive a shock, it will generally be liable for the injury.™
Thus, if an electric company, after disconnecting the-elec-
tric service in a house, leaves the wires in the cellar and a
person comes in contact with them and receives an injury,
the negligence of the electric company is a question for the
jury.” If the company elects to keep its wires in the cellar
of a private house, to the occupants of which it is not fur-
nishing current, it must use the same care in the mainte-
nance of those wires as any other wires of its system. It
must use due diligence in the inspection and repair of such
wires. So, too, after the removal of a telephone instru-
ment, if the wires are not also removed, lightning may pass
over them to the building, or currents of electric companies
may be diverted to the telephone wires and thence to the
building. The telephone company is bound to exercise due
care to avoid injuries of this nature, and it would seem that
the removal of the wires would be the easiest way to avoid
injury. If, therefore, it fails to take its wires away, the
jury may properly charge it with negligence.”

54. Norfolk & P. Tract. Co. v.
Daily’s Adm’r, 111 Va. 665, 69 S. E.
963.

55. United States Electric Lighting
Co. v. Sullivan, 22 App. D. C. 115;
Berstein v. Philadelphia Elec. Co., 235
Pa. St. 53, 83 Atl. 612. See also, Me-
Mullen v. Edison Elec. Tlum. Co.,
13 Mise. (N. Y.) 392, 5 Am. Electl.
Cas 332, 34 N. Y. Supp. 248.

56. Berstein v. Philadelphia Elec.
Co., 235 Pa. St. 53, 83 Atl. 612.

57. Southern Bell Telep. & Teleg.
Co. v. McTyer, 137 Ala. 601, 8 Am.
Electl. Cas. 591, 34 So. 1020, 97 Am,

St. Rep. 62; Evans v. Eastern Ken-
tucky Telep. & Teleg. Co., 124 Ky.
620, 9 Am. Hlectl. Cas. 967, 30 Ky.
Law Rep. 833, 99 S. W. 936; Starr
v. Southern Bell Telep. & Teleg. Co.,
156 N. Car. 435, 72 S. E. 484; Texas
Teleg. & Telep. Co. v. Scott, (Tex.
Civ. App.) 127 S. W. 587. See also,
East Tennessee Telep. Co. v. Sims’
Adm’r, 18 Ky. Law Rep. 761, 6 Am.
Electl. Cas, 297, 20 Ky. Law Rep.
1330, 38 S. W. 131. “When they
[telephone wires] were originally car-
ried into the building, and equipped
and maintained to supply the service
712

Law or Evectrricity.

Sec. 484. Duty to Shut Off or Turn On Current; in General.

Circumstances may be such that reasonable care requires
an electric company to shut off its current temporarily. If
it knows, or in the exercise of reasonable care should know,
that by reason of defects in its system, its current is escap-
ing or is likely to escape, due care requires that it cease
sending the current through the defective part of its system
until repairs are made. ‘Thus, if the operator of an elec-
tric plant discovers that its high tension wire is down in

to the owner, but at his instance the
service has been discontinued and the
instruments removed, and the com-

pany, instead of then removing the

wires, merely cuts them loose from
the instrument, twists their ends to-
gether, and leaves them thus dangling
in the building, so that atmospheric
electricity striking them anywhere
along their course on the outside will
be inducted into the building, and
there discharged to the peril of per-
sons and property, this is an unpal-
liated wrong on the part of the com-
pany. It is the creation and main-
tenance of a dangerous situation
without that warranting occasion for
it which may exist when the wires
are in use—without any occasion
whatever, in fact; and the company
is liable in damages for whatever in-
juries may result to persons and prop-
erty rightfully on the premises.”
Southern Bell Telep. & Teleg. Co. v.
McTyer, 137 Ala. 601, 8 Am. Elect.
Cas. 591, 34 So. 1020, 97 Am. St.
Rep. 62.

Negligence per se.—In view of the
known capacity of electric telephone
wires to collect and carry dangerous
currents of atmospheric electricity,
it is the plain duty of a telephone
company when removing its instru-
ments to also remove its wires; a
remission of this duty is a positive
wrong and is negligence per se to be

so declared as matter of law. It
being the duty of the company to re-
move such wires, it is no defense to
an action for injuries resulting from
their being negligently allowed to
remain there, that the company did
all that could be done to obviate the
danger of their being there. South-
ern Bell Telep. & Teleg. Co. v. Me-
Tyer, 137 Ala. 601, 8 Am. Electl.
Cas. 591, 34 So. 1020, 97 Am. St.
Rep. 62.

58. Lutolf v. United Elec. L. Co.,
184 Mass. 53, 8 Am. Electl. Oas. 506,
67 N. E. 1025; Brubaker v. Kansas
City Elec. L. Co., 130 Mo. App. 439,
110 S. W. 12. See also, Sorrell v.
Titusville Elec. Traction Co., 23 Pa.
Super. Ct. 425. “Under the circum-
stances, there is no escape from the
conclusion that the defendant was
negligent in turning on the current
of electricity after it knew that there
was trouble, without making a test
at the main office to discover the true
state of affairs, and without positively
knowing that the trouble had been
remedied.” Harrison v. Kansas City
Elec. L. Co., 195 Mo. 606, 9 Am.
Electl. Cas. 729, 93 S. W. 951, 7 L. R.
A. (N. S.) 293.

Expert evidence is admissible on
the question whether it is proper to
turn the electric current on, when the
company knows there is a ground on
the line, but is unable to find it after
APPLIANCES; IN GENBRAL, 713
the street, it should remedy the situation before turning
its current on the wire. The duty of the operator of the
plant, when knowledge is acquired that its wire is down in
a place frequented by persons, was stated by the court in
one case, as follows: ‘‘ There can be no question that if
the agent of the city, in charge of its electric light plant,
received notice that the wire was down before he turned
on the electric current which caused the injuries to the
plaintiff, and then turned on such current without having
the wire removed from its dangerous position in the street,
or taking other precautionary measures to prevent injury
to persons passing through the street, the city would be
liable to any one who, without fault on his part, was injured
by such electric current in consequence of having come in
contact with such fallen wire. If the superintendent of the
electric light plant received notice that the wire was down,
and the electric current was then on, he should have
instantly turned the current off and kept it off, until, after
due investigation, the report was found to be untrue, or, if
found to be true, until proper precautions were taken to
prevent danger to persons or property from the fallen wire.
If at the time of receiving such report the current was not
on, then he should have seen that it was not turned on
until he had ascertained that the wire was not down, or, if
down, the danger from its having been down in the street
had been obviated.’’ Though there may be a duty not to
turn the current on when a wire falls into the street, if the
injury is occasioned to the person responsible for the
breaking of the wire, it has been held that the electric com-
pany is not liable because it turned the current on.” The

a search of two or three hours. Cle- have no doubt the company owed a

burne Elec. & Gas Co. v. McCoy,
(Tex. Civ. App.) 149 8. W. 534.

59. City of Madison v. Thomas,
130 Ga. 153, 60 S. E. 461.

60. City of Madison v. Thomas, 130
Ga. 153, 60 S. E. 461.

61. “To persons unconnected with
the breaking of the wire, and using
the street in the ordinary mode, I

duty to refrain from sending a cur-
rent through the wire until it was
ascertained that it was safe to do so.
But, in my judgment, one who had
participated in breaking down the
wire cannot charge the company with
that duty until he has given it notice
of the broken wire and its being
grounded. If it could be claimed
714 Law oF ELeEctsiciry.

duty of shutting off the electric current when necessary,
involves the duty of having a person at the power plant
competent to turn off the current. If an electric company’s
appliances become defective so that it is reasonably neces-
sary to have the current turned off, and a search discloses
no one at the power plant to do so, the company may be
charged with the injuries resulting from the continuance
of the electric current.”

Sec. 485. Duty to Shut Off or Turn On Current; Injury to
Employees of Other Companies.

Though an electric company is bound in some cases to
insulate its wires for the protection of workmen of other
companies who may be required to be close thereto, there
is, as a general proposition, no duty on it to shut off its
current in order that such workmen will be afforded a safe
place to work. Of course, should the electric company
agree or give assurances that it would keep the current off
the wires while the linemen of other companies were work-
ing in proximity thereto, a different situation would exist.
In the absence of any agreement or understanding that,
before the current would be turned on, the electric company
would give a signal or warning to the linemen of another
company, there is no duty to give such warning.* If an
employee of another company is responsible for the break-
ing and falling of an electric wire in a street, and there-

that, in the absence of proof that this
current was carried on wires which

participated in breaking down and
exposing the dangerous wire, and who

might cross, the jury might find that
the melting of the fuse gave notice
that one of the wires was broken and
grounded, a like distinction in the
duty devolving on the company ex-
ists. As to persons unconnected with
the breaking of the wire, and travers-
ing the street in the ordinary way,
its duty would be to refrain from
turning on a current until it had
been ascertained it was safe to do so.
But to one who, like deceased, had

thereafter intermeddled with it, the
company owed no duty except to re-
frain from willful acts to their in-
jury.” Newark, E. L. & Power Co.
v. McGilvery, 62 N. J. L. 451, 7 Am.
Electl. Cas. 529, 41 Atl. 955; affirmed,
63 N. J. L. 591, 44 Atl. 651.

62. Younie v. Blackfoot Light &
Water Co., 15 Idaho 56, 96 Pac. 193.

68. Rowe v. Taylorville Elec. Co.,
213 Ill. 318, 72 N. E. 711; affirmed,
114 Ill. App. 535.
APPLIANCES; IN GENERAL, 715
after he touches the wire, the electric company is not
responsible for its acts in turning the current on the wire.”

Sec. 486. Duty to Shut Off or Turn On Current; in Case of
Fire.

In the absence of special circumstances giving notice to
an electric company that danger is to be encountered from
its electric wires, it is under no duty of suspending service
in the district of a fire.** Nor, in the absence of statute or
municipal ordinance, is it obliged to have a lineman present
at the fire to disconnect wires and otherwise protect per-
sons from injury. Firemen, as a general proposition, are
not more than mere licensees, and an electric company is
under no obligation to such except to refrain from wilful
or intentional injury.”

Sec. 487. Poles; Location.

An electric or other company placing its appliances along
a highway must exercise reasonable care to the end that

64. Newark E. L. & Power Co. v.
McGilvery, 62 N. J. L. 451, 7 Am.
Electl. Cas. 529, 5 Am. Neg. Rep. 187,
41 Atl. 955; affirmed, 63 N. J. L. 591,
44 Atl. 637,

65. Pennebaker v. San Joaquin L.
& P. Co., 158 Cal. 579, 112 Pac. 459,
31 L. R. A. (N. S.) 1099. See also,
New Omaha Thompson-Houston Elec.
L. Co. v. Anderson, 73 Neb. 84, 9 Am.
Elect]. Cas. 306, 102 N. W. 89. “In
support of the first contention [that
it is the duty of an electric company
to shut off the current in case of fire],
no authority is cited, nor do we think
any can be. It would compel defend-
ant, upon the one hand, to extinguish
all light and power in a district, re-
gardless of the necessity of so doing,
or be held liable for any consequences
that might follow its failure. It takes
no account of the fact that by so
doing, in the case of a night fire, a
district would be left in complete

darkness, and that under such cir-
cumstances, following the alarm of
fire, panic might ensue in hotels,
lodging houses, and residences, and
that the resulting damage might far
exceed that which the extinguishment
of the lights was designed to prevent.
No such rule of law exists, nor, we
take it, will ever exist, and the
utmost that will be exacted of light-
ing companies in this regard is that
they shall hold themselves in readi-
ness to cut off the electricity when the
necessity arises and they are informed
of it by proper authority.” Penne-
baker v. San Joaquin L. & P. Co.,
158 Cal. 579, 112 Pac. 459, 31 L. R.
A. (N. 8.) 1099.

66. Pennebaker v. San Joaquin L.
& P. Co., 158 Cal. 579, 112 Pac. 459,
31 L. R. A. (N. 8.) 1099.

67. Pennebaker v. San Joaquin L.
& P. Co., 158 Cal. 579, 112 Pac. 459,
31 L. R. A. (N. 8S.) 1099.
716 Law or ELecrricity.

its poles will not occasion injury to travelers and other
persons lawfully on the highway. The fact that it has
received consent from the state or from a municipality to
maintain its poles in a highway, does not excuse its negli-
gent construction or maintenance of its line.** Public offi-
cers are not permitted to license the obstruction of public
highways by poles and electrical apparatus. While not
in the absence of special statute or contract, an insurer of
injuries resulting from the presence of its poles in the high-
way,” the company must exercise reasonable care in the
location of its poles so travelers will not collide therewith
and sustain injury.” Liability of the owner of poles
obstructing the use of a highway has sometimes been

68. Wolfe v. Erie Teleg. & Telep.
Co., 33 Fed. 320; Jackson-Hazard
Telep. Co. v. Holliday’s Adm’r, 143
Ky. 149, 136 8. W. 135; Wilson v.
Great Southern Telep. & Teleg. Co.,
41 La. Ann. 1041, 3 Am. Electl. Cas.
466, 6 So. 781; Lambert v. West-
chester Elec. R. Co., 191 N. Y. 248,
6 St. Ry. Rep. 537, 83 N. E, 977;
Little v. Central District & Printing
Teleg. Co., 213 Pa. St. 229, 62 Atl.
848; Alice, ete., Telep. Co. v. Billings-
ley, 33 Tex. Civ. App. 452, 77 8. W.
255; Watts v. Southern Bell Telep.
& Teleg. Co., 100 Va. 45, 8 Am.
Elect]. Cas. 455, 40 S. E. 107.

Supervisor.—In an action for in-
juries to a traveler from a collision
with a telephone pole in the highway,
the consent of a supervisor to the
location is no defense. Watts v.
Southern Bell Telep. & Teleg. Co., 100
Va. 45, 8 Am. Elect]. Cas. 455, 40
S. E. 107.

69. “If it [a pole] was a dangerous
obstruction to the use of the streets
by the public, the city could not law-
fully grant it so as to debar an in-
jured party from recovering any dam-
ages which he might sustain in con-
sequence of its erection.” Wolfe v.
Erie Teleg. & Telep. Co., 33 Fed. 320.

70. Sheffield v. Central Union Telep.
Co., 36 Fed. 164.

A statute granting a telegraph
company the right to maintain its
lines along a highway may make the
company an insurer of injuries oc-
casioned by the presence of the poles.
Riley v. New England Teleg. & Telep.
Co., 184 Mass. 150, 8 Am. Electl. Cas.
438, 68 N. E. 17.

71. United States—— Wolfe v. Erie
Teleg. & Telep. Co., 33 Fed. 320;
Sheffield v. Central Union Telep. Co.,
36 Fed. 164,

Georgia. Carver v. State, 11 Ga.
App. 22, 74 S. E. 556,

Kentucky.— Jackson-Hazard Telep.
Co. v. Holliday’s Adm’r, 143 Ky. 149,
136 S. W. 135; Bevis v. Vanceburg
Telep. Co., 121 Ky. 177, 28 Ky. Law
Rep. 142, 89 S. W. 126.

Louisiana.— Wilson v. Great South-
ern Telep. & Teleg. Co., 41 La. Ann.
1041, 3 Am. Electl. Cas. 466, 6 So.
781; Cleveland v. Bangor, 87 Me. 259,
5 Am. Elect]. Cas. 346, 47 Am. St.
Rep. 326, 32 Atl, 892.

Maryland.— Earp v. Phelps, 120
Md. 282, 87 Atl. 806; Phelps v. Board
of Com’rs of Howard County, 117 Md.
175, 82 Atl. 1058.

New York.— Lambert v. Westches-
APPLIANCES; IN GENERAL. 717
placed on the ground that they are a nuisance. If the poles
are maintained without the permission of the state or a
municipality, they may be deemed a nuisance.” Moreover,
in some cases, they are deemed a nuisance where they are
not located as required by the governmental consent. For
example, if a statute gives a company the right to maintain
its appliances along the highways so as not to incommode
or obstruct travel, whether a pole is so maintained as to
incommode or obstruct travel and whether it is thus un-
authorized so as to be a nuisance, has been held to be a
question for the jury.” A pole placed in that part of the
road which is normally used by travelers is negligently or
wrongfully located. But it is not necessary for liability
that the pole be in the traveled portion of the highway;
if placed in unnecessary proximity so that injury results
therefrom, negligence may be inferred.” If the pole is so
close to the traveled part of the highway that a person
sitting on the side of a hay wagon with his feet extending
about a foot from the wagon comes in contact therewith,
the company may be liable.” It has been held, however,
that a telephone company is not to be charged with negli-
gence on account of the maintenance of a pole two and

ter Elec. R. Co., 191 N. Y. 248, 6 St.
Ry. Rep. 537, 83 N. E. 977; Bailey
v. Bell Telep. Co. of Buffalo, 147 App.
Div. 224, 131 N. Y. Supp. 1000; Fisher
v. City of Mt. Vernon, 41 App. Div.
293, 58 N. Y. Supp. 499.

Pennsylvania.— Little v. Central
District & Printing Teleg. Co., 213
Pa. St. 229, 62 Atl. 848.

Texas.— Alice, etc., Telep. Co. v.
Billingsley, 33 Tex. Civ. App. 452,
77S. W. 255.

Virginia — Watts v. Southern Bell
Telep. & Teleg. Co., 100 Va. 45, 8 Am.
Electl. Cas. 455, 40 S. E. 107.

“A telegraph or telephone company
* * * is bound to use reasonable care
in the construction and maintenance
of its poles, so that travelers along

such streets, in the exercise of ordi-
nary care, shall not be discommoded
or injured by coming in collision with
them, * * * and whether it has used
such care is a question of fact for
the jury.” Alice, ete., Telep. Co. v.
Billingsley, 33 Tex. Civ. App. 452,
97S. W. 255.

72. § 430.

73. Bevis v. Vanceburg Telep. Co.,
121 Ky. 177, 28 Ky. Law Rep. 142,
89 S. W. 126.

74, Earp v. Phelps, 120 Md. 282, 87
Atl. 806; Phelps v. Board of Com’rs
of Howard County, 117 Md. 175, 82
Atl. 1058.

75. Little v. Central District &
Printing Teleg. Co., 213 Pa. St. 229,
62 Atl. 848.
718 Law oF ELeEctricity.

a half feet from the traveled roadway.’”* The question as
to what proximity is permissible is one which depends upon
various circumstances, such as the width of the traveled
roadway, the amount of travel, the topography of the coun-
try, the population of the district, etc.” If the highway
is changed so that the poles come toward the center of the
new route ‘and form an obstruction to the highway, the
poles must be moved to a new location.”* While it is recog-
nized that negligence may be inferred from the placing of
a pole in or close to that part of the highway which is
customarily used by vehicles, it is to be remembered that
the state and municipal corporations may authorize the
placing of poles within the highway limits, and that no
liability will generally attach to the company in the aksence

of negligence.

an obstruction to travel —to a certain extent.

A pole placed in a highway is necessarily

What the

law forbids is unnecessary or negligent obstruction.” A

76. Bailey v. Bell Telep. Co. of
Buffalo, 147 N. Y. App. Div. 224, 131
N. Y. Supp. 1000.

77. When question of negligence of
company in locating pole at which
collision occurred is question of fact
for jury.— The facts examined in an
action brought against a street rail-
way company by a fireman who was
injured by a collision with a trolley
pole while climbing into a fire patrol
wagon, by means of a step on the side
thereof, for the purpose of going to a
fire, as the wagon was turning from
the driveway of the fire patrol house
into the street, such pole being just
back of the street curb line and less
than a foot away from the edge of the
opening cut through the curb for the
driveway, although several feet from
the paved part of the driveway, and
held, that it was error for the trial
court to hold, as matter of law, that
the defendant was not guilty of any
negligence in locating the pole as it
did, and that the plaintiff was guilty
of contributory negligence in  en-

deavoring to get into the wagon as
he did, and to dismiss the complaint
upon such grounds, since both of these
questions were questions of fact for
the jury to determine. Lambert v.
Westchester Elec. R. Co., 191 N. Y.
248, 6 St. Ry. Rep. 531, 83 N. E. 977.

78. Carver v. State, 11 Ga. App.
22, 74 8. BE. 556.

79. “Although it may be stated as
a general principle that the public is
entitled to the unobstructed use of
every part of a public road, yet, when
a telephone company is given the
right to erect its poles along the high-
way, it necessarily follows that it
must erect them in that part of the
highway set apart for the use of the
public, and so the grant carries with
it the authority to partially obstruct
the road. It is a matter of common
knowledge that with few exceptions
all the public roads in the state that
run through cultivated farm lands
are fenced on each side and that on
nearly all of these roads there are
telephone poles set along the edge of
APPLIANCES; IN GENERAL. 719
street railroad company is not negligent in the maintenance
of a trolley pole outside the curb on the lands of a ferry
company, where it appears that a pole is necessary at or
near that place and that all the surrounding land is owned
by the ferry company which had, on request, refused to
allow the defendant to move the pole inside the curb or
to make any change whatever in the physical situation at
the spot.*° The railway company in such a case is not to
be charged with negligence because it had failed to com-
mence condemnation proceedings to procure the right to
put its pole in another place.** The contributory negli-
gence of the person injured may be a defense, but the
mere fact that the horse was running away when it collided
with the pole is not generally a defense; the maintenance
of the pole in proximity to the traveled part of the high-
way is considered the proximate cause of the injury.* The
driver whose team becomes so unmanageable that he loses
control over them is as much entitled to have the traveled
part of the road free from obstructions as is the driver who

has perfect control of his team.*

the road between the fence and the
traveled part of the road. But it has
never been ruled that a pole erected
lawfully on ground laid out or es-
tablished by the authorities as a pub-
lic road is a nuisance, unless it was
erected in the traveled part of the
road or that part of the road usually
used by the public or so close thereto
as to interfere with or obstruct the
use of the road by the traveling pub-
lic. If the pole was in the road, or
interfered with its reasonable use, we
would not hold that the company was
blameless because the mules were
frightened and running away when
they collided with it.” Jackson-
Hazard Telep. Co. v. Holliday’s Adm’,
143 Ky. 149, 136 S. W. 135.

80. Lanigan v. Brooklyn Heights
R. Co., 125 N. Y. App. Div. 622, 110
N. Y. Supp. 30.

81. Lanigan v. Brooklyn Heights

In case the pole forms

R. Co., 125 N. Y. App. Div. 622, 110
N. Y. Supp. 30.

82. Riley v. New England Teleg. &
Telep. Co., 184 Mass. 150, 8 Am.
Elect]. Cas. 438, 68 N. E. 17. See
§ 529.

83. See § 447.

84, “The liability of the company
for placing an obstruction or obstacle
in the road that obstructed or inter-
fered with its reasonable use would
be the same in an action to recover
damages for injuries caused by it if
horses were running away and un-
controllable as it would be if they
were under control, assuming, of
course, that the driver was exercising
ordinary care for his own safety. The
driver whose team becomes so un-
manageable that he loses control over
them is as much entitled to have the
traveled part of the road free from
obstruction as is the driver who has
720 Law oF ELEctRIcITy.

an unlawful obstruction in the highway, not only may the
owner thereof be liable for injuries occasioned thereby, but
the municipality charged with the care of such highway
may also be liable.**

Proximity to House.— Where one erects a pole upon his
own premises and such pole is not a nuisance per se, he
is not liable to his neighbor because, by reason of its prox-
imity to his neighbor’s window, it furnishes a burglar
means of access to his house.** There is no liability though
the pole was erected against the protest of the neighbor.

Sec. 488. Poles; Soundness.

An electric or other company maintaining its limes
along a highway must exercise reasonable care to avoid
injury to travelers and other persons from the falling of
its poles.*” In the original construction of its line, it must
use due care to the end that poles are erected which will
withstand the strain of such storms as are reasonably to
be anticipated in the particular climate.** After the first
construction, the company is charged with knowledge of
the fact that its poles will decay and fall unless they are
replaced with sound ones.*° To ascertain which poles
should be replaced with new ones, its lines should be in-

perfect control of his team.” Jack-
son-Hazard Telep. Co. v. Halliday’s
Adm’r, 143 Ky. 149, 136 S. W. 135.

85. § 427.

86. Jenkins v. Louisville Home
Telep. Co., (Ky.) 120 S. W. 276, 22
L. R. A. (N. 8S.) 1167.

87. Williams v. Louisiana Elec. L.
& P. Co. 43 La. Ann. 295, 3 Am.
Elect]. Cas. 479, 8 So. 938.

Extraordinary care— The company
is not required to exercise extraor-
dinary care to avoid injuries to trav-
elers from the falling of its poles.
“All that it was required to do in the
erection and maintenance of its poles
for the protection of travelers upon
the street was that degree of care
which would be ordinary care under

the circumstances.” Savannah Elec.
Co. v. Bell, 124 Ga. 663, 53 S. E. 109.

A street railway company owes a
duty to travelers on a highway to
maintain posts which will not fall
because of their rotten and decayed
condition, if there is a slight impact
against them from: an outside force.
Evansville, etc., Tract. Co. v. Mont-
gomery, 50 Ind. App. 528, 8 St. Ry.
Rep. 38, 98 N. E. 731.

88. Burton v. Cumberland Telép. &
Teleg. Co., (Ky.) 118 S. W. 287. See
§§ 453, 454.

89. Evansville, ete., Traction Co. v.
Montgomery, 8 St. Ry. Rep. 38, 50
Ind. App. 528, 98 N. E. 731. “ Ordi-
nary care and diligence should be
exercised against decay and weaken-
APPLIANCES; IN GENERAL.

721

spected as often as is reasonably necessary for the ascer-

tainment of defects.*°

If the company fails in its duty of

construction, inspection, or repair, it is liable for such dam-

ages as proximately result from its failure.”

ing of timber from age or the action
of the elements.” Williams v. Louisi-
ana Elec. L. & P. Co., 43 La. Ann.
295, 3 Am. Elect]. Cas. 479, 8 So. 938.

90. “1t is clearly the duty of a
telephone company to exercise reason-
able care — and ‘reasonable care’ is,
in this respect, a high degree of care
— to select sound poles, and to place
them securely in the earth to pre-
vent them falling under ordinary and
usual conditions, having due regard
to the effect of rain and frost loosen-
ing the earth, and prevailing winds
blowing them down. The duty of rea-
sonably careful construction is fol-
lowed by like care in maintenance
and inspection. * * * The duty of
inspection in regard to its frequency,
cannot be made definite; but regard
must be had to the character of the
soil, the condition of the weather,
the season of the year, and such
other conditions as may affect the
security of the poles and the safety
of the traveling public.” Harton v.
Forest City Telep. Co., 146 N. Car.
429, 59 S, E. 1022, 14 L. R. A. (N.8.)
956, 14 Ann. Cas. 390.

91. United States— Pacific Telep.
& Teleg. Co. v. Parmenter, 170 Fed.
140, 95 C. C. A. 382.

Georgia.— Postal Telegraph-Cable
Co. v. Kelly, 134 Ga. 218, 67 S. E.
803.

Indiana.— Evansville, etc., Traction
Co. v. Montgomery, 8 St. Ry. Rep. 38,
50 Ind. App. 528, 98 N. E. 731.

Kentucky.— Murray v. Cowherd,
148 Ky. 591, 147 S. W. 6, 40 L. R.A.
(N. 8.) 617; Cumberland Teleg. &
Telep. Co. v. Warner, 25 Ky. Law
Rep. 1843, 79 S. W. 199; Burton v.

46

If there is

Cumberland Telep. & Teleg. Co., 118
S. W. 287. 7

Louisiana. Claussen v. Cumber-
land Telep. & Teleg. Co., 126 La.
1087, 53 So. 357; Joseph v. Edison
Elec. Co., 104 La. 634, 29 So. 223;
Williams v. Louisiana Elec. L. & P.
Co., 43 La. Ann. 295, 3 Am. Electl.
Cas. 479, 8 So. 938.

New York.— Ward v. Atlantic &
Pac. Teleg. Co., 71 N. Y. 81, 1 Am.
Electl. Cas. 259, 27 Am. Rep. 10;
Ensign v. Central N. Y. Telep. &
Teleg. Co.; 79 N. Y¥. App. Div. 244,
79 N. Y. Supp. 799; affirmed without
opinion, 179 N. Y. 539, 71 N. E. 1130;
Allen v. Atlantic & P. Teleg. Co., 21
Hun 22, 1 Am. Electl. Cas. 310. “The
defendant in the erection and main-
tenance of its line was not required
to exercise extraordinary or unusual
care, and it was not obliged to take
into account accidents that might
possibly arise in case of unusual or
extraordinary occurrences that would
not be reasonably apprehended by a
prudent person. (Fitch v. Central
New York Telephone Co., 42 App.
Div. 321.) The defendant was re-
quired to exercise reasonable and or-
dinary care and such care as an
ordinarily prudent person is supposed
to exercise in connection with his
personal business and transactions.
The duty of the defendant to use rea-
sonable and ordinary care extended to
the selection and maintenance of the
place where the poles and wires were
located.” Ensign v. Central N. Y.
Telep. & Teleg. Co., 79 N. Y. App.
Div. 244, 79 N. Y. Supp. 799; af-
firmed without opinion, 179 N. Y.
539, 71 N. E. 1130.
722 Law or Evecrriciry.

considerable strain upon a pole, reasonable care may re-
quire a guy wire for the support of the pole. In the main-
tenance of a pole, the owner thereof must consider not only
the strains of weather conditions, but the strains occa-
sioned by the usual use of the highway by travelers. If
maintained in the street of a populous community where
it is subject to contact with passing vehicles and other
objects on the street, the strains of such ordinary travel
must be anticipated and reasonable care used to maintain
the poles in such condition that they will not fall by reason
thereof.* Unusual strains upon the poles, as, for example,
the strain caused by the act of a fireman in wrapping a
hose around a pole, need not be guarded against.** Where
the falling of a pole is due, in part, to its rotten condition
and, in part, to an excavation around the pole by one not
its owner, both the owner and the excavator may be liable
for injuries received from the falling of the pole.* The
liability of the owner of a pole for injury to its employees”
or to trespassers or licensees® is discussed in another
chapter.

Sec. 489. Poles; Abandoned Poles.

When the use of a pole maintained in a highway is aban-
doned, ordinary care requires that it be removed so that

North Carolina.— Terrell v. City of
Washington, 158 N. Car. 281, 73S. E.
888; Harton v. Forest City Telep.
Co., 146 N. Car. 429, 59 S. E. 1022,
14.L, R. A. (N. 8.) 956, 14 Ann. Cas.
390.

Proximate cause.—In another chap-
ter is discussed the question whether
injuries are the proximate result of
negligence. See §§ 435-452.

The employee of the company
charged with the duty of maintaining
the poles in safe condition, may be
liable for an injury arising from the
fall of a pole. Murray v. Cowherd,
148 Ky. 591, 147 8. W. 6, 40 L. R. A,
(N. 8.) 617.

92. Evansville, ete., Tract. Co. v.
Montgomery, 50 Ind. App. 528, 8 St.

Ry. Rep. 38, 98 N. E. 731. “The post
should have been strong enough not
only to hold the strain that would
come upon it from the guy wire, but
it should also have been strong
enough to withstand such strains as
might reasonably be anticipated from
persons passing along the street, or
from wagons and teams driven
thereon.” American Dist. Teleg. Co.
v. Oldham, 148 Ky. 320, 146 S. W.
764,

98. American Dist. Teleg. Co. v.
Oldham, 148 Ky. 320, 146 S. W. 764.

94. Joseph v. Edison Elec. Co., 104
La. 634, 29 So. 223.

95. See §§ 549, 558, 565, 576.

96. §§ 462-471.
APPLIANCES; IN GENERAL. 723
it will not become a plaything of weather conditions until
it falls and causes an injury. Where a telephone company,
instead of removing its abandoned pole from the street,
sawed it off and left a stump three feet high in titstreet,
it was held that the company was guilty of negligence and
liable to a pedestrian for injuries received in falling over
the stump, where the pedestrian was not guilty of contribu-
tory negligence.*” A proper removal requires, not only
the change from an upright position, but the taking of the
pole away from the highway. But, where a telephone com-
pany using but not owning a pole abandoned such use, and
the pole was thereafter used by another company for two
or three months, when it was taken down by some one
unknown to the telephone company and laid close to the
sidewalk where it caused injury to a pedestrian, it was held
that the telephone company was not liable.

Sec. 490. ‘Poles; Cross-arms.

The care required of an electric or other company in the
construction, inspection, and repair of its poles, extends
to the appliances connected therewith, such as the cross-
arms. Negligence may be inferred from a defective cross-

97. Dobbins v. Western Union acquire any kind of ownership by

Teleg. Co., 163 Ala. 222, 50 So. 919.

98. Powers v. Independence Long
Distance Telep. Co., 19 Idaho 577%,
114 Pac. 666, wherein it was said:
“Did the fact of its having attached
wires to said old pole and permitted
them to remain there about four years
make it liable for any damage that
might result from some one unknown
to it taking the pole down and placing
it along the sidewalk, after it had
abandoned the pole? Did it, by using
the pole as above stated, become the
owner thereof or make it responsible
for the taking down and removal of
the pole? It is clear from the evi-
dence that the pole was not the prop-
erty of the defendant unless it be-
came so by its user, and, if it could

user merely, it might lose such owner-
ship by abandonment, as it certainly
did. If the injury had occurred from
the negligence of the defendant while
it was using the pole, there is ample
authority for holding the defendant
liable; but when the defendant ceased
to use the pole and left it clean of its
wires, in a safe position, and the pole
was thereafter occupied by another
company for like purposes, the law
will not hold the defendant liable
where an injury is sustained result-
ing from the taking down of said
pole and placing it along the sidewalk
by persons unknown to the appellant
and without its knowledge or con-
sent.”
724 Law or ELeEctrictiry.

arm, which, under normal conditions of use, breaks or
becomes loosened and causes injury. Thus, if a cross-arm
is maintained in a decayed condition so that a wire strung
thereon falls to the ground and causes injury to one law-
fully using the highway, the company may be liable.” Sim-
ilarly, the owner of the pole may be liable for an injury
resulting from the falling of a wire due to a defective pin
on the cross-arm.*

A metal brace is frequently used for the support of cross-
arms. The corporation maintaining such a brace must
exercise due care in the attachment and maintenance
thereof. If the company negligently permits its wire to
come in contact with such iron brace so that the insulation
of the wire is abraded by the contact and injury results to
one who innocently touches the brace without knowledge
that a deadly current will be conveyed thereby, it is liable
for the injury.’

Sec. 491. Poles; Electric Shock.

To the end that its high-tension currents will not escape
from their paths, it is incumbent on an electric company to
use a high degree of care.* If its current is diverted so
that a person touching its pole is injured, it may be liable
for the ensuing injury.* If a person coming in contact with
a pole in a street receives a severe shock of electricity,

99. Postal Teleg. Cable Co. v. Jones, ficient. Postal Teleg. Cable Co. v.

133 Ala. 217, 8 Am. Electl. Cas. 409,
32 So. 500.

Frightened horses.— The plaintiffs
team came in contact with a wire
of the defendant, which had fallen
from a defective cross-arm of the pole
from which it was suspended, and
from the shock the team became un-
manageable and the plaintiff was
thrown from the wagon and injured.

The complaint alleged that the de-

fendant negligently allowed its wire
to remain a short distance above the
road, so as to permit of contact with
the plaintiff’s team. It was held suf-

Jones, 133 Ala, 217, 8 Am. Electl.
Cas. 409, 32 So. 500.

1. Diller v. Northern Cal. Power
Co., 162 Cal. 531, 123 Pac. 359, Ann.
Cas. (1913D) 908.

2. Dwyer v. Buffalo Gen. Elec. Co.,
20 N. Y. App. Div. 124, 7 Am. Electl.
Cas. 456, 46 N. Y. Supp. 874.

3. See §§ 400-406.

4, Lutolf v. United Elec. L. Co., 184
Mass, 53, 8 Am. Electl. Cas. 506, 67
N. E. 1025; Lydston v. Rockingham
County Light & Power Co., 75 N. H.
23, 70 Atl. 385.
APPLIANCES; IN GENERAL, 725

under the doctrine of res ipsa loquitur, a presumption of
negligence generally arises, and it is incumbent on the com-
pany to show that the escape of the electric current was
not due to its negligence.® Where a reel of uninsulated
wire rope was maintained on an electric light pole at about
the level of a man’s head and such wire became charged
with a high current of electricity so that a policeman touch-
ing the same was killed, it was held that the company was
guilty of a gross neglect of duty.®

Sec. 492. Transformers.

A transformer is a device which changes the potential
of an electric current. The most common form is the one
used to change the high-tension primary current of an elec-
tric company to a low-tension current necessary for the
illumination: of incandescent bulbs. The low-voltage cur-
rent used for interior illumination is not ordinarily danger-
ous, even where it is diverted and passes through one’s
body. But it is obvious that, if the transformer fails to
perform its functions and the high potential current passes
into the interior wiring of a building, persons in the build-
ing may receive an injurious electric shock. It is also
possible that the building may be inflamed. To avoid these
results, it is the duty of the company to exercise a high
degree of caution to install a reasonably efficient trans-
former in the first instance; then to inspect the same as fre-
quently as is reasonably necessary, and to make promptly
such repairs as may be required to preserve the efficiency
of the transformer. If the company fails in these duties,
it is generally liable for the injuries which proximately
result from its failure.’ When an excessive current passes

5. “ The plaintiff in a public street As to the doctrine of res ipsa loquitur,
received an electric shock from a pole see §§ 592-599.
belonging to and in the control of 6. Suburban Elec. Co. v. Nugent
the defendant. So much is deemed 58 N. J. L. 658, 6 Am. Electl. Cas.
established. From those facts.a pre- 238, 34 Adl. 1069, 32 L. R. A. 700.
sumption of negligence arises.” Mog- 7. United States—San Juan L. &
lia v. Nassau Elec. R. Co., 127 N. Y. Transit Co. v. Requena, 224 U. 8. 39,
App. Div. 243, 111 N. Y. Supp. 70. 32 S. Ct. 399, 56 L. Ed. 680; affirm-
726 Law or Etectriciry.
to the interior wiring of a building and causes injury to an
inhabitant thereof, a presumption of negligence arises.
Res ipsa loquitur.. Accidents of this character may be due
to causes other than defects in the transformer. It some-
times happens that the primary and secondary wires come
in contact, so that the high-tension current passes around
instead of through the transformer.® <A perfect trans-
former does not prevent such an occurrence. Inasmuch
as an electric company is not an insurer,” if it performs
its duty in the installation, inspection, and reparation of
a transformer, it is not liable for an injury resulting from
the transformer’s failure to transform the current. Its
liability is based on negligence; and, if it shows that the
accident was due to some cause other than its want of care,
it is not liable therefor, however deplorable the accident
may be.

Liability of Consumer.— Ordinarily an electric company

is not liable for injuries arising from defects in interior
or other wiring not constructed or maintained by the elec-

ing, 4 Porto Rico Fed. Rep. 356;
Union L., H. & P. Co. v. Arnston, 157
Fed. 540, 87 ©. CG. A. 1.

Colorado.— Denver Consol. Elec.
Co. v. Lawrence, 31 Colo. 301, 8 Am.
Electl. Cas. 617, 73 Pac. 39.

Georgia.— Denson v. Georgia Ry.
& Elec. Co., 1385 Ga. 132, 68 S. E.
1113.

Illinois.— Quincy Gas & Elec. Co. v.
Schmitt, 123 Ill. App. 647, 9 Am.
Electl. Cas. 932; Economy L. & P.
Co. v. Stephen, 87 Ill. App. 220; af-
firmed, 187 Ill. 137, 58 N. E. 359.

Kentucky.— Mangan’s Adm’r_ v.
Louisville Elec, L. Co., 122 Ky. 476,
9 Am. Elect]. Cas. 692, 91 S. W. 703,
29 Ky. Law Rep. 38, 6 L. R. A.
(N. S.) 459.

New York.— Webster v. Richmond
Light & R. Co., 158 N. Y¥. App. Div.
210, 143 N. Y. Supp. 57; Morhard v.
Richmond L. & R, Co., 111 N. Y. App.

Div. 353, 9 Am. Elect]. Cas. 687, 98
N. Y. Supp. 124.

Rhode Island.— Reynolds v. Nar-
ragansett Elec. L. Co., 26 R. I. 457,
9 Am. Elect]. Cas. 207, 59 Atl. 393;
McCabe v. Narragansett Elec. L. Co.,
26 R. I. 427, 9 Am. Electl. Cas. 196,
59 Atl. 112.

Texas— See City of Austin v.
Nichols, 42 Tex. Civ. App. 5, 9 Am.
Elect]. Cas. 938, 94 S. W. 336.

West Virginia— Bice v. Wheeling
Electrical Co., 62 W. Va. 685, 59 S. E.
626.

Canada. Royal Electrie Co. v.
Heve, Quebec Rep. (11 Kings Bench)
436.

8. § 597.

9. § 498.

10. § 400.

11. Cosgrove v. Kennebec L. & H.
Co., 98 Me. 473, 9 Am. Elect]. Cas.
52, 57 At). 841,
APPLIANCES; IN GENERAL, 727
tric company.” Conversely, a customer who is using elec-
tric current is not to be charged for an injury which is
occasioned to a person on the premises by reason of a
defective transformer maintained solely by the electric
company.**

Sec. 493. Street Lights.

An electric company is obligated to use at least reason-
able care to prevent injuries to travelers and, others from
the maintenance of electric lights in the municipal streets.
This requires due care to the end that the lights shall be
sufficiently elevated from the surface of the road that a
person using the road in the ordinary course of travel will
not collide therewith.* Street lamps are, however, so
arranged that they may be raised or lowered for the pur-
pose of adjustment and repair; and, if a traveler collides
with it when in a lowered position and there is no evidence
as to who or what caused it to be in such position, there is
failure to show negligence of the electric company.** An
electric light should be located far enough from the line of
a street railway company that a trolley pole, if it leaves
the track and flies up, will not strike the light. Where a
trolley pole does strike an electric street light, the street
railway company may be liable for an ensuing accident
upon the theory that it negligently handled its appliances.*®

12. § 417.

18. Mertinek v. Swift & Co., 122
Iowa 611, 9 Am. Elect]. Cas. 29, 98
N. W. 477.

14, “To permit an unlighted lamp,
charged with electric current of high
intensity, to remain suspended over a
traveled highway, upon a dark and
stormy night, at such a distance from
the ground that persons lawfully
making use of said highway are likely
to come in contact therewith, is
highly dangerous.” Huscher v. N. Y.
& Queens Elec. L. & P. Co., 158 N. Y.
App. Div. 422, 143 N. Y. Supp. 639.

Question for jury.—Where a pedes-

trian, while crossing a street, was
struck by wires connected with an
are light which had been lowered and
left in charge of a boy by the com-
pany’s employee, it was held that
the question of the company’s neg-
ligence was for the jury. Miller v.
Lewistown Elec. L. H. & P. Co., 212
Pa. St. 593, 9 Am. Electl. Cas. 493,
62 Atl. 32.

15. Huscher v. N. Y. & Queens Elec.
L. & P. Co., 139 N. Y. Supp. 537;
affirmed, 158 N. Y. App. Div. 422,
143 N. Y. Supp. 639.

16. Kansas City Elevated Ry. Co.
v. Groff, 77 Kan. 551, 95 Pae. 394.
728 Law or Eectriciry.

But it has been held that the electric company is not lable
under such circumstances for the reason that the slipping
of the trolley pole, not the proximity of the light, is the
proximate cause of the accident.’7 The company must also
employ due care to prevent the falling of light; and, if a
street light falls and injures the person or property. of
one lawfully using the highway, negligence may be inferred
and the company may be held responsible for the injury.*
Where an electric street light falls without any apparent
cause, under the doctrine of res ipsa loquitur, a presump-
tion of negligence arises which authorizes the jury to find
the company liable for the injury, unless the company suffi-
ciently explains that the falling was due to some cause
other than its negligence.*® Nevertheless, a recovery must
be had, if at all, on the theory of negligence; and, if it is
shown that the falling of the light or a fragment thereof
was not due to negligence, the maintainer of the light is
not liable.2° The company must also exercise a proper
degree of care to avoid the escape of the electric current
from the lamp and the wires connected therewith. Thus,
if a child or other person touches the device used for lower-
ing the lamp and. receives an injurious shock of electricity,
the company may be liable. So, where an electric lamp
of a city fell and a boy came in contact with a wire fastened
thereto and received a shock, the liability of the city was
sustained.” If another company maintains a dangerous
wire near the street light so that in the raising and lower-

17. Nelson v. Narragansett Elec.
L. Co., 26 R. I. 258, 58 Atl. 802, 67
L. R. A. 116, 106 Am. St. Rep. 711.
Same case, Nelson v. Narragansett
Elec. L. Co., 29 R. I. 221, 69 Atl.
1001.

18. Louisville Lighting Co. v.
Owens, 32 Ky. Law Rep. 283, 9 Am.
Electl. Cas. 1097, 105 S. W. 435; Ex-
celsior Elec. Co. v. Sweet, 57 N. J. L.
224, 30 Atl. 553; Gibbs v. Poplar
Bluff L. & P. Co., 142 Mo. App. 19,
125 S. W. 840, (falling of reflector).

19. § 596.

20. Sweeney v. Edison Elec. Dlum.
Co. of Brooklyn, 158 N. Y. App. Div.
449, 143 N. Y. Supp. 636.

21. Lexington Ry. Co. v. Fain’s
Adm’r, 24 Ky. Law Rep. 1443, 8 Am.
Elect]. Cas. 499, 71 S. W. 628; Char-
ette v. Village of L’Anse, 154 Mich.,
304, 117 N. W. 737, 15 Det. Leg. N.
738; Thompson v. Tilton Elec. L. &
P. Co., (N. H.) 88 Atl. 216.

22. Potera v. City of Brookhaven,
95 Miss. 774, 49 So. 617.
APPLIANCES; IN GENERAL. 729
ing of the light, contact is occasioned and the person han-
dling the light receives a dangerous shock, recovery may
be had for the injury. Where an electric light wire,
attached to an iron bar projecting from an iron storefront
over an iron awning, after detachment from its lamp, was
allowed to stand for several months, during which time
sparks had been seen to issue from the wire and the awning
had been burned by the electricity, it was held that the elec-
tric company was liable for the death of the occupant of
an adjoining store who, discovering that the awning was
on fire, was killed by touching the iron storefront while
attempting to put the fire out.”

Sec. 494. Interior Wiring.

In an earlier chapter of this work it is pointed out that
the manufacture and installation of electric appliances,
unless the company has express authority to engage in such
business, is beyond the power of an electric company.”
However this may be, it is a fact that electric companies
frequently do engage in the business of wiring and placing
fixtures in buildings. If they attempt to install such inte-
rior appliances, they must use at least reasonable care to
make them safe, whether or not they have legal right to
engage in such business. If an electric company fails in
this duty, and the premises are thereby set on fire or per-
sonal injury is thereby occasioned to some person lawfully
on the premises, in the absence of contributory negligence
or some other defense, the electric company will be required
to respond in damages for the injury.” When the electric

23. Horne v. Consol. Rys. L. & P.
Co., 144 N. Car. 375, 57 S. E. 19.

24. Caglione v. Mt. Morris Elee, L.
Co., 56 App. Div. 191, 7 Am. Electl.
Cas. 622, 67 N. Y. Supp. 660.

25. § 26.

26. Miller v. Ouray Elec. L. & P.
Co., 18 Colo. App. 131, 8 Am. Elect].
Cas. 611, 70 Pac. 447; Romano v.
Vicksburg Ry. & L. Co., (Miss.) 9 Am.
Electl. Cas. 624, 39 So. 781; German-

American Ins. Co. v. N. Y. Gas &
Elec. L. H. & P. Co., 103 N. Y. App.
Div. 310, 9 Am. Electl. Cas. 446, 93
N. Y. Supp. 46; affirmed without
opinion, 185 N. Y. 581, 78 N. E. 1103;
Dechert v. Municipal Elec. L. Co.,
39 N. ¥. App. Div. 490, 57 N. Y.
Supp. 225.

Death of prisoner in jail—The
plaintiff’s son, a minor, while confined
in a county jail was killed by the
730 Law or ELeEctriciry.

apparatus inside of a building is installed by one other
than the company furnishing the electricity, according to
the prevailing view, the electric company is under no obli-
gation to inspect or repair such interior fixtures and is not
liable for injuries resulting from defects therein.” An
electric company, by its contract with a consumer of elec-
tricity, may take upon itself the burden of inspecting and
repairing the interior wiring and fixtures. If it agrees
to make the necessary repairs, and it negligently fails to
do so, it may be liable for injuries arising from its failure.”
Where an electric light company, at the request of a tenant,
places in his store are lights, over which, as to the placing,
management, and ownership, it retains exclusive control
and as to which the tenant assumes no responsibility, it is
liable for the exercise of reasonable care; and where an
unskilled employee attaches a lamp to the ceiling so inse-
curely that it falls and injures a clerk, the question of the
electric light company’s negligence is one for the jury.”
A person or corporation that contracts to install electric

building catching fire from an alleged
defect in the electric wiring thereof.
The complaint alleged that the de-
fendant company in wiring the build-
ing was charged with the duty of so
erecting such wires as to enable the
passage of the electric current over
the same with safety to the occu-
pants of the buildings and to the
buildings themselves; and further al-
leged that such company was grossly
negligent in performing such duty.
It was held that the complaint stated
facts sufficient to constitute a cause
of action against the electric com-
pany. Miller v. Ouray Elec. L. & P.
Co., 18 Colo. App. 131, 8 Am. Electl.
Cas. 611, 70 Pac. 447.

27. Harter v. Colfax Elec. L. & P.
Co., 124 Iowa 500, 9 Am. Electl. Cas.
161, 100 N. W. 508.. See also, Yates
v. Brush Elec. L. & P. Co., 40 La. Ann.
467, 4 South. 250; Houston v. Dur-

ham Tract. %o., 155 N. Car. 4, 71S. E.
21. See also, § 417.

28. Fish v. Kirlin Gray Electric Co.,
18 3. Dak. 122, 9 Am. Electl. Cas.
132, 99 N. W.1092, 112 Am. St. Rep. 782.

Are light in church.— An electric
company, under a contract to furnish
the appliances and properly and
safely suspend and hang an arc light
in a church, and to keep said light
and appliances in a good and safe
condition and repair, is liable for
damages for the death of a party
attending the church where by reason
of its failure to repair said light,
after notice, it fell and injured said
party. Fish v. Kirlin Gray Electric
Co., 18 S. Dak. 123, 9 Am. Electl.
Cas. 132, 99 N. W. 1092, 112 Am.
State Rep. 782.

29. Fish v. Waverly Electric L. &
P. Co., 189 N. Y. 336, 82 N. E. 150,
13 L. R. A. (N. 8.) 226.
APPLIANCES; IN GENERAL.

731

fixtures is not an insurer of the safe transmission of elec-
tricity through the building for any period. The obliga-
tion is solely to use the care and skill ordinarily used by
those engaged in like undertakings, and its liability is
measured by a failure to exercise that care and skill.®*°
Ground Device.—— A company stretching wires to a build-
ing is bound to exercise due care to prevent lightning** and
excessive currents of electricity from passing over the
wires into the building. Whether a company is negligent
in failing to install a lightning arrestor, ground wire, or

30. Herzog v. Municipal Electric
Light Oo., 89 N. Y. App. Div. 569, 9
Am. Elect]. Cas. 1, 85 N. Y. Supp.
712; affirmed without opinion, 180
N. Y. 518, 72 N. E. 1142. “The de-
fendant was employed to wire the
plaintiff’s house for the purpose of
electric lighting. It accepted such
employment, and undertook to do the
work. It assumed no obligation to
furnish the best materials or the best
method. It did not insure that the
wires when used would continue for
any definite or indefinite period to
safely transmit the electric current
to all the building. What it under-
took to do was to use the care
and skill ordinarily used by those en-
gaged in furnishing these appliances,
and it is only for a neglect to perform
this duty that it can be held liable.
The defendant might have adopted a
method which subsequent experience
had shown would be safer than that
adopted, but the defendant was not
chargeable with the knowledge that
had been acquired by experience with
electricity after the work was done.”
Herzog v. Municipal Electric Light
Co., 89 N. Y. App. Div. 569, 9 Am.
Electl. Cas. 1, 85 N. Y. Supp. 712;
affirmed without opinion, 180 N. Y.
518, 72 N. BE. 1142.

Brass sockets—In an action for
death caused by shock received while

carrying an electric light on defend-
ant’s premises it was not an act of
negligence for defendant to use a
brass socket for such light, such
sockets being in universal use. Mer-
tinek v. Swift & Co., 122 Iowa 611, 9
Am. Elect]. Cas. 29, 98 N. W. 477.

Rules of underwriters.—The rules
of the various boards of underwriters
and electric light companies prescrib-
ing the way in which electric wiring
should be done are not competent on
the question whether in a particular
ease wiring had been properly done.
Dechert v. Municipal Elec. L. Co., 39
N. Y. App. Div. 490, 57 N. Y. Supp.
225.

Destruction of building by fire
communicated by electric wires— In
an action to recover damages for loss
of building destroyed by fire, alleged
to have been caused by electric wires
placed in the building by defendant,
evidence considered and held insuf-
ficient to warrant findings that the
defendant was negligent in using
single cap mouldings instead of
double cap mouldings for affixing the
electric wires to the ceiling. Her-
zog v. Municipal Electric Light Co.,
89 N. Y. App. Div. 569, 9 Am. Electl.
Cas. 1, 85 N. Y. Supp. 712; affirmed
without opinion, 180 N. Y. 518, 72
N. E. 1142.

81. § 457.
732

Law oF ELECTRICITY.

other device for the prevention of injury from high-tension
currents, is generally a question for the jury.”

32. Crandall v. Consol. Telep. &
Teleg. & Elec. Co., 14 Ariz. 322, 127
Pac, 994; Abrams v. City of Seattle,
60 Wash. 356, 111 Pac. 168. See
also, Rural Home Telep. Co. v. Arn-
old, (Ky.) 119 S. W. 811; Webster
v. Richmond Light & R. Co., 158 N.
Y. App. Div. 210, 143 N. Y. Supp. 57.

Evidence—In an action for the
death of a person occasioned by an
excessive current passing into a build-

ing, it is error to reject evidence
showing that it was customary for il-
luminating companies to use a device
not used by the defendant electric
company, which would prevent high
voltage currents from flowing from
primary to secondary wires and
thence into buildings. Webster v.
Richmond Light & R. Co., 158 N. Y.
App. Div. 210, 143 N. Y. Supp. 57.
WIRES. 733

CHAPTER XXVII.

 

WIRES.
Section 495. Height; in General.
496. —— Falling.
497. Sagging.

498. Proximity to Other Wires; in General.
499. Joint Liability.

500. Proximity to Other Objects.

501. Soundness.

502. Erection of Wires.

503. Insulation.

504. Guy Wires; Location.

505. Proximity to Charged Wires.
506. Encasement.

507. Span Wires.

508. Guard Wires.

509. Dead or Abandoned Wires.

 

 

 

Sec. 495. Height; in General.’

The height at which electric or other wires shall be main-
tained along a highway is to be determined by a number
of different considerations. It is within the power of the
state to fix by statute the altitude of wires strung along a
public way.” If the state does not see fit to prescribe the
elevation, municipalities may, so far as their municipal
limits are concernéd, regulate the matter by ordinance.®
Regulations, whether promulgated by the state or by a.
municipal division thereof, are to be obeyed; and, as a
general proposition, if an injury is occasioned by a failure
to conform to such regulations, a prima facie cause of negli-
gence is established.* | Though the company has not been

1. Across railroad tracks—JIn- road crossing, and permits such wires

juries to railroad employees from
wires maintained over the railroad
right of way, is discussed in a prior
chapter. See §§ 308-311.

2. See Chant v. Clinton Telep. Co.,
130 Wis. 533, 110 N. W. 423.

A telephone company is guilty of
negligence when it passes its tele-
phone wires only 13 feet above a

to become slack and to sag until they
interfere with legitimate travel, when
the statute requires such wires to be
placed 20 feet above the road cross-
ing. Weaver v. Dawson County Mut.
Telep. Co., 82 Neb. 696, 118 N. W.
650, 22 L. R. A. (N.S.) 1189.

3. §§ 327, 333.

4. § 420.
734 Law or ELectrictry.

subjected to regulations relative to the elevation of its
wires, a provision in its charter or in its franchise may fix
the height at which they shall be maintained.’ Aside from
these various ways in which the company’s discretion may
be limited, there is a common-law obligation to maintain
its appliances so as not to obstruct the highway unneces-
sarily.° It must exercise reasonable care to keep its lines
at a height which will not interfere with the customary use
of the highway for travel; and, if it fails in this duty, it is
liable for all injuries proximately’ resulting from its fail-
ure. The company must recognize the fact that high loads
of merchandise will be transported along the highway, and
also that the road will be used for the moving of high
machinery, such as derricks, threshing outfits, hay stackers,
etc. Thus, the company has been held liable for injuries
which arose from a collision between its wire and a hay
derrick with a mast nearly 30 feet high,® a threshing outfit
with a high smokestack,*® or with a grain elevator 1414
feet high," and a hay stacker about 2714 feet from the sur-
face of the road. In cases of this character it devolves

5. § 239. ground causing the death of a person.

6. “ While it is not necessary that
all electric wires should swing as
high as plaintiff’s counsel contends
they should; they should be placed
at an elevation more than fifteen
feet from the ground when suspended
across a highway.” Williams v.
Louisiana, etc, P. Co., 43 La. Ann.
295, 3 Am. Elect]. Cas. 479, 8 So.
938.

7. Proximate cause— The doctrine
of proximate cause is discussed in an
earlier chapter. See §§ 435-452.

8. Canada—In Dunphy v. Mon-
treal L., H. & P. Co., C. R. (1907)
A. C. 200, (1907) A. C. (Eng.) 454,
it appeared that an electric company
was authorized to place its wires
either underground or overhead. It
placed them overhead, and a derrick
came in contact with a wire and the
electric current was diverted to the

It was held that the company was
not guilty of negligence in the ab-
sence of evidence that placing wires
under ground or insulating them
would have averted the accident.

9. Greenwood v. Eastern Oregon L.
& P. Co., (Oreg.) 146 Pac. 336.

10, Stuhr v. Wright County Telep.
Co., 119 Minn. 508, 138 N. W. 693.

11, Chant v. Clinton Telep. Co., 130
Wis. 533, 110 N. W. 423.

12, Shank v. Great Shoshone, etc.,
Power Co., 205 Fed. 833, 124 C. C. A.
35, wherein it was said: “It was
clearly its duty to have used every
reasonable precaution to raise and
keep its high power transmission
wires sufficiently high above ground
for the safe passage of such struc-
tures as the plaintiff was engaged in
moving at the time and at the place
he was injured. Such structures were
WIRES. 735
upon the person claiming that the wire was maintained too
low to show that conveyances of equal or greater elevation
frequently pass along the highways in that section. If the
customary use of the highway requires that its wires shall
be placed 30 feet or more from the surface of the road, that
is the measure of the company’s duty. The company’s
duty is to place its wires high enough for the usual and
ordinary travel upon the highway, not for any and all
travel. So, in one case, where a hay derrick with an arm
45 feet high came in contact with an electric wire across
a road, and an injury was caused thereby, in the absence
of evidence that it was customary to move derricks of that
height along the highway, it was held that the company was
not liable for the injury.*

Over Roof of Building.—If an electric company main-
tains a dangerous wire over the roof of a building where
people are likely to go, it must raise the wire to an altitude
where contact is difficult,** or it must, by insulation or other
devices, reduce the danger from contact.*®

Sec. 496. Height; Falling.

The great caution which is required of electric companies
applies with peculiar force to the proper maintenance of
their wires. So long as the wires remain in proper loca-
tion and in such condition to perform their function of
conveying the electric current without escape, the danger
from an electric shock is comparatively slight. But once
its deadly current finds an outlet and escapes from its
normal course, serious injury is to be expected. In the
proper maintenance of its system, an electric company

common to that locality. It was not
of unusual height and its passage
along the highway and over the bridge
was to be expected at any time.”

18. Mayhew v. Yakima Power Co.,
72 Wash. 431, 130 Pac. 485.

14, Mayhew v. Yakima Power Co.,
72 Wash. 431, 130 Pac. 485.

15. Giraudi v. Elec. Imp. Co., 107
Cal. 126,40 Pac. 108, 28 L. R, A.

596, 48 Am. St. Rep. 114, wherein it
was said: “It would have been com-
paratively inexpensive to raise the
wires so high above the roof that
those having occasion to go there
would not come in contact with them.
Not to do so was sufficient proof of
negligence to justify the verdict.”
16. § 515.
736

Law oF ELecrriciry.

must use at least ordinary care to keep its wires suspended

in their normal positions.

A wire of any kind hanging

down in a street may cause accidents of various kinds. If
a wire carries a current of high tension so that mere con-
tact therewith is likely to cause death or serious injury,
it is difficult to imagine a more dangerous condition in a

place frequented by travelers or other persons.”

17. United States— New England
Telep. & Teleg. Co. v. Moore, 179 Fed.
364, 102 C. C. A. 642, 31 L. R. A,
(N. 8.) 617.

Arkansas.— Texarkana Gas & Elec.
Co. v. Orr, 59 Ark. 215, 5 Am. Electl.
Cas. 272, 27 S. W. 66.

California. — Diller v. Northern Cal.
Power Co., 162 Cal. 531, 123 Pac. 359,
Ann. Cas. (1913 D) 908; Foley v.
Northern Cal. Power Co., 14 Cal. App.
401, 112 Pac. 467; Tackett v. Hender-
son Bros. Co., 12 Cal. App. 658, 108
Pac. 151.

Colorado.— Colorado Springs Elec.
Co. v. Soper, 38 Colo. 126, 88 Pac.
161; Denver Consol. Elec. Co. v. Simp-
son, 21 Colo. 371, 5 Am. Electl. Cas.
278, 41 Pac. 499, 31 L. R. A. 566.

Georgia.— Augusta Ry. & Elec. Co.
v. Weekly, 124 Ga. 384, 9 Am. Electl.
Cas. 555, 4 St. Ry. Rep. 151, 52 S. E.
444,

Illinois.— Larson v. Cent. Ry. Co.,
56 Ill. App. 263. “If a wire highly
charged with electricity is allowed to
hang loose in the street as this was,
where people are traveling in the
streets, the result to pedestrians or
horses coming in contact with it is
instant death. Therefore a party who
employs such agency should use the
highest degree’ of care to avoid expos-
ing the public to such danger.” Lar-
son v. Cent. Ry. Co., 56 Ill. App. 263.

Indiana— Aiken v. City of Colum-
bus, 167 Ind. 139, 9 Am. Electl. Cas.
843, 78 N. E. 657, 12 L. R. A. (N.S.)
416; Cumberland Telep. & Teleg. Co.

A wire

v. Kranz, 48 Ind. App. 67, 95 N. E.
371. »

Kansas.—City of Emporia v. White,
74 Kan. 864, 9 Am. Electl. Cas. 830,
86 Pac. 295; Kansas City v. Gilbert,
65 Kan. 469, 70 Pac. 350; City of
Kansas City v. File, 60 Kan. 157, 7
Am, Electl. Cas. 539, 55 Pace. 877;
Leavenworth Coal Co. v. Ratchford,
5 Kan. App. 150, 7 Am. Electl. Cas.
433, 48 Pace. 927.

Kentucky.— Macon v. Paducah St.
Ry. Co., 110 Ky. 680, 7 Am. Electl.
Cas. 630, 23 Ky. Law Rep. 46, 62
S. W. 496.

Maryland.— Walter v. Baltimore
Electric Co., 109 Md. 513, 71 Atl.
953; State v. Crisfield Ice Mfg. Co.,
118 Md. 521, 85 Atl. 615.

Massachusetts.— Prince v. Lowell
Elec. Light Corporation, 201 Mass.
276, 87 N. E. 558, Linton v. Wey-
mouth L. & P. Co., 188 Mass. 276, 9
Am. Elect]. Cas. 465, 74 N. E. 321.

Michigan.— Sykes v. Village of
Portland, 177 Mich. 290, 143 N. W.
326; Johnson v. Bay City, 164 Mich.
251, 129 N. W. 29, 17 Det. Leg. N.
1074, Ann. Cas. (1912 B) 866.

Mississippi— Potera v. City of
Brookhaven, 95 Miss. 774, 49 So. 617.

Missouri.— Davenport v. King Elec.
Co., 242 Mo, 111, 145 8. W. 454;
Gannon v. Laclede Gaslight Co., 145
Mo. 502, 7 Am. Elect]. Cas. 509, 46
S. W. 968, 47 S. W. 907, 43 L. R. A.
505; Booker v. Southwest Missouri R.
Co., 144 Mo. App. 273, 128 S. W.
1012; Cleary v. St. Louis Transit Co.,
‘WIRES.

737

not charged with a dangerous current of electricity, such
as the wire of a telephone or telegraph company, may fall
across a high potential wire in such a manner that it then

108 Mo. App. 433, 9 Am. Electl. Cas.
236, 3 St. Ry. Rep. 581, 83 S, W.
1029.

New Jersey.— Spires v. Middlesex
& M. Elec. L., H. & P. Co., 70 N. J. Le
355, 9 Am. Electl. Cas. 40, 57 Atl.
424; Newark Elec. L. & P. Co. v.
Ruddy, 62 N. J. Law 505, 7 Am.
Elect]. Cas. 524, 41 Atl. 712, 57
L. R. A. 624, 5 Am. Neg. Rep. 405;
affirmed, Ruddy v. Newark Elec. L.
w P. Co, 63 N, J. L. 357, 46 Adi.
1100, 57 L. R. A. 624. “In view of
the dangerous nature of a wire
charged with a strong current of elec-
tricity, it is’ entirely reasonable to
hold that corporations using the pub-
lic highway for wires that may be so
charged should exercise a high degree
of care to keep the wires where trav-
elers will not be likely to come in
contact with them.” Rowe v. N. Y.
& N. J. Telep. Co., 66 N. J. Law 19,
7 Am. Electl. Cas. 626, 48 Atl. 523.

New York.— Hebert v. Hudson
River Elec. Co., 136 N. Y. App. Div.
107, 120 N. Y. Supp. 672; Horning
v. Hudson River Telep. Co., 111 App.
Div. 122, 9 Am. Elect]. Cas. 616, 97
N. Y. Supp. 625; affirmed without
opinion, 186 N. Y. 552, 79 N. E.
1107; O’Leary v. Glens Falls Gas &
Elec. L. Co., 107 App. Div. 505, 9
Am. Electl. Cas. 522, 95 N. Y. Supp.
232; Buckley v. Westchester Lighting
Co., 93 N. Y. App. Div. 436, 9 Am.
Electl. Cas. 86, 87 N. Y. Supp. 763;
affirmed without opinion, 183 N. Y.
506, 76 N. E. 1090; Wolpers v. N. Y.
& Queens Elec. L. & P. Co., 91 N. Y.
App. Div. 424, 9 Am, Elect]. Cas. 43,
86 N. Y. Supp. 845; O’Flaherty v.
Nassau Elec. R. Co., 34 N. Y. App.
Div. 74, 7 Am. Electl. Cas. 535, 54

47

N. Y. Supp. 96; affirmed without
opinion, 165 N, Y. 624, 59 N. E.
1128, 58 Alb. L. Jour. 347.

North Carolina.—Haynes v. Raleigh
Gas Co., 114 N. Car. 203, 5 Am.
Elect]. Cas. 264, 19 S. EB, 344, 41
Am. St. Rep. 786, 26 L. R. A. 810.

Ohio.— Citizens’ Elec. Ry. & P. Co.
v. Bell, 26 Ohio Cir. Ct. R. 691;
affirmed without opinion, 70 Oh. St.
482, 72 N. E. 1155.

Oregon.— Crosby v. Portland Ry.
Co., 53 Oreg. 496, 6 St. Ry. Rep.
685, 101 Pac. 204; Carroll v. Grande
Ronde Elec. Co., 47 Oreg. 424, 9 Am.
Elect]. Cas. 642, 4 St. Ry. Rep. 908,
84 Pac. 389, 6 L. R. A. (N. S.) 290;
Chaperon v. Portland Gen. Elec. Co.,
41 Oreg. 39, 8 Am. Electl. Cas. 468,
67 Pac. 928; Boyd v. Portland Elec.
Co., 40 Oreg. 126, 7 Am. Electl. Cas.
661, 66 Pac. 576, 57 L, R. A, 619.

Pennsylvania.— Berstein v. Phila-
delphia Elec. Co., 235 Pa. St. 53, 83
Atl. 612; Daltry v. Media Elec. L.,
H. & P. Co., 208 Pa. St. 403, 9 Am.
Electl. Cas. 63, 57 Atl. 883; Devlin
v. Beacon L. Co., 192 Pa. St. 188, 7
Am. Elect]. Cas. 563, 43 Atl. 962, 44
Wkly. Notes Cases 340.

South Carolina.—Laughlin v. South-
ern Public Service Corp., 83 S. Car.
62, 64 S. E. 1010; Mitchell v. Charles-
ton L. & P. Co., 45 S. C. 146, 6 Am.
Electl. Cas, 245, 22 S.‘E. 767, 31
L. R. A. 577, 41 Cent. L. J. 364.

Texas.— Houston Lighting Power
Co, v. Hooper, 46 Tex. Civ. App. 257,
9 Am, Electl. Cas. 1050, 102 S. W.
133.

Virginia— Norfolk Railway &
Light Co. v. Spratley, 103 Va. 379,
9 Am. Electl. Cas. 329, 3 St. Ry.
Rep. 859, 49 S. E. 502.
738

Law oF E.ecrriciry.

becomes deadly. <A wire negligently permitted to remain
in a place frequented by persons, though not of itself dan-
gerous, may momentarily become so by the conduction of

Washington.— Scarpelli v. Wash-
ington Water Power Co., 63 Wash.
18, 114 Pac. 870.

West Virginia— Snyder v. Wheel-
ing Elec. Co., 48 W. Va. 661, 7 Am.
Elect]. Cas. 473, 28 8. E. 733, 39
L. R. A. 499, 64 Am. St. Rep. 922.

Wisconsin.— Miller v. Kenosha
Electric Ry. Co., 135 Wis. 68, 115
N. W. 355.

Wire hanging down in yard—
Where an electric light company had
cut off connection with a house, as
ordered by the tenant, but had left a
live wire running from the street to
the house, and this wire hung from
a pole within a few feet of the
ground, it was held that the company
was liable for injuries received by a
child coming in contact with such
wire, although the child was a tres-
passer as against the owner of the
premises. Daltry v. Media L., H. &
P. Co., 208 Pa. St. 403, 9 Am. Electl.
Cas. 63, 57 Atl. 883.

18, United States Finch v. City
of Ottawa, 190 Fed. 299, 111 C. C. A.
199; Western Union Teleg. Co. v.
Thorn, 64 Fed. 287, 5 Am. Electl. Cas.
283, 12 ©. C. A. 104, 28 U. S. App.
123; Henning v. Western Union
Teleg. Co., 41 Fed. 864.

Alabama.— Jones v. Finch, 128 Ala.
217, 8 Am. Elect]. Cas. 497, 29 So.
182; McKay v. Southern Bell Telep
Co., 111 Ala. 337, 6 Am. Electl. Cas.
223, 19 So. 695, 31 L. R. A. 589.

Arkansas.— Southwestern  Teleg.
& Telep. Co. v. Bruce, 89 Ark. 581,
117 8. W. 564; City Elec. St. R. Co.
v. Conery, 61 Ark. 381, 6 Am. Electl.
Cas. 217, 33 S. W. 426, 31 L. R. A.
570, 54 Am. St. Rep. 262.

Georgia.— Eining v. Georgia Ry. &
Elec. Co., 133 Ga. 458, 66 S. E. 237.

Illinois— Economy L. & P. Co. v.
Hiller, 203 Il]. 518, 8 Am. Electl. Cas.
462, 68 N. E. 72; Presley v. Kinlock-
Bloomington Telep Co., 158 Ill. App.
220; Gents v. Spring Valley Coal Co.,
155 Ill. App. 628; Kankakee Ry. Co.
v. Whittemore, 45 Ill. App. 484, 4
Am. Electl. Cas. 362.

Indiana.— Central Union Telep.
Co. v. Sokola, 34 Ind. App. 429, 9 Am.
Electl. Cas. 323, 73 N. E. 143.

Maryland.— Western Union Teleg.
Co. v. State, Nelson, 82 Md. 293, 6
Am. Electl. Cas. 210, 33 Atl. 763, 51
Am. St. Rep. 464, 31 L. R. A. 572.

Missouri— Strack v. Missouri, etc.,
Telep. Co., 216 Mo. 601, 116 S. W.
526; Politowitz v. Citizens’ Telephone
Co., 123 Mo. App. 77, 9 Am. Electl.
Cas. 964, 99 S. W. 756; Politowitz v.
Citizens’ Telep. Co., 115 Mo. App. 57,
90 S. W. 1031.

Montana.— Mize v. Rocky Moun-
tain Bell Telep. Co., 38 Mont. 521, 100
Pac. 971, 16 Ann. Cas. 1189.

New Jersey.— Hamilton v. Border-
town Elec. L. & Motor Co., 68 N. J.
Law 85, 8 Am. Electl. Cas. 524, 52
Atl. 290; Rowe v. N. Y. & N. J. Telep.
Co., 66 N. J. Law 19, 7 Am. Electl.
Cas. 626, 48 Atl. 523; N. Y. & N. J.
Telep. Co. v. Bennet, 62 N. J. L. 742,
7 Am. Electl. Cas. 543, 42 Atl. 759.

New York.—Fox v. Viilage of Man-
chester, 183 N. Y. 141, 9 Am. Electl.
Cas. 559, 75 N. BE. 1116, 2 L. RB. A.
(N. 8S.) 474; Twist v. City of Roches-
ter, 37 App. Div. 307, 55 N. Y. Supp.
850, affirmed without opinion, 165
N. Y. 619, 59 N. E. 1131.

Pennsylvania. Emery v. City of
Philadelphia, 208 Pa. St. 492, 9 Am.
Elect. Cas. 80, 57 Atl. 977; Herron
v. City of Pittsburg, 204 Pa. 509, 8
WIREs. 739
a discharge of lightning along the wire.® Two wires of
different tension of the same company, such as a primary
and a secondary service wire, coming in contact by the
falling of one, may cause a deadly current to pass into the
building of an electric company’s patron.” Hven where
there is no current on the wire sufficient to give an inju-
rious electric shock, collision with the wire may result in
injury, as where a horse becomes entangled therein or a

pedestrian trips over the wire.”

Am. Electl. Cas. 482, 54 Atl. 311,
93 Am. St. Rep. 798.

South Carolina.— Lundy v. South-
ern Bell Telep. & Teleg. Co., 90 S. Car.
25, 72 8. E. 558.

Tennessee.— Shelton v. United
Elec. R. Co., 89 Tenn. 423, 3 Am.
Elect]. Cas. 477, 14 S. W. 863, 46
Am. & Eng. R. Cas. 206.

Texas.— Citizens’ Telep. Co. v.
Thomas, 45 Tex. Civ. App. 20, 9 Am.
Elect]. 950, 99 S. W. 879; Southwest-
ern Teleg. & Telep. Co. v. Shirley,
(Civ. App.) 155 S. W. 663.

Virginia— Lynchburg Telep. Co. v.
Booker, 103 Va. 594, 9 Am. Electl.
Cas. 406, 50 S. E. 148.

Canada.— Sutton v. Town of Dun-
das, 17 0. L. R. 556, 13 O. W. R.
126; Morgan v. Bell Telep. Co., 11
Quebec Superior Court 1103.

19. Western Union Teleg. Co. v.
Harris, 6 Ga. App. 260, 64 S. E. 1123.

20. Alton Ry. & Illum. Co. v.
Foulds, 81 Ill. App. 322, 7 Am. Electl.
Cas. 548; affirmed, 190 Ill. 367, 60
N. E. 537.

Primary wire grounded.— In Alton
Ry. & Illum. Co. v. Foulds, 81 Ill.
App. 322, 7 Am. Electl. Cas. 548; af-
firmed, 190 Ill. 367, 60 N. E. 537, it
appeared that the plaintiff’s wife,
taking hold of the wire or metal
socket of an electric lamp in her
house, in the act of lighting it, re-
ceived a fatal shock. There was evi-
dence of a grounded primary wire,

Again, the mere falling

and of conditions rendering it pos-
sible for the current to pass around
instead of through the transformer;
neither of which alone could, but both
together might, have caused the
deadly current to enter the house, re-
sulting in the death in question. It
was held that the question of the
defendant’s negligence was proper for
the jury.

21. United States.— Western Un-
ion Teleg. Co. v. Engler, 75 Fed. 102,
21 0. OC. A. 246, 44 U. S. App. 517.

Colorado.— Western Union Teleg.
Co. v. Eyser, 2 Colo. 141.

Indiana— Brush Elec. L. Co. v.
Kelley, 126 Ind. 220, 3 Am. Elect.
Cas. 857, 25 N. E. 812; Home Telep.
Co. v. Weir, (Ind. App.) 101 N. E.
1020.

Kentucky.— Cynthiana Telep. Co.
v. Asbury, 147 Ky. 307, 143 S. W.
1050; West Kentucky Telep. Co. v.
Pharis, 25 Ky. Law Rep. 1838, 78
S. W. 917.

Louisiana.— Claussen v. Cumber-
land Telep. & Teleg. Co., 126 La. 1087,
53 So. 357.

Massachusetts.—_Thomas v. West-
ern Union Teleg. Co., 100 Mass. 156.

Michigan.— Hovey v. Michigan
Telep. Co., 124 Mich. 607, 83 N. W.
600, 7 Det. Leg. N. 353.

Minnesota.— Nichols v. City of
Minneapolis, 33 Minn. 430, 1 Am.
Electl. Cas. 762.

Missouri.— Heiberger v. Missouri
740. Law or ELectrictry.

of the wire may cause an injury, as where it strikes a trav-
eler,” or frightens a horse so that injury ensues.* To
avoid these, and all other injuries which may reasonably
be anticipated to occur by reason of the falling of a wire,
the company is bound to exercise that degree of care which
is commensurate™ with the danger. As a general rule, the
mere falling of a wire is prima facie evidence of negligence,
under the doctrine of res ipsa loquitur,” but, irrespective
of the evidentiary ingredient, there can be no doubt that
it is the duty of a company maintaining overhead wires
to use due care to keep them at a proper elevation.” A
company maintaining a system of overhead wires is not an
insurer” against accidents from the falling of its wire. If
the falling of the wire is due solely to an act of God,” or
an inevitable accident which could not have been foreseen,

& Kansas Telep. Co., 133 Mo. App.
452, 113 S. W. 730.

New York.— Walther v. Am. Dist.
Teleg. Co., 11 Mise. (N. Y.) 71, 32 N.
Y. Supp. 751.

South Dakota.— Snee v. Clear Lake
Telep. Co., 24 S. Dak. 361, 123 N. W.
729.

Utah.— Bishop v. Rocky Mountain
Bell Telep. Co., 33 Utah 464, 94 Pac.
976.

Wisconsin.— Herlitzke v. La Crosse
Interurban Telep. Co., 145 Wis. 185,
130 N, W. 59.

22. Jones v. Union Ry. Co., 7 Am.
Elect]. Cas. 447, 18 N. Y. App. Div.
267, 46 N. Y. Supp. 321; Schenkel v.
Pittsburgh, etc., Tract. Co., 194 Pa.
St. 182, 44 Atl. 1072; Memphis St.
Ry. Co. v. Kartright, 110 Tenn. 277,
8 Am. Elect]. Cas. 430, 1 St. Ry. Rep.
763, 75 S. W. 719.

Trolley wire struck by trolley pole.
—In Schenkel v. Pittsburg, ete.,
Tract. Co., 194 Pa. St. 182, 44 Atl.
1072, it appeared that one of the
cars of a street railway company had
become disabled and was being
pushed by another car; the trolley

pole of the disabled car was not fast-
ened down, and it slipped from the
trolley wire, and struck and broke a
wire of a cross line, and the wire
fell and caused an injury to a person
in the street. It was held that the
negligence of the company was a
question for the jury.

Unavoidable accident.—Where a
pedestrian was injured by a wire of
an electric railway company, which
was broken by an unavoidable acci-
dent and struck him as it fell, the
company is not liable. Cook v. Wil-
mington Oity Elec. Co., 9 Houst.
(Del.) 306, 32 Atl. 643.

23. Postal Teleg. Cable Co. v. Jones,
133 Ala. 217, 8 Am. Electl. Cas. 409,
32 So. 500; Larkin v. Western Union
Teleg. Co.,'82 Mo. App. 155.

24. § 404.

25. § 594.

26, Fisher v. City of New Berne,
140 N. Car. 506, 9 Am. Electl. Cas.
677, 53 8. E. 342, 5 L. R. A. (N.S)
543, 111 Am. St. Rep. 857.

27. § 400.

28, § 453.
WIRES. 741
there is no liability, however heartrending may be the con-
sequences of the fallen wire.*® But, where the falling of
a wire is due to some cause for which its owner is not
responsible, negligence may be inferred from its failure
of inspection and discovery and repair of the dangerous
situation.*° The fact that, at the time of an injury from
a charged trolley wire in the street, there was a general
strike of the employees of the street railway company, is
no defense; if the company is unable to care for its wires
so as to avoid injury to travelers, it must not send a deadly
current of electricity through them.*

Question for Jury.—In an action for injuries to a trav-
eler coming in contact with a dangerous wire in a public
highway, the question of the company’s negligence and
of the traveler’s contributory negligence, as in other cases,
is generally for the jury to decide.” If the jurors find that
the misplacement of the wire was not the result of its
owner’s negligence, their verdict will not ordinarily be set

aside.*8

29. Scarpelli v. Washington Water
Power Co., 63 Wash. 18, 114 Pac. 870.
Wire broken by construction work
of city Where the wire of an elec-
tric company is broken by the serv-

ants of the city engaged in con-

struction work on the city streets,
and an injury is occasioned by the
prostrate wire within such a short
time that no opportunity for repairs
was given to the company, it was
held that the company was not liable
for the accident. Scarpelli v. Wash-
ington Water Power Co., 63 Wash. 18,
114 Pae. 870.

Falling of wire caused by burning
of buildings— Where a street rail-
way company was authorized to
maintain its trolley system in city
streets, and the falling of its trolley
wire was due, not to its negligence,
but to the burning of an adjoining
building, it was held that the com-
pany was not liable for injuries aris-

ing from the fall thereof. Hollis v.
Brooklyn Heights R. Co., 128 N. Y.
App. Div. 821, 113 N. Y. Supp. 4.

Act of third person.— If the break-
ing or falling of a wire is due solely
to the negligent or wrongful act of
a third person, the owner of the wire
is not liable for the injury, unless
he has been afforded a reasonable
opportunity to remedy the- defect.
Sullivan v. Narragansett Electric L.
Co., (R. I.) 73 Atl. 306; Morgan v.
Bell Telep. Co., 11 Quebec Superior
Court (Canada) 103.

30. §§ 448, 480.

81. Cleary v. St. Louis Transit Co.,
108 Mo. App. 433, 9 Am. Electl. Cas.
236, 3 St. Ry. Rep. 581, 83 S. W.
1029.

82. Miller v. Kenosha Electric Ry.
Co., 135 Wis. 68, 115 N. W. 355.

88. Miller v. Kenosha Elec, Ry. Oo.,
135 Wis. 68, 115 N. W. 355.
742 Law oF ELecrtriciry.

Sec. 497. Height; Sagging.

Whenever electric or other wires are maintained in such
a location that it may be reasonably anticipated that the
sagging thereof will cause injury, the one maintaining the
wire must use due care to prevent the sagging thereof.
Due or commensurate care in the case of high-tension elec-
tric currents means a very high degree of diligence.* If
a wire strung along or across a highway is negligently per-
mitted to sag so that a traveler is injured thereby, as a
general proposition, the company maintaining the wire is

liable for the resultant damages.

34. United States.— Southwestern
Teleg. & Telep. Co. v. Robinson, 50
Fed. 810, 4 Am. Elect]. Cas. 342, 1
C. C. A. 684, 2 U. S. App. 205.

Arkansas.— Jacks v. Reeves, 78
Ark. 426, 95 S. W. 781; North Ar-
kansas Telep. Co. v. Peters, 103 Ark.
564, 148 S. W. 273.

Connecticut.— Cutler v. Putnam L.
& P. Co., 80 Conn. 470, 68 Atl. 1006.

Illinois.— Economy L. & P. Co. v.
Hiller, 203 Ill. 518, 8 Am. Electl. Cas.
462, 68 N. E. 72.

Maine.— Dickey v. Maine Teleg.
Co., 46 Me. 483.

Michigan.— Sykes v. Village of
Portland, 177 Mich. 290, 143 N. W.
326.

Missouri— Goodwin v. Columbia
Telep. Co., 157 Mo. App. 596, 138 S.
W. 940.

Nebraska.— Weaver v. Dawson
County Mut. Telep. Co., 82 Neb. 696,
118 N. W. 650, 22 L. R. A. 1189.

Oregon.— Crosby v. Portland Ry.
Co., 53 Oreg. 496, 6 St. Ry. Rep. 685,
101 Pac. 204.

Pennsylvania.— Reeder v. Lehigh
Valley Coal Co., 231 Pa. St. 563, 80
Atl. 1121; Miller v. Lewistown Elec.
H. & P. Co., 212 Pa. 593, 9 Am. Elect.
Cas. 493, 62 Atl. 32; Pennsylvania
Telep. Co. v. Varnau, 5 Lance. Law
Rev. 401, 15 Atl. 624.

Thus, if a telephone

Texas.— Cleburne Electric & Gas
Co. v. McCoy, (Civ. App.) 128 S. W.
457.

Wisconsin.— Herlitzke v. Le Crosse
Interurban Telep. Co., 145 Wis. 185,
130 N. W. 59; Leque v. Madison Gas
& Elec. Co., 133 Wis. 547, 113 N. W.
946.

Employee in mine—Where a miner
was carrying a keg of powder
through « passageway in a mine and
the keg inadvertently came in con-
tact with an unguarded trolley wire
and the powder exploded, it was held
that the jury might charge the min-
ing company with negligence in the
sagging of the trolley wire. Reeder
v. Lehigh Valley Coal Co., 231 Pa.
St. 563, 80 Atl. 1121.

Lightning.— Plaintiff was injured
by contact, during a thunder storm,
with a telephone wire, which had
been permitted for several weeks to
remain suspended over a highway
within a few feet of the ground.
Held, that the wire was the proxi-
mate cause of the injury, since with-
out it the electricity would have
been harmless. Southwestern Teleg.
& Telep. Co. v. Robinson, 50 Fed. 810,
4 Am. Elect]. Cas. 342,10. ©. A. 684,
2 U.S. App. 205.

35. § 404,

86. Alabama.— Postal Teleg. Cable
WIRES. 743
company permits its wire to come in contact with a dan-
gerous electric wire and become charged, and the telephone
wire is negligently allowed to sag so that a pedestrian is
injured thereby, the telephone company is liable for the
injury.” So, too, if one company negligently allows its
wire: to sag and thus come in contact with the wire of
another company, so that a dangerous current upon one
wire is diverted to the other and injures a person or prop-
erty in contact with the latter wire, the company maintain-
ing the sagging wire will generally be called upon to re-
spond in damages for the injury.*® In this latter case, both
companies may be liable; one on the ground that it negli-
gently permitted its wire to sag; the other on the theory
that it negligently permitted its wire to remain in a posi-

Co. v. Jones, 133 Ala. 217, 8 Am.
Electl. Cas. 409, 32 So. 500.

Arkansas.— Jacks v. Reeves, 78
Ark. 426, 95 S. W. 781; North Arkan-
sas Telep. Co. v. Peters, 103 Ark. 564,
148 S. W. 273.

Colorado.— Denver Consol. Elec. Co.
v. Simpson, 21 Colo. 371, 5 Am.
Elect]. Cas. 278, 41 Pac. 499, 31 L. R.
A. 566; Western Union Teleg. Co. v.
Eyser, 2 Colo. 141.

Georgia.— Southern Bell Telep. &
Teleg. Co. v. Howell, 124 Ga. 1050, 9
Am. Elect]. Cas. 635, 53 S. E. 577;
Lloyd v. City & Suburban Ry. Co.,
110 Ga. 165, 35 S. E. 170.

Indiana Cumberland Telep. &
Teleg. Co. v. Pierson, 170 Ind. 543,
84 N. E. 1088.

Maine.— Dickey v. Maine Teleg.
Co., 46 Me. 483.

Massachusetts.— Thomas v. West-
ern Union Teleg. Co., 100 Mass. 156.

Michigan— Hovey v. Michigan
Telep. Co., 124 Mich. 607, 83 N. W.
600, 7 Det. Leg. N. 353.

Nebraska.— Weaver v. Dawson
County Mut. Telep. Co., 82 Neb. 696,
118 N. W. 650, 22 L. R. A. 1189.

Pennsylvania,— Miller v. Lewis-

town Elec. H. & P. Co., 212 Pa. 593,
9 Am. Electl. Cas. 493, 62 Atl. 32;
Pennsylvania Telep. Co. v. Varnau, 5
Lane. Law Rev. 401, 15 Atl. 624.

South Dakota.— Thompson v. Reed,
29 S. Dak. 85, 135 N. W. 679.

Wire across river.— If it is shown
that a wire maintained across a river
obstructed the passage of a boat and
caused an injury to a person in the
boat, a prima facie case of negligence
is established. Heiberger v. Missouri
& Kansas Telep. Co., 133 Mo. App.
452, 113 S. W. 730.

37. Goodwin v. Columbia Telep. Co.,
157 Mo. App. 596, 138 S. W. 940.

38. Cutler v. Putnam L. & P. Co.,
80 Conn. 470, 68 Atl. 1006; Southern
Bell. Telep. & Teleg. Co. v. Davis. 12
Ga. App. 28, 76 S. E. 786; Economy
L. & P. Co. v. Hiller, 203 Ill. 518, 8
Am. Electl. Cas, 462, 68 N. E. 72;
Sykes v. Village of Portland, 177
Mich. 290, 143 N. W. 326; Downs v.
Missouri & Kansas Telep. Co., 161
Mo. App. 274, 143 S. W. 889; Free-
man v. Missouri & K. Telep. Co., 160
Mo, App. 271, 142 S. W. 733; Temple
Elec, L. Co. v. Halliburton, (Tex. Civ.
App.) 136 S. W. 584,
744. Law oF ELEcrRIcITyY.

tion whereby the line of another company would come in
contact with its wire.’ Electric companies, not being
insurers against accidents from their appliances,*° are not
liable for injuries resulting from an act of God* or inev-
itable accident.*? The basis of the company’s liability is
its negligence; but the sagging of wire, under the doctrine
of res ipsa loquitur, is generally held to make a prima facie
case of negligence which requires the company to give evi-
dence that the sagging was not the result of its negligence.*
Negligence may be imputed to the company, not only from
the sagging of the wire, but also from its failure to correct
the sagging. If it has knowledge of the sagging of the
wire, it is its duty to repair the condition as soon as prac-
ticable, and if it fails in the duty of remedying the difficulty,
it is liable.** An absence of actual knowledge of the sag-
ging condition is not always an excuse for its failure to
repair it. If the condition has existed.for such a time
that, in the exercise of its duty to inspect its wires, the
situation would have been discovered, it is chargeable the
same as though it had acquired actual notice of the defect.**
If the sagging of its wire is occasioned by a cause for which
it is not responsible, and it detects the trouble with prompt-
ness, and immediately pursues the proper steps to remedy
the situation, it is not chargeable for an injury to another
by reason of the sagging of the wire.*®

Sec. 498. Proximity to Other Wires; in General.

The propensity of electric currents to escape from their
paths and follow another conductor if it offers less resist-
ance, is recognized by the courts, and must be guarded
against by companies maintaining wires along public high-

89. Southern Bell Telep. & Teleg. 40. § 400.
Co. v. Davis, 12 Ga. App. 28, 76 S. E. 41. § 453.
786; Economy L. & P. Co. v. Hiller, 42. Read v. City & Suburban Ry.
203 Ill. 518, 8 Am. Electl. Cas. 462, Co., 115 Ga. 366, 41 S. E. 629.
68 N. E. 72; Sykes v. Village of Port- 43. § 594.
land, 177 Mich. 290, 143 N. W. 326; 44. §§ 478 et seq.
Freeman v. Missouri & K. Telep. Co., 45. § 479.
160 Mo. App. 271, 142 S. W. 733. See 46. Read v. City & Suburban Ry.
also, § 498. Co., 115 Ga. 366, 41 S. E. 629.
WIRES.

ways or in other places.*”

745

Negligence will be imputed to

a public service corporation which, by failure to exercise
due care, allows its wire to come in contact with the wire

of another system.

Due care requires that electric and

other companies endeavor to keep their wires a sufficient
distance from other wires or maintain some device for the
prevention of contact, so that a dangerous current upon

47. Mize v. Rocky Mountain Bell
Telep. Co., 38 Mont. 521, 100 Pac.
971, 16 Ann. Cas. 1189. “ Proof of
the fact that a wire heavily charged
with electricity was placed so near
another wire which ran down near
the sidewalk where people were con-
stantly passing as to fill it with elec-
tricity charged the party who
erected the wire with the knowledge
that persons were liable to be injured
or killed by coming in contact with
such wire. Dealing with so danger-
ous an agency as electricity, it was
clearly the duty of appellant to con-
struct its wires so as the prevent
them conducting the electricity in
such proximity to a sidewalk that
people might be brought in contact
with it; and if it is done, and some
one is killed, it is chargeable with
the knowledge that such result was
likely to follow.” International L. &
P. Co. v. Maxwell, 27 Tex. Civ. App.
294, 7 Am. Electl. Cas. 672, 65 S. W.
78.

48. Georgia—Eining v. Georgia
Ry. & Elec. Co, 133 Ga. 458, 66
8. E. 237; Southern Bell Telep. &
Teleg. Co. v. Davis, 12 Ga. App. 28,
76 8 E. 786; Tramwell v. Columbus
R. Co., 9 Ga. App. 98, 70 S. E. 892.

Illinois— Economy L. & P. Co. v.
Hiller, 203 Ill. 518, 8 Am. Electl. Cas.
462, 68 N. E. 72; Presley v. Kinlock-
Bloomington Telep. Co., 158 Ill. App.
220.

Indiana.— Cumberland Telep. &
Teleg. Co. v. Kranz, 48 Ind. App. 67,
95 N. E. 371; Indianapolis L. & H.

Co. v. Dolby, 47 Ind. App. 406, 92
N. E. 739; City of Logansport v.
Smith, 47 Ind. App. 64, 93 N. E. 883;
Central Union Telep. Co. v. Sokola,
34 Ind. App. 429, 9 Am. Electl. Cas.
323, 73 N. E. 143.

Louisiana.— Simmons v, Shreveport
Gas, Elec. L. & P. Co., 116 La. 1033,
9 Am. Electl. Cas. 760, 41 So. 248.

Michigan.— Sykes v. Village of
Portland, 177 Mich. 290, 143 N. W.
326; Kraatz v. Brush Elec. L. Co., 82
Mich. 457, 3 Am. Electl. Cas. 491, 46
N. W. 787.

Mississippi Cumberland Telep. &
Teleg. Co. v. Woodham, 99 Miss. 318,
54 So. 890; Cumberland Telep. &
Teleg. Co. v. Cosnahan, (Miss.) 62
So. 824,

Missouri— Downs v. Missouri &
Kansas Telep. Co., 161 Mo. App. 274,
142 S. W. 889; Goodwin v. Columbia
Telep. Co. 157 Mo. App. 596, 138
S. W. 940.

Montana.— Mize v. Rocky Moun-
tain Bell Telep. Co., 38 Mont. 521,
100 Pac. 971, 16 Ann. Cas. 1189.

New Jersey.— Hamilton v. Border-
town Elec. L. & Motor Co., 68 N. J.
Law 85, 8 Am. Elect]. Cas. 524, 52
Atl. 290.

New York.— Predmore v. Consum-
er’s L. & P. Co., 99 N. Y. App. Div.
551, 9 Am. Elect]. Cas. 244, 91 N. Y.
Supp. 118.

Pennsylvania.— Delahunt v. United
Telep. & Teleg. Co., 215 Pa. St. 241,
9 Am. Elect]. Cas. 792, 64 Atl. 515;
Daltry v. Media Elec. L., H. & P. Co.,
746

one wire will not be diverted to another.”

Law or ELEcTRICITY.

If it fails in this

duty, it is liable for such injuries as proximately result

from its failure.

208 Pa. St. 403, 9 Am. Electl. Cas.
63, 57 Atl. 883. See also, Hand v.
Central Pennsylvania Telep. & Sup-
ply Co. (Com. Pl.) 1 Lack. Leg. N.
351.

Texas.— Denison L. & P. Co. v.
Patton, (Civ. App.) 135 S. W. 1040.

Utah.— Swan v. Salt Lake, etc.
Ry. Co., 127 Pac. 267.

Virginia.— Stanton Mut. Telep. Co.
v. Buchanan, 108 Va. 810, 62 S. E.
928; Richmond & P. Elec. Ry. Co. v.
Rubin, 102 Va. 809, 9 Am. Electl.
Cas. 138, 3 St. Ry. Rep. 870, 47 S. E.
834,

Interference with wires by third
person.—If the wires of a public
service corporation are interfered
with by a third person, for example,
a person moving a building through
the street, and thereby they come in
contact with wires of another cor-
poration so that injury results to an-
other, the person interfering with
the wires is generally liable for the
injury. Nagle v. Hake, 123 Wis.
256, 9 Am. Electl. Cas. 218, 101 N.
W. 409.

49. United States.— Finch v. City
of Ottawa, 190 Fed. 299, 111 C.C. A.
199.

California.— Dow v. Sunset Telep.
& Teleg. Co., 157 Cal. 182, 106 Pac.
587; Brown v. Northern California
Power Co., 14 Cal. App. 651, 114 Pac.
74,

Georgia Western Union Teleg.
Co. v. Griffith, 111 Ga. 551, 7 Am.
Electl. Cas. 602, 36 S. EH. 859; Atlanta
Consol. St. R. Co. v. Owings, 97 Ga.
663, 6 Am. Electl. Cas. 271, 25 S. E.
377, 33 L. R. A. 798.

Idaho.— Staab v. Rocky Mt. Bell
Telep. Co., 23 Idaho 314, 129 Pac.
1078.

Thus, if an electric company negligently

Kentucky.— City of Owensboro v.
Knox’s Adm’r, 116 Ky. 451, 25 Ky.
Law Rep. 680, 76 S. W. 191.

Kansas.— Biddle v. Leavenworth
L., H. & P. Co., 87 Kan. 604, 125 Pac.
51.

Louisiana— Hanton v. New Or-
leans, etc., Power Co., 124 La. 562,
50 So. 544; Simmons v. Shreveport
Gas, Elec. L. & P. Co., 116 La. 1033,
9 Am. Electl. Cas. 760, 41 So. 248.

Minnesota.— Gilbert v. Duluth Gen.
Elec. Co., 93 Minn. 99, 9 Am. Electl.
Cas. 166, 100 N. W. 653, 106 Am. St.
Rep. 430.

Mississippi— Cumberland Telep. &
Teleg. Co. v. Woodham, 99 Miss. 318,
54 So. 890; Berry v. Cumberland
Telep. & Teleg. Co., 95 Miss. 729, 50
So. 69; Cumberland Telep. & Teleg.
Co. v. Cosnahan, (Miss.) 62 So. 824.

Missouri Freeman v. Missouri
& K. Telep. Co., 160 Mo. App. 271,
142 8. W. 733.

New Jersey.— Rowe v. New York
& N. J. Telep. Co, 66 N. J. L. 19,
7 Am. Electl. Cas. 626, 48 Atl. 523.

New York.— Horning v. Hudson
River Telep. Co., 111 App. Div. 122,
9 Am. Elect]. Cas. 616, 97 N. Y. Supp.
625; affirmed without opinion, 186
N. Y. 552, 79 N. E. 1107; Paine v.
Elec. Illum. Co. of Long Island City,
64 App. Div. 477, 7 Am. Electl. Cas.
651, 72 N. Y. Supp. 279. “It was the
duty of the defendant to use due
care in the stringing of its electric
wires of dangerous voltage across the
streets of the city, regardful of the
existence of other wires, of the pos-
sibility of contact therewith, of the
generation of high tension from its
wires, and mindful that such other
wires from time to time might re-
quire the attention of linemen and
WIRES. 747
maintains its primary and secondary lines so close together
that a high-tension current passes from its wire to the sec-
ondary system and into the building of the electric com-
pany’s patron, it will generally be liable for an injury to
a person in the building who is injured by the heavy cur-
rent.’ If an employee of one company is injured by an
electric shock caused by contact between the wire he is
handling and the wire of another company, and such con-
tact can be charged to the negligence of the other company,
the latter is liable, though there is no contract relation

between the injured and the negligent company.”

other workmen in the matters of re-
pair, readjustment, clearance, insula-
tion and restoration to their normal
functions. If the defendant failed to
string its wires over the wires of the
department and of the telegraph com-
pany at a height which ordinary care
required in order to avoid contact
therewith, caused by sagging or by
other natural and ordinary causes,
then it may be found negligent in
the premises.” Paine v. Elec. Illum.
& P. Co. of Long Island City, 64 N.
Y. App. Div. 477, 7 Am. Electl. Cas.
651, 72 N. Y. Supp. 279.

Ohio.— Toledo Rys. & L. Co. v.
Rippon, 28 Oh. Cir. Ct. Rep. 561, 9
Am. Electl. Cas. 939; affirmed with-
out opinion, 75 Oh. St. 609, 80 N. E.
1133.

Texas.— International L. & P. Co.
v. Maxwell, 27 Tex. Civ. App. 294, 7
Am. Elect]. Cas. 672, 65 S. W. 78;
Temple Elec. L. Co. v. Halliburton,
(Civ. App.) 136 S. W. 584.

Vermont.— Drown v. New England
Telep. & Teleg. Co., 81 Vt. 358, 70
At]. 599; Drown v. New England
Telep. & Teleg. Co., 80 Vt. 1, 9 Am.
Electl. Cas. 1053, 66 Atl. 801.

Virginia. Stanton Mut. Telep. Co.
v. Buchanan, 108 Va. 810, 62 S. E.
928; Richmond & P. Elec. Ry. Co. v.
Rubin, 102 Va. 809, 9 Am. Electl. Cas.
138, 3 St. Ry. Rep. 870, 47 S. E. 834.

The

50. Augusta Ry. & Elec. Co. v.
Beagles, 12 Ga. App. 849, 78 S. E.
949; Younnie v. Blackfoot Light &
Water Co., 15 Idaho 56, 96 Pac. 193;
Union Light, Heat & P. Co. v. Lake-
man, 156 Ky. 33, 160 S. W. 723; Gil-
bert v. Duluth Gen. Elec. Co., 93
Minn. 99, 9 Am. Electl. Cas. 166, 100
N. W. 653, 106 Am. St. Rep. 430;
Grimm v. Omaha Elec. L. & P. Co.,
79 Neb. 387, 112 N. W. 620, 114 N.
W. 769; Predmore v. Consumers’ L.
& P. Co, 99 N. Y. App. Div. 551, 9
Am. Elect]. Cas. 244, 91 N. Y. Supp.
118; Ohrstrom v. City of Tacoma, 57
Wash. 121, 106 Pac. 629.

Burning of building.— An electria
company which negligently permits
its high tension current to come in
contact with its secondary line so
that the high current passes into its
customer’s house and sets it on fire,
may be liable for the injury. Han-
ton v. New Orleans, etc., Power Co.,
124 La. 562, 50 So. 544.

51. United States.— Finch v. City
of Ottawa, 190 Fed. 299, 111 C. C. A.
199,

California.— Dow v. Sunset Telep,
& Teleg. Co., 157 Oal. 182, 106 Pac,
587.

Georgia Atlanta Consol. St. R,
Co. v. Owings, 97 Ga. 663, 6 Am.
Electl. Cas. 271, 25 S. E. 377, 33 L.
748 Law oF ELECTRICITY.

company for which he is working may also be liable.” It is
generally considered negligence to place, without some
device to prevent contact, a wire so that, if it falls or sags,
it will come in contact with another wire. But the main-
tenance of wires of different companies on the same pole
is not, of itself, negligence,* though a greater degree of
watchfulness may be thereby required in order to discover
and remedy any misplacement of the wires. The proper
distance between wires is a matter depending on a number
of different considerations, such as the voltage of the cur-
rents, insulation, the number of wires, the security of their
fastenings, lack of necessity for dangerous proximity, and
the physical surroundings. ‘The usual storms are to be
considered and caution employed to avoid the effects
thereof. The maintenance of electric wires carrying 2,200
volts of electricity within ten or twelve inches of telephone
wires and parallel thereto, justifies the jury in finding the
companies negligent.*© And it has been held that the plac-

R, A. 798; Tramwell v. Columbus R.
Co., 9 Ga. App. 98, 70 S. E. 892.

Kansas.— Biddle v. Leavenworth
L. H. & P. Co., 87 Kan. 604, 125 Pac.
51.

Mississippi— Cumberland Telep. &
Teleg. Co. v. Cosnahan, (Miss.) 62
So. 824.

Missouri— Downs v. Missouri &
Kansas Telep. Co., 161 Mo. App. 274,
143 S. W. 889.

New York.— Paine v. Elec. Illum.
Co. of Long Island City, 64 App. Div.
477, 7 Am. Electl. Cas. 651, 72 N. Y.
Supp. 279.

Ohio— Toledo Rys. & L. Co.. v.
Rippon, 28 Oh. Cir. Ct. Rep. 561, 9
Am. Elect]. Cas. 939; affirmed with-
out opinion, 75 Oh. St. 609, 80 N. E.
1133.

Texas.— Denison L. & P. Co. v.
Patton, (Civ. App.) 135 S. W. 1040.

Vermont.— Drown v. New England
Telep. & Teleg. Co., 81 Vt. 358, 70
Atl. 599; Drown v. New England

Telep. & Teleg. Co., 80 Vt. 1, 9 Am.
Elect]. Cas. 1053, 66 Atl. 801.

52. See § 553.

58. McKay v. Southern Bell Telep.
Co., 111 Ala. 337, 6 Am. Electl, Cas.
223, 19 So. 695, 31 L. R. A. 589; City
Elec. St. R. Co. v. Conery, 61 Ark.
381, 6 Am. Electl. Cas. 217, 33 S. W.
426, 31 L. R. A. 570, 54 Am. St. Rep.
262; Presley v. Kinlock-Bloomington
Telep. Co., 158 Ill. App. 220; Caron v.
La Cite De St. Henri, 9 Quebec Su-
perior Ct. (Canada) 490.

54. Bergin v. Southern New Eng.
Telep. Co., 70 Conn. 54, 38 Atl. 888,
39 L. R. A. 192; Wright v. Port Hope
Elec. Co., 13 O. W. R. (Canada) 210.

It is not negligent for one electric
company to authorize another to
string properly insulated high voltage
wires on its own poles. Wright v.
Port Hope Elec. Co., 13 0. W. R.
(Canada) 210.

55. § 454.

56. Biddle v. Leavenworth L. H. &
P. Co., 87 Kan. 604, 125 Pae. 51.
WIRES. 749
ing of wires carrying 2,300 volts of electricity within twenty-
six inches of a low potential wire is negligence as a matter
of law.** But, on the other hand, it has been held not negli-
gence per se to maintain an electric wire carrying 20,000
volts at a distance of three feet from telephone wires.”
Insulation, alone, is not always sufficient to retain an elec-
tric current in its course. If the wires are close together,
their swaying from the wind and other natural causes will
abrade the insulation and permit the current to escape.”

Sec. 499. Proximity to Other Wires; Joint Liability.

Where wires coming in contact belong to two different
public service corporations, both companies are generally
blamable for the accident. The company which constructed
its line and placed its wire in dangerous proximity to
another wire when the latter was plainly to be seen, is
especially guilty of negligence. But after the second wire
has remained in dangerous proximity for such a length of
time that the owner of the first wire is charged with either
actual or constructive knowledge of the dangerous situa-
tion, and it takes no steps to obviate the danger, it is like-
wise guilty of negligence. The mere fact that its line,

57. Grimm v. Omaha Elec, L. & P.
Co., 79 Neb. 387, 112 N. W. 620, 114
N. W. 769.

touch with the charged telegraph
wire. It was the duty of the three
companies maintaining the telegraph

58. Brown v. Northern California wire to use reasonable care to pre-
Power Co., 14 Cal. App. 651, 114 Pac. vent their wire from coming in con-
74. : tact with the highly charged electric

59. “It was the duty of the elec-
tric light company to use reasonable
care that other uninsulated telegraph
wires that crossed it should not be
allowed to come in contact with
its wire, which was insulated, and
which carried a powerful electric cur-
rent, and remain for so long a time
in contact therewith as to wear away
the insulation, and divert the power-
ful current to the telegraph wire, to
the probable injury of persons who
should come in contact with the tele-
graph wire, or in contact with other

wires which might be brought in.

light wire, and remain in contact

therewith in such a way and for so
long a time as to wear off the insula-
tion and divert the current to its own
wire, to the danger of those who
should touch it, or touch another
wire with which it might come in
contact.” Hamilton v. Bordentown
Elec. L. & Motor Co., 68 N. J. Law 85,
8 Am. Elect]. Cas. 524, 52 Atl. 290.

60. Simmons v. Shreveport Gas,
Elec. L. & P. Co., 116 La. 1033, 9 Am.
Elect]. Cas. 760, 41 So. 248. See also,
§§ 479, 480.
750 Law or Exectriciry.

when constructed, was the only one in that vicinity does
not, of itself, excuse it from the consequences which arise
from a wire subsequently placed in dangerous proximity.”
Priority in a public street does not excuse the maintenance
of a condition therein which is likely to cause injury to
innocent persons.” Its duty to inspect its lines and repair
defects requires that it exercise due care to prevent danger-
ous proximity from wires subsequently erected by another

company.

If it fails in this duty, the two companies may

be liable, jointly and severally, for ensuing injuries.“ If

61. California— Dow v. Sunset
Telep. & Teleg. Co., 157 Cal. 182, 106
Pac. 587. “It matters not that the
telephone wire was the last placed,
and that this company, therefore, be-
came in the first instance directly
responsible for the negligent work.
With knowledge upon the part of the
appellant that the wire was thus
dangerously close and liable to sag,
the continued maintenance of the
wires in this position was negligence
upon the part of both companies.”
Dow v. Sunset Telep. & Teleg. Co.,
157 Cal. 182, 106 Pac. 587.

Georgia.— Trammell v. Columbus
R. Co., 9 Ga. App. 98, 70 S. E. 892.

Indiana.— City of Logansport v.
Smith, 47 Ind. App. 64, 93 N. E. 883.

Kansas.— Biddle v. Leavenworth L.
H. & P. Co., 87 Kan. 604, 125 Pac. 51.

Louisiana.— Herbert v. Lake Charles
Ice L. & Waterworks Co., 111 La. 522,
35 So. 731, 64 L. R. A. 101, 100 Am.
St. Rep. 505.

Michigan. Sykes v. Village of
Portland, 177 Mich. 290, 143 N. W.
326.

Missouri— Freeman v. Missouri &
K. Telep. Co., 160 Mo. App. 271, 142
S. W. 733.

New Jersey.— Hamilton v. Borden-
town Elec. L. & Motor Co., 68 N. J.
Law 85, 8 Am. Elect]. Cas. 524, 52
Atl. 290; Rowe v. New York & N. J.
Telep. Co., 66 N. J. L. 19, 7 Am.
Electl. Cas. 626, 48 Atl. 523.

New York.— Lee v. Stillwater, ete.,
Ry. Co., 140 App. Div. 779, 125 N. Y.

Supp. 840.

Vermont.— Drown v. New England
Telep. & Teleg. Co., 80 Vt. 1, 9 Am.
Electl. Cas. 1053, 66 Atl. 801.

62. McKay v. Southern Bell Telep.
Co., 111 Ala. 337, 6 Am. Electl. Cas.
223, 19 So. 695, 31 L. R. A. 589;
Richmond & P. Elec. Ry. Co. v. Rubin,
102 Va. 809, 9 Am. Electl. Cas. 138,
3 St. Ry. Rep. 870, 47 S. E. 834.

63. Where an electric power com-
pany continued to carry a high ten-
sion current over a feed wire know-
ing it to be in close proximity to
telephone wires used by motormen
to communicate with headquarters,
and, following a storm which dis-
placed the telephone wires, a motor-
man was killed by an electric shock
while telephoning, the negligence of
the power company is for the jury.
Lee v. Stillwater, etc., Ry. Co., 140
N. Y. App. Div. 779, 125 N. Y. Supp.
840.

64. Alabama.— McKay v. Southern
Bell Telep. Co., 111 Ala. 337, 6 Am.
Electl. Cas. 223, 19 So. 695, 31 L. R.
A. 589,

California— Dow v. Sunset Telep.
& Teleg. Co., 157 Cal. 182, 106 Pac.
587.

Georgia. Eining v. Georgia Ry.
& Elec. Co., 133 Ga. 458, 66 8. BE. 237;
Western Union Teleg. Co. v. Griffith,
111 Ga. 551, 7 Am. Electl. Cas. 602,
WIREs. 751
necessary to obviate the danger, one company may move
the wire of another.®

Sec. 500. Proximity to Other Objects.

While, in most cases, it is feasible to string an electric
line so that it will not be in dangerous proximity to another
line of wires, it is many times impossible to construct a
line which will not be close to other objects, such as build-
ings, trees, etc. If it is impossible for an electric company
to maintain its line without approaching close to a building,
negligence will not be inferred from such proximity alone.
But due care requires that the company use every reason-
able means to avoid burning the building or causing injury
to persons who may be in or around it. Thus, if the wire
is affixed to a building at a place where workmen and other
persons may lawfully come, the wire should be sufficiently
insulated to keep the current from escaping. And, if the
company, in the attachment of a wire to a building, has a
choice as to the particular place and it fastens the wire at
a place where persons are likely to pass, as, for example,
near a fire escape, and disregards a place where it can
fasten the wire without serious danger to others, it may be
charged with negligence.” In the same way, where the

36 S. E. 859; Southern Bell Telep. &
Teleg. Co. v. Davis. 12 Ga. App. 28,
76S. E. 786; Trammell v. Columbus
R. Co., 9 Ga. App. 98, 70 8. E. 892.

Illinois.— Economy L. & P. Co. v.
Hiller, 203 Ill. 518, 8 Am. Electl. Cas.
462, 68 N. E. 72.

Kansas.— Biddle v. Leavenworth L.
H. & P. Co., 87 Kan. 604, 125 Pac. 51.

Louisiana.— Simmons v. Shreveport
Gas, Elec. L. & P. Co., 116 La. 1033,
9 Am. Electl. Cas. 760, 41 So. 248;
Herbert v. Lake Charles Ice, L. &
Waterworks Co., 111 La. 522, 35 So.
731, 64 L. R. A. 101, 100 Am. St. Rep.
505.

Mississippi— Cumberland Telep. &
Teleg. Co. v. Cosnahan, 62 So. 824.

Missouri.— Freeman v. Missouri &

K. Telep. Co., 160 Mo. App. 271, 142
S. W. 733.

New Jersey.— Hamilton v. Borden-
town Elec. L. & Motor Co., 68 N. J.
Law 85, 8 Am. Elect]. Cas. 524, 52
Atl. 290.

Vermont.— Drown v. New England
Telep. & Teleg. Co., 80 Vt. 1, 9 Am.
Electl. Cas. 1053, 66 Atl. 801.

65. New England Telep. & Teleg.
Co. v. Moore, 179 Fed. 364, 102 C. C.
A. 642, 31 L. R. A. (N. S.) 617;
Economy L. & P. Co. v. Hiller, 203
Ill. 518, 8 Am. Electl. Cas. 462, 68 N.
EL 72.

66. § 510, 513, 514.

67. Asher v. City of Independence,
(Mo. App.) 163 8S. W. 574.

o
752 Law or ELectriciry.

line runs along a street with abundant shade trees, it may
be impossible to avoid running the wires near or through
the foliage. If such is the case, negligence should not be
charged against an electric company merely because its
lines are constructed near to a tree. But the company is
bound to insulate the wires thoroughly in the first instance,
and thereafter it is bound to recognize the fact that the
swaying of trees is likely to abrade the insulation and must
use due caution in the inspection and repair of the wires.
If practicable, trees should be avoided in the construction
of a high-tension electric line, and, considering all the sur-
rounding circumstances, it may be a question for the jury
whether the company is negligent in maintaining a wire
through or near to certain trees. Negligence may also
be inferred from the failure of the company to keep a wire
at a safe distance from an iron brace supporting a cross-
arm of a pole, when, by reason of the nearness to the brace,
the insulation of the wire becomes worn and the current
escapes and kills a lineman touching the brace.” If the
company runs a wire along a pole to the ground in such a
place that persons may innocently touch it, a high degree
of caution is required in the protection of the wire. But
where the wire is in the center of the pole and can be
reached only by the insertion of something through a hole
necessarily in the pole as an outlet for gases, the company
is not liable for a shock received by a child who picked up
a nail and inserted it in the hole.”

Sec. 501. Soundness.

Commensurate care requires that an electric company
shall use a high degree of caution in the selection of its
wires for maintenance along the public streets, to the end

68. Estabrook v. Newburgh L. H. Cas. 456, 46 N. Y. Supp. 374. See
& P. Co., 141 App. Div. 683, 125 N. also, Morgan v. Westmorland Elec.

Y. Supp. 944. Co., 213 Pa, St. 151, 9 Am. Electl.
69. Johnson v. Bay City, 164 Mich. Cas. 612, 62 Atl. 638.

251, 129 N. W. 29, 17 Det. Leg. N. 71. Roche v. New York Edison Co.,

1074, Ann. Cas. (1912 B.) 866. 84 Mise. (N. Y.) 427, 146 N. Y. Supp.

70. Dwyer v. Buffalo Gen. Elec. Co., 294.
20 N. Y. App. Div. 124, 7 Am. Electl.
‘Wirzs. 753
that they will withstand the usua. burdens of the climate.
When constructing a line, an electric company must con-
sider the contraction and expansion of the wire which will
arise from changes in temperature, and must bear in mind
the force of customary storms. After the original con-
struction, the company must exercise proper care in the
inspection of its wires and must replace old wires with new
ones whenever their strength becomes impaired by the
elements or other causes. As is stated in other sections,”
the breaking of a wire, as a general rule, creates a pre-
sumption of negligence. But outside of the presumption
of negligence (which may be rebutted and cannot, there-
fore, be safely relied upon), if it can be shown as a matter
of fact that a wire, which fell to the ground and caused an
injury, was defective and unsound, a question of negligence
may be presented to the jury.” Thus, where it appeared
that the wire which broke was of the size of an ordinary
knitting needle, that it had been weakened by long use and
exposure, that it had been patched, and that there was no
guard wire underneath, it was held that the negligence of
the company maintaining it was a question for the jury.”
The company, not being an insurer,” is not liable for the
breaking of wire caused solely by an act of God,” the
wrongful act of third persons,” or by a hidden or latent
defect in the wire which could not have been detected by
any reasonable examination.” But, even in cases where
the original breaking was without the fault of the main-
tainer of the wire, negligence may be inferred if it fails to
make timely repairs.”® Not only must the wires them-

72. §§ 496, 594.

783. Jacks v. Reeve, 78 Ark. 426,
95 S. W. 781; Citizens’ St. Ry. Co. v.
Batley, 159 Ind. 368, 65 N. E. 2;
Jones v. Union Ry. Co., 7 Am. Electl.
Cas. 447, 18 N. Y. App. Div. 267, 46
N. Y. Supp. 321; Shelton v. United
Elec. R. Co., 89 Tenn. 423, 3 Am.
Electl. Cas. 477, 14 S. W. 863, 46
Am. & Eng. R. Cas, 206.

74, Western Union Teleg. Co. v.

48

Thorn, 64 Fed. 287, 5 Am. Elect]. Cas.
283, 12 C. C. A. 104, 28 U. S. App.
123.

75. § 400.

76. § 453.

77. § 444.

78. Baltimore City P. Ry. Co. v.
Nugent, 86 Md. 349, 38 Atl. 779, 39
L. R. A. 161.

79. § 480.
754 Law oF HLEctTRICITY.

selves be of substantial strength, but at least reasonable
care must be employed in the attachment of them to the
poles so that they will not become loosened and fall to the
ground.® Thus, it was held that a question of negligence
for the jury was presented where evidence was produced
showing that the company strung its wires on the inside
of poles around a curve, used improper brackets to sup-
port the wires, and did not provide guards to catch the
wires if they became detached, and by reason of such con-
struction a wire fell to the ground and caused an injury.”

Sec. 502. Erection of Wires.

‘In the erection of its wires, an electric or other public
service corporation must use reasonable care to avoid
injury to persons in or near the highway. If, after its wire
has lain on the ground for some time, the company sud-
denly raises it without warning to persons who may be
close to it, it may be liable for an injury resulting there-
from.” Thus, it may be charged with negligence where the
rising wire catches a child and carries it in the air.** So,
too, the company may be charged with negligence where
its employees let a wire fall in the street and strike a horse,
and injury thereby results.**

Sec. 503. Insulation.

The insulation of wires is a subject of such importance
and so many decisions are to be found touching the subject

80. Ela v. Postal Teleg. Co., 71 N.
H. 1, 8 Am. Electl. Cas. 423, 51 Atl.
281; Temple Elec. L. Co. v. Hallibur-
ton, (Tex. Civ. App.) 136 S. W. 584.

81. Ela v. Postal Teleg. Co., 71
N. H. 1, 8 Am. Elect]. Cas. 423, 51
Atl. 281.

82. Balderson v. Portland Telep.
Co., 173 Mich. 412, 139 N. W. 7%.

83. Devine v. Brooklyn Heights R.
Co, 1 N. Y. App. Div. 237, 6 Am.
Electl. Cas. 318, 37 N. Y. Supp. 170;
Haynes v. City of Seattle, 69 Wash.
419, 125 Pac. 147.

It is negligence for a city in string-
ing wires on poles in front of the
play grounds of a public school to
unwind a coil of wire without guard
or watch of any kind where children
of tender years would be attracted
to the danger. Haynes v. City of
Seattle, 69 Wash. 419, 125 Pac. 147.

84. Arkansas Telep. Co. v. Ratteree,
57 Ark, 429, 21 8. W. 1059; Staring
v. Western Union Teleg. Co., 11 N. Y.
Supp. 817, 3 Am. Electl. Cas, 474,
34 N. Y. St. Rep. 508, 58 Hun 606,
WIRES. 759
that it is thought wise to devote a complete chapter to that
branch of the law of electricity.

Sec. 504. Guy Wires; Location.

Guy wires intended for the support of poles or other
appliances of a public service corporation are not located
as are their service wires. While service wires are, if
practicable, to be kept free from contact with other
objects,*° guy wires to perform their functions must be
firmly affixed to some substantial object. Guy wires are
frequently fastened to trees and buildings at some distance
from the ground, but sometimes they are fastened to cement
blocks on or in the ground or to short posts. Negligence is
not necessarily inferred from any of these methods of con-
struction, but the company must not maintain its guy wires
in a public highway so as to interfere with the usual travel
thereupon, and if a traveler is injured by colliding with
a guy wire unlawfully maintained in the highway, the main-
tainer will generally be liable.*’ Thus, where a guy wire

85. §§ 510-522.

86. § 500.

87. California— Grant v. Sunset
Telep. & Teleg. Co., 7 Cal. App. 267,
94 Pac. 368.

Illinois— Cumberland Telep. &
Teleg. Co. v. Coats, 100 Ill. App.
519.

Indiana.— Delaware & Madison
Counties Telep. Co. v. Fleming, (Ind.
App.) 102 N. E. 163.

Kentucky.— Raines v. East Tennes-
see Telep. Co., 150 Ky. 670, 150 S. W.
830; same case, 152 Ky. 205, 153
S. W. 224; Louisville Home Telep.
Co. v. Gasper, 123 Ky. 128, 93 S. W.
1057, 29 Ky. Law Rep. 578, 9 L. R.
A. (N. S,) 548.

Louisiana.— Wilson v. Great South-
ern Telep. & Teleg. Co., 41 La. Ann.
1041, 3 Am. Elect]. Cas. 466, 6 So.
781.

Missouri— Poumeroule v. Postal
Teleg. Cable Co., 167 Mo. App. 533,
152 S. W. 114; Bentley v. Missouri

& Kansas Telep. Co., 142 Mo. App.
215, 125 S. W. 533."

Montana.— Lundeen v. Livingston
Elec. Light Co., 17 Mont. 32, 6 Am.
Elect]. Cas. 322, 41 Pac. 995.

New York.— Sheldon v. Western
Union Teleg. Co., 51 Hun (N. Y.)
591, 2 Am. Electl. Cas. 299, 4 N. Y.
Supp. 526; affirmed without opinion,
121 N. Y. 697, 24 N. E. 1099.

Texas.— City of Ft. Worth v. Wil-
liams, 55 Tex. Civ. App. 289, 119
S. W. 137; South Texas Telep. Co.
v. Tabb, 52 Tex. Civ. App. 213, 114
S. W. 448; Texas Teleg. & Telep. Co.
v. Thompson, (Civ. App.) 130 S. W.
705.

Utah.—Davidson v. Utah Independ-
ent Telep. Co., 34 Utah 249, 97 Pac.
124,

“The primary and general use of
a highway is for travel, and any ob-
struction that renders it dangerous
or unsafe for that purpose is unlaw-

¥
756 Law or Enecrnricity.

extended about thirteen feet over the traveled part of a
highway and the grain elevator of a threshing machine
while moved along the highway came in contact therewith,
and it appeared that a state statute required wires across
highways to be maintained not less than fourteen feet from
the surface of the road, it was held that the maintainer of
the guy was guilty of negligence.**

Sec. 505. Guy Wires; Proximity to Charged Wires.

A very high degree of diligence must be exercised to
avoid contact between a guy wire and a wire carrying a
high voltage of electricity. A guy which runs to the ground
may be assumed to be free from a dangerous current of
electricity, and, if a person innocently touches such a guy
and receives a serious shock, a presumption of negligence
arises. But, regardless of the presumption of negligence
arising in such cases, if it is shown that a guy wire had
been maintained in such proximity to a dangerous electric
wire that the two were likely to come in contact and they
did actually come in contact and cause injury to a person
touching the guy, negligence may properly be inferred.”

ful; and, although a telephone com-
pany may have the right to occupy a
highway with its poles, yet if it
secures them in the highway by guy
wires so as to endanger the public
travel, or the safety of individuals
in the reasonable and ordinary use
of the highway, such method of secur-
ing and maintaining its poles is an
obstruction, and the law declares that
such an obstruction is a nuisance,
and the act of maintaining such a nui-
sance negligence.” Pacific Telep. &
Teleg. Co., 208 Fed. 221, 125 C. C. A.
421.

A post from four to six feet high,
placed in the carriage way of a city
street, and a guy wire attached to
it four or five feet from the ground,
for the purpose of supporting a pole
for electric wires, is a dangerous ob-

struction, the danger of which should
have been foreseen by the company
creating it. Lundeen v. Livingston
Elec. Light Co., 17 Mont. 32, 6 Am.
Electl. Cas. 322, 41 Pac. 995.

88. Chant v. Clinton Telep. Co., 130
Wis. 533, 110 N. W. 423.

89. § 594.

90. United States.— Graves v. City
& Suburban Teleg. Ass’n, 132 Fed.
387, 9 Am. Elect]. Cas. 20.

Indiana.— Valparaiso Lighting Co.
v. Tyler, 177 Ind. 278, 96 N. E. 768;
Michigan City Gas & Elec. Co. v.
Dibka, (Ind. App.) 100 N. E. 877.

Iowa.— Snyder v. Mutual Telephone
Co., 135 Iowa 215, 112 N. W. 776, 14
L. R. A. (N. 8S.) 321.

Kentucky.— Macon v. Paducah St.
Ry. Co., 110 Ky. 680, 7 Am. Electl.
Cas. 630, 23 Ky. Law Rep. 46, 62
‘WIRES. 197
Though the guy is a safe distance from a deadly wire as
long as it remains secured, the company is required to
exercise care to see that it continues in a secure position;
and, if it becomes loosened and thus comes in contact with
the wire, a question of negligence for the jury will be pre-
sented.” Likewise, negligence may be charged against a
company where its service wire falls or sags upon the guy
wire so as to permit its current to pass along the same to
the injury of a person touching the guy.” Where a wire
is used to hold a service wire in a desired position, due care
requires the installation of a circuit breaker or some other
device to prevent the current from passing along the guy.”
Where a guy wire of one company and the high tension
electric wire of another company are maintained in prox-

S. W. 496; Citizens’ Telep. Co. of
Kentucky v. Wakefield, 126 S. W.
127.

Nebraska. New Omaha Thomson-
Houston Elec. L. Co. v. Johnson, 67
Neb. 393, 8 Am. Elect]. Cas. 517, 93
N. W. 778.

North Carolina.—Haynes v. Raleigh
Gas Co., 114 N. Car. 203, 5 Am.
Elect]. Cas. 264, 19 S. EB. 344.

Oklahoma. Shawnee Light &
Power Co. v. Sears, 21 Okl. 13, 95
Pac. 449.

Pennsylvania.— Turton v. Powelton
Elec. Co., 185 Pa. St. 406, 7 Am.
Elect]. Cas. 483, 39 Atl. 1053.

Washington.— Garretson v. Tacoma
Ry. & P. Co., 50 Wash. 24, 91 Pac.
511.

Wisconsin.— Lomoe v. Superior
Water, L. & P. Co., 147 Wis. 5,
132 N. W. 623; Ryan v. Oshkosh
Gaslight Co., 138 Wis. 466, 120 N. W.
264.

91. Guinn v. Delaware & A. Tel.
Co., 72 N. J. L. 276, 9 Am. Electl.
Cas. 552, 62 Atl. 412, 111 Am. St.
Rep. 668; Neal v. Wilmington & N. E.
Elec. Ry. Co., 3 Pen. (Del.) 467, 8
Am. Elect]. Cas. 497, 53 Atl. 338.

Insecure guy wire.— Where a work-

man on a roof was removing tele-
graph wires when a guy wire of the
telegraph company, which was inse-
curely fastened, became loose and per-
mitted a telegraph wire to come in
contact with an electric wire, and

‘ the electric current caused an injury

to the workman, he was permitted to
recover of the telegraph company for
his injuries. Panhandle Telep. &
Teleg. Co. v. Harris, (Tex. Civ. App.)
136 S. W. 1129.

92. Village of Palestine v. Siler,
225 Ill. 630, 9 Am. Electl. Cas. 977,
80 N. E. 345, 8 L. R. A. (N. S.)
205; Freeman v. Missouri & K. Teleg.
Co., 160 Mo. App. 271, 142 S. W. 733;
Ryan v. Oshkosh Gaslight Co., 138
Wis. 466, 120 N. W. 264. See also
§§ 496, 497.

93. Hoover v. Kansas City Elec.
Ry. Co., 159 Mo. App. 416, 140 S. W.
321.

It is a question for the jury
whether a telephone company is neg-
ligent in failing to furnish “current
breakers” at places where guy wires
are liable to come in contact with
electric wires. Citizens’ Telep. Co. of
Kentucky v. Wakefield, (Ky.) 126
S. W. 127.
198 Law or ELectriciry.

imity, both companies may be liable as joint tort-feasors
for an injury arising out of the dangerous situation.“ It
is not material that the guy wire comes to the earth on the
private property of another. If the place is uninclosed so
that people pass there, the company is required to antici-
pate their presence and avoid injury to them from a
charged guy wire.®

Sec. 506. Guy Wires; Encasement.

Service wires, while generally required to be insulated,
are not required to be encased so as to be visible. Obvi-
ously the situation is different with guy wires. They fre-
quently extend to the ground; and, unless they are so
placed that travelers and other persons will not trip over
them or come in collision with them, they should be encased
so as to be visible.** The duty of the company, it is to be
observed, is in the alternative. It must either place the
wires beyond the danger of collision with pedestrians or
so protect them with boards or other encasement that they
may readily be seen and avoided. Where, however, the
guy illegally extends into the traveled part of the highway,
the fact that it is encased so as to be visible, will not always
be a defense in an action for injuries to a traveler colliding
therewith. In such a case, it is an illegal obstruction
whether or not it is visible, though its visibility is material
on the question of the contributory negligence of a person
driving or walking into the wire. Where a person in the
night time ran into a guy wire, and the darkness was so
intense that he would not have seen the guy and avoided
the injury had it been encased, it was held that the absence

94. San Marcos Electric L. & P.
Co. v. Compton, 48 Tex. Civ. App.
586, 107 S. W. 1151.

Joint tort-feasors— The respective
rights and liabilities of joint tort-
feasors is discussed in §§ 432-434,

95. New Omaha Thomson-Houston
Elec. L. Co. v. Johnson, 67 Neb. 393,
8 Am. Electl. Cas. 517, 93 N. W.
778.

96. Grant v. Sunset Telep. & Teleg.
Co., 7 Cal. App. 267, 94 Pac. 368;
Poumeroule v. Postal Teleg. Cable Co.
167 Mo. App. 533, 152 S. W. 1143
City of Ft. Worth v. Williams, 55
Tex. Civ. App. 289, 119 S. W. 187.
Compare, Cumberland Telep. & Teleg.
Co. v. Coats, 100 Ill. App. 519.
WIREs. 759
of an encasement was not the proximate cause of the injury,
and that the company was not liable therefor.” Recovery
is permitted where the person injured was using due care,
but did not see the guy soon enough to avoid collision there-
with, but, had the guy been encased, it would have been
seen and no injury would have been sustained.”

Sec. 507. Span Wires.

The wires which are attached to the trolley wire of a
street railway for the purpose of holding it firmly in place,
are sometimes called span wires. They are not intended
to carry any current of electricity, and, in the avoidance
of injury to others, it is important that they should not be
so charged. The usual construction is to have insulation
or ‘‘ circuit breakers ’’ between the trolley wire and the
span wire. If the street railway company negligently per-
mits a span wire to become a carrier of a deadly current
of electricity, it will generally be liable in damages for
injuries to persons who, not knowing of its dangerous con-
dition, touch it, or touch some wire or appliance connected
with the span wire which becomes dangerous when the
span wire is charged.” Thus, if an employee of a telephone
company, while engaged in the stringing of a telephone
wire, is killed by reason of the wire touching a charged
span wire of the defendant street railway company, the
railway company, in the absence of contributory negligence

Ass’n, 132 Fed. 387, 9 Am. Electl.
Cas. 20; Hoover v. Kansas City Elec.
Ry. Co., 159 Mo. App. 416, 140 8S. W.
321; North Amherst Home Telep. Co.
v. Jackson, 26 Oh. Cir. Ct. R. 89, 9

97. Bentley v. Missouri and Kansas
Telep. Co., 142 Mo. App. 215, 125
8S. W. 533.

98. Poumeroule v. Postal Teleg.
Cable Co., 167 Mo. App. 533, 152

S. W. 114.

99. Potts v. Shreveport Belt Ry.
Co., 110 La. 1, 34 So. 103, 98 Am.
St. Rep. 452; Campbell v. United
-Rys. Co. of St. Louis, 243 Mo. 141,
8 St. Ry. Rep. 626, 147 S. W. 788;
Jones v. Union Ry. Co, 18 N. Y.
App. Div. 267, 7 Am. Electl. Cas.
447, 46 N. Y. Supp. 321. See also,
Graves v. City & Suburban Teleg.

Am. Elect]. Cas. 607. “It is differ-
ent as regards the span wires sus-
pending the trolley. It is the duty
of the car company to keep these
immune from electrical contagion,
free from dangerous and deadly elec-
trical energy.” Potts v. Shreveport
Belt R. Co., 110 La. 1, 34 So. 103,
96 Am. St. Rep. 452.
760 Law or Euecrrrcrry.

or some other defense, will be liable for the injury. It
is also the duty of the street railway to use due care to keep
the span wire secure; any loose wire falling to or hanging
in a street is likely to cause serious injury to a traveler
even though it does not give him an electric shock.” Thus,
in one case, where it appeared that a person standing in
a street was struck on the head by the end of span wire and
the sight of one eye destroyed, it was held that the doctrine
of res ipsa loquitur® was applicable, and he could recover
for the injury unless the presumption of negligence was
rebutted by the railway company.* An electric company
having a high potential wire over the span wire of a street
railway company must use a high degree of caution to pre-
vent the falling or sagging of its electric wire so as to
impart a dangerous current to one touching the span wire.°

Sec. 508. Guard Wires.

In the maintenance of two or more lines of wires in the
same street or the same locality, it is essential that some
effective device be resorted to in order that the wires will
not come in contact. The best way, perhaps, is to string
them securely at such a distance apart that conflict is
impossible except under unusual circumstances, such as a
storm of extraordinary violence.* Another method, adopted
to considerable extent in the early history of electric lines,

1. Potts v. Shreveport Belt Ry. Co.,
110 La. 1, 34 So. 103, 98 Am. St.
Rep. 452.

2. United Railways & Electric Co.
vy. Corbin, 109 Md. 442, 72 Atl. 606;
Jones v. Union Ry. Co., 18 N. Y.
App. Div. 267, 7 Am. Electl. Cas. 447,
46 N. Y. Supp. 321. “ While the de-
fendant has the right to use the pub-
lie streets for its lawful purposes,
great care should be required of it for
the protection of those passing over
them. If the span wire was properly
fastened to the pole, it would require
great force to break it loose, and it
certainly ought to have been so fas-
tened as not to be liable to give way
by any ordinary use of the trolley.

If the bumping of the trolley against
the wire resulted in causing this span
wire to be torn away from the pole,
it was some evidence of negligence;
and, if such would not be the result
if the span wire was properly fas-
tened, it would be some evidence that
it was not properly fastened.” United
Railways & Elec. Co. v. Corbin, 109
Md. 442, 72 Atl. 606.

3. § 594.

4, Jones v. Union Ry. Co., 18 N.Y.
App. Div. 267, 7 Am. Electl. Cas.
447, 46 N. Y. Supp. 321.

5. Cutler v. Putnam L. & P. Co., 80
Conn. 470, 68 Atl. 1006.

6. § 453.
WIrzEs. 761
was the use of guard wires. The design was to prevent
actual contact by the placing of these guard wires near or
around a dangerous wire and thus form an obstruction so
that other wires could not sag or fall in dangerous prox-
imity to the high tension wire. At first thought, it seems
an appropriate method of avoiding contact between wires
of different voltage, and it has been held a question for the
jury whether owners of different systems were guilty of
negligence in failing to install guard wires between their
wires.” In other cases it has been held that, in the absence:

7. Alabama.—Birmingham Ry. & P.
Co. v. Cockrum, 60 So. 304.

Arizona See Crandall v. Consol.
Telep. & Teleg. & Elec. Co., 14 Ariz.
322, 127 Pac. 994.

Kansas.— Metropolitan St. Ry. Co.
v. Gilbert, 70 Kan. 261, 3 St. Ry.
Rep. 254, 9 Am. Elect]. Cas. 241, 78
Pac. 807.

Massachusetts.— Mahan v. Newton
& B. St. Ry. Co., 189 Mass. 1, 9 Am.
Electl. Cas. 508, 4 St. Ry. Rep. 414,
75 N. E. 59.

New Jersey.— Guinn v. Delaware &
A. Tel. Co., 72 N. J. L. 276, 9 Am.
Elect]. Cas. 552, 62 Atl. 412, 111 Am.
St. Rep. 668; Spires v. Middlesex &
M. Elec. L., H. & P. Co. 70 N. J. L.
355, 9 Am. Electl. Cas. 40, 57 Atl.
424; Howe v. N. Y. & N. J. Telep.
Co. 66 N. J. L. 19, 7 Am. Electl.
Cas. 626, 48 Atl. 523; N. Y. & N. J.
Telep. Co. v. Bennet, 62 N. J. L.
742, 7 Am. Elect]. Cas. 543, 42 Atl.
759.

New York.— Horning v. Hudson
River Telep. Co., 111 N. Y. App. Div.
122, 9 Am. Electl. Cas. 616, 97 N. Y.
Supp. 625; affirmed without opinion,
186 N. Y. 552, 79 N. E. 1107.

Ohio.— Burton Telep. Co. v. Gor-
don, 25 Oh. Cir. Ct. 641, 9 Am. Electl.
Cas. 302.

Wisconsin.— Block v. Milwaukee St.
R. Co., 89 Wis. 371, 5 Am. Electl.

293, 61 N. W. 1101, 27 L. R. A. 365,
46 Am. St. Rep. $49.

Question for jury.— Whether the
failure of an electric street railway
company to maintain guard wires
over its trolley wires to prevent other
wires suspended above from falling
upon them and thus _ becoming
charged with electricity is negligence
which would subject the company to
damages at suit of one who was in-
jured by shock from a broken tele-
phone wire which fell upon and be-
came charged from the trolley wire,
is a question of fact the withholding
of which from the jury is error.
Block v. Milwaukee St. R. Co., 89
Wis. 371, 5 Am. Electl. Cas. 293, 61
N. W. 1101, 27 L. R. A. 365, 46 Am.
St. Rep. 849.

Prior company required to install
guard wires.— The duty of a company
to install guard wires does not de-
pend, it has been held, upon whether
its wires were maintained before the
erection of the other wires. If other
wires are subsequently erected so that
due care then requires the installa-
tion of guard wires, the prior com-
pany may be liable for injuries aris-
ing from the absence of guard wires.
Birmingham Ry. & P. Co. v. Cock-
tum, (Ala.) 60 So. 304; Gents v.
Spring Valley Coal Co., 155 Ill. App.
628; Guinn v. Delaware & A. Telep.
762 Law or ELEctriciry.

of evidence that it is customary or usual to install guard
wires between high and low tension wires, the failure to
install them is not negligence.* Cities and villages have
frequently required the maintenance of guard wires, and
the failure to install the same has been considered prima
facie negligence.? But the experience of a number of years
has indicated that guard wires are of doubtful efficacy.*°
While they may prevent a higher wire, such as a telephone
wire, from falling upon a lower electric wire, they do not
prevent the guard wire itself from sagging or falling upon
the electric wire. It is probably safer practice for the com-
panies to use the funds required for the installation and
maintenance of guard wires in securing, inspecting, and
repairing their necessary wires. At the present time, the
law should not require the maintenance of guard wires.
The companies should exercise due care, commensurate
with the dangers of the electric current, for the prevention
of conflict between their wires. If, however, their wires do
conflict, whether they are guilty of negligence should be
determined by the jury upon a consideration of the care

exercised by it.

Co., 72 N. J. Law 276, 9 Am. Electl.
Cas. 552, 62 Atl. 412, 111 Am. St.
Rep. 668; Rowe v. N. Y. & N. J.
Telep. Co. 66 N. J. L. 19, 7 Am.
Elect]. Cas, 626, 48 Atl. 523.

8. City of Albany v. Watervliet,
ete., R. Co., 76 Hun (N. Y.) 136, 4
Am. Electl. Cas. 367, 27 N. Y. Supp.
848, 57 N. Y. St. Rep. 453; Stark v.
Pennsylvania Telephone Co., 225 Pa.
St. 390, 74 Atl. 222; Stark v. Lan-
easter Elec. L., H. & P. Co., 218 Pa.
St. 575, 67 Atl. 909; Aument v. Penn.
Telep. Co., 28 Pa. Super. Ct. 610, 9
Am. Electl. Cas. 605.

9. Conrad v. Springfield Consol.
Ry. Co., 240 Ill. 12, 88 N. E. 180.
See also, §§ 420-424.

Ordinance does not change common
law obligation—A municipal ordi-
nance requiring the last erector of
wires to erect guard wires as against

The isolated circumstance of whether

other wires, does not necessarily ex-
cuse the company first in the field
from guarding against contact with
the wires of the later company. Bir-
mingham Ry., L. & P. Co. v. Cock-
rum, (Ala.) 60 So. 304.

10. “In fact, the evidence was
quite convincing that neither guard
wires nor other precautionary devices
were longer employed by experts in
electrical construction, as more casu-
alties had been occasioned because of
their use than would have occurred
otherwise, and that they really were
a@ menace, instead of a protection, to
persons passing along the streets of
a city where wires carrying a high
current of electricity passed under
or above the wires of a telegraph or
telephone company.” Heidt v. South-
ern Telep. & Teleg. Co., 122 Ga. 474,
9 Am. Elect]. Cas. 435, 50 S. E. 361,
‘WIREs. 763
guard wires were used should not be criterion of their
liability, but all the things done to avoid injury should be
considered and the question whether the companies have
fulfilled their duty determined from a consideration of all
their acts and omissions." Special conditions may, how-
ever, require the use of guard wires, as, where there is no
opportunity for a substantial attachment of wires. If a
dangerous current of electricity is allowed to pass over a
guard wire, the company may be liable for injuries received
by the lineman of another company who came in contact
with the guard wire without knowledge of the current
on it.”

Sec. 509. Dead or Abandoned Wires.

In another place in this work, it is shown that an electric
or telephone company, upon the discontinuance of service
to a building, is ordinarily required, in the exercise of due
care, to remove the disused wires running from the main

service wires to the building.”

In much the same way a

company is obligated to remove from the streets and other

11. “ Whether or not the defendant
had exercised the proper degree of
care in guarding its wires from com-
ing into contact with the telephone
wires was a question for the jury, to
be determined by all the facts and
circumstances of the case, under the
instructions of the court. The ques-
tion of negligence or due care is one
peculiarly within the province of the
jury.” Richmond & P. Elec. Ry. Co.
v. Rubin, 102 Va. 809, 3 St. Ry.
Rep. 870, 9 Am. Electl. Cas, 138, 47
S. E. 834. “The defendant was oper-
ating cars in the public streets by
the use of a highly dangerous agency.
It was bound to know that other
wires were or might be strung along
the streets for various purposes, and
that persons would or might be em-
ployed to work upon them, and it
was its duty, in the exercise of rea-
sonable care, to adopt such precau-

tions as were proper to prevent its
own wires from coming in contact
with the wires upon which such per-
sons were or might be employed and
injuring them. It was for the jury
to say, taking everything inio ac-
count, including the expense and
practicability of guard wires and the
way in which the trolley wire was
put up, as to which there was evi-
dence from the defendant, whether
the defendant had performed this
duty, and whether the plaintiff’s in-
testate was injured and killed in con-
sequence of its failure to do s0.
Mahan v. Newton & B. St. Ry. Co,
189 Mass. 1, 9 Am. Electl. Cas. 508,
4 St. Ry. Rep. 414, 75 N. E. 59.

12. Wilkins v. Water & L. Co. of
Nebraska City, 92 Neb. 513, 138
N. W. 754.

18. § 483.
764 Law oF ELecrriciry.

places such wires as are no longer in use. Considering the
danger that may arise from a wire no longer in use and
considering the lack of any reasonable excuse for allowing
it to remain where it may cause an injury, it is clear that a
jury is warranted in finding the company negligent if it
fails to remove such a wire within a reasonable time after
its service is at an end.* Thus, if a telephone company
leaves a dead wire in the street and it comes in contact with
an electric wire and a dangerous current thereby passes
over the telephone wire and causes an injury, the telephone
company may be liable.*> If a wire falls in the street, the
owner thereof cannot escape its duty to care for it and to
protect persons from injury on account thereof, by assum-
ing to abandon its ownership of the wire. It must remove
the wire to a place where injury will not result therefrom

before it is permitted to abandon it.*®

14, Home Telep. Co. v. Fields, 150
Ala. 306, 9 Am. Electl. Cas. 1030,
43 So. 711; Central Union Telep. Co.
v. Sokola, 34 Ind. App. 429, 9 Am.
Electl. Cas. 323, 73 N. E. 143; East
Tennessee Telep. Co. v. Sims’ Adm’r,
18 Ky. Law Rep. 761, 6 Am. Electl.
Cas. 297, 20 Ky. Law Rep. 1330, 38
S. W. 131; Ahern v. Oregon Telep.
Co., 24 Oreg. 276, 4 Am. Elect]. Cas.
349, 33 Pac. 403, 35 Pac. 549, 22
L. R. A. 635; Dillon v. Allegheny
County L. Co., 179 Pa. St. 482, 6
Am. Electl. Cas. 242, 36 Atl. 164;
Norfolk & P. Tract. Co. v. Daily’s
Adm’r, 111 Va. 665, 69 S. E. 963.

Negligence per se— “If the wire
were not in use, it is not clear that
the defendant was not guilty of neg-
ligence as matter of law in leaving

a wire in a public street, charged
with 2,200 volts of electricity, for
which there was no use whatever, and
which wire might by some accident
fall to the injury of passers-by.”
O’Leary v. Glens Falls Gas & Elec.
L. Co., 107 App. Div. 505, 9 Am.
Elect]. Cas. 522, 95 N. Y. Supp. 232.

15. Home Telep. Co. v. Fields, 150
Ala. 306, 9 Am. Elect]. Cas. 1030, 43
So. 711; Central Union Telep. Co. v.
Sokola, 34 Ind. App. 429, 9 Am.
Electl. Cas. 323, 73 N. E. 143; Ahern
v. Oregon Telep. Co., 24 Oreg. 276, 4
Am. Electl. Cas. 349, 33 Pac. 403, 35
Pac. 549, 22 L. R. A. 635.

16. Nichols v. City of Minneapolis,
33 Minn, 430, 1 Am. Electl. Cas. 762,
23 N. W. 868.
INSULATION oF WIREs.

765

CHAPTER XXVIII.
INSULATION OF WIRES.

Section 510. In General.
511. An Alternative Duty.

512. Insulation at Particular Places; Through Trees.

 

 

 

 

513. ——- Side of Buildings.

514. —— Awnings.

515. —— Roofs of Buildings.

516. Bridges.

517. —— Elevated Railroad.

518. —— At Poles.

519. —— Between Poles,

520. Near Other Wires.

521. Over Vacant Lots.

522. Miscellaneous Places.
Sec. 510. In General.

The duty of an electric company, in conveying a current
of high potential, to exercise commensurate care under the
circumstances,’ requires it to insulate its wires, and to use
reasonable care to keep the same insulated, wherever it may
reasonably be anticipated that persons, pursuing business

or pleasure, may come in contact therewith.’

1. § 404.

2. United States— Dunn v. Cavan-
augh, 185 Fed. 451; Dover v. Glou-
chester Elec. Co., 155 Fed. 256;
Colusa Parrot Mining & Smelting Co.
v. Monahaua, 162 Fed. 276, 89 C. C. A.
256; Memphis Consol. Gas & Elec.
Co. v. Bell., 152 Fed. 677, 9 Am.
Elect]. Cas. 1025, 82 C. ©. A. 25;
Glouster Elec. Co. v. Kankas, 120
Fed. 490, 8 Am. Electl. Cas. 493, 56
C. C. A. 640; Newark Elec. L. & P.
Co. v. Garden, 78 Fed. 74, 6 Am.
Elect]. Cas. 275, 39 U. S. App. 416,
23 0. C. A. 649, 37 L. R. A. 725.

California.— Dow v. Sunset Telep.
& Teleg. Co., 157 Cal. 182, 106 Pac.
587.

Colorado.— Denver Consol. Elec. Co.
v. Walters, 39 Colo. 301, 9 Am.

This state-

Electl. Cas. 1013, 89 Pac. 815; Walters
v. Denver Consol. Elec. L. Co., 17 Colo.
App. 192, 8 Am. Electl. Cas. 555, 68
Pac. 117; Walters v. Consol. Elec. L.
Co., 12 Colo. App. 145, 7 Am. Electl.
Cas. 515, 54 Pac. 960.

Connecticut.— Nelson v. Branford
L. & W. Co., 75 Conn. 548, 8 Am.
Electl. Cas. 542, 54 Atl. 303.

Idaho.— Staab v. Rocky Mt. Bell
Telep. Co., 23 Idaho 314, 129 Pac.
1078.

Illinois.— Hausler v, Commonwealth
Elec. Co., 240 Til. 201, 88 N. E. 561;
affirming 144 Il. App. 643; Common-
wealth Elec. Co. v. Rose, 214 Ill. 545,
9 Am. Electl. Cas. 381, 73 N. E. 780;
Commonwealth Elec. Co. v. Melville,
210 Ill. 70, 9 Am. Electil. Cas. 95. 70
N. E. 1052; Rowe v. Taylorville Elec.
766

Law oF ELECTRICITY.

ment of the rule implies that in the absence of statute or
municipal ordinance, it is not necessary to insulate wires
which are so placed that no one could reasonably be

Co., 114 Ill. App. 535, affirmed, 213
Ill. 318, 9 Am. Elect]. Cas. 279, 72
N. E. 711.

Indiana.— Raley v. Evansville Gas
& Elec. Co., 45 Ind. App. 649, 90 N.
E. 783, 91 N. E. 571; South Shore
Gas & Elec. Co. v. Ambre, 44 Ind.
App. 435, 87 N. E. 246.

Iowa.— Connell v. Keokuk Elec. Ry.
& P. Co., 131 Iowa 622, 9 Am. Electl.
Cas. 862, 109 N. W. 177; Knowlton v.
Des Moines Edison L. Co., 117 Iowa
451, 8 Am. Elect]. Cas. 800, 90 N. W.
818.

Kansas Rambo v. Empire Dist.
Elec. Co., 90 Kan, 390, 133 Pac. 553;
Winegarner v. Edison L. & P. Co.,
83 Kan. 67, 109 Pac. 778, 28 L. R. A.
(N. 8.) 677; Consol. Elec. L. & P.
Co. v. Healy, 65 Kan. 798, 8 Am.
Electl. Cas, 548, 70 Pae. 884.

Kentucky.— Paducah Light & P.
Co. v Parkman’s Adm’r, 156 Ky. 197,
160 S. W. 931; Bowling Green Gas-
light Co. v. Dean’s Ex’x, 142 Ky. 678,
134 8. W. 1115; Anglea’s Adm’r v.
East Tennessee Telep. Co., 142 Ky.
539, 134 S. W. 1119; Baries v. Louis-
ville Electric Light Co., 118 Ky. 830,
9 Am. Electl. Cas. 111, 80 S. W. 814,
25 Ky. Law Rep. 2303; City of
Owensboro v. Knox’s Adm’r, 116 Ky.
451, 25 Ky. Law Rep. 680, 76 S. W.
191; Cumberland Telep. & Teleg. Co.
v. Ware’s Adm’x, 115 Ky. 581, 8 Am.
Elect]. Cas. 811, 24 Ky. Law Rep.
2519, 74 S. W. 289; McLaughlin v.
Louisville Elec. L. Co., 100 Ky. 173,
6 Am. Electl. Cas. 255, 37 S. W. 851,
34 L. R. A. 12, 18 Ky. Law Rep. 693;
Thomas v. City of Somerset, 30 Ky.
Law Rep. 131, 9 Am. Electl. Cas. 883,
97 S. W. 420,7 L. R. A. (N. 8.) 963;
Paducah Ry. & L. Co. v. Bell’s Adm’r,
27 Ky. Law Rep. 428, 9 Am. Electl.

Cas. 404, 85 S. W. 216; O’Donnell’s
Adm’r v. Louisville Elec. L. Co., 21
Ky. Law Rep. 1362, 7 Am. Electl. Cas.
587, 55 S. W. 202; Schweitzer’s
Adm’r v. Citizens’ Elec. Co., 21 Ky.
Law Rep. 608, 7 Am. Electl. Cas. 571,
52 8. W. 830; Gremnis v. Louisville
Elec. Co., 20 Ky. Law Rep. 1293, 49
S. W. 184; Overall v. Louisville E. L. -
Co., 20 Ky. Law Rep. 759, 7 Am.
Electl. Cas. 521, 47 S. W. 442; Rod-
ger’s Adm’r v. Union Light, Heat &
Power Co., 123 S. W. 293.

Louisiana. Moren v. New Orleans
Ry. & L. Co., 125 La. 944, 52 So. 106;
Herbert v. Lake Charles Ice, L. &
Waterworks Co., 111 La. 522, 35 So.
731, 64 L. R. A. 101, 100 Am. St.
Rep. 505; Clements v. Louisiana Elec.
L. Co., 44 La. Ann. 692, 4 Am. Electl.
Cas. 381, 11 So. 51, 16 L. R. A. 43,
32 Am. St. Rep. 348.

Maryland.— Consolidated Gas, Elec.
L. & P. Co. v. State, 109 Md. 186, 72
Atl. 651; Ziehm v. United Elec. L. &
P. Co. of Baltimore, 104 Md. 48, 9
Am. Electl. Cas. 813, 64 Atl. 61;
Brown v. Edison Illum. Co. of Balti-
more City, 90 Md. 400, 7 Am. Electl.
Cas. 576, 45 Atl. 182, 46 L. R. A. 745,
78 Am. St. Rep. 442.

Massachusetts.— McCrea v. Beverly
Gas & Elec. Co., 216 Mass. 495, 104
N. E. 365; Reagan v. Boston Elec. L.
Co., 167 Mass. 406, 45 N. E. 743;
Griffin v. United Elec. L. Co., 164
Mass. 492, 6 Am. Elect]. Cas. 252, 41
N. E. 675, 49 Am. St. Rep. 477, 32
L. R. A, 400; Illingsworth v. Boston
Elec. L. Co., 161 Mass. 583, 37 N. E.
778, 5 Am. Electl. Cas. 312, 25 L. R.
A, 552; Linton v. Weymouth L. & P.
Co., 118 Mass. 276, 9 Am. Electl. Cas.
465, 74 N. E. 321,

Michigan — Hodgins v. Bay City,
InsuLaTION oF WIREs.

156 Mich. 687, 121 N. W. 274, 16 Det.
Leg. N. 222.

Minnesota. Hoppe y. City of
Winona, 113 Minn. 252, 129 N. W.
577, 33 L. R. A. (N. S.) 449, Ann.
Cas. (1912 A) 247; Musolf v. Duluth
Edison Elec. Co., 108 Minn. 369, 122
N. W. 499, 24 L. R. A. (N. S.) 451;
Steindorff v. St. Paul Gaslight Co.,
92 Minn. 496, 9 Am. Electl. Cas. 149,
100 N. W. 221; Schultz v. Fairbault
Consol. Gas & Elec. Co., 82 Minn.
100, 7 Am. Electl. Cas. 617, 84 N. W.
631.

Mississippi— Berry v. Cumberland
Telep. & Teleg. Co., 95 Miss. 729, 50
So. 69; Temple v. McComb City Elec.
L. & P. Co., 89 Miss. 1, 9 Am. Elect).
Cas. 969, 42 So. 874, 11 L. R. A. (N.
S.) 449, 10 Ann. Cas. 924.

Missouri.— Clark v. St. Louis & S.
Ry. Co., 234 Mo. 396, 137 S. W. 583;
Van Trebra v. Laclede Gaslight Co.,
209 Mo. 648, 108 S. W. 559; Ryan v.
St. Louis Transit Co., 190 Mo. 621,
9 Am. Electl. Cas. 536, 4 St. Ry. Rep.
634, 89 S. W. 865, 2 L. R. A. (N. 8.)
777; Geismann v. Missouri Edison
Elec. Co., 173 Mo. 654, 8 Am. Electl.
Cas. 569, 73 S. W. 654; Trout v. Lac-
lede Gas Light Co., 151 Mo. App. 207,
132 S. W. 58; Day v. Consol. L., P. &
Ice Co., 136 Mo. App. 274, 117 S. W.
81; Byerly v. Consol. L., P. & Ice Co.,
130 Mo. App. 593, 109 S. W. 1065;
Brubaker v. Kansas City Elec. L. Co.,
130 Mo. App. 439, 110 S. W. 12;
Luehrmann v. Laclede Gaslight Oo.,
127 Mo. App. 213, 9 Am. Elect]. Cas.
1092; Winkleman v. Kansas City
Elee. L. Co., 110 Mo. App. 184, 9 Am.
Elect]. Cas. 335, 85 S. W. 99. “ Elec-
tricity is one of the most dangerous
agencies ever discovered by human
science, and, owing to that fact, it
was the duty of the electric light
company to use every protection
which was accessible to insulate its
wires at all points where people
have the right to go, and to use the

767

utmost care to keep them so; and
for personal injuries to a person in
a place where he has a right to be,
without negligence upon his part con-
tributing directly thereto, it is liable
in damages.” Geismann v. Missouri
Edison Elec. Co., 173 Mo. 654, 8 Am.
Electl. Cas. 569, 73 S. W. 654.
“Where it reasonably may be said
that an ordinarily careful and pru-
dent person observing the highest
degree of care would anticipate that
persons in the exercise of lawful right
might be brought into contact with
wires carrying powerful currents of
electricity, the law charges the owner
of such wires to insulate them and to
maintain them in a proper state of
repair.” Day v. Consolidated L., P
& Ice Co., 136 Mo. App. 274, 117 S.
W. 81.

Montana.— Birsch v. Citizens’ Elec.
Co., 36 Mont. 574, 93 Pac. 940;
Bourke v. Butte Elec. & P. Co., 33
Mont. 267, 9 Am. Electl. Cas. 566, 83
Pae, 470.

Nebraska.—Wilkins v. Water & L.
Co. of Nebraska City, 92 Neb. 513,
138 N. W. 754; New Omaha Thom-
son-Houston Elec. L. Co. v. Dent, 68
Neb. 668, 8 Am. Electl. Cas. 648, 94
N. W. 819, 103 N. W. 1091.

New Jersey.—Brooks v. Consoli-
dated Gas Co., 70 N. J. L. 211, 9 Am.
Electl. Cas. 35, 57 Atl. 396; Anderson
v. Jersey City Elec. L. Co., 63 N. J.
L. 387, 7 Am. Electl. Cas. 557, 43 Atl.
654,

New York.— Braun v. Buffalo Gen.
Elec. Co., 200 N. Y. 484, 94 N. E. 206,
34 L. R. A. (N. S.) 1089; Dutcher v.
Rockland Electric Co., 123 N. Y. App.
Div. 765, 108 N. Y. Supp. 567; affirmed
without opinion, 195 N. Y. 540, 88
N. E. 1118; Kennealy v. Westchester
Elec. Ry. Co., 86 App. Div. 293, 8 Am.
Electl. Cas, 827, 1 St. Ry. Rep. 639,
83 N. Y. Supp. 823; affirmed without
opinion, 181 N. Y. 582, 74 N. E.
1119; Wagner v. Brooklyn Heights R.
768

Law oF ELectricrry.

expected to come in proximity to them.’ But insulation is
required, not only in places where it is necessary for per-

Co., 69 App. Div. 349, 74 N. Y. Supp.
809; affirmed without opinion, 174
N. Y. 520, 66 N. E. 1117; Wittleder v.
Citizens’ Elec. Ilum. Co. of Brooklyn,
47 N. Y. App. Div. 410, 7 Am. Electl.
Cas. 581, 62 N. Y. Supp. 297; Ennis
v. Gray. 87 Hun. (N. Y.) 355, 5 Am.
Electl. Cas. 325, 34 N. Y. Supp. 379,
68 N. Y. St. Rep. 312.

North Carolina.— Fisher v. City of
New Bern, 140 N. Car. 506, 9 Am.
Electl. Cas. 677, 53 S. E. 342, 5 L. R.
A. (N. 8.) 542, 111 Am. St. Rep. 857;
Mitchell v. Raleigh Elec. Co., 129 N.
Car. 166, 7 Am. Electl. Cas. 644, 39
S. E. 801, 55 L. R. A. 398, 85 Am.
St. Rep. 735.

Ohio.— Cincinnati Gas & Elec: Co.
v. Archdeacon, 80 Ohio St. 27, 88
N. E. 125.

Oklahoma.— LaDow v. Oklahoma
Gas & Elec. Co., 28 Okla. 15, 119 Pac.
250.

Oregon.— Perham v. Portland Gen.
Elec. Co., 33 Oreg. 451, 7 Am. Electl.
Cas. 487, 53 Pac. 14, 40 L. R. A. 799,
7 Am, St. Rep. 730.

Pennsylvania.— Hipple v. Edison
Elec. Illum. Co. of Pottsville, 240 Pa.
91, 87 Atl. 297; Frantz v. Citizens’
Elec. Co., 231 Pa. St. 589, 80 Atl.
1106; Mullen v. Wilkes-Barre Gas &
Elec. Co., 229 Pa. St. 54, 77 Atl. 1108;
Morgan v. Westmorland Elec. Co., 213
Pa. St. 151, 9 Am. Electl. Cas. 612,
62 Atl. 638; Alexander v. Nanticoke
L. Co., 209 Pa. 571, 9 Am. Electl. Cas.
188, 58 Atl. 1068, 67 L. R. A. 475;
Fitzgerald v. Edison Elec. Tlum. Co.,
207 Pa. 118, 8 Am. Electl. Cas. 584,
56 Atl. 350; Fitzgerald v. Edison Elec.
Illum. Co., 200 Pa. 540, 7 Am. Elect.
Cas. 642, 50 Atl. 161, 86 Am. St. Rep.
732; Mullen v. Wilkes-Barre Gas &
Elec. Co., 38 Pa. Super. Ct. 3.

South Carolina——Walker v. South-
ern Bell Telep. & Teleg. Co., 92 S.

Car. 188, 75 S. E. 1024; Parsons v.
Charlestown Consol. Ry. Gas & Elec.
Co., 69 S. Car. 305, 9 Am. Electl. Cas.
146, 48 S. E. 284, 104 Am. St. Rep.
800; Hayes v. Southern Power Co.,
95 S. Car. 230, 78 S. E. 956.

Texas.— San Antonio Gas & Elec.
Co. v. Badders, 46 Tex. Civ. App. 559,
9 Am. Electl. Cas. 1079, 103 S. W.
229; Standard Light & P. Co. v.
Muncey, 33 Tex. Civ. App. 416, 8 Am,
Electl. Cas. 714, 76 S. W. 931; Rucker
vy. Sherman Oil & Cotton Co., 29 Tex.
Civ. App. 418, 8 Am. Electl. Cas, 841,
68 S. W. 818; Snyder Ice, L. & P. Co.
v. Bowron, (Civ. App.) 156 S. W. 550;
San Antonio Gas & Elec. Co. v.
Speigle, 60 S. W. 884.

Vermont.— Wetherby’s Adm’r_ v.
Twin State Gas & Electric Co., 83 Vt.
189, 75 Atl. 8, 25 L. R. A. (N. &)
1220, 21 Ann. Cas. 1092; Drown v.
New England Telep. & Teleg. Co., 80
Vt. 1, 9 Am. Elect]. Cas. 1053, 66
Atl. 801. Same case, 81 Vt. 358, 70
Atl. 599.

Virginia— City of Danville  v.
Thornton, 110 Va. 541, 66 S. E. 839.

Washington. Graves v. Washing-
ton Power Co., 44 Wash. 675, 9 Am.
Electl. Cas. 912, 87 Pac. 956, 11 L.
R. A. (N. 8.) 452.

West Virginia Runyon v. Kana-
wha W. & L. Co., 68 W. Va. 609, 71
S. E. 259, 35 L. R. A. (N. 8.) 430;
Thornburg v. City & E. G. R. Co., 65
W. Va. 379, 64 S. E, 358; Thomas v.
Wheeling Elec. Co., 54 W. Va. 395, §
Am. Elect]. Cas. 528, 46 S. E. 217.

Wisconsin. Meyer v. Menominee
& Marinette L. & Trac. Co., 151 Wis.
279, 138 N. W. 1008.

Canada.— Gloster v. Toronto Elec.
L. Co., 38 Can. Sup. Ct. 27, 6 Ann.
Cas. 529, 38 Can. L. T. 847; Wright v.
Port Hope Elec. Co., 13 O. W. R. 210.

8. Shettield Co. v. Morton, 161 Ala.
InsuLaTIon oF WIREs. 769
sons to go, but also in places where it is convenient for
them to go and their presence may be reasonably antici-
pated.* So long as a dangerous wire remains in a location
where it is likely that persons may lawfully come in contact
therewith, the duty of insulation continues. Negligence
may be inferred from the maintenance of an improperly
insulated wire as well as from the installation of such a
wire.’ Insufficient or worn insulation is worse than none,
for sometimes it gives an appearance of security when, in
fact, it is as dangerous as a bare wire.° If a person in a

153, 49 So. 772; Knowlton v. Des
Moines Edison L. Co., 117 Iowa 451,
8 Am. Electl. Cas. 800, 90 N. W. 818;
Meyer v. Union L., H. & P. Co., 151
Ky. 332, 151 S. W. 941, 43 L. R. A.
(N. S.) 136; City of Cumberland v.
Lottig, 95 Md. 42, 8 Am. Electl. Cas.
562, 51 Atl. 841; Hector v. Boston
Elee, L. Co., 174 Mass. 212, 7 Am.
Electl. Cas. 568, 54 N. E, 539; Keefe
v. Narragansett Elec. L. Co., 21 R. I.
575, 43 Atl. 542; Brush Electric L. &
P. Co. v. Lefevre, 93 Tex. 604, 7 Am.
Electl. Cas. 598, 57 S. W. 640, 49 L. R.
A. 771, 77 Am. St. Rep. 898; Wetherby
v. Twin State Gas & Electric Co., 83
Vt. 189, 75 Atl. 8, 25 L. R. A. (N.S.)
1220, 21 Ann. Cas. 1092. “It (an
electric company) is bound to antici-
pate danger and properly insulate its
wires, and inspect and keep them so,
at certain places, but not every-
where. It is bound to expect certain
accidents in certain ways or from cer-
tain causes, but not all accidents
from every cause. Where a place is
such, under the evidence, as to re-
quire insulation, is generally a ques-
tion for the jury. But sometimes
negligence is a question of law for
the court.” Thomas v. Wheeling Elec.
Co., 54 W. Va. 395, 8 Am. Electl. Cas.
528, 46 S. E. 217.

4, Walters v. Denver Consol. Elec.
L. Co., 17 Colo. App. 192, 8 Am.
Elect]. Cas. 555, 68 Pac. 117; Fitz-

49

gerald v. Edison Elec. Illum. Co., 200
Pa, 540, 7 Am. Electl. Cas. 642, 50
Atl. 161, 86 Am. St. Rep. 732.

5. Cumberland Telep. & Teleg. Co.
v. Ware’s Adm’r, 115 Ky. 581, 8 Am.
Elect]. Cas, 811, 24 Ky. Law Rep.
2519, 74 S. W. 289; Winkleman v.
Kansas City Elec. L. Co., 110 Mo.
App. 184, 9 Am. Elect]. Cas. 335, 85
S. W, 99. See also, § 478.

6. Newark Elec. L. & P. Co. v.
Garden, 78 Fed. 74, 6 Am. Electl. Cas.
275, 39 U. 8S. App. 416, 23 CG. ©. A.
649, 37 L. R. A. 725. “The patrons
of the company have the right to as-
sume that everything that is open to
touch concerning the appliances by
which the electricity is conveyed can
be touched with safety, and that the
company has done all that human
eare, vigilance and foresight can rea-
sonably do consistent with the prac-
tical operation of its plant, to render
such appliances safe.’ White v.
Reservation Elec. Co., 75 Wash. 139,
134 Pac. 807. “ Although the wires
of the defendant company were in-
sulated, it is admitted that such
insulation was no protection what-
ever to persons coming in contact
with them, and hence the negligence
of the defendant is equally as great
as, if not greater than, if the danger
had been from insufficiency or want
of insulation. The apparently perfect
insulation was calculated to deceive,
770 Law or Execrricrry.
place where he has a lawful right to be comes in contact
with an electric wire and receives a shock from a wire
which should have been thoroughly insulated, it is some-
times held that a presumption arises that the insulation is
defective.’ In a few jurisdictions, it is held that the injury
is conclusive on the question of the sufficiency of the insu-
lation.* The fact that it may be expensive to place a proper
insulation upon electric wires is no excuse for a failure to
do so.’ If the company cannot afford to guard the wires
against the contact of innocent persons, it should cease
business. The duty of keeping dangerous electric wires
properly insulated is incident to the ownership and oper-
ation of an electric plant, and is not transferable by the
electric company.”® Liability does not necessarily attach to
the electric company because the electricity causing the
injury came from its power plant. Where the wires are
maintained by another person or corporation, the latter is
usually the only one liable, though there are conflicting
decisions on this point.* Municipal ordinances requiring
the insulation of electric wires within the municipal limits
may affect the duty of the company relative to insulation.”
Insulation Against Lightning.— It has been held that an
electric company is under no duty to insulate its wires as

and to cause one unfamiliar with the
facts to suppose the wires safe. It

348; Geismann v. Missouri Edison
Elec. Co,, 173 Mo. 654, 8 Am. Electl.

acted as an invitation to persons at
work in and among the wires to risk
the consequences of contact there-
with. The law imposes upon the
company the duty of exercising the
utmost care and prudence to prevent
such injury.” Geismann v. Missouri
Edison Elec. Co., 173 Mo. 654, 8 Am.
Electl. Cas. 569, 73 S. W. 654.

7. § 594.

8. McLaughlin v. Louisville Elec.
L. Co., 100 Ky. 173, 6 Am. Electl. Cas.
255, 37 S. W. 851, 34 L. R. A. 12,
18 Ky. Law Rep. 693; Clements v.
Louisiana Elec. L. Co., 44 La. Ann.
692, 4 Am. Electl. Cas. 381, 11 So.
51, 16 L, R. A. 43, 32 Am. St. Rep.

Cas. 569, 73 S. W. 654; Winkleman
v. Kansas City Elec. L. Co., 110 Mo.
App. 184, 9 Am. Electl. Cas. 335, 85
S. W. 99; Philbin v. Marlborough
Elec. Co. (Mass.) 105 N. E. 893.

9. McLaughlin v. Louisville Elec-
tric Light Co., 100 Ky. 193, 6 Am.
Elect]. Cas. 255, 37 S. W. 856, 34
L. R. A. 812; Braun v. Buffalo Gen.
Elec. Co., 200 N. Y. 484, 94 N. E. 206,
34 L. R. A. (N. 8.) 1089.

10. Standard Light & P. Co. v.
Muncey, 33 Tex. Civ. App. 416, 8 Am,
Electl. Cas. 714, 76 S. W. 931.

11. §§ 416-419.

12. §§ 420-424,
InsuuaTion oF WIREs. 771

against a bolt of lightning.** Whether or not this is the
correct rule, it is clear that an electric company is bound
to anticipate that lightning may pass along its wires, and
it is bound to exercise due care for the protection of its
customers from such currents.** This may require it to
install lightning arrestors, fuses, or some other device of
similar operation, to prevent excessive currents of elec-
tricity from entering into the interior wiring of its cus-
tomer’s building.*®

Not Coming in Contact with Wire—Where the current
passing over a wire is of such high voltage that a deadly
shock may be received by one who comes in proximity to
the wire, though not in actual contact, a very high degree
of caution is required, either to prevent persons from com-
ing close to the wire or to so insulate its wire that the
current will remain in its course.’* If an injury is caused
by the passage of electric energy from the wire to the body
of one close to the wire, it does not, avail the company to
say that the injured did not come in actual contact with the
wire.

Question for Jury.—Whether an electric company has
been guilty of negligence in the insulation of its wires is,
like most. other questions of negligence, a matter for the
jury to determine,” though, in some cases, where there is
no conflict in the evidence, the question is one of law for
the court.

18. Phoenix L. & Fuel Co. v. Ben-
nett, 8 Ariz. 314, 8 Am. Electl. Cas.
597, 74 Pac, 48, 63 L, R. A. 219.

14, §§ 453, 466.

15. § 494.

16. Dunn v. Cavanaugh, 185 Fed.
451; Hoppe v. City of Winona, 113
Minn. 252, 129 N. W. 577, 33 L. R. A.
(N. S.) 449, Ann. Cas. (1912 A) 247.

17. Steindorff v. St. Paul Gaslight
Co., 92 Minn. 496, 9 Am. Electl. Cas.
149, 100 N. W. 221; Thomas v.
Wheeling Elec. Co., 54 W. Va. 395,

8 Am. Electl. Cas. 528, 46 S. E. 217.
“Whether that degree of care in the
construction, inspection and repair of
the wires carrying highly dangerous
currents of electricity imposed upon
one employing them so as to keep
them harmless at places where per-
sons are liable to come in contact
with them has been exercised in the
given case is ordinarily for the jury.”
Thornburg v. City & E. G. R. Co., 65
W. Va. 679, 64S. E. 358.
772 Law oF EIvecrriciry.

Sec. 511. An Alternative Duty.

It is to be noted that the duty of insulation is not absolute
under all circumstances. The imposition of the duty as to
places where it reasonably may be anticipated that persons
will come in contact with the deadly wire, naturally implies
that there is no such duty of insulation at other places.
Thus, it follows that the obligation of the electric company
is alternative in its nature.* Hither the wire must be
insulated, or it must be so located as to be, comparatively
speaking, harmless. If the company does not choose to
properly insulate a deadly wire of its maintenance, it must
place the same underground, at a high altitude, or at some
inaccessible place. On the other hand, if it chooses to place
the wire where persons commonly go when pursuing their
occupations or enjoyments, its duty of insulation is
imperative.

Sec. 512. Insulation at Particular Places; Through Trees.

An electric company, maintaining a dangerous wire
through or near a tree is bound to anticipate that persons
may lawfully climb the tree, and it is required to exercise
due care to prevent injury to such persons from its wire.”
The maintenance of a wire through a tree requires frequent
inspection, for the company is charged with knowledge that
the swaying of the limbs is likely to abrade the insulation
and permit the dangerous current to escape.”® The courts
recognize that children are apt to climb trees, and impose
upon electric companies the burden of using due care to

18. “It should along the highway
and in proximity to places where per-
sons may rightfully go, insulate its
wires, or by putting them out of the
way avoid danger to persons who
without negligence might otherwise
be injured by casually coming in con-
tact with them.” Knowlten v. Des
Moines Edison L. Co., 117 Iowa 451,
8 Am. Elect]. Cas. 800, 90 N. W. 818.
“The wires must either be insulated
or placed beyond the danger line of

human beings using the public streets
in a lawful way.” Fisher v. City of
New Bern, 140 N. Car. 506, 9 Am.
Electl. Cas. 677, 53 S. E. 342,5 L. R.
A. (N. 8.) 543, 111 Am. St. Rep. 857.

19. McCrea v. Beverly Gas & Elec.
Co., 216 Mass. 495, 104 N. E. 365;
Philbin v. Marlborough Elec. Co.,
(Mass.) 105 N. E, 893.

20. Brubaker v. Kansas City Elec.
L. Co., 130 Mo. App. 439, 110 S. W.
12.
InsuLATION OF WIRES. 773
keep their high tension wires insulated in places where
children when climbing a tree will come in contact with
them.” As was said by the Supreme Court of Mississippi,”
‘¢The immemorial habit of small boys to climb little oak
trees filled with abundant branches reaching almost to the
ground is a habit which corporations stretching their wires
over such trees must take notice of.’’ As to a tree grow-
ing on land owned by the electric company, it may be that
the child would be considered a trespasser and the company
would be relieved from liability for its defectively insulated
wire, but, where the tree is upon the premises of another,
though he be a trespasser against the owner, he is not a
trespasser against the company within the rule which for-
bids the recovery of damages sustained by a trespasser.

Sec. 513. Insulation at Particular Places;
Buildings.

In the maintenance of an electric lighting system it fre-

quently becomes desirable to run a wire close to a building

Side of

21. Clements v. Potomac Elec.

Power Co., 26 App. D. C. 482, 9 Am.
Electl. Cas.’ 938; Temple v. McComb
City Elec. L. & P. Co., 89 Miss. 1,
9 Am. Electl. Cas. 969, 42 So. 874,
J1 L. R. A. (N. 8S.) 449, 10 Ann.
Cas. 924; Benton v. North Carolina
Publie Service Co., 165 N. Car. 354,
81 S. E. 448; Mullen v. Wilkes-Barre
Gas & Elec. Co., 229 Pa. St. 54, 77
Atl. 1108. Compare, Brown v. Panola
L. & P. Co., 137 Ga. 352, 73 S. E.
580.

22. Temple v. McComb City Elee.
L. & P. Co., 89 Miss. 1, 9 Am. Electl.
Cas. 969, 42 So. 874, 11 L. RB. A.
(N. S.) 449, 10 Ann. Cas. 924.

23. Mullen v. Wilkesbarre Gas &
Elee. Co., 229 Pa. St. 54, 77 Atl.
1108. “The plaintiff therefore, in
climbing the .tree, was in no sense
committing any trespass or infringe-
ment upon any right of the defend-
ant; nor did his act need the aid
of any invitation, permission or li-

cense from the latter to keep it in
the category of wholly innocent acts.
Had the tree been an apple tree bear-
ing luscious fruit and, had the owner,
whilst picking that fruit, received the
same injury as did the plaintiff here,
could the defendant successfully con-
tend it owed him no duty in respect
to the condition of its wires? If the
owner, instead of gathering his fruit
himself, had expressly invited and
authorized the plaintiff to take it for
his own use or for distribution among
his fellows, would the situation be
materially different? Or can it be
that the yoke or responsibility would
be lifted from the shoulders of the
defendant if the permission of the
owner was general, to the boys of the
neighborhood, rather than particular
to one of them; was implied from
his conduct rather than expressed in
words.” Mullen v. Wilkes-Barre Gas
& Elec. Co., 38 Pa. Super. Ct. 3.
774 Law or ELecrriciry.

or to fasten it to the side of the building. In the absence
of statute or municipal ordinance forbidding the main-
tenance of wires in that manner, the practice is not
denounced by the law. The company, however, must
remember that other persons in the pursuit of business or
pleasure are likely to work or be near the side of the struc-
ture, and, consequently, care must be taken with regard to
the insulation of a wire so located. Thus, if a painter,
carpenter, sign hanger, or other laborer, while working
near the wall of a building is injured by contact with an
electric wire that is uninsulated or defectively insulated,
the company, in the absence of contributory negligence, will
generally be liable for the injury.% While the rule is
peculiarly applicable to wires maintained near structures
of others, the company is also required to use care in the
insulation of wires near the sides of its own building, such
as its power house; and, where a subcontractor painting

24. United States—See Glouster
Elec. Co. v. Kankas, 120 Fed. 490, 8
Am. Electl. Cas. 493, 56 C. C. A. 640.

California— Wales v. Pac. Elec.
Motor Co., 130 Cal. 521, 7 Am. Electl.
Cas. 609, 62 Pac. 932.

Kentucky.— McLaughlin v. Louis-

ville Elec. L. Co., 110 Ky. 173, 6 Am.
Elect]. Cas. 255, 37 S. W. 851, 34
L. R. A. 12, 18 Ky. Law Rep. 693.
_ Maryland.—Brown v. Edison Illum.
Co. of Baltimore City, 90 Md. 400, 7
Am. Electl. Cas. 576, 45 Atl. 182, 46
L. R. A. 745, 78 Am. St. Rep. 442.

Massachusetts.— Griffin v. United
Elee. L. Co., 164 Mass. 492, 6 Am.
Elect]. Cas. 252, 41 N. E. 675, 49
Am. St. Rep. 477, 32 L. R. A. 400.

Missouri— Geismann v. Missouri
Edison Elec. Co., 173 Mo. 654, 8 Am.
Elect]. Cas. 569, 73 S. W. 654;.Win-
kelman v. Kansas City Elec. L. Co.,
110 Mo. App. 184, 9 Am. Electl. Cas.
335, 85 S. W. 99; Williams v. City
of Fulton, 164 S. W. 247.

Montana.— Birsch v. Citizens’ Elec.
Co., 36 Mont. 574, 93 Pac. 940.

New Jersey.— Consol. Gas. Co. v.
Brooks, 53 Atl. 296.

Pennsylvania. Yeager v. Edison
Elee. Co.,, 242 Pa. 101, 88 Atl. 872;
Fitzgerald v. Edison Elec. Illum. Co.,
207 Pa. 118, 8 Am. Electl. Cas. 584,
56 Atl. 350.

Window roof— An electric light
company, using a current so powerful
that its wires are highly dangerous,
owes a duty of protection to every
one who in the exercise of a lawful
occupation, in a place where he
has a legal right to be, is liable to
come in contact with the wires. So
held, where a boy was injured by
contact with an uninsulated primary
wire, while he was on a window-roof
in front of his employer’s store, at-
tempting to remove an obstruction
from a spout. Brown v. Edison Elec.
Illum. Co. of Baltimore, 90 Md. 400,
7 Am. Electl. Cas. 576, 45 Atl. 182,
46 L. R. A. 745, 78 Am. St. Rep.
442,
INSULATION oF WIRES. 775
the power house is injured by a discharge of electricity
from its wire, the company may be liable.?* With especial
care should a wire be guarded when it is strung close to a
window or door where the inhabitants of the building are
likely to be in the course of their ordinary life. Thus, it
was held to be a question for the jury whether an electric
‘ company was negligent in maintaining an uninsulated wire
so close to a window that a child reaching out of the window
came in contact therewith.”

Balcony.—A balcony is recognized as a place where the
inhabitants of a building or workman are apt to be, and,
hence, wires in proximity thereto should be carefully
guarded.” Thus, where the caretaker of a house went upon
a balcony for the purpose of repairing a gutter and came
in contact with an exposed electric wire, the liability of the
electric company was sustained.” So, too, where a person
employed by an opera company went upon a balcony of the
opera house to remove some advertising banners and was
killed by coming in contact with an electric wire, it was held
that the electric company was guilty of negligence.”

Sec. 514. Insulation at Particular Places; Awnings.

As a general rule, it is question for the jury whether
an electric company should anticipate the presence of per-
sons on an awning, and whether its wires in proximity
thereto should be guarded with insulation. It has been
held, however, that the top of an unrailed wooden awning
attached to a house about sixteen feet above the street, is
not a place where persons may reasonably be expected to

25. Dunn v. Cavanaugh, 185 Fed.
451.

26. Walters v. Denver Consol. Elec.

Co., 17 Colo. App. 192, 8 Am. Electl.
Cas. 555, 68 Pac. 117; Walters v.
Consol. Elec. L. Co., 12 Colo. App.
145, 7 Am. Electl. Cas. 515, 54 Pace.
960. See also, Denver Consol. Elec.
Co. v. Walters, 39 Colo. 301, 9 Am.
Elect]. Cas. 1013, 89 Pac. 815.

27. Brooks v. Consolidated Gas Co.,

70 N. J. I. 211, 9 Am. Electl. Cas.
35, 57 Atl. 396; Consol. Gas Co. v.
Brooks, (N. J.) 53 Atl. 296; Thomas
v. Wheeling Elec. Co., 54 W. Va. 395,
8 Am. Elect]. Cas. 528, 46 S. E. 217.

28. Brooks v. Consol. Gas Co., 70
N. J. Law 211, 9 Am. Electl. Cas. 35,
57 Atl. 396.

29. Thomas v. Wheeling Elec. Co.,
54 W. Va. 395, 8 Am. Electl. Cas.
528, 46 S. EB. 217,
776 Law or E.ecrricity.

go.°° And likewise, an electric company is not liable for an
injury to a boy who climbed up a pipe and came in contact
with wires eight or ten feet above the sidewalk.** No doubt,
a great deal depends on the kind of awning and its sur-
roundings. If the awning is one which painters and other
workmen about the place utilize in the performance of their
work, the electric company would be required to use care
as to the insulation of its wires in proximity thereto.”
Sec. 515. Insulation at Particular Places; Roofs of

Buildings.

An electric company must expect that persons will some-
times go upon the roof of buildings for pleasure and busi-
ness, and it must therefore exercise due care to see that its
electric wires over or near to the roof are properly insu-
lated so that injury will not result to a person lawfully
upon the roof. Thus, if a workman employed to repair the
roof or to do other work on or near the roof comes in con-
tact with a defectively insulated electric wire and receives
an injurious shock of electricity, the company will generally

be required to respond in damages.**

80. Brush Electric L. & P. Co. v.
Lefevre, 93 Tex. 604, 7 Am. Electl.
Cas. 598, 57 S. W. 640, 49 L. R. A.
771, 77 Am. St. Rep. 898.

31. O’Gara v. Philadelphia Elec.
Co., (Pa.) 90 Atl. 529.

82. See Rucker v. Sherman Oil &
Cotton Co., 29 Tex. Civ. App. 418, 8
Am, Electl. Cas. 841, 68 S. W. 818.

33. United States.— Colusa Parrot
Mining & Smelting Co., 162 Fed. 276,
89 C. C. A. 256.

California— Giraudi v. Elec. Imp.
Co., 107 Cal. 120, 40 Pac. 108, 28
L. R. A. 596, 48 Am. St. Rep. 114.

Kentucky.— Gremnis v. Louisville
Elec. Co., 20 Ky. Law Rep. 1293, 49
S. W. 184.

Louisiana.— Clements v. Louisiana
Elec. L. Co., 44 La. Ann. 692, 4 Am.
Electl. Cas. 381, 11 So. 51,16 L. R. A.
43, 32 Am. St. Rep. 348.

So, too, upon flat

Massachusetts.— Reagan v. Boston
Elec. L. Co., 167 Mass. 406, 45 N. E.
743,

Minnesota.— Steindorff v. St. Paul
Gaslight Co., 92 Minn. 496, 9 Am.
Electl. Cas. 149, 100 N. W. 221.

Missouri.— Williams v. City of Ful-
ton, 164 S. W. 247.

New Jersey— Sommer v. Public
Service Corporation of New Jersey,
79 N. J. L. 349, 75 Atl. 892.

New York.— Ennis v. Gray, 87 Hun
(N. Y.) 355, 5 Am. Elect]. Cas. 325,
34 N. Y. Supp. 379, 68 N. Y. St.
Rep. 312.

Pennsylvania.— Fitzgerald v. Edi-
son Elec. Illum. Co., 200 Pa. St. 540,
7 Am. Electl. Cas. 642, 50 Atl. 161,
86 Am. St. Rep. 732.

Electric company bound to repair
roof.— Although an electric company
permitted by the owner of a building
INSULATION OF WIREs. 777
roofs in cities and possibly upon some other roofs used
for the purposes of recreation, an electric company is
bound to anticipate that persons may go for pleasure.
Where roofs are so used, the company must use proper
care to see that its dangerous wires in proximity thereto
are kept in a state of efficient insulation.** But where roofs
are not normally used for the purpose of enjoyment, an
electric company need not anticipate the presence of per-
sons for that purpose. In such a case, if a child climbs
on the roof and comes in contact with a defectively insu-
lated wire of an electric company, the company is not liable
for the injury.** And, if the person injured has no right to
be on the roof, he may be deemed a trespasser or licensee
whom the company is under no obligation to protect.
Thus, where a policeman went on the roof of a private
building in order to detect gamblers in an adjoining build-
ing and was injured by a shock from a defectively insulated
wire of the city’s electric lighting system, it was held that
the policeman was a trespasser or licensee and could not

to maintain an electric wire over the
roof is bound by the agreement with
the owner to keep the roof in repair,
the owner may make repairs thereto
from time to time, and a person em-
ployed to make the repairs, if he is
injured by contact with the wire, may
have a cause of action against the
company. Reagan v. Boston Elec. L.
Co., 167 Mass. 406, 45 N. E. 743.

34. In Day v. Consolidated Light,
Power & Ice Co., 136 Mo. App. 274,
117 S. W. 81, it appeared that the
plaintiff’s six-year-old-boy went onto
a roof in search of his ball and came
in contact with an uninsulated wire
about six inches from the end of the
roof. It appeared that the roof was
easy of access from the windows, and
had been used more or less as a place
for hanging clothes, for sleeping pur-
poses, and as a playground for chil-
dren. The liability of the electric
company was sustained.

35. Sullivan v. Boston & A. R. Co.,

156 Mass. 378, 31 N. E. 128; City of
Cumberland v. Lottig, 95 Md. 42, 8
Am. Electl. Cas. 562, 51 Atl. 841;
Keefe v. Narragansett Elec. L. Co., 21
R. I. 575, 43 Atl. 542; Burnett v. Ft.
Worth L. & P. Co., 102 Tex. 31, 112
S. W. 1040, 19 L. R. A. (N. S.) 504.
See also, Trout v. Philadelphia Elec.
Co., 236 Pa, St. 506, 84 Atl. 967, 42
L. R. A. (N. 8S.) 713.

Railroad shed.— Where a boy went
on a railroad shed to get a ball and
was killed by contact with bare elec-
tric wires used by the railroad com-
pany in its business, it was held that
the boy was at most a mere licensee,
and that the company was not liable
for the injury. Sullivan v. Boston,
etc., R. Co., 156 Mass. 378, 31 N. E.
128.

36. Burnett v. Ft. Worth L. & P.
Co., 102 Tex. 31, 112 S. W. 1040, 19
LL, R. A. (N. 8.) 504.

As to trespassers, see §§ 462-471.
778 Law or Eectriciry.

recover for his injuries.” So, too, where an electric com-
pany and a telephone company were jointly using a stand-
ard on a roof for the support of their wires with their
Wires passing over another building, and a telephone line-
man went onto the roof of the latter building by the per-
mission of the owner thereof and came in contact with one
of the electric company’s wires which was defectively insu-
lated and received an injury, it was held that the electric
company owed no duty to the employees of the telephone
company to have its wires insulated at the point where the
injury was received.**

Sec. 516. Insulation at Particular Places; Bridges.

An electric company maintaining a high tension wire on
a bridge should exercise due care to have the wire properly
insulated, so that injury will not be received by one lawfully
coming in proximity to the wire. The electric company may
be charged with negligence if a painter or other workman on
the bridge or a person passing over the bridge comes in con-
tact with a defectively insulated wire and receives injury
thereby.*® A certain amount of latitude is allowed children

37. City of Greenville v. Pitts, 102
Tex. 1, 107 S. W. 50, 14 L. R. A
(N. 8S.) 979.

38. Hector v. Boston Elec. L. Co.,
161 Mass. 558, 5 Am. Elect]. Cas. 301,
37 N. E. 773, 25 L. R. A. 554; same
case, 174 Mass. 212, 7 Am. Electl.
Cas. 568, 54 N. E. 539.

39. Hoppe v. City of Winona, 113
Minn. 252, 129 N. W. 577, 33 L. R.A
(N. S.) 449, Ann. Cas. (1912 A)
247; Bourke v. Butte Elec. & P. Co.,
33 Mont. 267, 9 Am. Electl. Cas. 566,
83 Pac. 470; Perham v. Portland Gen.
Elec. Co., 33 Oreg. 451, 7 Am. Electl.
Cas. 487, 53 Pac. 14, 40 L. R. A. 799,
7 Am. St. Rep. 730; Runyon v. Kana-
wha W. & L. Co., 68 W. Va. 609, 71
S. E. 259, 35 L. R. A. (N. S.) 480.
See also Annapolis Gas & Elec. L.
Co. v. Fredericks, 112 Md. 449, 77
Atl. 53.

Repairing bridge-—— Where an elec-

trie light company had, by permis-
sion, strung its wires across the top
of a bridge belonging to a railway
company and the wires were appa-
rently but not actually perfectly in-
sulated and were not placed so that
servants of the railway company could
not come in contact with them, and
the electric light company had not
informed the railway company that
it was dangerous to touch the wires,
held, that the electric light company
was liable for the death of an em-
ployee of the railway company who
was repairing the bridge and in
ignorance of the danger of his act
on account of the apparent perfect
insulation touched two wires at once
and was instantly killed. Perham v.
Portland Gen. Elec. Co., 33 Oreg. 451,
7 Am. Electl. Cas, 487, 53 Pac. 14,
40 L. R. A. 799, 72 Am. St. Rep.
730.
INsuLaTION OF WIREs. 779
playing around a bridge. A company maintaining a high
tension wire over the bridge must remember that children
will play around the bridge and go to places where adults
will not usually go. Thus, if a child passing or playing along
a bridge reaches out through a railing, or other guard, and
touches a defectively insulated wire without knowing the
danger of his act, he will ordinarily be permitted to recover
for his injuries.*° Where an uninsulated wire was stretched
across a ravine about ten feet from a bridge and there-
after the bridge was widened so that the wire came to
within less than two feet of the bridge, and a boy reached
out and touched the wire, it was held that the electric com-
pany was guilty of negligence.** Where it was well known
that boys were accustomed to go bathing in a stream at the
place where a bridge crossed the stream, it was held that
an electric company was negligent in maintaining danger-
ous wires along the bridge in a place where a boy was
preparing to dive from the bridge into the stream.** In
other cases, a child climbing on that part of the bridge not
intended for travelers is regarded as a trespasser as to
whom the electric company is not bound to insulate its

wires.*? Thus, in one case, it appeared that electric wires
40. Consol. Elec. L. & P. Co. v. girders. The guard wire carried no
Healy, 65 Kan. 798, 8 Am. Electl. current. It was about three feet

Cas. 548, 70 Pac. 884; Thornburg v.
City & E. G. R. Co., 65 W. Va. 379,
64 S. E. 358.

41. Gloster v. Toronto Elec. L. Co.,
38 Can. Sup. Ct. 27, 6 Ann. Cas. 529,
38 Can. L. T. 847.

42. Nelson v. Branford L. & W.
Co., 75 Conn. 548, 8 Am. Electl. Cas.
542, 54 Atl. 303.

48. Guard wire— A bridge, being
part of a public highway and main-
tained by the public authorities, was
supported by two curved girders, 115
feet long, 13 feet high at the center,
and having a flat upper surface. A
trolley wire and a guard wire passed
near an iron lamp-post erected on
the apex of the arch of one of the

above the girder at the apex of the
arch. A boy, sui juris, walking over
the girder and trying to crawl be-
tween the guard wire and the lamp-
post, was burned and shocked by the
guard wire, which had become
charged in some unexplained way,
and fell to the floor of the bridge,
sustaining injuries. The only fault
ascribed to the defendant was that
it permitted the guard wire to be-
come charged with electricity. There
was evidence that other boys had
passed over the girder before, and
that some had been burned.

Held, that the railway company
was not bound to anticipate the oc-
currence of the accident, and owed
780 Law oF ELEcTRIcITY.

were fastened to the wooden arms of a railroad bridge, the
wires being about two feet out from the portion used for
foot travelers. A child who had been sitting on the guard
rail opposite one of the wooden arms, in changing his posi-
tion, came in contact with the wire and was killed. It was
held that the electric company was not responsible for the
accident.** In another case, it appeared that a boy while
climbing on a pier under a bridge touched a dangerous
wire of an electric company thirty feet from the ground.
The evidence tended to show that boys sometimes climbed
the piers to find birds’ nests and in playing some games,
but it did not appear that boys were in the habit of climbing
where the dangerous wires were or that the electric com-
pany had any knowledge of their climbing on the piers. It
was held that the electric company was not liable.*

Sec. 517. Insulation at Particular Places; Elevated

Railroad.

If an electric company maintains a dangerous wire along
an elevated railway structure in such a position that per-
sons, using the structure as passengers, or persons working
on or near the structure are likely to come in contact with
the wire, it must employ a high degree of caution to the end
that such persons will not receive an injurious shock of
electricity. Thus, where a boy playing upon the stairway
of such structure inadvertently threw his hand back from
the railing and touched a live wire, though he did not intend
to become a passenger, it was held that the negligence of
the electric company in maintaining an exposed wire in
such a position was a question for the jury.** If the owner
of an elevated structure permits another company to use

the plaintiff no duty to keep the
girder safe for travel thereon. Free-
man v. Brooklyn Heights R. Co., 54
N. Y. App. Div. 596, 7 Am. Electl.
Cas. 611, 66 N. Y. Supp. 1052.

44, Wetherby’s Attm’r v. Twin
State Gas & Electric Co., 83 Vt. 189,
75 Atl. 8, 25 L. BR. A. (N. 8.) 1220,
21 Ann. Cas. 1092.

45. Graves v. Washington Water
Power Co., 44 Wash. 675, 9 Am.
Elect]. Cas. 912, 87 Pac. 956, 11
L. R. A. (N. S.) 452.

46. Wittleder v. Citizens’ Elec.
Ilum. Co. of Brooklyn, 47 N. Y.
App. Div. 410, 7 Am. Electl. Cas,
581, 62 N. Y. Supp. 297.
InsuLATION OF WIREs. 781
the structure to support its wire, the elevated company
must exercise due care to insulate its wires so that
employees of the latter company will not be injured while
working about the line maintained by such latter company.”

Sec. 518. Insulation at Particular Places; at Poles.

An electric company should anticipate that persons will
be on or near to its poles and it should, therefore, employ
due care to keep its wires insulated so that persons law-
fully on or close to its poles will not be injured by a high
tension current.*® The company is required to insulate its
wires, not only for the protection of its own employees,
and that of independent contractors and employees of inde-
pendent contractors working for the benefit of the com-
pany,” but also, in some cases, for the protection of

47. Wagner v. Brooklyn Heights
R. Co., 69 App. Div. 349, 74 N. Y.
Supp. 809; affirmed without opinion,
174 N. Y. 520, 66 N. E. 1117.

48. Person climbing pole without
authority Where a deputy sheriff
climbed an electric light pole used
to support lights for the court house
yard for the purpose of changing
the bulbs, and it was the duty of the
electric company to make such
changes in bulbs as should be neces-
sary, it was held that the deputy
sheriff was a volunteer or trespasser,
and that the company was not liable
for injuries received by him while on
the pole. Hickok v. Auburn L., H. &
P. Co., 200 N. Y. 464, 93 N. E. 1113.

49. New Omaha Thomson-Houston
Elee. L. Co. v. Dent, 68 Neb. 668,
8 Am. Electl. Cas. 648, 94 N. W. 819,
103 N. W. 1091. See also §§ 549-551.

50. Smith v. Twin City Rapid
Transit Co., 102 Minn. 4, 5 St. Ry.
Rep. 527, 112 N. W. 1001.

Building coal chutes— Where an
employee of a contractor building
coal chutes for an electric railway
company, while working at a pole

with a guy rope, was injured by a
shock of electricity occasioned by the
rope coming in contact with a feed
wire of the railway company not
properly insulated, it was held that
the company was liable. Clark v.
St. Louis & S. Ry. Co., 234 Mo. 396,
137 S. W. 583.

Painter— A street railway com-
pany, which contracts with an indi-
vidual for the painting of the iron
poles used by it to support the wires
connected with its overhead trolley
system, the wires being so arranged
and insulated as, when in proper re-
pair, to prevent the iron caps on tops
of the poles from being charged with
electricity, is liable for injuries oc-
casioned to an employee of the con-
tractor who, while engaged in paint-
ing the cap on one of the poles,
receives a charge of electricity from
the cap, which had become charged
because of the negligent failure of
the company to maintain its appli-
ances in proper condition and repair.
Smith v. Twin City Rapid Transit
Co., 102 Minn. 4, 5 St. Ry. Rep. 527,
112 N. W. 1001. Where a contractor
782

Law or Eecrrictry.

employees of other companies who may work on or near

its poles.™

Thus, where it is understood between two or

more companies that they may place and maintain their
wires on the same poles, or that the employees of each
company may use the poles of the other in the prosecution
of their work, each company is bound to care for their wires
so that injury will not result to the workmen of another

company.”

had entered into a contract for paint-
ing the supporting poles of a street
railway company, and came in con-
tact with an electric feed wire while
sandpapering one of the poles, the
liability of the street railway com-
pany was sustained. Kenneally v.
Westchester Elec. Ry. Co., 86 N. Y.
App. Div. 293, 8 Am. Electl. Cas. 827,
1 St. Ry. Rep. 639, 83 N. Y. Supp.
823; affirmed without opinion, 181
N. Y. 582, 74 N. E. 1119.

51. United States— Dover  v.
Glouchester Elec. Co., 155 Fed. 256;
Memphis Consol. Gas & Elec. Co. v.
Bell, 152 Fed. 677, 9 Am. Electl. Cas.
1025. 82 C. C. A. 25; Newark Elec.
L. & P. Co. v. Garden, 78 Fed. 74,
6 Am. Electl. Cas. 275, 39 U. S. App.
416, 23 C. C. A. 649, 37 L. R. A.
725.

Indiana.— Beaning v. South Bend
Elec. Co., 45 Ind. App. 261, 90 N. E.
786.

Iowa.— Knowlton v. Des Moines
Edison L. Co., 117 Iowa 451, 8 Am.
Elect]. Cas. 800, 90 N. W. 818.

Kansas.— Rambo v. Empire Dist.
Elec. Co., 90 Kan. 390, 133 Pac. 553.

Kentucky.— Bowling Green Gas-
light Co. v. Dean’s Ex’x, 142 Ky. 678,
134 S. W. 1115; Anglea’s Adm’r v.
East Tennessee Telep. Co., 142 Ky.
539, 134 S. W. 1119; Overall v. Louis-
ville E. L. Co., 20 Ky. Law Rep. 759,
7 Am. Electl. Cas. 521, 47 S. W. 442.

Maryland.— Consolidated Gas, Elec.
L. & P. Co. v. State, 109 Md. 186,
72 Atl. 851; Ziehm v. United Elec.

Even in the absence of an understanding as

L. & P. Co. of Baltimore, 104 Md.
48,9 Am. Electl. Cas. 813, 64 Atl. 61.
Massachusetts.— Barker v. Boston
Elec. L. Co., 178 Mass. 503, 60 N. E.
2; Illingsworth v. Boston Elec. L. Co.,
161 Mass. 583, 37 N. E. 778, 5 Am.
Electl. Cas. 312, 25 L. R. A. 552.

Michigan.— Hodgins v. Bay City,
156 Mich. 687, 121 N. W. 274, 16
Det. Leg. N. 222.

Missouri Van Trebra v. Laclede
Gaslight Co., 209 Mo. 648, 108 S. W.
559; Trout v. Laclede Gas Light Co.,
151 Mo. App. 207, 132 8S. W. 58.

Ohio.— Cincinnati Gas & Elec. Co.
v. Archdeacon, 80 Oh. St. 27, 88 N. E.
125.

Pennsylvania— Hipple v. Edison
Elec. Illum. Co. of Pottsville, 240 Pa.
St. 91, 87 Atl. 297; Frantz v. Citi-
zen’s Elec. Co., 231 Pa. St. 589, 80
Atl, 1106; Morgan v. Westmoreland
Elec. Co., 213 Pa. St. 151, 9 Am.
Elect]. Cas. 612, 62 Atl. 638,

Texas.— San Antonio Gas & Elec.
Co. v. Badders, 46 Tex. Civ. App. 559,
9 Am. Elect]. Cas. 1079, 103 S. W.
229; Snyder Ice L. & P. Co. v. Brown,
(Civ. App.) 156 S. W. 550.

Virginia— City of Danville v.
Thornton, 110 Va. 541, 66 S. E. 839.

52. Newark Elec. L. & P. Co. v.
Garden, 78 Fed. 74, 6 Am. Electl.
Cas. 275, 39 U. S. App. 416, 23 C.
C. A. 649, 37 L. R. A. 725; Beaning
v. South Bend Elec. Co., 45 Ind. App.
261, 90 N. E. 786; Barker v. Boston
Elec. L. Co., 178 Mass. 503, 60 N. E.
2; Illingsworth v. Boston Elec. Co.,
INSULATION OF WIRES.

783

to the reciprocal use of poles, if the two companies maintain
their lines and their poles close together, each company, it
has been held, is bound to anticipate that the employees of
one may step from the pole of his master to that of the
other company, and each company is bound to exercise care
in the insulation of its wires in order to prevent injury to

161 Mass. 583, 5 Am. Electl. Cas.
312, 37 N. E. 778, 25 L. R. A. 552;
Trout v. Laclede Gas Light Co., 151
Mo. App. 207, 132 S. W. 58; Cincin-
nati Gas & Elec. Co. v. Archdeacon,
80 Oh. St. 27, 88 N, E. 125; Standard
Light & P. Co. v. Muncey, 33 Tex.
Civ. App. 416, 8 Am. Eleotl. Cas.
714, 76 S. W. 931.

“The law in such cases. as stated
by many authorities, is that, where
two companies by agreement or other-
wise, use the same pole upon which
to suspend their electric wires, they
are joint owners and each owes a
duty to the other company using
said pole to use the highest degree
of care in insulating the wires that
are charged with a current of elec-
tricity of high voltage, and to keep
them properly insulated; and, if
either of them fail so to do, it is neg-
ligence, and the one failing is liable
for the injuries sustained to the em-
ployee of the other company pro-
vided that each employee using the
pole is not a trespasser or a licensee
but an invitee of the employer and
a joint user.” Trout v. Laclede Gas
Light Co., 151 Mo. App. 207, 132 S.
W. 58. “The several occupants of
this pole had, by virtue of the con-
tract under which they jointly used
it, a common interest that its use
should not be environed with unnec-
essary danger. Each of them owed
the duty to take all reasonably pre-
cautions for the prevention of injury
to the servants of any of the others,
who might be sent there in pursu-
ance of the common right; and we

cannot agree that this duty was so
circumscribed that it ceased to exist
if any of these servants happened
to rest his hand upon a cross bar, or,
as in this instance, to place his feet
upon it. Newark E. L. & Power Co.
v. Garden, 78 Fed. 14, 6 Am. Electl.
Cas. 275, 39 U. S. App. 416, 23 C. C.
A. 649, 37 L. R. A. 725.

“In the absence ot any agreement
on the subject, other than what is
involved in the permission of the
owner of the structures to the other
to use them in common for the sup-
port of electric wires, on paying some
compensation, we are of opinion that
the duty of the owner of the struc-
tures is to exercise reasonable care
in seeing that his wires are kept, so
far as is practicable, in a safe con-
dition, at such places as the serv-
ants of the other are expressly or
impliedly licensed to go in perform-
ing their duties with reference to the
wires attached to-such structures.”
Illingsworth v. Boston Elec. L. Co.,
161 Mass. 583, 5 Am. Electl. Cas. 312,
37 N. E. 778, 25 L. R. A. 552.

Evidence that one company paid
part of the expense of repairing the
roof of another building upon which
was one of the fixtures of the electric
company, is competent as bearing
upon the point that there was an
arrangement, upon consideration, for
the use of the electric company’s
structures by another company. II-
lingsworth v. Boston Elec. Co., 161
Mass. 583, 5 Am. Electl. Cas. 312,
37 N. E. 778, 25 L. R. A. 552,
784 Law or Eectriciry.

one who thus goes on its pole. However, when there is
no understanding between the companies as to the joint
use of poles and the lines are not maintained so close
together that employees may pass from one to the other
without going to the ground, the lineman of one company,
when on the pole of another, is sometimes considered a
trespasser, as to whom the maintainer of the pole is under
no obligation to protect by insulation. So, too, where a
contracting company was erecting a smokestack on adjoin-
ing land and it fastened a wire to the defendant’s pole
without its consent, and an employee of the contracting
company, in loosening the wire, slipped and came in contact
with an uninsulated wire of the defendant, it was held that
the employee was a trespasser and no recovery could be had

for his death.*

53. LaDow v. Oklahoma Gas & Elec.
Co. 28 Okla. 15, 119 Pac. 250, wherein
it was said: “The defendant com-
pany, by maintaining its wires upon
the telephone poles as well as its
own along this alley as one system,
and then maintaining the pole in-
volved in the immediate proximity
to the pole of the telephone com-
pany, which was loaded with wires
upon which the plaintiff was required
to be on account of his work, owed
to him the duty to so insulate the
same that he would not be injured
on coming in contact therewith, and
this aside from the specific notice
which had been carried to it of the
defective character of the insulation
at this particular point. It was
bound to take notice that the em-
ployees of the telephone company
would, in pursuit of their usual avo-
cation, be called to work in imme-
diate proximity to the wire or wires
involved, and this knowledge on their
part, coupled with the extreme dan-
ger of permitting them to be exposed,
created the duty of insulating them,
the violation of which, on damages

Though one company may. be, as to the

following as a result thereof, ren-
dered them primarily liable.”

54. Augusta Ry. Co. v. Andrews,
89 Ga. 653, 4 Am. Elect]. Oas. 378,
16 S. E. 203; Heskell v. L. H. & P.
Co., 209 N. Y. 86, 102 N. E. 540;
Denison L. & P. Co. v. Patton, (Tex.)
154 S. W. 540. See also, Mangan v.
Hudson River Telep. Co., 50 Misc.
(N. Y.) 388, 9 Am. Electl. Cas. 804,
100 N. Y. Supp. 539. While electric
companies must see to it, up to the
measure of full diligence, that the
public is protected, upon the streets,
from the danger of contact with its
wires when charged with the deadly
electric fiuid, nevertheless, one, who
leaves the street and climbs a pole
supporting wires, without permission
from or notice to the company whose
system he has thus entered upon,
and is injured by reason of the con-
tact of that company’s wires with
the feed wire of another company,
can recover from neither. Augusta
Ry. Co. v. Andrews, 89 Ga. 653, 4
Am. Elect]. Cas. 378, 16 S. E. 203.

55. Rodgers Amd’r v. Union Light,
Heat & Power Co., (Ky.) 123 S. W.
293.
InsubatTion of WIREs. 785

employees of another company, under the duty of insulating
its wires, it is under no duty to warn such employees of the
danger of the current passing along the wires. The line-
man of one company is not to be charged with the knowl-
edge acquired by his master in reference to defects in the
system of another company, where his master does not
give him warning thereof.”

Sec. 519. Insulation at Particular Places; Between Poles.

It is obvious that contact with a high-tension wire at some
place where it is suspended in the air between poles is not
to be anticipated to the same extent that contact near a
pole or building is to be anticipated. Nevertheless, con-
ditions may exist which require an electric company to use
proper care in regard to the insulation of its wires at
points between poles. Thus, where another company, for
example, a telephone company, erects a pole within a few
feet or inches of an electric wire, and the electric company
acquiesces in the proximity of such pole to its wires, it must
anticipate that employees of the telephone company will
climb the telephone pole and receive injury from its wires
if they are uninsulated.* So, too, it is held that, where two
companies use the same street for its appliances, a com-
pany maintaining a dangerous wire therein is bound to
anticipate that in the stringing and repair of the wires of
the other company, their wires may come in contact and,
if they do come in contact at a place where the insulation
on the high-tension wire is defective, and injury results to
a lineman, the negligence of the maintainer of the defective
wire is a question for the jury. Particularly is this so
where a municipal ordinance requires the insulation of elec-
tric wires.° Where the wires of a telephone and a power

56. South Shore Gas & Elec. Co. v. Telep. Co. 23 Idaho 314, 129 Pac.
Ambre, 44 Ind. App. 435, 87 N. E. 1078; Wilkins v. Water & L. Co. of
246. Nebraska City, 92 Neb. 513, 138 N.

57. Snyder Ice L. & P. Co. v. W. 754; Hipple v. Edison Elec, lum.
Brown, (Tex. Civ. App.) 156 S. W. Co. of Pottsville, 240 Pa, 91, 87 Atl.
550. 297.

58. Staab v. Rocky Mountain Bell 59. Hausler v. Commonwealth Elec,

50
786

Law oF E.ectriciry.

company were, to the knowledge of the vice-principal of
the power company, in dangerous proximity and an em-
ployee of the telephone company undertook to remedy the
situation from a platform suspended from the messenger
wire of the telephone company, and he came in contact with
a defectively insulated wire of the electric company, the
liability of the power company was sustained.” It has
been held that it is the duty of an electric light and power
company, having wires charged with a high voltage of elec-
tricity, suspended upon poles across a street in a city, upon
which street the moving of a building of greater height
than the wires is reasonably to be anticipated, to insulate
the wires at such crossing, or to take such other precautions
as are necessary to protect any person who is liable to be
upon such building and to be brought in contact with such
wires. Where a person receiving an electric shock from
a defectively insulated wire at a point between its poles is
a trespasser, or merely a licensee, recovery for the injury
is denied on that ground.” Thus, where an electric wire
had been maintained within a few feet of a telephone wire
which had broken, and a boy took hold of the broken tele-

Co., 240 Ill. 201, 88 N. E. 561, af-
firming 144 Tl. App. 643; Com. Elec.
Co. v. Rose, 214 Ill. 545, 9 Am.
Electl. Cas. 381, 73 N. E. 780; Rowe
v. Taylorville Elec. Co., 114 Ill. App.
535; affirmed, 213 Ill. 318, 9 Am.
Electl. Cas. 279, 72 N. E. 711; Knowl-
ton v. Des Moines Edison L. Co., 117
Iowa 451, 8 Am. Electl. Cas. 800, 90
N. W. 818; Moren v. New Orleans R.
& L. Co., 125 La. 944, 52 So. 106;
Musolf v. Duluth Edison Elec. Co., 108
Minn. 369, 122 N. W. 499, 24 L. R. A.
(N. 8.) 451; Dutcher v. Rockland
Electric Co., 123 N. Y. App. Div. 765,
108 N. Y. Supp. 567; affirmed without
opinion, 195 N. Y. 540, 88 N. E. 1118;
Mitchell v. Raleigh Elec. Co., 129 N.
Car. 166, 7 Am. Elect]. Cas. 644, 39
8S. E. 801, 55 L. R. A. 398, 85 Am.
St. Rep. 735; San Antonio Gas &
Elec. Co. v. Speigle, (Tex.) 60 S. W.

884. See also, Calumet Elec. St. R.
Co. v. Grosse, 70 Ill. App. 381.

60. Dennison L. & P. Co. v. Pat-
ton, (Tex. Civ. App.) 135 S. W. 1040,
wherein the court said: “We think
the tseimony as a whole fairly
shows that appellee, in making use
of appellant’s pole and in swinging
the platform upon which he was sit-
‘ting when injured so that it touched
the wires of appellant underneath it,
was not a trespasser, but was, at
least, a licensee, and the appellant
owed him the duty to exercise ordi-
nary care not to injure him.”

61. Winegarner v. Edison L. & P.
Co., 83 Kan. 67, 109 Pac. 778, 28 L.
R. A. (N. S.) 677. See also, Black-
burn v. Southwest Missouri R. Co.,
(Mo. App.) 167 8. W. 457,

62. See §§ 462-471 as to trespas-
sers and licensees,
INSULATION oF WIRES. 787

phone wire and it was moved by a playmate so that it came
in touch with the electric wire at a place where its insula-
tion was defective, it was held that the electric company
was not liable for an injury received by the boy.% Like-
wise, where a fireman in lowering a ladder with metallic
corners was injured by a shock occasioned by the contact
of the ladder with a defectively insulated wire of an elec-
tric company, it was held there could be no recovery for the
injury.*

Sec. 520. Insulation at Particular Places; Near Other Wires.

As was stated in the foregoing chapter,” negligence may
be inferred from the maintenance of two wires in prox-
imity to each other so that a deadly current is diverted
from one to the other and an injury is thereby occasioned
to an innocent person. If two such wires are allowed to
remain so close together that their natural swaying or sag-
ging brings them together, the insulation on the electric
wire will, in the course of time, be abraded so that its cur-
rent will pass to the other wire. While the proper separa-
tion of the wires will obviate danger, insulation will do so
only temporarily. Where two wires thus come in contact
and an injury results therefrom, though the electric com-
pany may sometimes be charged with negligence on the
theory that it has failed in its duty of insulation, the more
reasonable ground of liability is the unnecessary proximity
of the wires. In such a case, the failure to separate the
wires properly is a more dangerous omission of duty than
the neglect to keep the insulation in a proper state of re-
pair. The negligence in insulation is merged, so to speak,
in the more serious neglect of separation. In the same
way, where one wire falls and comes in contact with another

63. Stark v. Muskegon Trac. & 84, 9 Am. Electl. Cas. 306, 102 N. W.
L. Co., 141 Mich. 575, 9 Am. Electl. 89.
Cas. 548, 1 L. R. A. (N. S.) 822, 104 65. § 498.
N. W. 1100, 12 Det. Leg. N. 550. 66. Trammel v. Columbus R. Co.,
64. New Omaha Thompson-Hous- 9 Ga. App. 98, 70 S. E. 892; Paducah
ton Elec. L. Co. v. Anderson, 73 Neb. Light & P. Co. v. Parkman’s Adm’r,
156 Ky. 197, 160 S. W. 931.
788 Law or ELEctRIcITy.

wire, and, by reason of the defective insulation of one, a
deadly current is diverted and causes an injury, while the
courts may properly base negligence upon the failure to
insulate,” it is clear that the primary ground of negligence
is the failure to fasten the wire securely or the failure to
maintain their respective wires without guards in such a
position that one wire may fall upon the other and divert
a deadly current.”

Sec. 521. Insulation at Particular Places; Over Vacant
Lots.

An electric company maintaining a high potential wire
over a vacant lot must not think that the lot will always
remain in the same condition. It is reasonable to expect
that building operations and other activities will take place
on the lot.° If, therefore, an electric company maintains
an uninsulated electric wire over such a lot, and thereafter,
when the owner of the lot is constructing a building thereon,
a workman comes in contact with such wire and is injured,
the company may be liable for the injury. In the same
way, where an electric company strung its uninsulated wire
over a pile of refuse from a mine and, owing to the increase
in the size of the pile, a mine employee came in contact
with the wire, it was held that, as the pile of refuse grew,
it became the duty of the electric company either to raise

67. Herbert v. Lake Charles Ice,

L. & Waterworks Co., 111 La. 522,
35 So. 731, 64 L. R. A. 101, 100 Am.

said: “Of course it is not necessary
to say that the respondent might
be required in the exercise of reason-

St. Rep. 505; Mize v. Rocky Moun-
tain Bell Telep. Co., 38 Mont. 521,
100 Pac. 971, 16 Ann. Cas. 1189;
Parsons v. Charleston Consol. Ry. Gas
& Elec. Co., 69 S. Car. 305, 9 Am.
Electl. Cas. 146, 48 S. E, 284, 104 Am.
St. Rep. 800; Southwestern Teleg. &
Telep. Co. v. Shirley, (Tex. Civ. App.)
155 S. W. 663.

68. §§ 496, 497.

69. Braun v. Buffalo Gen. Elec.
Co., 200 N. Y. 484, 94 N. E. 206, 34
L. R. A. (N. S.) 1089, wherein it was

able prudence to anticipate that just
this particular fashion of building
would be erected at just the particu-
lar spot where intestate was working.
If it could be required to foresee that
the lot would probably be built upon,
the situation of the wires was such
with reference to the ground and the
shape of the lot that a jury might
fairly say that such building opera-
tions were quite apt to bring persons
in proximity to the wires and that
they should be safeguarded.”
InsunLatTion oF WIREs. 789

or to insulate the wire.”” So, too, where it appeared that
an electric company maintained a dangerous wire over and
close to a pile of lumber in a lumber yard where children
were accustomed to play, it was held that the jury was
warranted in finding the company guilty of negligence.”
But, where an electric power company maintained several
uninsulated wires over unoccupied lands of a brick com-
pany, and an injury was occasioned to an employee of a
brick company boring in lands for clay, by the drill (nearly
27 feet high) coming in contact with the wire, it was held
that, so far as the electric company was concerned, the
accident was not one it was bound to anticipate.” The
physical condition of a lot may be such that the presence
of persons in proximity to electric wires strung over the
same is a matter not to be expected. So held, where a
wire was strung on a bluff out of reach of persons using
the lot in an ordinary way, but in a place where it was
reached by a child, the position of the child when touching
the wires being obviously dangerous independent of the
existence of the wire.“ That persons will go into an obvi-
ously dangerous place is not to be reasonably anticipated.
The presence of children in a church yard, where a defect-
ively insulated wire was maintained, has been held not to
be anticipated.* If an injury is occasioned by one coming
in contact with an electric wire which was originally main-
tained over private premises, but which had been per-
mitted to fall or sag so as to be accessible from the ground,
though negligence may be charged in the insulation of such
wire,” the failure of the company to remedy the defective
situation constitutes a clearer charge of negligence.” Lia-

70. Byerly v. Consol. L., P. & Ice 74, Meyer v. Union L., H. & P. Co.,
Co., 130 Mo. App. 593, 109 S. W. 151 Ky. 332, 151 8. W. 941, 43 L. R.
1065. A. (N. S.) 136.

71, Meyer v. Menominee & Mari- 75. Davoust v. City of Alameda,
nette, I. L. & Trac. Co., 151 Wis. 789, 149 Cal. 69, 9 Am. Electl. Cas. 698,
138 N. W. 1008. 84 Pac. 760, 5 L. R. A. (N. 8.) 536;

72. Rowley v. Newburgh L., H. & Connell v. Keokuk Elec. Ry. & P.
P. Co., 151 N. Y. App. Div. 65, 135 Co., 131 Iowa 622, 9 Am. Electl. Cas.
N. Y. Supp. 944. 862, 109 N. W. 177,

73. Sheffield Co. v. Morton, 161 Ala. 76. See §§ 478, 496, 497, 520.

153, 49 So. 772.
790 Law oF ELEctRIcIry.

bility for injuries from a defective wire over private prop-
erty is sometimes denied on the ground that the person
injured was a trespasser or licensee, such as a fireman
attempting to extinguish a fire on the premises,” as to
whom the electric company is under no duty to protect from
the dangers of the situation. A fireman must take the
premises as he finds them.”

Sec. 522. Insulation at Particular Places; Miscellaneous
Places.

At various other places not readily subject to grouping,
it has been held necessary for an electric company to use
due care for the insulation of its dangerous wires. Of
such, are the air shaft of a clubhouse,” a booth for the
sale of confections,® the inside of a building near a win-
dow,® a place under a sidewalk,®? and the basement room
of a street railway company’s power-house.* So, too,
where a workman making repairs to electrical fixtures
inside of a building owned by a third party received an
electric shock from defective insulation, it was held that he

was entitled to recover against the company.**

77. Pennebaker v. San Joaquin L.
& P. Co., 158 Cal. 579, 112 Pac. 459,
31 L. R. A. (N. S.) 1099.

78. § 465.

79. Anderson v. Jersey City Elec.
L. Co., 63 N. J. L. 387, 7 Am. Electl.
Cas. 557, 43 Atl. 654.

80. Thomas v. City of Somerset, 30
Ky. Law Rep. 131, 9 Am. Electl. Cas.
883, 97 S. W. 420, 7-L. R. A. (N. 8S.)
963.

81. Hayes v. Southern Power Co.,
95 S. Car. 230, 78 S. E. 956. But see,
Rumoviecz v. Scranton Elec. Co., 44
Pa. Super. Ct. 582.

82. Electric cable beneath sidewalk.
—An electric company, pursuant to a
city ordinance, placed an_ electric
cable beneath sidewalk. There was

no access to the cable from the street,
but there was access from an abut-
ting lot. The cable was defectively
insulated, and a boy attracted to the
place by a fire caused by the ground-
ing of the current was injured by
coming in contact with the cable.
Held, that the company was liable
for the boy’s injury. Commonwealth
Elec. Co. v. Melville, 210 Ill. 70, 9
Am. Electl. Cas. 95, 70 N. E. 1052.

83. Ryan v. St. Louis Transit Co.,
190 Mo. 621, 9 Am. Elect]. Cas. 536,
4 St. Ry. Rep. 634, 89 S. W. 865, 2
L. R. A. (N. 8S.) 777.

84. Schweitzer’s Adm’r v. Citizens’
Elec. Co., 21 Ky. Law Rep. 608, 7 Am.
Electl. Cas. 571, 52 S. W. 830.
Contrisutory NEGLIGENCE. 791

CHAPTER XXIX.
CONTRIBUTORY NEGLIGENCE.

Srorion 523. General Observations.
524. Burden of Proof.
525. In Case of Death.
526. Collision with Wire in Highway; in General.
527. Failure to See Wire in Highway.
528. ——- Knowledge of Presence of Wire in Highway.
529. Collision with Pole.
530. Touching Dangerous Appliance; in General.

 

 

 

531. Knowledge of Danger an Important Factor.
532. —— Knowing Danger of Appliance.

533. —— Not Knowing Danger of Appliance.

534. —— Negligence in Not Knowing Danger.

535. ——- Apparent Insulation.

536. —— Necessity of Touching Wire.

537. ——~- Lineman Touching Wire When Grounded.
538. —— Contact Between Two Wires.

539. —— Failure to Use Rubber Gloves.

540. Injury from Interior Appliance,
541. Children.

542. Imputed Negligence.

543. Acts in Emergencies.

544, Assumption of Risk.

Sec. 523. General Observations.

Unless otherwise provided by statute, the contributory
negligence of an injured person precludes recovery for his
injuries.t. This is as true in connection with electrical as
with other injuries. The high degree of caution required
of electric companies’ does not render them liable for inju-
ries received by a person guilty of contributory negligence.
That there may be an extraordinary burden of diligence
on electric companies does not relieve other persons from

1. Intoxication— Where there is
very slight evidence of intoxication,
it is not error to refuse an instruc-
tion telling the jury that contribu-
tory negligence, caused by intoxica-
tion, would be a defense, the court
having fully instructed as to what

would constitute contributory negli-
gence. New Omaha Thomson-Hous-
ton Elec, L. Co. v. Johnson, 67 Neb.
393, 8 Am. Elect]. Cas. 517, 93 N. W.
778.

2. §§ 404 et seq.
792 Law or ELEcTRICITY.

exercising at least ordinary care for their safety.* Even
when an electric company’s wrong constitutes a violation
of a statute or municipal ordinance, contributory negli-
gence is a defense.* But ordinarily other persons are enti-
tled to rely upon the performance by an electric company
of all obligations imposed by municipal ordinance. If, for
example, a municipal ordinance requires the insulation of
all dangerous wires, a person seeing a wire in a place con-
venient of access may properly assume that it is not dan-
gerous, and will not ordinarily be charged with contribu-
tory negligence because he touches the wire.° As a propo-
sition of general application, any negligence of an injured
person which contributes to his injury will enable a party,
though also negligent, to escape liability for his negligence ;
though in a few jurisdictions the experiment has been tried
of comparing the negligence of the respective parties and
rendering a judgment proportionate to the guilt of each.
But the doctrine of ‘‘ comparative ’’ negligence has never
obtained a firm standing in American jurisprudence. Asa
general rule, the slightest negligence of an injured person
which can be said to contribute to the injury, will forbid
his recovery. Exceptions to the general rule are in force
in some jurisdictions. Thus, we have the ‘‘ humanitarian ”’
doctrine and the ‘‘ last clear chance ’’ rule, but these are
applicable only under particular circumstances, and have
little room for operation in the law of Electricity. A new
rule is being introduced into the relation of master and
servant through the workmen’s compensation laws.

8. Weir v. Haverford Elee. L. Co.,
221 Pa. St. 611, 70 Atl. 874.

4, Burnett v. Fort Worth L. & P.
Co., 102 ‘Vex. 31, 112 S. W. 1040, 19
L. R. A. (N. 8.) 504.

Violation of ordinance by person in-
jured.— The violation of an ordinance
is, according to the view generally
adopted, prima facie negligence. See
§ 420. The rule works both for and
against electric companies. If the
violation is by the person injured,

the act may constitute contributory
negligence and forbid recovery for
his injuries.

5. Clements v. Potomac Elec. Power
Co., 26 App. D. C. 482, 9 Am. Elect.
Cas. 938.

6. Comparative or supervening neg-
Tigence has no place in the juris-
prudence of the state of Wisconsin.
Owen v. Portage Telep. Co. 126 Wis.
412, 9 Am. Elect]. Cas. 598, 105
N. W. 924.
Contrisutory NEULIGENCE. 793

Sec. 524. Burden of Proof.

A difference of policy exists among the various jurisdic-
tions as to whether a person injured shall have the burden
of showing his absence from contributory negligence or
whether the other party shall have the burden of showing
the presence of contributory negligence. The question is
one of statute in many jurisdictions, and the particular
statutes of each state should be consulted on the question.’
Even, where the burden is on the plaintiff to show absence
of contributory negligence, it may be shown by circum-
stances or inferred from the absence of all appearances of
fault.®

Sec. 525. Burden of Proof; in Case of Death.

‘When a person receives a shock which causes his death,
and there is no eye witness of the accident, the burden of
proof as to his contributory negligence becomes a vital
matter. The mouth of the only witness on the question of
his care is closed by death. A failure of justice has many
times occurred when the burden is placed on the representa-
tives of the deceased of showing his absence of contribu-
tory negligence. This has led the courts and legislatures
of some jurisdictions to take the view that the due care
of the deceased will be assumed until the contrary is shown
by the defendant.® But, even where the burden technically

7. Montana.—In an action for in-
juries received by coming in contact
with a live wire, where contributory
negligence is properly pleaded, the
burden is upon the defendant to es-
tablish it. Birsch v. Citizens’ Elec.
Co., 36 Mont. 574, 93 Pac. 940.

North Carolina By statute in
North Carolina, the burden of estab-
lishing contributory negligence is on
the defendant. Haynes v. Raleigh
Gas Co., 114 N. Car. 203, 5 Am.
Elect]. Cas. 264, 19 S. E. 344, 41 Am.
St. Rep. 786, 26 L. R. A. 810.

8. Clements v. Louisiana Elec. L.
Co., 44 La, Ann. 692, 4 Am. Electl.

Cas. 381, 11 So. 51, 16 L. R. A. 43,
32 Am. St. Rep. 348; Prince v. Lowell
Elec. Light Corporation, 201 Mass.
276, 87 N. E, 558; Wolpers v. New
York & Queens Elec. L. & P. Co, 91
N. Y. App. Div. 424, 9 Am. Electl.
Cas. 43, 86 N. Y. Supp. 845.

9. Haynes v. Raleigh Gas Co., 114
N. Car. 203, 5 Am. Electl. Cas. 264,
19 8. E. 344, 41 Am. St. Rep. 786,
26 L. R. A. 810. “There was no tes-
timony of contributory negligence on
his part, and, as it cannot be pre-
sumed that a person who is dead at
the time of the trial was guilty of
contributory negligence, it must be
794 Law or ELEcTRICITY.

remains on the representatives to show the freedom from
negligence, the courts, recognizing the difficulties of the
situation, give a liberal construction to the evidence and
permit the jury to pass upon the question, when there is
slight evidence of care on the part of the deceased. In
death cases, a wide latitude is allowed the jury in passing
on the question of contributory negligence.*° The absence
of contributory negligence need not be shown by direct evi-
dence; it may in some cases be inferred from the circum-
stances surrounding the occurrence.** But, where the bur-
den is on the representatives to show absence of contribu-
tory negligence, the manner of his death must not be left

to conjecture.”

proved.” Anglea’s Adm’r v. East
Tennessee Telep. Co., 142 Ky. 539,
134 S. W. 1119.

10. Braun v. Buffalo Gen. Elec.
Co., 200 N. Y. 484, 94 N. E. 206,
34 L. R. A. (N. 8.) 1089.

11, Clements v. Louisiana Elec. L.
Co., 44 La. Ann. 692, 4 Am. Elect].
Cas, 381, 11 So. 51, 16 L. R. A. 43,
32 Am. St. Rep. 348; Prince v. Lowell
Elec. Light Corporation, 201 Mass.
276, 87 N. E. 558; Brooks v. Consol.
Gas Co., 70 N. J. Law 211, 9 Am.
Electl. Cas. 35, 57 Atl. 396. The
burden of proving freedom from con-
tributory negligence does not require
direct affirmative proof of any par-
ticular acts of care on the part of
the person injured. Evidence of the
facts and circumstances connected
with and surrounding the injury
may be such as to justify the infer-
ence of due care. Knowlton v. Des
Moines Edison L. Co., 117 Iowa 451,
8 Am. Electl. Cas. 800, 90 N. W. 818.

Upon evidence justifying the in-
ference that plaintiff’s intestate went
upon a balcony for the purpose of
painting a gutter in the exercise of
his duty as caretaker of the house;
that he had been warned of the dan-
ger of contact with the wires, and

Some facts or circumstances must gen-

had replied that he was not afraid
of them; that he was shortly after-
ward found dead or dying, leaning
over a balustrade, with a paint brush
in his right hand, touching the
gutter, and with his left hand firmly
grasping one of the wires, which was
within easy reach of him— held,
that it was not erroneous to refuse
to direct a verdict for a defendant on
the ground of the conduct of the de-
ceased, for the evidence did not re-
quire the inference that deceased had
intentionally grasped the dangerous
wire, and a jury might infer that his
left hand had been accidentally, by
some unintentional movement of it in
the prosecution of his work, brought
into contact with the wire, and made
to grasp it convulsively by reason of
the strong current. Brooks v. Con-
solidated Gas Co., 70 N. J. L. 211,
9 Am. Electl. Cas. 35, 57 Atl. 396.

12. Matter of conjecture— Where
city employee, in the course of his
duty climbed a tree to destroy moth
nests, through which tree an electric
wire ran, and he was killed by com-
ing in contact with the wire while
descending the tree, it was held that
the company was not liable as there
was no evidence that the employee
Contrisutory NEGLIGENCE. 795
erally be presented from which the jury may infer that the
deceased was in the exercise of due care."

Assumption of Avoidance of Danger.—In some states
the assumption that a person will instinctively so conduct
himself as to avoid obvious danger,” is given considerable
force on the question of his care. According to this doc-
trine, where a person comes in contact with a heavily-
charged electric wire in a street and dies from the shock,
in the absence of witnesses showing the details of the acci-
dent, it will be assumed that the decedent had no knowledge
of the danger of the wire or did not see the wire, and his
absence of contributory negligence inferred accordingly.*
Thus, where it appeared that the trouble man of a tele-
phone company, while seated on a messenger wire, was
suddenly and without apparent cause precipitated upon a

was in the exercise of due care when
he was killed, and that the manner
of his death should not be left to
conjecture. Lydon v. Edison Elec.
Illum. Co., 209 Mass. 529, 95 N. E.
936.

18. Judge v. Narragansett Elec. L,
Co., 21 R. I. 128, 42 Atl. 507.

14, Instinct of self preservation —
“Among propositions of experience
relating to the probable conduct of
mankind is that men love life and,
therefore, instinctively avoid obvious
danger. This inference as to what
is probable can, as a matter of neces-
sity, have weight only in the absence
of evidence of the actual. Little
reason, therefore, exists for applying
it to a case where an injured person
can testify as to the real circum-
stances attending the happening
itself. It follows that where a de-
ceased person was sane at the time
of his death the prima facie infer-
ence arises, so far as these facts of
death and sanity are concerned, that
death was not self-inflicted. In like
manner, it has been ‘ presumed,’ as-
sumed probably being meant, in the

absence of evidence to the contrary,
that one killed by a locomotive en-
gine was, at the time, in the exercise
of due care.” Chamberlayne Modern
Law of Evidence, section 1053.

15. Foley v. Northern Cal. Power
Co., 14 Cal. App. 401, 112 Pac. 467;
Staab v. Rocky Mountain Bell Telep.
Co., 23 Idaho 314, 129 Pac. 1078.
“Assuming that the deceased picked
up the wire, we must conclude, so
it is contended, that he did not be-
lieve and had no reason to believe
that the wire carried electricity.
This follows from the presumption
that he had such a regard for his
life as the ordinary man has.” Foley
v. Northern Cal. Power Co., 14 Cal.
App. 401, 112 Pac, 467.

Where deceased knew the position
of live wires, the jury may infer from
the common experience of mankind,
that with the sparkling end in full
view, he did not deliberately expose
himself to the chance of instant
death. Prince v. Lowell Elec. L. Cor-
poration, 201 Mass. 276, 87 N. E,
558.
796 Law or ELEcrtricity.

live wire maintained by an electric company immediately
under the telephone wires and was immediately electro-
cuted, and he was afterward found to have received an
electric burn on the foot which was nearest to the electric
wire, it was held that the court and jury may presume, in
the absence of proof to the contrary, that he exercised
reasonable care and precaution in an effort to preserve his
life, and that he did not expose and subject himself to
injuries and risks that he might reasonably have antici-
pated or expected would inflict mortal injuries.**

Sec. 526. Collision with Wire in Highway; in General.
The mere fact that a person driving or walking along a

public highway collides with a misplaced wire does not

show his negligence.” The test is whether he was acting

16, Staab v. Rocky Mountain Bell
Telep. Co., 23 Idaho 314, 129 Pace.
1078.

17. Arkansas.— Jacks v. Reeve, 78
Ark. 426, 95 8. W. 781.

California— Foley v. Northern Cal.
Power Co., 14 Cal. App. 401, 112 Pae.
467.

Indiana— Michigan City Gas &
Elec. Co. v. Dibka, (Ind. App.) 100
N. E, 877.

New Jersey— Rowe v. N. Y. &
N. J. Telep. Co., 66 N. J. L. 19, 7
Am. Electl. Cas. 626, 48 Atl. 523.

North Carolina.—Haynes v. Raleigh
Gas Co., 114 N. Car. 203, 5 Am.
Elect]. Cas. 264, 19 S. E. 344, 26
L. R. A. 810, 41 Am. St. Rep. 786.

Pennsylvania.— Miller v. Lewis-
town Elec. L., H. & P. Co., 212 Pa.
593, 9 Am. Electl. Cas. 493, 62 Atl.
32; Devlin v. Beacon L. Co., 192 Pa.
St. 188, 7 Am. Electl. Cas. 563, 43
Atl. 962, 44 Wkly. Notes Cases 340.

Texas.— Jacksonville Ice & Elec.
Co. v. Moses, (Civ. App.) 134 S. W.
379; Texas Teleg. & Telep. Co. v.
Thompson, (Civ. App.) 130 S. W.
705.

Girl driving horse—%It is not con-
tributory negligence for a fourteen
year old girl, accompanied by two
grown women, to drive a gentle horse
along a public highway in the day-
time. Jacks v. Reeves, 78 Ark. 426,
95 8. W. 781.

Crossing street at place other than
regular crossing.— Whether a person
is guilty of contributory negligence
in attempting to cross w street at a
place other than the regular cross-
ing, is a question for the jury. Mil-
ler v. Lewistown Elec. L., H. & P.
Co., 212 Pa. St. 593, 9 Am. Electl.
Cas, 493, 62 Atl. 32; Fox v. Village
of Manchester, 183 N. Y. 141, 9 Am.
Electl. Cas. 559, 75 N. BE. 1116, 2
LR. A. (N. 8.) 474. “It is not
negligence, as a matter of law, for a
pedestrian to cross a public street
at a point where there is no cross-
walk. In doing so he may assume a
greater risk from passing vehicles
and animals using the main thorough-
fare than he does when passing over
a crosswalk * * * but he does not
in doing so assume any greater risk
from obstructions other than those
ContriputTorY NEGLIGENCE. 797
in the exercise of reasonable care for his safety. A person
proceeding in a reasonably prudent manner may not see
a wire across a highway; or, though seeing the wire, he
may be justified in assuming that he can pass the obstruc-
tion without difficulty. A traveler proceeding along a pub-
lic highway is entitled to assume that it is reasonably safe,
and, while required to use reasonable care and caution to
avoid danger, is not generally required to search for
obstructions and dangers therein.” If proceeding along
a highway with some machinery with elevated arms, such
as a hay derrick or hay stacker, he may, in the exercise of
due care, assume that wires along or across the highway
are elevated a sufficient distance to permit the machinery
to pass without contact.” If he has been informed that
wires are a sufficient distance from the ground to clear his
machinery, and if he has frequently passed under wires
without previous difficulty, the jury may properly find that
he is not guilty of negligence in colliding with a wire nearer
to the ground than he was informed the wires were main-
tained. It is not contributory negligence for a traveler
to drive along a road over which he has never passed before,
where he did not know that the road was obstructed by a
wire, though he did know that there was another road which
was not obstructed.”

Sec. 527. Collision with Wire in Highway; Failure to See
Wire in Highway.

A traveler on a public highway is entitled to assume that

the way is reasonably safe and, while required to use rea-

sonable care and caution to avoid danger, is not required

20. Greenwood v. Eastern Oregon
L. & P. Co., (Oreg.) 146 Pac. 336;

necessary for the use of some public
utility, such as water plugs, tele-

graph and telephone poles, and the
like.” Southern Bell Telep. & Teleg.
Co. v. Howell, 124 Ga. 1050, 9 Am.
Elect]. Cas. 635, 53 S. E. 577.

18. § 527.

19, Neal v. Wilmington & N. C.
Elee. Ry. Co., 3 Pen. (Del.) 467, 8
Am. Electl. Cas. 497, 53 Atl. 338.

Chant v. Clinton Telep. Co., 130 Wis.
533, 110 N. W. 423.

21. Shank v. Great Shoshone, ete.,
Power Co., 205 Fed. 833, 124 C. C. A.
35.

22. Pennsylvania Telep. Co. v. Var-
nau, 5 Lane. Law Review (Pa.) 401,
15 Atl. 624.
798 Law oF ELEctTRICcITY.

to search for wires which might obstruct the highway and
endanger his safety. The failure to see a small wire
which has sagged or fallen across a highway is consistent
with an exercise of due care. Whether a traveler is guilty
of contributory negligence in failing to see such a wire is
generally a question for the jury.* Even in the daytime,
a pedestrian is not, as a matter of law, guilty of contribu-
tory negligence in not noticing an electric light wire on a
sidewalk.” Where a telephone company in the process of
erecting a telephone pole at the side of a street, strings a
guy rope across the street, one end of which is attached to
a pole at a distance of about fifty feet above the ground and
the other end similarly attached at a distance of seven or
eight feet above the ground, a person driving along the

23, Neal v. Wilmington & N. C.
Elec. Ry. Co., 3 Pen. (Del.) 467,
8 Am. Electl. Cas. 497, 53 Atl. 338;
Weaver v. Dawson County Mut. Telep.
Co., 82 Neb. 696, 118 N. W. 650,
22 L. R, A. 1189.

24. Arkansas.— Jacks v. Reeves, 78
Ark, 426, 95 S. W. 781.

California.— Grant v. Sunset Telep.
& Teleg. Co., 7 Cal. App. 267, 94 Pac.
368.

Georgia.— Lloyd v. City & Subur-
ban Ry. Co., 110 Ga. 165, 35 S. E.
170. “When a person is in the
habit of traveling the streets of a
city day after day and these streets
are clear of obstructions, whether or-
dinary care would require that he
should look out for unusual obstruc-
tion, we, as a court, do not know.
Whether he ought to see a wire the
size of the little finger when he is
looking straight ahead in the direc-
tion of the wire and could have seen
it a much greater distance if his
attention had been called to it, is,
it seems to us, a question for the
jury and not for the court.” Lloyd
v. City & Suburban Ry. Co., 110 Ga.
165, 35 S. E. 170.

Michigan.—Friesenhan v. Michigan

Telep. Co., 134 Mich. 292, 96 N. W.
501, 10 Det. Leg. N. 479; Hovey v.
Michigan Telep. Co., 124 Mich. 607,
83 N. W. 600, 7 Det. Leg. N. 353.

Nebraska. Weaver v. Dawson
County Mut. Telep. Co., 82 Neb. 696,
118 N. W. 650, 22 L. R. A. 1189.

New York.—Fox v. Village of
Manchester, 183 N. Y. 141, 9 Am.
Elect]. Cas. 559, 75 N. E. 1116, 2
L. R. A. (N. 8S.) 474,

Oregon.—Boyd v. Portland General
Elec. Co., 41 Oreg. 336, 8 Am. Electl.
Cas. 476, 69 Pac. 810.

25. Brush Elec. L. Co. v. Kelley,
126 Ind. 220, 3 Am. Elect]. Cas. 857,
25 N. E. 812.

Injury to horse—2In an action
against a telephone company for in-
jury to a horse, occasioned by con-
tact with a wire suspended in the
street, the fact that plaintiff knew
that defendant was engaged in string-
ing its wires, and that the day was
bright and clear, does not conclu-
sively establish his negligence in fail-
ing to see the wire in time to avoid
it. Hovey v. Michigan Telep. Co.,
124 Mich. 607, 83 N. W. 600, 7 Det.
Leg. N. 353,
ContrisuTorY NEGLIGENCE. 798
street in a covered wagon in the daytime, who sustains
personal injuries in consequence of the rope striking the
cover of the wagon and dragging him and the cover to the
ground, cannot be said, as a matter of law, to be guilty of
contributory negligence in not seeing the rope.”

Sec. 528. Collision with Wire in Highway; Knowledge of
Presence of Wire in Highway.

A traveler, knowing that a wire or other object is so
located as to obstruct the road, is bound to exercise due care
to avoid injury therefrom. Though bound to use greater
caution, he is not necessarily negligent, however, if he pro-
ceeds and comes in contact with a wire, such as a telephone
or telegraph wire, which he may: reasonably anticipate will
not give him an electric shock.” His negligence is a ques-
tion for the jury. ‘Thus, where a traveler discovered that
a telegraph wire was down across the road and that the
wire with a slight pressure could be made to lie flat on the
ground across the whole width of the carriage path, and
he alighted and by: leading the horses got the front wheels
of his wagon over the wire, and then remounted the wagon
erroneously expecting that the hind wheels would also be
drawn safely over the wire, his contributory negligence was
held a question for the jury.” So, too, where it appeared
that defendant’s lineman, in placing wires laid certain

26. Mogk v. N. Y. & N. J. Tel. acted prudently will be one of fact

Co., 78 N. Y. App. Div. 560, 79 N. Y.
Supp. 685.

27. Nichols v. City of Minneapolis,
33 Minn. 430, 1 Am. Electl. Cas. 762,
23 N. W. 868; Snee v. Clear Lake
Telep. Co., 24 S. Dak. 361, 123 N. W.
729. “Mere knowledge, on the part
of a traveler, of a defect existing in
a highway, sidewalk, or bridge is not,
in general, conclusive evidence of his
negligence in attempting to pass it;
but except in cases where fair-minded
men could not differ as to his having
acted rashly, the question whether he

for the jury. The fact that there is
a defect in a street does not oblige
him to forego traveling upon it; but
he may proceed, provided the danger
is not of such a character that a
prudent man would decline to en-
eounter it, and provided that in
doing so he exercises a degree of care
and caution commensurate with the
danger.” Snee v. Clear Lake Telep,
Co., 24 8. Dak. 361, 123 N. W. 729.

28. Thomas v. Western Union
Teleg. Co., 100 Mass, 156,
800 Law or HLEcTRICcITY.

wires across the driveway and yard of the plaintiff, that
the plaintiff supposed the men had ceased working and,
though he had been informed that they might recommence
work at any time, left his team, on a subsequent day, stand-
ing for a short time directly over the wires, that he looked
to see if the men were working before he left the horses
standing, but could see no one, and that defendant’s serv-
ants began tightening the wires and raising them while the
animals remained above the wires, frightening them and
causing serious injuries to plaintiff, it was held that the
evidence presented a question for the jury as to plaintiff’s
contributory negligence, and the court should not have
directed a verdict for the defendant.” If, however, the
wire in a highway is charged with a deadly current of elec-
tricity and the traveler has actual knowledge of such a con-
dition, or in the exercise of due care would have had actual
knowledge thereof, he is not justified in attempting to drive
over or near to the wire.*® Great care and precaution is
required of a driver who knows the presence of a dangerous
condition in a public way." But it has been held that,
where a traveler jumps from his wagon to see what has
caused his horse to fall and is injured by an electric shock,
he is not negligent, as a matter of law, although a bright
flame appeared at the contact between the horse and a
broken electric light wire in the street.*?

29, Balderson v. Portland Telep.
Co., 173 Mich. 412, 139 N. W. 7.

peared, and the contention of the
defendant is that it was negligence

80. Colburn v. City of Wilmington,
4 Pen. (Del.) 443, 8 Am. Electl. Cas.
457, 56 Atl. 605.

81. Wagner v. People’s Ry. Co., 7
Pen. (Del.) 393, 75 Atl. 610.

32. Spires v. Middlesex & M. Elec.
L., H. & P. Co., 70 N. J. Law 355, 9
Am. Elect]. Cas. 40, 57 Atl. 424,
wherein it was said: “The question
of the contributory negligence of the
plaintiff was also plainly a jury ques-
tion, The proof shows that at the
point of contact between the wire
and the horse a bright flame ap-

on the part of the plaintiff to ap-
proach the horse under the circum-
stances. But even if it be assumed
that the plaintiff observed the light,
which he denies, there is nothing in
the case to charge him with knowl-
edge that it was produced by the con-
tact of the body of his horse with a
wire charged with an electric cur-
rent. And even if he had been aware
of that fact, it cannot be declared,
as a matter of law, that he was negli-
gent in what he did.”
ContTRIBUTORY NEGLIGENCE. 801

Sec. 529. Collision with Pole.

In an action by a traveler for injuries sustained by col-
liding with a pole negligently placed in the traveled part
of the highway, the negligence of the driver is to be deter-
mined, to a certain extent, by the visibility of the pole. If
the accident happened in the night when it was impossible
to see the pole, he is not necessarily guilty of contributory
negligence.** The mere fact that the team was being driven
on the left side of the road, and that the accident would
not have happened had the team been driven upon the right-
hand side of the road, does not raise a conclusive presump-
tion of negligence on the part of those who controlled its
movements.** Nor is a person to be charged with con-
tributory negligence merely because he drove horses which
became unmanageable.** Where it appeared that a pedes-
trian at night missed the path and stumbled over a tele-
graph pole, it was held that he was not necessarily guilty
of contributory negligence in failing to follow the usual
path or in selecting the path as his route.**

Sec. 530. Touching Dangerous Appliance; in General.

It is not necessarily negligent for a person to engage in
a business which will bring him in proximity to dangerous
wires.*’ Nor is contributory negligence conclusively shown
by the mere fact that a person comes in contact with a live
wire and receives an injurious shock of electricity.* The

33. Watts v. Southern Bell Telep.
& Teleg. Co, 100 Va. 45, 8 Am.
Electl. Cas. 455, 40 S. E. 107.

34. Phelps v. Board of Com’rs of
Howard County, 117 Md. 175, 82
Atl. 1058.

35. Atkinson v. Chatham, 29 Ont.
518.

36. Dobbin v. Western Union Teleg.
Co., 163 Ala. 222, 50 So. 919.

37. Potts v. Shreveport Belt Ry.
Go., 110 La. 1, 34 So. 103, 98 Am.
St. Rep. 452; Panhandle Telep. &
Teleg. Co. v. Harris, (Tex. Civ. App.)
136 S. W. 1129. “It cannot be held

51

as matter of law that one is guilty
of contributory negligence, merely
because he is engaged in a business
known by him to be dangerous.
Prudent men often engage in such
undertakings. The test of their right
to recover when injured is whether
or not, under all the circumstances,
they were guilty of negligence at the
time of the injury.” Panhandle
Telep. & Teleg. Co. v. Harris, (Tex.
Civ. App.) 136 S. W. 1129.

38. Ziehm v. United Elec. L. & P.
Co. of Baltimore, 104 Md. 48, 9 Am.
Electl. Cas. 813, 64 Atl. 61; Charette
802 Law or E.ecrriciry.

negligence of the person injured depends on the circum-
stances surrounding the accident. The circumstances may
be such as to justify him in the belief that injury will not
result from touching an electric appliance.*® So, too, the
contact may be made inadvertently while he is exercising
due care.*° Where a lineman of one company while work-
ing on a pole comes in contact with a high-tension wire of
another company, he is not necessarily guilty of negligence
as to the latter company. If the insulation is apparently
safe, he need not make a minute inspection thereof to ascer-
tain defects.*? Likewise, where he has worked on the pole
at previous times without injury, or has seen others work
there, he is not necessarily negligent if he receives an inju-
rious shock of electricity. All that is required of him is
the exercise of the same care that other prudent linemen
ordinarily employ.*

Sec. 531. Touching Dangerous Appliance; Knowledge of
Danger an Important Factor.

The contributory negligence of an injured person is to
be determined by the circumstances surrounding the occur-
rence. In the case of a person who intentionally touches
a dangerous wire, the most important circumstance is his
knowledge of the danger. If a person has no knowledge
of the danger which will result from contact with an elec-
tric appliance, and the circumstances are such as to justify
his belief that the appliance is not dangerous, clearly he

Il. 70, 9 Am. Electl. Cas. 95, 70
N. E, 1052.

39. § 533.

40. Birsch v. Citizens’ Elec. Co.,
36 Mont. 574, 93 Pac. 940.

41. Ziehm v. United Elec. L. & P.
Co. of Baltimore, 104 Md. 48, 9 Am.
Electl. Cas. 813, 64 Atl. 61; Wilkins
v. Water & L. Co. of Nebraska City,
92 Neb, 513, 138 N. W. 754.

v. Village of L’Anse, 154 Mich. 304,
117 N. W. 737, 15 Det. Leg. N. 738;
Rowe v. N. Y. & N. J. Telep. Co., 66
N. J. L. 19, 7 Am. Electl. Cas. 626,
48 Atl. 523; Consol. Gas. Co. v.
Brooks, (N. J.) 53 Atl. 296,

Under sidewalk— In an action to
recover for injuries received by com-
ing in contact with a defectively in-

sulated electric cable beneath a side-
walk, the question of contributory
negligence held one for jury. Com-
monwealth Elec. Co. v. Melville, 210

42. § 534,

43. Gloucester [Electric Co. v.
Dover, 153 Fed. 139, 9 Am. Electl.
Cas. 971, 82 C. C. A. 291.
ContRIBuToRY NEGLIGENCE. 803
is not to be charged with contributory negligence as a mat-
ter of law.** On the other hand, if he knows or, in the
exercise of due care, should know that contact with an elec-
tric wire or other appliance will likely result in death or
serious injury, but he deliberately or carelessly comes in
contact with the wire, his contributory negligence is so
clear that the court may not present the question to the
jury.* Where a telephone lineman, in the performance of
his work, comes in contact with a defectively insulated wire
of an electric company, he is not chargeable with such
knowledge as his employer has of defects in the appliances
of the electric company.**

Sec. 532. Touching Dangerous Appliance; Knowing Dan-
ger of Appliance.

It may be stated as a general rule that where a person
intentionally touches an electric wire or other appliance
which he knows to be dangerous, he is guilty of contribu-
tory negligence as a matter of law and cannot recover for
his injuries.*” An electric company is not to be blamed for
the suicidal tendencies of persons approaching its appa-

44. § 533.

45. § 532.

46. Snyder Ice, L. & P. Co. v. Bow-
ron, (Tex. Civ. App.) 156 S. W. 550.

47. Minneapolis General Elec. Co.
v. Cronon, 166 Fed. 651, 92 C. C. A.
345, 20 L. R. A. (N. 8S.) 816; Hen-
ning v. Western Union Teleg. Co.,
41 Fed. 864; Columbus v. Dorsey, 119
Ga. 363, 9 Am. Elect]. Cas. 17, 46
S. E. 635; State v. Crisfield Ice Mfg.
Co., 118 Md. 521, 85 Atl. 615; Smith
v. Twin City Rapid Transit Co., 102
Minn. 4, 5 St. Ry. Rep. 527, 112
N. W. 1001; Bowman v. Farmers-
ville Mill & L. Co., (Tex. Civ. App.)
158 S. W. 200.

Question for jury— The question
whether a person is negligent in at-
tempting to pass while a live wire is
swinging across the way, is for the

jury. Prince v. Lowell Elec. Light
Corporation, 201 Mass. 276, 87 N. E.
558.

Caring for wire— Where it ap-
pears that plaintiff, a man about 25
years of age, while sitting in a pub-
lic park, saw boys playing with a
broken electric light wire by placing
sticks on the exposed end, that he
walked over to where they were, saw
that the wire was emitting sparks,
and that it burned sticks placed
against it, that he knew that the
wire was charged with a heavy elec-
tric current, that plaintiff then took
hold of the wire some two feet from
the exposed and sparkling end, for
the purpose of throwing it over the
branch of a nearby tree, and was
severely shocked, the trial court may
have inferred that the plaintiff was
804 Law oF HELectRIciry.

ratus. Exceptions to the general rule may be found, as,
where a wire suddenly falls or comes in a position where it
is likely to cause great injury; in such an emergency, a
person is not always chargeable with contributory negli-
gence because he uses a wrong method in protecting others
or in escaping from the threatened injury.** Another ex-
ception is frequently allowed in favor of children. Acts
which, if committed by an adult, would necessarily be con-
tributory negligence, will, many times, when committed by
a child, present merely a question for the jury.”

Deliberate Touching of Wire to Demonstrate Opinion
that there is no Danger.— Where a wire or other apparatus
is so located that a person may touch it and one is warned
that it is dangerous to come in contact with it, but he has
an opinion to the contrary and deliberately touches the
apparatus in order to demonstrate the correctness of his
opinion, he cannot recover for his injuries, if his demon-
stration shows the error of his judgment.” A person can-
not gamble upon the soundness of his judgment and recover
from an electric company if he loses. Thus, where it ap-
peared that ¢ photographer had placed a screen around the
side of his gallery near some electric wires and that one of
the electric wires had lost a part of its insulation and had
charged the screen, but the photographer, upon being in-
formed that a person had been killed by contact with the
screen, deliberately touched the screen to demonstrate that
such was not the case, it was held that there could be no
recovery for his death.”

Carelessly Coming in Contact.— A person, knowing that
a nearby wire is highly charged with electricity and will
likely cause death or serious injury should he come in con-

guilty of slight want of ordinary
care which contributed to his injury,
and a finding by the trial court
that the plaintiff was guilty of con-
tributory negligence, notwithstanding
the special finding of the jury to the
contrary, will not be reversed. Bil-
lington v. Eastern Wisconsin Ry. &

Light Co., 137 Wis. 416, 119 N. W.
127.

48. § 543.

49. § 541.

50. Anderson v. Jersey City Elec.
L. Co., 64 N. J. L. 664, 46 Atl. 593.

51. Wood v. Diamond Elec. Co.,
185 Pa. St. 529, 39 Atl. 1111.
ContTripuToRY NEGLIGENCE. 805
tact with it, must exercise a high degree of caution to avoid
touching it.* The circumstances may be such as to excuse
his failure to avoid contact with the wire,® but usually he
will be guilty of contributory negligence if he comes in
contact with the dangerous wire. A person working within
a few feet or inches of wire, contact with which he knows
will result in death, should not forget the danger ; contribu-
tory negligence may be inferred from his failure to remem-
ber the situation.** Thus, where the wire of an electric
company was discovered on the ground close to a boiler-
house where the plaintiff’s intestate was working, and he,
knowing the danger, placed boards on and around the wire
so as to fence it in, and the defendant sent linemen to
repair the wire, who took the wire near the boiler-house
and began to slice it, but, while they were doing so, the
intestate stepped backward out of the boiler-house and was
killed by a shock from the wire, it was held that the appel-
late court would not disturb the finding of the jury that he

was guilty of contributory negligence.”

52. A person who negligently walks
into a live electric wire, of a danger-
ous character of which he is warned
by the sparks proceeding from it, is
negligent. Cook v. Wilmington City
Elec. Co., 9 Houst. (Del.) 306, 32
Atl. 643.

Where an Italian, not able to speak
English, who was a passenger upon
a car which was blocked by the fall-
ing of a tree across the track, and
he was especially warned that there
was danger from wires which had
fallen with the tree, but he neverthe-
less left the car and started past
the dangerous place, it was held that
he was guilty of contributory negli-
gence. Bilotta v. Media, ete, Ry.
Co., 220 Pa. St. 542, 70 Atl. 123.

53. Warned that wire was in
street.— Where it appeared that a
person coming into contact with a
live wire while crossing a street had
been warned earlier in the evening

Likewise, where

that there was a wire down in the
street at another point, it was held
that he was not guilty of contribu-
tory negligence as a matter of law,
where he did not know that there
was a wire in the street at the place
where he was injured. Twist v. City
of Rochester, 37 N. Y. App. Div. 307,
55 N. Y. Supp. 850; affirmed without
opinion, 165 N. Y. 619, 59 N. E.
1131.

54, Buckley v. Westchester Light-
ing Co. 93 N. Y. App. Div. 436, 9
Am. Electl. Cas. 86, 87 N. Y. Supp.
763; affirmed without opinion, 183
N. Y. 506, 76 N. E. 1090.

“To forget is not negligence, unless
it shows the want of ordinary care,
and it is a question for the jury.”
Giraudi v. Electric Improvement Co.,
107 Cal. 120, 5 Am. Electl. Cas. 318,
40 Pac. 108, 28 L. R. A. 596, 48 Am.
St. Rep. 114.

55. Buckley v. Westchester Light-
806 Law or ELectricirty.

a telephone lineman had been repeatedly warned of the
danger of his work and of his close proximity to a heavily-
charged electric wire and that if he straightened up he
would come in contact with it and be killed, and yet in
about a minute he did raise up and was instantly killed, it
was held that he was guilty of contributory negligence as
a matter of law. So, too, where a painter working on the
side of a building, after being warned of the danger of two
electric wires close together, placed his arm between the
wires in order to paint the building, it was held that he was
guilty of negligence and there could be no recovery for his
death.” Similarly, where a deputy sheriff climbed a pole
in the courthouse yard to change the lamps, and it appeared
that there was a network of wires on the pole, some of which
he knew were dangerous, and he came in contact with them,
it was held that he was guilty of contributory negligence.*
In the same way, where a junk dealer went into a power
plant to purchase junk and, without looking where he was
going, backed into some machinery from which he received
a shock, it was held that he was guilty of contributory
negligence.

Using Handkerchief or Clothes to Handle Wire.— The
circumstances may be such as to justify a person in taking
hold of a live wire with a handkerchief or some article of
clothing and attempting to remove it to a place where in-
jury will not result therefrom. Danger to some person
from the wire may be so imminent that a question for the
jury would be presented whether a person taking hold of
a dangerous wire in such a method was guilty of negli-
gence.’ But, where there is no occasion for special haste,
it has been several times held that a person, knowing that
a wire is charged with a dangerous current of electricity,

_ ing Co, 93 N. Y. App. Div. 436, 57. Weir v. Haverford Elec. L. Co.,

9 Am. Electl. Cas. 86, 87 N. Y. Supp. 221 Pa. St. 611, 70 Atl. 874.

763; affirmed without opinion, 183 58. Hickok v. Auburn L., H. & P.

N. Y. 506, 76 N. E. 1090. Co., 200 N. Y. 464, 93 N. E. 1113.
56. Templeton’s Adm’r v. Lynch- 59. Edmundson v. Monongahela L.

burg Tract. & L. Co., 110 Va. 853, & P. Co., 223 Pa. St. 93, 72 Atl. 268.

67 S. E. 351, 60. § 543.
Conrriputory NEGLIGENCE. 807

' is, as a matter of law, guilty of contributory negligence if
he attempts to move the wire, using for his protection only
a handkerchief,” or a cap.* Thus, where a dangerous wire
fell to the ground on penitentiary premises and a convict,
who was an expert electrician, attempted to handle the
wire, using only his cap for an insulator, and he was killed,
it was held that he was guilty of contributory negligence
as a matter of law.®

Danger Greater than Anticipated A person, knowing
that an appliance is charged with electricity and will give
a shock if contact is made therewith, must not trifle with
the appliance. If he deliberately touches it and is killed
or receives a serious injury, it cannot be said in extenua-
tion of his conduct that the danger of the appliance was
greater than he anticipated.* One cannot idly experiment
with a force so potential in death dealing as the electric
current. Thus, where it appeared that a railroad employee
knew of the dangerous condition of a telephone box in a
signal tower, and that its wires crossed an electric light
wire, and he touched the box with his fingers and with a
wire and caused sparks, and then he placed his hand on the
box and received a shock which resulted in instant death,
it was held that he was guilty of contributory negligence
as a matter of law.® So, too, where a person twenty-four
years of age, had been warned to keep away from a broken
wire which was charged with 23,500 volts of electricity and

61. Frauenthal v. Laclede Gas. Co. properly dismissed. McNamee v.
67 Mo. App. 1; McNamee v. Western Western Union Teleg. Co., 160 N. Y.
Union Teleg. Co., 160 N. Y. App. Div. App. Div. 785, 145 N. Y. Supp. 98.
785, 145 N. Y. Supp. 98; McNamee 62. Capitol Gas & Electric Co. v.
v. Western Union Teleg. Co. 140 Davis’ Adm’r, 138 Ky. 628, 128 S. W.
N. Y. App. Div. 874, 125 N. Y. Supp. 1062.

622. 63. Capitol Gas & Electric Co. v.

Saw horse killed— A person who, Davis’ Adm’r, 138 Ky. 628, 128 S, W.
after seeing a horse apparently kifled 1062.

by a suspended wire, grasps the wire 64. See Henning v. Western Union
with only a cotton handkerchief Teleg. Co., 41 Fed. 864.
wound about his hand, and receives 65. Citizens’ Telep. Co. v. West-

a fatal shock, is guilty of contribu- cott’s Adm’x, 124 Ky. 684, 9 Am.
tory negligence, and the complaint in Tlectl. Cas. 1001, 30 Ky. Law Rep.
an action to recover for his death is 922, 99 S. W. 1153.
808 Law oF ELectricirty.

one end of which had been fastened around a picket fence,
but, concluding to ascertain whether or not the broken wire
was still charged with electricity, he seized the top of one
of the fence pickets with his left hand and pointed his index
finger toward the wire, which was about eight inches dis-
tant, when there was a sudden flash, burning his hand and
killing him, it was held, as a matter of law, that he was
guilty of contributory negligence. A different rule may
be applied where the person injured is a child. The con-
tributory negligence of children is, in some instances, a
question for the jury, when the same conduct on the part
of an adult would constitute negligence per se. But, in
once case, it was held that an ordinarily bright and intelli-
gent boy, twelve years old, living in a city in which electric
light and power wires were in constant use on nearly all
of the principal streets and highways, who having knowl-
edge of the danger, but not of its extent, purposely took
hold of such a wire in order to obtain a shock, and was
injured thereby, was as a matter of law guilty of contribu-
tory negligence.*

Sec. 533. Touching Dangerous Appliance; not Knowing

‘ Danger of Appliance.

As a general rule, where a person, not knowing that a
wire is charged with an electrical current of high potential,
touches the same, he is not chargeable with contributory
negligence as a matter of law; the question of his negli-
gence is for the jury.” Of course, the circumstances of a

66. Carroll v. Grand Ronde Elec.
Co., 47 Oreg. 424, 9 Am. Elect]. Cas.
642, 4 St. Ry. Rep. 908, 84 Pac. 389,

‘6 L. R. A. (N. S.) 290; same case,
49 Oreg. 477, 90 Pac. 903, 52 Oreg.
370, 97 Pac. 552.

67. Pierce v. United Gas & Elec.
Co., 161 Cal. 176, 118 Pac. 700. See
also, § 541.

68. Johnston v. New Omaha, ete.,
Elee. Light Co., 78 Neb. 24, 110
N. W. 711, 17 L. R. A. (N. S.) 435;

affirmed on rehearing, 78 Neb. 27,
113 N. W. 526.

69, Indiana.— Central Union Telep.
Co. v. Sokola, 34 Ind. App. 429, 9
Am. Electl. Cas. 323, 73 N. E. 143.

Kentucky.— Lewis’ Adm’r v. Bowl-
ing Green Gaslight Co., 135 Ky. 611,
117 S. W. 278. “If decedent knew
that was a live wire, and knew the
danger of touching it as he did, the
act would be undoubtedly negligence
on his part which would defeat a re-
Contriputory NEGLIGENCE. 809
particular case may be such as to charge the person with
negligence in failing to discover the dangerous condition
of the wire, as where an employee is charged with the duty
of inspecting or repairing the particular wire.” But gen-
erally a person is entitled to assume that a wire which is
accessible in the ordinary course of one’s occupation will
not cause death or serious injury. Thus, where a person
passing along a highway or path comes to a wire across his
way and he, not knowing the danger of contact with the
wire, touches the same, he is not to be charged with con-
tributory negligence as a matter of law.” So, too, a person
working on or near the side or roof of a building where
electric wires are maintained may, to a certain extent, rely
upon the performance of duty by an electric company in
the insulation of its wires; and, if he does not know of the
danger from a wire so maintained and touches it, he is not

covery for his injury. If he did not
know, and had not reason to believe,
it was a live wire, but, on the con-
trary, had reason to believe the elec-
trie current was not turned onto it,
his was not such an act as an ordi-
narily prudent person might have
done under the same circumstances.
At least it was not necessarily so.
His purpose might have been to place
the wire so that when the current
was turned on it would be out of the
way to do damage.” Lewis’ Adm’r
v. Bowling Green Gaslight Co., 135
Ky. 611, 117 S. W. 278.

Michigan.— Hopkins v. Michigan
Tract. Co., 144 Mich. 359, 9 Am.
Elect]. Cas. 935, 4 St. Ry. Rep. 521,
107 N. W. 909, 13 Det. Leg. N. 254.

Missouri.— Blackburn v. Southwest
Missouri R. Co., (Mo. App.) 167
S. W. 457.

New Hampshire.— Lydston v. Rock-
ingham County Light & Power Co.,
75 N. H. 23, 70 Atl. 385.

Oregon.— Perham v. Portland Gen.
Elec. Co., 33 Oreg. 451, 7 Am. Electl.

Cas. 487, 53 Pac. 14, 40 L. R. A. 799,
72 Am. St. Rep. 730.

Pennsylvania.—Turton v. Powelton
Elec. Co., 185 Pa. St. 406, 7 Am.
Electl. Cas, 483, 39 Atl. 1053.

Texas.— Houston Lighting Power
Co. v. Hooper, 46 Tex. Civ. App. 257,
9 Am. Elect]. Cas. 1050, 102 S. W.
133.

Where a boy inadvertently or pur-
posely touches a deadly electric wire
within easy reach, without knowl-
edge of the danger, he is not guilty
of contributory negligence; as to
whether or not under the facts in
this case the plaintiff was guilty of
negligence is for the jury to decide.
Lexington Ry. Co. v. Fain’s Adm’r,
24 Ky. Law Rep. 1443, 8 Am. Electl.
Cas. 499,.71 S. W. 628.

70. See §§ 557, 560, 574.

71. California.— Foley v. Northern
Cal. Power Co., 14 Cal. App. 401,
112 Pac. 467; Tackett v. Henderson
Bros Co., 12 Cal. App. 658, 108 Pac.
151.

Georgia.— Southern Bell Telep. Co.
810 Law or HLecrRIcity.

negligent as a matter of law.”7 Where it appeared that
a railroad employee, while repairing one of its bridges,
came in contact with a high-tension wire maintained on
the bridge by the defendant electric company, it was held
that he was not guilty of contributory negligence if he had
no knowledge of the danger of the wire.” So, too, where it
appeared that a person who was engaged in the painting
of the cap on a street railway pole, not knowing that such
cap was electrically charged, received a shock, it was held
that he was not necessarily guilty of contributory negli-
gence.”

On Pole.— A lineman of one company, while working on
a pole, is not required to inspect the wires or appliances of
another company so as to discover latent defects therein.”
If he does not know of such latent defect and receives a
shock thereby, he is not necessarily to be charged with con-

tributory negligence.”

v. Davis, 12 Ga. App. 28, 76 S. E.
786.

Illinois—Village of Palestine v.
Siler, 225 Ill. 630, 9 Am. Electl. Cas.
977, 80 N. E. 345, 8 L. R. A. (N. 8.)
205.

New Jersey — New York & N. J.
Tel. Co. v. Bennett, 62 N. J. L. 742,
7 Am. Electl. Cas. 543, 42 Atl. 759.

North Carolina— Harrington v.
Com’rs of Wadesboro, 153 N. Car.
437, 69 S, E. 399; Haynes v. Raleigh
Gas. Co. 114 N. Car. 203, 5 Am.
Elect]. Cas. 264, 19 S. E. 344, 26 L.
R. A. 810, 41 Am. St. Rep. 786.

Pennsylvania.—Turton v. Powelton
Elee. Co., 185 Pa. St. 406, 7 Am.
Electi. Cas. 483, 39 Atl. 1053.

Instructions.—In an action against
a village for death caused by coming
in contact with a guy wire in a pub-
lie street, an instruction that a per-
son walking upon the public street
of a village has a right to presume
that anything placed thereon by the
village authorities is harmless, un-
less its appearance shows it to be

Thus, where a telegraph lineman

otherwise or unless he has notice of
its dangerous character, was not er-
roneous and did not presuppose that
a person walking on the public street
has the right to turn aside and
handle everything placed along and
on the street by municipal authority,
no matter for what purpose. Vil-
lage of Palestine v. Siler, 225 Ill. 630,
9 Am. Elect]. Cas. 977, 80 N. E. 345,
8 L. R. A. (N. 8.) 205.

72. Giraudi v. Elec. Imp. Co., 107
Cal. 120, 5 Am. Electl. Cas. 318, 40
Pac. 108, 28 L. R. A. 596, 48 Am. St.
Rep. 114; Thomas v. Wheeling Elec.
Co., 54 W. Va. 395, 8 Am. Electl.
Cas. 528, 46 S. E. 217.

78. Perham v. Portland Gen. Elec.
Co., 33 Oreg. 451, 7 Am. Electl. Cas.
487, 53 Pac. 14, 40 L, R. A. 799, 72
Am. St. Rep. 730.

74. Smith v. Twin City Rapid
Transit Co., 102 Minn. 4, 5 St. Ry.
Rep. 527, 112 N. W. 1001.

75. § 534.

76. Paine v. Elec. Illum. & P. Co.
of Long Island City, 64 N. Y. App.
ConTRipuTORY NEGLIGENCE. 811

was injured by contact with an iron peg in a telegraph pole,
which had become charged by reason of the disarrangement
of the wires of an electric railway company attached
thereto, it was held that it was for the jury to say whether
he was guilty of contributory negligence.” If, however,
the defect causing the injury was patent, the circumstances
might be such that the court could say as a matter of law
that the lineman was bound, in the exercise of due care, to
have seen it, and could charge him with contributory negli-
gence for his failure to see the danger.” The question
depends upon the surrounding circumstances, such as the
place of the defect, the weather conditions, etc.

Sec. 534. Touching Dangerous Appliance; Negligence in
not Knowing Danger.

Starting with the two general rules, one, that a person
coming in contact with an electric appliance which he knows
to be dangerous is guilty of the contributory negligence,”
and the other, that a person coming in such contact, if he
does not know the danger of the appliance, is not neces-
sarily guilty of negligence,” the discussion naturally passes
to the question whether contributory negligence may be
inferred from the failure of the injured to know whether
or not the appliance was safe. In the case of an employee
suing his employer for injuries, it may be that the injured
person was seeking the defect which caused his injury; in
such a case he may be deemed negligent for his failure to
know the condition of his master’s appliances.** But, sub-
ject to the general requirement that one must exercise due
care to avoid injury, a person may properly assume that
he may safely touch an electric wire or other appliance
which is located in a place where persons may be expected
to come in the ordinary pursuit of their occupation ;* and,

Div. 477, 7 Am. Electl. Cas. 651, 72 78. § 534.
N. Y. Supp. 279; City of Danville v. 79. § 532.
Thornton, 110 Va. 541, 66 8S. EH. 839. 80. § 533.
77. Gentzkow v. Portland Ry. Co., 81. See §§ 557, 560, 574.
54 Oreg. 114, 6 St. Ry. Rep. 642, 102 82. United States— Dover  v.
Pac. 614. Glouchester Elec. Co., 155 Fed. 256.
812

Law oF ELEctrRIcIty.

if he does touch such appliance without actual knowledge
of a latent defect therein, and receives an injury, he is not
necessarily to be charged with contributory negligence

because he failed to discover the danger.*

Tllinois—— Hausler v. Com. Elec.
Co., 144 Ill. App. 643; affirmed, 240
Ill. 201, 88 N. E. 561,

Kentucky.— Bowling Green Gas-
light Co. v. Dean’s Ex’x, 142 Ky. 678,
134 S. W. 1115.

Michigan.— Hodgins v. Bay City,
156 Mich. 687, 121 N. W. 274, 16
Det. Leg. N. 222.

Missouri Ryan v. St. Louis
Transit Co., 190 Mo. 621, 4 St. Rep.
634, 9 Am. Elect]. Cas. 536, 89 S. W.
865, 2 L. R. A. (N. S.) 777; Trout
v. Laclede Gas Light Co., 151 Mo.
App. 207, 132 8. W. 58.

Pennsylvania.— Frantz v. Citizens’
Elec. Co., 231 Pa, St. 589, 80 Atl.
1106; Fitzgerald v. Edison Elec.
Illum. Co., 200 Pa. St. 540, 7 Am.
Elect]. Cas. 642, 50 Atl. 161, 86 Am.
St. Rep. 732.

Vermont. — Drown v. New England
Telep. & Teleg. Co., 80 Vt. 1, 9 Am.
Electl. Cas. 1053, 66 At]. 801; same
case, 81 Vt. 358, 70 Atl. 599.

West Virginia—Thomas v. Wheel-
ing Elec. Co., 54 W. Va. 395, 8 Am.
Elect]. Cas, 528, 46 S. E. 217.

Presumption as to proper insula-
tion—An instruction to the effect
that if the decedent had no knowl-
edge that the wires of the street
railroad company at the point of con-

tact were not properly insulated and

reasonably safe, then he had a right
to presume that they were properly
and safely insulated unless the want
of insulation or the defective insula-
tion was plainly apparent to him in
the exercise of ordinary and reason-
able care, is erroneous because it re-
lieves the employee of his duty to
exercise active diligence for his own
safety in an occupation peculiarly

This rule is

hazardous. Jackson & S. St. R. R.
v. Simmons, 107 Tenn. 392, 8 Am.
Elect]. Cas. 834, 64 S. W. 705.

83. United States— Dover  v.
Glouchester Elec. Co., 155 Fed. 256.

California Giraudi v. Elec. Imp.
Co., 107 Cal. 120, 5 Am. Electl. Cas.
318, 40 Pac. 108, 28 L. R. A. 596, 48
Am. St. Rep. 114.

Illinois.—Hausler v. Com. Elec. Co.,
144 Ill. App. 643; affirmed, 240 Il.
201, 88 N. E. 561.

Indiana.— Beaming v. South Bend
Elec. Co., 45 Ind. App. 261; 90 N. E.
786.

Kansas.— Rambo v. Empire Dist.
Elec. Co., 90 Kan. 390, 133 Pac. 553.

Maryland.— Ziehm v. United Elec.
L. & P. Co. of Baltimore, 104 Md.
48, 8 Am. Elect]. Cas. 813, 64 Atl. 61.

Massachusetts.— Griffin v. United
Elec. L. Co., 164 Mass. 492, 6 Am.
Elect]. Cas. 252, 41 N. E. 675, 49
Am. St. Rep. 477, 32 L. R. A. 400.

Michigan.—Hodgins v. Bay City,
156 Mich. 687, 121 N. W. 274, 16
Det. Leg. N. 222.

Missouri.—Trout v. Laclede Gas
Light Co., 151 Mo. App. 207, 132 S.
W. 58.

New York.— Dutcher v. Rockland
Elee. Co., 123 N. Y. App. Div. 765,
108 N. Y. Supp. 507; affirmed with-
out opinion, 195 N. Y. 540, 88 N. E.
1118.

Oregon.— Gentzkow v. Portland
Ry. Co., 54 Oreg. 114, 6 St. Ry. Rep.
642, 102 Pac. 614.

Pennsylvania——Frantz v. Citizens’
Elec. Co., 231 Pa. St. 589, 80 Atl.
1106. Compare, Haertel v. Pennsyl-
vania L. & P. Co., 219 Pa. St. 640,
69 Atl. 282.

Vermont.— Drown v. New England
ContTRIBUTORY NEGLIGENCE.

813

particularly applicable where the lineman of one company,
while working on a pole, is injured by contact with a wire

or appliance of another company.

Under such circum-

stances it is held that the lineman is under no duty to in-
spect the appliances of the other company so as to discover
latent defects therein and, if he fails to discover such, he
is not negligent as a matter of law.** But it has been held

Telep. & Teleg. Co., 80 Vt. 1, 9 Am.
Elect]. Cas. 1053, 66 Atl. 801; same
case, 81 Vt. 358, 70 Atl. 599.

Virginia.— City of Danville v.
Thornton, 110 Va. 541, 66 S. E. 839.

West Virginia—Thomas _ v.
Wheeling Elec. Co., 34 W. Va. 395, 8
Am, Electl. Cas. 528, 46 S. E. 217.

Wisconsin.— Leque v. Madison Gas
& Elec. Co., 133 Wis. 547, 133 N. W.
. 946,

Use of instruments to detect de-
fects.—The plaintiff’s intestate, who
was a lineman in the employ of a
telephone company, was fatally in-
jured while attempting to repair a
telephone wire, by coming in contact
with a live wire of a stret car com-
pany attached to one of its poles
which the decedent had ascended for
the purpose of making such repairs.
The decedent was furnished with a
magneto bell and test set in order
to enable him to ascertain the pres-
ence of an electric current in any
wire, but he failed to have them with
him on this occasion. It was held
that the question as to whether
these instruments were designed to
test insulators and defects therein
was a question for the jury. Jack-
son & S. St. R. R. v. Simmons, 107
Tenn. 392, 8 Am. Elect]. Cas. 834, 64
S. W. 705.

84, Indiana. Beaming v. South
Bend Elec. Co., 45 Ind. App. 261, 90
N. E. 786.

Kansas.— Rambo v. Empire Dist.
Elec. Co., 90 Kan. 390, 133 Pac. 553.

Kentucky.— Bowling Green Gas-

light Co. v. Dean’s Ex’x, 142 Ky. 678,
134 S. W. 1115.

Maryland.— Ziehm v. United Elec.
L. & P. Co. of Baltimore, 104 Md. 48,
9 Am. Electl. Cas. 813, 64 Atl. 61.

Missouri—Trout v. Laclede Gas
Light Co., 151 Mo. App. 207, 132
S. W. 58.

New York.— Dutcher v. Rockland
Elec. Co., 123 N. Y. App. Div. 765,
108 N. Y. Supp. 507; affirmed without
opinion, 195 N. Y. 540, 88 N. E. 1118.

Oregon— Gentzkow v. Portland
Ry. Co., 54 Oreg. 114, 6 St. Ry. Rep.
642, 102 Pac. 614.

Pennsylvania.— Frantz v. Citizen’s
Elec. Co., 231 Pa. St. 589, 80 Atl.
1106.

Vermont.— Drown v. New England
Telep. & Teleg. Co., 80 Vt. 1, 9 Am.
Electl. Cas. 1053, 66 Atl. 801; same
case, 81 Vt. 358, 70 Atl. 599.

Virginia City of Danville v.
Thornton, 110 Va. 541, 66 S. E. 839.

If the lower court finds that the
employee of one company is guilty
of negligence in failing to discover
a defect in the system of another
company, its finding will not usually
be interferred with by an appellate
court. Bergin v. Southern New Eng.
Telep. Co., 70 Conn. 54, 38 Atl. 888,
39 L. R. A. 192.

Not asking to have current shut
off.— A telephone lineman working
gn a pole near wires of an electric
company is not necessarily negligent
because he fails to ask the electric
company to shut off its current while
he is so working. Rambo v. Empire
814 Law oF ELeEctRIcITy.

that a lineman is guilty of negligence if he deliberately
touches an electric wire of another company without deter-
mining whether the insulation is in good repair.” The
lineman is not guilty of contributory negligence as a matter
of law because the accident happened in the daytime, and
he could have seen the danger had he looked at the precise
place of the defect.** But the rule may be otherwise as to
a patent defect. Where the danger is so obvious that the
court can say that the only inference to be drawn from the
failure of the injured person to discover it, is that he was
not exercising due care for his safety, he will be held guilty
of contributory negligence as a matter of law. The law
requires every person to use due care to avoid injury; and,
if it is clear that he has failed in this duty, negligence will
be imputed to him.*” Thus, where it appeared that a tele-
phone lineman of experience was killed by contact with an
electric light wire which had been strung on the poles of
the telephone company, and it was shown that the insula-
tion had been worn off near the pole for several feet on
each side of the pole, it was held that there could be no
recovery for his death.** Jn such a case, the courts require
the lineman to act as though he had knowledge of the
danger; his failure to know the danger is negligence and
is of no avail to him.

Sec. 535. Touching Dangerous Appliance; Apparent Insu-
lation.

As indicated in the preceding section, ordinarily a line-

man working near a dangerous wire of an electric company

Dist. Elec. Co., 90 Kan. 390, 133 Pac.
553.

85. Mangan v. Hudson River Telep.
Co., 50 Mise. (N. Y.) 388, 9 Am.
Elect]. Cas. 804, 100 N. Y. Supp. 539.

86. “Contributory negligence will
not in all cases, however, be imputed,
as a matter of law, to a person who
receives an injury from a danger
simply from the fact that it might
have been seen, because the nature

of his duties, or the surrounding cir-
cumstances, may be such as to dis-
tract his attention to other objects.”
Gentzkow v. Portland Ry. Co., 54
Oreg. 114, 6 St. Ry. Rep. 642, 102
Pac. 614.

87. Haertel v. Pennsylvania L. &
P. Co., 219 Pa. St. 640, 69 Atl. 282.

88. Columbus v. Dorsey, 119 Ga.
363, 9 Am. Electl. Cas. 17, 46 S. E.
635.
ConTRIBUTORY NEGLIGENCE. 815
may properly assume that the insulation, if not obviously
defective, will protect him against injury if he inadvert-
ently comes in contact therewith. In the same way, if a
person passing along a highway comes to an electric wire
across his way,” or if a workman near the side or on the
roof of a building is required to go near an electric wire
apparently insulated,” he is not necessarily guilty of con-
tributory negligence if he touches the wire at a place where
the insulation is defective, but the defect is not obvious.
Whether he is guilty of contributory negligence in relying
on the superficial appearance of the wire, is a question for
the jury.”

Sec. 536. Touching Dangerous Appliance; Necessity of
Touching Wire.

Whether a person receiving a shock from a dangerous
wire is guilty of contributory negligence is to be determined
from all the facts and circumstances in the case. Among
the other things to be considered is the necessity for con-
tact with the wire. The fact that it is unnecessary to touch
the wire in the particular case should not be held to con-
stitute negligence per se.** But, in one case, where it
appeared that a person traveling along a highway for
pleasure noticed an electric wire hanging down over the
side of the road a few feet from the ground, and he took

89. Memphis Consol. Gas. & Elec.
Co. v. Bell, 152 Fed. 677, 9 Am. Elect].
Cas. 1025, 82 C. C. A. 25.

90. City of Tipton v. Racobs, 47
Ind. App. 681, 95 N. E. 265.

91. Giraudi v. Elec. Imp. Co., 107
Cal. 120, 5 Am. Elect]. Cas. 318, 40
Pac. 108, 28 L. R. A. 596, 48 Am.
St. Rep. 114; Clements v. Louisiana
Elec. L. Co., 44 La. Am. 692, 4 Am.
Elect]. Cas. 381, 11 So. 51, 16 L.
R. A. 43, 32 Am. St. Rep. 348; Reagan
v. Boston Elec. L. Co., 167 Mass. 406,
45 N. E. 743; Sommer v. Public Serv-
ice Corporation of New Jersey, 79
N. J. L. 349, 75 Atl. 892; Yeager v.

Edison Elec. Co., 242 Pa. 101, 88 Atl.
872.

92. “One who is brought by his
employment in close proximity to
electric wires which are apparently
insulated cannot be fairly charged
with contributory negligence in com-
ing in contact with the wires, unless
the contact was the result of heed-
lessness, or of his own lack of proper
precautions for his safety.” Yeager
v. Edison Elec. Co., 242 Pa. 101, 88
Atl. 782.

93. Decatur L., P. & Fuel Co. v.
Newson, (Ala.) 59 So. 615,
816 Law or Evectrictry.

a rope and attempted to fasten the wire to a pole and
thereby received a fatal sliock, it was held that he was
guilty of contributory negligence as a matter of law in
placing himself unnecessarily, heedlessly, and recklessly
in a dangerous position.* In another case,** where a com-
plaint alleged that the plaintiff, while a street railway
passenger, was obliged to stand on the rear platform
because the car was crowded and that he came in contact
with a live wire suspended from the roof of the car which
the plaintiff believed to be a rope when he touched it, the
court said that if he had no occasion for taking hold of
the wire, but did so out of curiosity or voluntarily, without
any necessity therefor, he was guilty of contributory negli-
gence. If this latter decision intends to charge a person
with contributory negligence as a matter of law under such
circumstances, it seems unsound.

Sec. 537. Touching Dangerous Appliance; Lineman Touch-
ing Wire When Grounded.

A person may handle electric wires with impunity so long
as he is not ‘‘ grounded.’’ Thus, it is important that a
lineman, while engaged in the performance of his work
near or on high tension wires, use a high degree of care to
avoid being in such a position that the current can pass
through his body to the ground. His failure to avoid this
measure for his protection may preclude his recovery for
injuries. Thus, where a lineman on a pole touches two
wires at the same time, one of which carries a dangerous
current of electricity and the other of which is grounded,
he will generally be guilty of contributory negligence as a
matter of law.** So, where an experienced telephone line-

94. Shade v. Bay Counties Power
Co., 152 Cal. 10, 92 Pac. 62.

95. Hopkins v. Michigan Tract. Co.,
144 Mich, 359, 9 Am. Electl. Cas. 935,
4 St. Ry. Rep. 521, 107 N. W. 909, 13
Det. Leg. N. 254.

96. Martin v. Citizens’ Gen. Elec.
Co., 29 Ky. Law Rep. 103, 9 Am.

Electl. Cas. 769, 92 S. W. 547; Hart
v. Allegheny County L. Co., 201 Pa.
234, 8 Am. Elect]. Cas. 832, 50 AtL
1010; Milne v. Providence Telep. Co.,
29 R. I. 504, 72 Atl. 716. See also,
Memphis Consol. Gas Elec. Co. y.
Simpson, (Tenn.) 109 S. W. 1155.
Conrrisutory NEGLIGENCE. 817
man, sent out to lower a messenger wire supporting a tele-
phone cable and so near an electric light wire that wind
blew them together, grasped the wire while standing on
a copper roof, it was held that he was guilty of contributory
negligence as a matter of law.” If the person does not
know that he is grounded, and the circumstances are such
as to lull him into a feeling of security and to justify him
in the belief that he is not grounded, he is not necessarily
guilty of contributory negligence if he touches a wire and
completes a circuit through his body.* So, too, a question
for the jury in some cases will be presented, where contact
with one of the wires is inadvertently made.”

Sec. 538. Touching Dangerous Appliance; Contact Be-
tween Two Wires.

A lineman handling or in contact with a wire is not neces-
sarily guilty of contributory negligence because such wire
comes in contact with a highly charged wire and a danger-
ous current is thereby diverted through such lineman to
the ground.’ The question may be one for the jury.” If
the charged wire is one which the lineman may reasonably
expect to be free from current, he is not necessarily negli-
gent in permitting contact between such wire and one he is
handling.* Thus, if a lineman is injured by contact between
the wire handled by him and the span wire of a street rail-
way company, his contributory negligence may be a ques-
tion for the jury.* Again, a jury may be justified in finding

97. Woodward v. City of Taunton,
203 Mass. 63, 89 N. E. 114.

98. Cutler v. Putnam L. & P. Co.,
80 Conn. 470, 68 Atl. 1006; Beaming
v. South Bend Elec. Co., 45 Ind. App.
261, 90 N. E. 786.

99. Memphis Consol. Gas & Elec.
Co. v. Bell, 152 Fed. 677, 9 Am. Electl.
Cas. 1025, 82 C. C. A. 25; Anglea’s
Adm’r v. East Tennessee Telep. .Co.,
142 Ky. 539, 134 S. W. 1119.

1. If he knows the danger of per-
mitting the wires to come in contact,
but, nevertheless, touches one while

52

in contact with a dangerous wire, he
may be guilty of contributory negli-
gence as a matter of law. Tri-City
Ry. Co. v. Killeen, 92 Ill. App. 57.

2. Mahan v. Newton & B. St. Ry.
Co., 189 Mass. 1, 9 Am. Electl. Cas.
508, 4 St. Ry. Rep. 414, 75 N. E. 59.

3. Potts v. Shreveport Belt Ry. Co.,
110 La. 1, 34 So. 103, 98 Am. St.
Rep. 452.

4. Potts v. Shreveport Belt Ry. Co.,
110 La. 1, 34 So. 103, 98 Am. St.
Rep. 452.
818 Law oF ELECTRICITY.

that the lineman was not negligent where the electric com-
pany was required to insulate its high tension wire, but
failed in this duty. The lineman of another company may,
to a certain extent, rely on the performance of duty by the
electric company; and, if another wire comes in contact
with the highly charged wire at a place where the latter
Wire is required to be insulated, the lineman is not neces-
sarily guilty of contributory negligence.®

Sec. 539. Touching Dangerous Appliance; Failure to Use
Rubber Gloves.

Whether, as between master and servant, a lineman is
guilty of contributory negligence in handling wires with-
out rubber gloves is discussed in the following chapter.®
But the rules are not essentially different as to parties not
in contractual relation.” Where the lineman of a telephone
or telegraph company, without using rubber gloves in
handling or working about the low tension wire of his
master, receives a shock coming from the high tension wire
of an electric company, in an action against such electric
company his contributory negligence is generally a ques-
tion for the jury.2. Where, however, the lineman is work-

5. Hausler v. Commonwealth Elec. 780; Consolidated Gas. Electric Light

Co., 240 Ill. 201, 88 N. E. 561, 144
Ill, App. 643; Knowlton v. Des
Moines Edison L. Co., 117 Iowa 451,
8 Am. Electl. Cas. 800, 90 N. W. 818;
Musolf v. Duluth Edison Elec. Co.,
108 Minn. 369, 112 N. W. 499, 24
L. R. A. (N. 8.) 451; Mitchell v.
Raleigh Elec. Co., 129 N. Car. 166,
39 8S. E. 801, 55 L. R. A. 398, 85
Am. St. Rep. 735.

6. § 571.

7. Where a fireman attempted to
break a live wire with his bare hand,
he was held guilty of contributory
negligence. Glander v. Milwaukee
Elec. Ry. & L. Co., 155 Wis. 381, 144
N. W. 972.

8. Com. Elec. Co. v. Rose, 214 Ill.
545, 9 Am. Elect]. Cas. 381, 73 N. E.

& Power Co. v. State, 109 Md. 186,
72 Atl. 651; Jeffrey v. Union Elec.
L. & P. Co., 171 Mo. App. 29, 153
S. W. 498; Trout v. Laclede Gas
Light Co. 151 Mo. App. 207, 132
S. W. 58; Smith v. Missouri & K.
Telep. Co., 113 Mo. App. 429, 9 Am.
Electl. Cas. 455, 87 S. W. 71; Dutcher
v. Rockland Electric Co., 123 N. Y.
App. Div. 765, 108 N. Y. Supp. 507;
affirmed without opinion, 195 N. Y.
540, 88 N. E. 1118; Dwyer v. Buf-
falo Gen. Elec. Co., 20 N. Y. App.
Div. 124, 7 Am. Elect]. Cas. 456, 46
N. Y. Supp. 874. See also, Geismann
v. Missouri Edison Elec. Co., 173 Mo.
654, 8 Am. Elect]. Cas. 569, 73 S. W.
654; Paine v. Elec. Illum. & P. Co.
of Long Island City, 64 N. Y. App.
ContRisuToRY NEGLIGENCE. 819
ing in the vicinity of electric light wires carrying currents
of high potential, the circumstances may be such as to
charge him with knowledge that injury may be received if
he does not use rubber gloves for his protection. Under
such circumstances, it may be, as a matter of law, negligent
for him to handle any wire without such gloves.’ As to
linemen of electric companies, who are expected to work
among dangerous wires and understand the danger from
contact therewith, they are generally deemed guilty of con-
tributory negligence if they attempt to handle live wires
without gloves or other protection.” The circumstances
surrounding a particular accident may be such as to justify
the lineman in believing that injury will not result though
he touches the wire with his naked hands, as where the
lineman had just seen a person safely handle the wire
without gloves." If the lineman is not grounded, he is not
necessarily negligent for failure to wear gloves. For
example, a lineman is not conclusively negligent because he
relied on the insulation afforded by a dry pole.” A rule
that a lineman must use rubber gloves will be regarded as
abrogated or modified, if in practice the rule is violated with

Div. 477, 7 Am. Elect]. Cas. 651, 72 Dutcher v. Rockland Electric Co., 123

N. Y. Supp. 279.

9. Reed v. Norristown Elec. L. &
P. Co., 223 Pa. 591, 72 Atl. 1045.

A lineman stringing telephone wires
who was injured when the wire
handled by him came in contact with
a poorly insulated high tension wire
strung on the same pole, is not
guilty of contributory negligence as
a matter of law when the evidence
shows that he looked to see if the
high tension wire was all right before
ascending the pole, but was thrown
off his guard by a statement of his
master’s foreman that no rubber
gloves were needed for the work, for
under the circumstances he was en-
titled to take it for granted that the
other wires on the pole were “ dead.”

N. Y. App. Div. 765, 108 N. Y. Supp.
507; affirmed without opinion, 195
N. Y. 540, 88 N. E. 1118.

10. Hart v. Allegheny County L.
Co., 201 Pa. 234, 8 Am. Electl. Cas.
832, 50 Atl. 1010.

Failure to use rubber gloves,
though required by a rule of his
master, is not necessarily contribu-
tory negligence. Randall v. Ahearn
& Soper, 34 Can. Sup. Ct. 698,

11. Newark E. L. & Power Co. v.
McGilvery, 62 N. J. Law 451, 7 Am.
Electl. Cas. 529, 5 Am. Neg. Rep. 187,
41 Atl. 955; affirmed, 63 N. J. Law
591, 44 Atl. 637.

12. Snyder v. Mutual Telephone
Co., 135 Iowa 215, 112 N. W. 776,
14 L. R. A. (N. S.) 321,
820 Law or ELectricirty.
the knowledge of the master or those who represented
him.”

Sec. 540. Injury from Interior Appliance.

A person may properly assume that he will not receive
a dangerous electric shock when coming in contact with
interior electric wiring.* He is not guilty of contributory
negligence because he does not anticipate that injury may
result from touching interior wiring. If, therefore, a
person receives an electric shock while he is turning on an
electric light, he is not necessarily negligent because he
touches the appliance when he is grounded, as for example,
when he is standing on a metal register.** So, too, a patron
of a telephone company, knowing that the current of elec-
tricity necessary to operate a telephone is harmless, is not
guilty of negligence because he takes hold of a telephone
transmitter while standing on a wet carpet.” Where the
interior electric fixtures are installed by an electrician not
representing the electric company furnishing the current,
such electrician need not anticipate that the company will
send an excessive charge of electricity over the wires, and

18, Dutcher v. Rockland Electric
Co., 123 N. Y. App. Div. 765, 108
N. Y. Supp. 507; affirmed without
opinion, 195 N. Y. 540, 88 N. E,
1118.

14. Witmer v. Buffalo Elec. L. &
P. Co., 112 N. Y. App. Div. 698, 9
Am. Elect]. Cas. 787, 98 N. Y. Supp.
781; affirmed without opinion, 187
N. Y. 572, 80 N. E, 1122. “The
patrons of the company have the
right to assume that every thing that
is open to touch concerning the ap-
pliances by which the electricity is
conveyed cam be touched with safety,
and that the company has done all
that human care, vigilance, and fore-
sight can reasonably do, consistent
with the practical operation of its
plant, to render such appliances
safe.’ White v. Reservation Elec.
Co., 75 Wash. 139, 134 Pac. 807.

15. Short v. Fort Dodge L. &
Power Co., 149 Iowa 303, 128 N. W.
366; Bice v. Wheeling Electrical Co.,
62 W. Va. 685, 59 S. E. 626.

16. Denver Consol. Elec. Co. v.
Lawrence, 31 Colo. 301, 8 Am. Electl.
Cas. 617, 73 Pac. 39.

2,000 volts— Where it appears
that a current of 104 volts [the volt-
age agreed to be transmitted] is
harmless, even to one standing on a
wet floor, plaintiff’s intestate cannot
be said to have contributed to the de-
fendant’s negligence in sending 2,000
volts into the premises. McCabe v.
Narragansett Elec. L. Co., 26 R. I.
427, 9 Am. Electl. Cas. 196, 59 Atl.
112.

17. Delahunt v. United Telep. &
Teleg. Co., 215 Pa. St. 241, 9 Am.
Electl. Cas. 792, 64 Atl. 515.
Conrriputory NEGLIGENCE. 821
contributory negligence will not be charged to the customer
because he permits the installation of appliances not
designed to afford protection from electric currents of high
intensity."* Likewise, a telephone subscriber is not guilty
of contributory negligence because he fails to adopt a
device to be attached to the telephone wires entering the
house, to guard against the admission of an unusual flow of
electricity..° Circumstances, however, may exist such as
will charge the person with knowledge that contact with
an interior appliance is likely to cause injury. If such is
the case, and contact is made knowingly and heedlessly,
contributory negligence as a matter of law may be found
by the court.”? But the fact that a previous injury has been
caused to another person will not in all cases be sufficient
to charge an injured person with contributory negligence
as a matter of law." Where a person was killed by an
electric shock received while turning out an electric light,
the fact that he saw another attempt to turn out the electric
light and draw back his hand on account of the shock

18. Gilbert v. Duluth Gen. Elec.
Co., 93 Minn. 99, 9 Am. Elect]. Cas.
166, 100 N. W. 653, 106 Am. St. Rep.
430.

Cord.— Plaintiff injured by a shock
from an electric light is not guilty of
contributory negligence because he
used a certain kind of cord where it
appears that the nature of the fix-
tures had nothing ‘to do with the
accident. Memphis Consol. Gas &
Elec. Co. v. Letson, 135 Fed. 969,
9 Am. Elect]. Cas. 367, 68 C. C. A.
453.

19. Richmond P. & Ry. Co. v.
Rubin, 102 Va. 809, 9 Am. Electl.
Cas, 138, 3 St. Ry. Rep. 870, 47 S. E.
834.

20. Cosgrove v. Kennebec L. & H.
Co., 98 Me, 473, 9 Am. Elect]. Cas.
52, 57 Atl. 841; Katafiasz v. Toledo
Consol. Elee. Co., 24 Oh. Cir. Ct. 127.

Question for jury—In an action
against a telephone company for per-

sonal injuries it appeared that the
defendant had installed a telephone
on the plaintiff’s premises, that a
ground wire which had been con-
nected with a pump had been dis-
connected, and was hung by the
plaintiff inside the pumphouse, near
a looking glass; that plaintiff while
combing his hair in front of this
glass, using a metallic comb, received
a shock apparently from the end of
this wire, that this happened during
an electrical storm. Held, that under
the evidence it was a question for the
jury whether it was not negligence
in the plaintiff to permit such a con-
dition to exist, and to expose himself
to the peril thereof. Owen v. Portage
Telep. Co., 126 Wis. 412, 9 Am. Electl.
Cas. 598, 105 N. W. 924.

21. Union L., H. & P. Co. v. Arn-
ston, 157 Fed. 540, 87 C. C. A. 1;
United States Electric Lighting Co.
v. Sullivan, 22 App. D. C. 115.
822 Law or ELecrriciry.
received, does not establish his contributory negligence as
a matter of law.”

Sec. 541. Children.

In determining the contributory negligence of children,
one of the important elements to be considered is the
immaturity of the child. Especially is this important when
the child’s injury results from contact with an electric
appliance. Children of tender years are not to be charged
with knowledge of the possible danger that will arise from
touching electrical apparatus, and the conduct of a child
leading to his injury may present a question of contribu-
tory negligence for the jury, though the same conduct
on the part of an adult would constitute contributory negli-
gence as a matter of law.”* Children are not guilty of con-
tributory negligence unless they fail to use the degree of
care which under like circumstances would reasonably be
expected of children of the same age and intelligence.
Their contributory negligence is seldom determined as a
matter of law. The question is for the jury, and their age,
experience, knowledge, and intelligence, are the factors to
be considered.” In the case of very young children, as for
example, those of five or seven years of age,” the courts

22. Predmore v. Consumers’ L. &
P. Co., 99 N. Y. App. Div. 551, 9 Am.
Elect]. Cas. 244, 91 N. Y. Supp. 118.

28. Pierce v. United Gas & Elec.
Co., 161 Cal. 176, 118 Pac. 700; City
of Madison v. Thomas, 130 Ga. 153,
60 S. E. 461; City of Owenboro v.
York’s Adm’r, 117 Ky. 294, 25 Ky.
Law Rep. 1397, 1439, 77 S. W. 1130;
Potera v. City of Brookhaven, 95
Miss. 774, 49 So. 617; Brubaker v.
Kansas City Electric L. Co., 130 Mo.
App. 439, 110 8. W. 12.

24, Citizens’ Elec. Ry., L. & P. Co.
v. Bell, 26 Oh. Cir. Ct. R. 691; af-
firmed without opinion, 70 Oh. St.
482, 72 N. E. 1155.

25. Potera v. City of Brookhaven,
95 Miss. 774, 49 So. 617.

26. Day v. Consolidated L. P. &
Ice Co., 136 Mo. App. 274, 117 S.. W.
81 (six years).

Five years and four months— In
Johnson v. Bay City, 164 Mich. 251,
129 N. W. 29, 17 Det. Leg. N. 1074,
Ann. Cas. (1912 B.) 866, the court
holding that a child of the age of
five years and four months was not
guilty of contributory negligence in
touching a live wire, said: “At the
time of the injury plaintiff was five
years and four months old. We are
of opinion that an infant of this ex-
tremely tender age cannot be charged
with contributory negligence. There
comes a time in the life of every
child, when the doing of an act which
results in injury to itself may be
ContTRIBUTORY NEGLIGENCE. 823
hold that they are not guilty of contributory negligence,
however intentionally they come in proximity to dangerous
appliances, though in some cases the negligence of their
parents may be imputed to them.” Though the presump-
tion is one that may be rebutted, a child of the age of
twelve years is not presumed to know the danger of contact
with wires in a street or highway.** Where a boy twelve
years of age, upon being dared so to do, touches a live
electric wire in. the highway, the danger of which he has
been warned, his contributory negligence is a question for
the jury.” Likewise, where a child nine years of age, on
being warned by his companions that a wire might shock
him, replies that he is not afraid, his contributory negli-

said to be negligence as a matter of
law, and there is a period between
that time and extreme youth when
the question of whether or not the
child had sufficient intelligence to ap-
preciate the dangerous consequences
liable to flow from its act becomes
one for the jury. We believe, how-
ever, that all reasonable minds would
agree that an infant, but little more
than five years of age, could not have
sufficient intelligence to be charged
with negligence, either as a matter of
law or as a matter of fact. It may
be difficult, perhaps impossible, to
point out the exact age at which the
question becomes one for the jury,
but it is, we think, clear that it has
not arrived at five years and four
months.”

27. § 542.

28, Eaton v. City of Weiser, 12
Idaho 544, 9 Am. Electl. Cas. 831, 86
Pac. 541, 118 Am. St. Rep. 225.

29. City of Owenboro v. York’s
Adm’r, 117 Ky. 294, 25 Ky. Law
Rep. 1397, 1439, 77 S. W. 1130. See
also, Macon v. Paducah St. Ry. Co.,
110 Ky. 680, 7 Am. Electl. Cas. 630,
23 Ky. Law Rep. 46, 62 S. W. 496.

Seventeen years—Evidence that

deceased, a lad of seventeen years,
knew that a guy wire of.an electric
light post carried an electric current,
and that he voluntarily laid his hands
upon it after being told by a younger
companion to watch out, and get
away, does not conclusively establish
contributory negligence where it also
appears that the current had been
running over this guy wire for sev-
eral days, with notice to defendant,
and that the wire had been handled,
pulled and shaken frequently by vari-
ous parties during that time, and, a
few minutes previously to the fatal
occurrence, by deceased, and by others
in his presence, without harm. South
Omaha Waterworks Co. v. Vocasek,
62 Neb. 710, 8 Am. Electl. Cas. 512,
87 N. W. 536.

Where there is nothing to indicate
that a wire is charged with elec-
tricity, a child touching it is no
more guilty of contributory negli-
gence than is an adult in such a case.
As a general rule, the question is for
the jury in either case. Tackett v.
Henderson Bros. Co., 12 Cal. App.
658, 108 Pac. 151; Boyd v. Portland
General Elec. Co., 41 Oreg. 336, 8
Am. Electl. Cas, 476, 69 Pac. 810.
824 Law oF ELEcrrIcIry.

gence is a question for the jury.*° So, too, contributory
negligence is a question for the jury where a youth (age
not given in the report) was killed by picking up an electric
wire in a street, though he had just been warned of the wire,
and though he had been in a position shortly before to see
a hog receive a shock from the same wire.” In the same
way, it is a question for the jury whether a boy twelve years
of age is guilty of negligence in leaning out of a window and
attempting to replace an insulator upon the support from
which it had been removed.*? But it has been held that an
ordinarily bright and intelligent boy, twelve years old,
living in a city in which electric light and power wires are
in constant use on nearly all the principal streets and high-
ways, who, having knowledge of the danger, but not of its
extent, takes hold of a wire in order to obtain a shock and
is injured thereby, is guilty of contributory negligence as a
matter of law.™

Sec. 542. Imputed Negligence.

Persons are sometimes so related that the negligence of
one is imputed to another.** For example, if the parent of
a child knowingly permits a child non sut juris to play near
a dangerous electric appliance, the negligence of the parent
is imputed to the child, and no recovery can be had for
injuries to the child.* But, where the parent has no knowl-
edge of the danger from a wire, ordinarily there is no negli-

80. Brubaker v. Kansas City Elec-
tric L. Co., 130 Mo. App. 439, 110
S. W. 12.

31. Texarkana Gas & Elec. L. Co.
v. Orr, 59 Ark. 215, 5 Am. Electl,
Cas. 272, 27 8. W. 66.

32. Walters v. Consol. Elec. L. Co.,
12 Colo. App. 145, 7 Am. Elect]. Cas.
515, 54 Pac, 960; same case, 17 Colo.
App. 192, 8 Am. Electl. Cas. 555, 68
Pac. 117; Denver Consol. Elec. Co. v.
Walters, 39 Colo. 301, 9 Am. Electl.
Cas. 1013, 89 Pac. 815.

33. Johnston v. New Omaha Thom-

son-Houston Elec. L. Co., 78 Neb. 27,
113 N. W. 526.

34. When not imputable—In an
action by a painter to recover dam-
ages for injury received by coming
in contact with an electric wire, the
neglect of his employer to notify the
defendant electric company to cut the
wires is not a contributory act im-
putable to the plaintiff. Baries v.
Louisville Electric Light Co., 118 Ky.
830, 9 Am. Electl. Cas. 111, 80 S. W.
814, 25 Ky. Law Rep. 2303.

85. City of Cumberland v. Lottig,
ConrrisuTory NEGLIGENCE. 825
gence which may be imputed. The negligence of a servant
driving a carriage against or near to an electric appliance
in a street may be imputed to his master riding in the
vehicle, so that the latter will be precluded from recovering
damages for injuries received from such appliance.” But
the negligence of a driver is not to be imputed to a gratu-
itous passenger riding in the carriage; the latter’s con-
tributory negligence is to be determined solely by his own
acts.**

Sec. 543. Acts in Emergencies.

When a person is suddenly confronted by imminent
danger to himself or to another, and the exigencies of the
situation call for immediate action, his conduct is not
closely scrutinized. His contributory negligence in attempt-
ing to avoid the danger is generally a question for the jury,
though he might have pursued a different course which
would have avoided the injury.*® Thus, where a child has
come in contact with a live wire, its mother is not guilty
of negligence in attempting to remove the child from the
wire, though she does not guard against injury to herself.*
In the same way, the act of a workman in attempting to
rescue a fellow workman from contact with a charged wire
is not necessarily contributory negligence, though the
attempt results in his death, and an opportunity to consider
the matter would have disclosed to him the futility of his
attempt." When a person finds a dangerous wire on
premises in such a position that it is likely to cause a fire
or other damage, he is not necessarily negligent because

95 Md. 42, 8 Am. Elect]. Cas. 562, 51
Atl. 841.

36. Day v. Consol. L., P. & Ice Co.,
136 Mo. App. 274, 117 S. W. 81.

37. Read v. City & Suburban Ry.
Co., 115 Ga. 366, 41 S. E. 629.

Stage driver— The negligence of a
stage driver is imputable to a passen-
ger. Dickey v. Maine Teleg. Co., 43
Me. 492.

38. Fisher v. City of Mt. Vernon,

41 N. Y. App. Div. 293, 58 N. Y.
Supp. 499.

39. Griesner v. Suburban Elec. Co.,
224 Pa. St. 328, 73 Atl. 340.

40. Walters v. Consol. Elec. L. Co.,
12 Colo. App. 145, 7 Am. Electl. Cas.
515, 54 Pac. 960.

41. Whitworth v. Shreveport Belt
Ry. Co., 112 La. 363, '2 St. Ry. Rep.
362, 36 So. 414, 65 L. R. A. 129,
826 Law oF ELectricirty.

he attempts to remove the wire rather than to wait until
employees of the electric company can come and take it
away. So, too, where it appeared that a man employed
by a street railway company to erect trolley poles worked
on a public highway thirty feet under an electric company’s
wires whose insulation had become defective, and one of
the trolley poles was accidentally brought in contact with
such a defective wire, he cannot be charged with contribu.
tory negligence as a matter of law because he failed to
secure rubber gloves to use in the emergency.** Likewise,
where an electric light wire near an awning had become
detached and set the awning on fire, the occupant of an
adjoining store is not necessarily negligent because, in
attempting to put out the fire, he touched the iron front on
the store and received a shock which caused his death.**

Sec. 544. Assumption of Risk.

Assumption of risk, as a defense to actions for personal
injuries, is of importance only where the injured is a serv-
ant of the person against whom liability is sought to be
enforced.** In some jurisdictions it is said that the doc-
trine of assumption of risk is applicable only in cases
arising between masters and servants.** In other jurisdic-

42. Leavenworth Coal Co. v. Ratch-
ford, 5 Kan. App. 150, 7 Am. Elect].
Cas. 433, 48 Pac. 927; Temple Elec.
L. Co. v. Halliburton, (Tex. Civ.
App.) 136 S. W. 584.

The fact that a live wire is emit-
ting sparks and a blaze of electric
light, apparently jeopardizing the
buildings of the plaintiff, will not
of itself preclude the plaintiff from
attempting, using ordinary prudence,
to remove such wire for the purpose
of relieving his property from appar-
ent danger of a conflagration; and
such an attempt made by the plain-
tiff will not be held, as a matter of
law, to be contributory negligence.
Leavenworth Coal Co. v. Ratchford,
5 Kan. App. 150, 7 Am. Electl. Cas,
433, 48 Pac. 927.

48. Griesner v. Suburban Elee. Co.,
224 Pa. St. 328, 73 Atl. 340.

44. Caglione v. Mt. Morris Elec. L.
Co., 56 App. Div. 191, 7 Am. Electl.
Cas, 622, 67 N. Y. Supp. 660.

45. §§ 564-569.

46. Gloucester Electric Co. v. Dover,
153 Fed. 139, 9 Am. Electl. Cas. 971,
82 C. C. A. 291; Dobbins v. Western
Union Teleg. Co., 163 Ala. 222, 50 So.
919; Conrad v. Springfield Consol. Ry.
Co., 240 Ill. 12, 88 N. E. 180.

“The doctrine of voluntary as-
sumption of risk, as distinguished
from contributory negligence, is gen-
erally applied in cases arising be
tween employer and employee as tu
the voluntary use of a tool or appli-
ance known to be defective, or a place
of work known to be unsafe, and
ContriputTorY NEGLIGENCE. 827
tions, where a person voluntarily continues to work or
remain in proximity to a known danger, such as an uninsu-
lated wire, he is said to assume the risk of injury there-
from.*’ Such statements are made in cases where the party
sued for the injury was not the employer of the person
injured, but it is apparent that the same result may be
reached by placing non-liability on the ground of contribu-
tory negligence in coming in contact with an electric appli-
ance known to be dangerous. In those jurisdictions where
it is said that known dangers are assumed, it is also gener-
ally said that unknown dangers are not assumed.** Knowl-
edge of a defect followed by an assurance of safety does not
impose an assumption of risk.

does not apply to the case of one
passing along a highway partially

552; Smith v. Twin City Rapid Tran-
sit Co., 102 Minn. 4, 5 ‘St. Ry. Rep.

obstructed — as, for example, by a
railroad train projecting across it.”
Snee v. Clear Lake Telep. Co., 24
S. Dak. 361, 123 N. W. 729.

47. Smith v. Twin City Rapid
Transit Co., 102 Minn. 4, 5 St. Ry.
Rep. 527, 112 N. W. 1001.

48. Bowling Green Gaslight Co. v.
Dean’s Ex’x, 142 Ky. 678, 134 S. W.
1115; Illingsworth v. Boston Elec.
L. Co., 161 Mass. 583, 5 Am. Electl.
Cas. 312, 37 N. E. 778, 25 L. R. A.

527, 112 N. W. 1001; Gentzkow v.
Portland Ry. Co., 54 Oreg. 114, 6 St.
Ry. Rep. 642, 102 Pac. 614; Drown v.
New England Telep. & Teleg. Co., 80
Vt. 1, 9 Am. Electl. Cas. 1053, 66
Atl. 801; same case, 81 Vt. 358, 70
Atl. 599.

49. Dutcher v. Rockland Electric
Co., 123 N. Y. App. Div. 765, 108
N. ¥. Supp. 507; affirmed without
opinion, 195 N. Y. 540, 88 N. E. 1118.
828

SEcTION 545.
546.
547,

548,
549.
550.
551.
552.
553.
554,
555.
556.
557.
558.
559.
560.
561.
562.
563.
564.
565.
566.
567.
568.
569.
570.
571.
572.
573.
574.
575.
576.
577,
578.
579.
580.
581.

Sec. 545.

Law oF ELEctRICITY.

CHAPTER XXX

INJURIES TO EMPLOYEES.

General Observations.

Degree of Care to Avoid Injury to Servant.

Duty to Furnish Servant a Safe Place in Which to Work; in
General. :

—— Power Plant.

—— Poles.

—— Cross-arms.

—— Wires.

—— Turning Current On or Off.

—— Appliances of Other Companies.

—— Interior Wiring.

—— Street Railways.

Duty to Furnish Servant with Suitable Tools and Appliances.

Duty of Inspection; in General.

— Poles and Cross-arms.

—— Appliances of Other Companies.

Duty to Make Repairs.

Duty to Warn Employees.

Duty to Promulgate Rules.

Duty to Employ Competent Workmen.

Assumption of Risk by Servant; in General.

Defective Pole.

—— Cross-arms.

Shock from Master’s Appliances.

—— Shock from Appliances of Another Company.

Street Railway Employees.

Contributory Negligence; in General.

Failure to Use Rubber Gloves.

—— Use of Safety Belt.

— Contact with Appliance Known to be Dangerous.

— Contact with Appliance Not Known to be Dangerous.

—— Touching Wire While Grounded.

Failure to Discover Defect in Pole.

—— Disobedience of Master’s Orders.

—— Street Railway Employees.

—— Acts in Emergencies,

Negligence of Fellow Servants.

Independent Contractors.

 

 

 

 

General Observations.

This chapter is devoted to a discussion of the liability of
a master for personal injuries to his servant. Any discus-
Ingzurtes To HMPLOYEES. 829
sion of the law of master and servant is largely a treat-
ment of what the law formerly was. The most amazing
development of jurisprudence in the twentieth century is the
collapse of the common-law rules pertaining to liability of
a master for injuries to his servant. Special statutes have
changed the duties of the master and the rules of evidence,
and have abolished such time-honored defenses as contribu-
tory negligence, assumption of risk, and negligence of fel-
low servant. Though it is realized that in many jurisdic-
tions the rules stated in the following sections have been
abrogated and that it is only a matter of a few years when
they will be changed in other jurisdictions, it has been
thought wise to state the common-law rules relating to the
liability of an employer for injuries to his employee and
to show their application to the law of electricity.

Sec. 546. Degree of Care to Avoid Injury to Servant.

In the absence of ‘‘ Workmen Compensation Laws,’’ a
public service corporation is not an insurer of the safety
of its employees, but the latter, in order to recover for
injuries received in the course of their employment, must
show that the company has neglected to perform some duty
required by law.’ But, though not an insurer, an electric

1. Workmen’s compensation acts
will generally be found to afford a
remedy for injuries sustained by em-
ployees of electric and other public
service corporations. In re Howard,
(Mass.) 105 N. E. 636.

2. United States.— Looney v. Met-
ropolitan R. Co., 200 U. S. 480, 26 S.
Ct. 303, 50 L. Ed. 564; affirming 24
App. D. C. 510.

Alabama.— Williams v. Anniston
Elec. & Gas Co., 164 Ala. 84, 51 So.
385.

Michigan.— Meola v. Quincy Min-
ing Co., 174 Mich. 305, 140 N. W. 460;
Guest v. Edison Illum. Co., 150 Mich.
438, 9 Am. Elect]. Cas. 1101, 114 N.
W. 226, 14 Det. Leg. N. 712.

Missouri— Jewell v. Excelsior

Powder Mfg. Co., 143 Mo. App. 200,
127 8. W. 598.

Montana. Gleason v. Missouri
River Power Co., 46 Mont. 395, 128
Pac. 586.

Nebraska.— Lincoln Gas & Elec. Co.
v. Thomas, 74 Neb. 257, 104 N. W.
153; Lincoln St. Ry. Co. v. Cox, 48
Neb. 807, 6 Am. Elect]. Cas. 352, 67
N. W. 740.

New York.— Johnston v. Syracuse
Lighting Co., 193 N. Y. 592, 86 N. E.
539; Flood v. Western Union Teleg.
Co., 181 N. Y. 603, 4 Am. Electl. Cas.
402, 30 N. E. 196; Tweed v. Hudson
River Telep. Co., 130 N. Y. App. Div.
231, 114 N. Y. Supp. 607; Gardner v.
Schenectady Ry. Co., 113 N. Y. App.
Div. 133, 98 N. Y. Supp. 1034; Leach
830

Law or EectrIcIty.

company is bound to exercise care for the avoidance of
injury to its workmen commensurate with the danger
involved.’ This, in the case of dangerous currents of elec-
tricity, requires a greater degree of caution than is required
in the handling of less dangerous commodities.* Different

v. Cent. N. Y. Telep. & Teleg. Co., 81
N. Y. App. Div. 637, 80 N. Y. Supp.
1037.

Utah.— Fritz v. Salt Lake & O. Gas
& Elec. L. Co., 18 Utah 493, 56 Pac.
90. “ Absolute safety is unattainable
and employers are not insurers. They
are liable for the consequences, not of
danger, but of negligence; and the
unbending test of negligence in
methods, machinery and appliances is
the ordinary usage of the business.
No man is held to a higher degree of
skill than the fair average of his
trade or profession, and the standard
of due care is the conduct of the
average prudent man.” Fritz v. Salt
Lake & O. Gas & Elec. L. Co., 18
Utah, 493, 56 Pac. 90.

An electric company does not owe
the same duty to a competent work-
man employed to remedy a dangerous
defect in its system as it does to the
public, its patrons or its ordinary em-
ployees, in respect thereto; and when
such employee is killed while thus
engaged, it is error for the trial
judge, in an action by his adminis-
trator for damages for the negligent
killing, to try the case upon the
theory that the same principles as to
negligence apply. White v. Thomas-
ville L. & P. Co., 151 N. Car. 356,
66 8. E. 210.

Result a guess of jury.— If, in an
action by a servant for injuries from
contact with an electric wire, there
is not sufficient evidence to make the
case clear and the appellate court
does not understand it and it seems
that the result was a guess of the
jury, the judgment entered on the

jury’s verdict will be reversed.
Gleason v. Missouri River Power Co.,
42 Mont. 238, 112 Pac. 394.

3. Alabama.— Birmingham Ry., H.
& P. Co. v. Canfield, 177 Ala. 422, 59
So. 217; Williams v. Anniston Elec.
& Gas Co., 164 Ala. 84, 51 So. 385.-

Florida.— Gunn v. City of Jackson-
ville, (Fla.) 64 So. 435.

Arkansas.— Texarkana Telep. Co.
v. Pemberton, 86 Ark. 329, 111 8. W.
257,

Illinois— Casey v. Chicago City
Ry. Co., 169 Ill. App. 425.

Indiana.— Lyons v. City of New
Albany, (Ind. App.) 103 N. E. 20;
Evansville Gas & Elec. Co. v. Robert-
son, (Ind. App.) 100 N. E. 689.

Michigan.— Meola v. Quincy Min-
ing Co., 174 Mich. 305, 140 N. W. 460.

Missouri— Jewell v. Excelsior
Powder Mfg. Co., 143 Mo. App. 200,
127 S. W. 598.

Texas— Kampman  v.
(Civ. App.) 141 S. W. 161.

Canada.— Montreal Park & Island
Ry. Co. v. McDougall, 36 Can. Sup.
Ct. 1.

4, Doyle v. LaCrosse City Ry. Co.,
148 Wis. 280, 8 St. Ry. Rep. 178, 134
N. W. 364. “Electricity is an in-
visible force, highly dangerous in its
use, and those who employ others to
work where electricity or other dan-
gerous appliances are used, should
exercise such care for the safety of
the employees as is commensurate
with the dangers involved and the
competency of the employees.” Gunn
v. City of Jacksonville, (Fla.) 64 So.
435. See also, § 404.

Mendoza,
Insuries TO EMPLOYEES. 831
judges use different expressions to state more particularly
the degree of care to be observed by the master. But
whether the obligation of the company is stated as the
employment of reasonable,° ordinary,’ high,’ very high,*
highest,® greatest,° or utmost” care, it is fairly evident
that it is intended to impose on the master only that degree
of diligence which is proportionate to the danger involved.

Sec. 547. Duty to Furnish Servant a Safe Place in Which
to Work; in General.
Independent of any statutory provisions, it is the duty
of an employer to use reasonable care to furnish his
employee a safe place in which to work.’ The term

5. Citizens L., H. & P. Co. v. Lee,
(Ala.) 62 So. 199.

6. Meola v. Quincy Mining Co., 174
Mich. 305, 140 N. W. 460.

7. Texarkana Telep. Co. v. Pember-
ton, 86 Ark. 329, 111 S. W. 257.

8. McAdam v. Central Ry. & Elec.
Co., 67 Conn. 445, 6 Am. Elect. Cas.
348, 35 Atl. 341; Huber v. Twin City
Gen. Elec. Co., 168 Mich. 531, 134 N.
W. 980.

9. Campbell v. Springfield Traction
Co., (Mo. App.) 163 S. W. 287.

10. “ The employment being a dan-
gerous one as conceded and asserted
by the defendant’s counsel, the de-
fendant company, the employer,
should be legally held to the greatest
care and diligence in the selection of
the necessary materials and every-
thing else calculated to insure the
safety of the employee in the prose-
cution of his work.” Clariain v. West-
ern Union Teleg. Co., 40 La. Ann.
178, 2 Am. Electl. Cas. 344, 3 So. 625.

11. Union L. H. & P. Co. v. Young’s
Adm’r, 141 Ky. 805, 133 S. W. 991;
Citizens’ L. & P. Co. v. Lepitre, 29
Can. S. C. (Canada) 1.

12, United States—Co-Operant
Telep. Co. v. St. Clair, 168 Fed. 645,
94 C. C. A. 109; Cumberland Telep. &

Teleg. Co. v. Bills, 128 Fed. 272, 62
C. C. A. 620.

Alabama.— Citizens’ L., H. & P.
Co. v Lee, 62 So. 199.

Florida.— Jacksonville Elec. Co. v.
Sloan, 52 Fla. 257, 9 Am. Electl. Cas.
891, 42 So. 516.

Georgia.— Southern Bell Telep. &
Teleg. Co. v. Shamos, 12 Ga. App.
463, 77 S. E. 312.

Illinois.— Postal Teleg. Cable Co. v.
Likes, 225 Ill. 249, 9 Am. Electl. Cas.
986, 80 N. E: 136; Miller v. Chicago,
etc., R. Co., 132 Tl. App. 41, 9 Am.
Elect]. Cas. 1133.

Indiana.— Henry v. Prendergast, 51
Ind. App. 43, 94 N. E. 1015; Lyons
v. City of New Albany, (Ind. App.)
103 N. E. 20; Indiana Union Tract.
Co. v. Sullivan, (Ind. App.) 101
N. E. 401; Evansville Gas & Elec.
Co. v. Robertson, (Ind. App.) 100
N. E. 689.

Iowa.— Aga v. Harback, 140 Iowa
606, 117 N. W. 669; Martin v. Des
Moines Edison L. Co., 131 Iowa 724,
9 Am. Electl. Cas. 654, 106 N. W.
359; Barto v. Iowa Telep. Co., 126
Towa 241, 9 Am. Elect]. Cas. 255,
101 N. W. 876, 106 Am. St. Rep. 347.

Kentucky.— Chicago Veneer Co. v.
Jones, 143 Ky. 21, 135 S. W. 430;
832

Law oF ELectrictry.

‘‘ safe ’’ does not mean a place so guarded as to exclude
all possibility of danger. It is ‘‘ safe’’ when all the safe-
guards and precautions which ordinary experience, pru-

Wight v. Cumberland Telep. & Teleg.
Co., 187 Ky. 299, 125 S. W. 718;
Cumberland Telep. & Teleg. Co. v.
Graves’ Adm’r, 31 Ky. Law Rep. 972,
104 S. W. 356; Cumberland Telep. &
Teleg. Co. v. Adams, 28 Ky. Law Rep.
1265, 9 Am. Elect]. Cas. 683, 91S. W.
739; Paducah Ry. & L. Co. v. Bell’s
Adm’r, 27 Ky. Law Rep. 428, 9 Am.
Electl. Cas. 404, 85 S. W. 216; Harp
v. Cumberland Telep. & Teleg. Co.,
25 Ky. Law Rep. 2133, 80 S. W. 510.

Massachusetts.— Dawson v. Law-
rence Gaslight Co., 188 Mass. 481, 74
N. E. 912; Chisholm v. New Eng.
Telep. & Teleg. Co., 185 Mass. 82,
69 N. E. 1042.

Michigan.—Livingway v. Houghton
Co. St. Ry. Co., 145 Mich. 86, 4 St.
Ry. Rep. 507, 108 N. W. 662, 13 Det.
L. N. 534.

Missouri.— Clark v. Union Iron &
Foundry Co., 234 Mo. 436, 137 S. W.
577; Corby v. Missouri & K. Telep.
Co., 231 Mo. 417, 132 S. W. 712;
Rutledge v. Swinney, 170 Mo. App.
231, 156 S. W. 478; Jewell v. Excel-
sior Powder Mfg. Co., 166 Mo. App.
555, 149 S. W. 1045; Jewell v. Ex-
celsior Powder Mfg. Co., 143 Mo.
App. 200, 127 S. W. 598; Werner v.
Metropolitan St. Ry. Co., 138 Mo.
App. 1, 119 S. W. 1076.

Nebraska. Olson v. Nebraska
Telep. Co., 85 Neb. 331, 123 N. W.
422; same case, 87 Neb. 593, 127
N. W. 916.

New Jersey.— Snyder v. N.Y. &
N. J. Telep. Co., 73 N. J. Law 535,
9 Am. Elect]. Cas. 817, 64 Atl. 122;
Essex Co. Elec. Co. v. Kelly, 57 N. J.
Law 100, 5 Am. Electl. Cas. 360, 29
Atl. 427.

New York.— Johnston v. Syracuse
Lighting Co., 193 N. Y. 592, 86 N. E.

539; McGuire v. Bell Telep. Co., 167
N, Y. 208, 7 Am. Electl. Cas. 769,
52 L. R. A. 437, 60 N. EH, 433; affirm-
ing 52 N. Y. App. Div. 635, 66 N. Y.
Supp. 1137; Raab v. Hudson River
Telep. Co., 139 N. Y. App. Div. 286,
123 N. Y. Supp. 1037; LaDuke v.
Hudson River Telep. Co., 136 N. Y.
App. Div. 136, 120 N. Y. Supp. 171;
Walsh v. N. Y. & Q. Co. Ry. Co.,
80 N. Y. App. Div. 316, 80 N. Y.
Supp. 767; affirmed without opinion,
178 N. Y. 588, 70 N. E. 1111; Gib-
bons v. Brush Elec. Illum. Co., 36
N. Y. App. Div. 140, 55 N. Y. Supp.
378.

North Carolina.— Terrell v. City of
Washington, 158 N. Car. 281, 73 8. E.
888.

Oklahoma.— Choctaw Elec. Co. v.
Clark, 28 Okla. 399, 114 Pace. 730.

Pennsylvania.— Reed v. American
Dyewood Co., 231 Pa. St. 431, 80 Atl.
873.

Texas.— Dupree v. Alexander, 29
Tex. Civ. App. 31, 68 S. W. 739; City
of Greenville v. Branch, (Tex. Civ.
App.) 152 S. W. 478.

Utah.— Speight v. Rocky Mt. Bell
Telep. Co., 36 Utah 483, 107 Pac. 742.

Vermont.— Miner v. Franklin Co.
Telep. Co., 83 Vt. 311, 75 Atl. 653,
26 L. R. A. (N. S.) 1195.

Washington.— Anderson v. Inland
Telep. & Teleg. Co., 19 Wash. 575, 7
Am. Electl. Cas. 725, 53 Pac. 657, 41
L. R. A. 410.

West Virginia— Mitchell v. U. S.
Coal & Coke Co., 67 W. Va. 480, 68
S. E. 366.

Wisconsin— Williams v. North
Wisconsin Lumber Co., 124 Wis. 328,
9 Am. Electl. Cas. 393, 102 N. W.
589.

Superintendence—The duty of
Insunies TO EMPLOYEES. 833
dence, and foresight would suggest have been taken to
prevent injury to the employee. The obligation of fur-
nishing a safe place for an employee to work, is one which
cannot be delegated by the master.'* The master may, as
to a particular servant, relieve himself of the duty of fur-
nishing a safe place to work, by imposing upon such servant
the duty of putting his place of work in a safe condition or
of keeping it safe by inspection and repair. But such
delegation, though it may place the particular servant in
a position where he cannot recover for his injuries aris-
ing from the unsafety of the place, does not save the
master from liability to other servants. The general
rule that it is the duty of a master to exercise due care
to provide a fairly safe working place for his servants,
does not apply where the prosecution of the work itself
makes the place and creates the danger. This exception
to the general rule has been applied to injuries received by

furnishing « safe place to work does
not require a master to superintend
each step in the work of construction
to see that at all times his servants
have preserved conditions of safety.
Tweed v. Hudson River Telep. Co.,
130 N. Y. App. Div. 231, 114 N. Y.
Supp. 607.

18. “The word ‘ safe,’ as it is here
used, and indeed in common parlance,
does not mean a place so made and
guarded as:‘to exclude all possibility
of danger. No amount of care, pru-
dence, and foresight can produce or
insure such a condition. Many em-
ployments are in and of themselves
dangerous, and it involves no para-
dox to say that a place of danger
may be ‘safe’ in the proper sense of
the word. It is ‘safe’ when all the
safeguards and precautions which or-
dinary experience, prudence, and fore-
sight would suggest have been taken
to prevent injury to the employee
while he is himself exercising reason-
able care in the service which he un-
dertakes to perform.” Martin v. Des

53

Moines Edison L. Co., 131 Iowa 724,
9 Am. Electl. Cas. 654, 106 N. W.
359.

14, Cumberland Telep. & Teleg. Co.
v. Bills, 128 Fed. 272, 62 C. C. A.
620; Evansville Gas & Elec. Co. v.
Robertson, (Ind. App.) 100 N. E,
689; Keeley .v. Boston Elev. Ry. Co.,
192 Mass. 481, 9 Am. Electl. Cas.
821, 78 N. E. 490; Choctaw Elee. Co.
v. Clark, 28 Okla. 399, 114 Pac. 730;
Williams v. North Wisconsin Lumber
Co., 124 Wis. 328, 9 Am. Elect]. Cas.
393, 102 N. W. 589.

15. Mullin v. Genesee Co. Elec. L.,
P. & Gas Co., 202 N. Y. 275, 95 N. E,
689.

Unsafety from previous condition.
— Where the unsafety of a place at
which an employee is directed to
work does not arise from any act of
his, but from a previous condition
known only to the master, which ren-
dered the place unsafe, the rule that
the master is relieved of the duty to
furnish a safe place where it becomes
unsafe during the progress of the
834 Law oF ELEcTRICITY.

a workman while constructing an electric line, and liability
denied where injuries resulted from the falling of a pole
during such construction.** In the same way, where a line
of poles and wires is being taken down by an employee, the
prosecution of the work itself creates the danger of the
place, and the obligation to furnish a safe working place for
the employee has no application.” Likewise, where it is
acknowledged that the place to work is dangerous and the
employee is sent to repair the dangerous conditions, there
is no room for the operation of the duty to furnish a safe
place.*®

Sec. 548. Duty to Furnish Servant a Safe Place in Which
to Work; Power Plant.

An electric company must use due care to prevent injury
to the workmen employed in its power plant.’® This
requires that such devices as are usually used by ordinarily
prudent electric companies be installed to protect the work-
men from injuries from the electric current; and, after the
original installation of protective devices, the company
should exercise due care in the inspection and repair
thereof, to the end that they will remain in efficient condi-
tion. But an electric company is not necessarily obliged to
use the latest devices, or to adopt measures for the pro-

work, has no application. Long v. method employed in doing such dan-

Johnson County Telep. Co., 134 Iowa
336, 111 N. W. 984.

16. Mullin v. Genesee Co. Elec. L.,
P. & Gas Co., 202 N. Y. 275, 95 N. E.
689.

17. Wight v. Cumberland Telep. &
Teleg. Co., 137 Ky. 299, 125 S. W.
719.

18. Corby v. Missouri & K. Telep.
Co., 231 Mo. 417, 1382 8. W. 712.

Method unnecessarily hazardous.—
“While it is true that a servant em-
ployed to make a dangerous place safe
assumes the risk of the very danger
which he undertakes to remove, he
does not assume the risk of the

gerous work if that method is un-
necessarily hazardous in respects as
to which the employee has no knowl-
edge, provided that in these respects
the employment could have been ren-
dered less hazardous by the exercise
of reasonable care on the part of the
employer.” Clark v. Johnson County
Telep. Co., 146 Iowa 428, 123 N. W.
327.

19, An electric plant is a “manu-
facturing establishment” as such
term is used in an Employers’ Lia-
bility Act. Angola Ry. & Power Co.
v. Butz, 52 Ind. App. 420, 98 N, E.
818.
Insuries TO EMPLOYEES. 835
tection of its employees, which no other electric company
has adopted.” If the company permits its machinery to
get out of repair or the insulation of its appliances to
become defective and a servant in the power house thereby
receives an injury, a jury may be authorized to find the
company guilty of negligence." Where a lineman in the
employ of an electric light company was sent aloft in the
power house to do some work and was injured by the fall-
ing of his support, it was held that, as it appeared that the
company had knowledge of the defective condition and
suffered the lineman to use the place without warning, the

20. Taylor v. White,
App.) 156 S. W. 349.

Appliances in general use.— “The
machinery and appliances used by
defendant in its electric light plant
before and at the time of the acci-
dent were of the kind commonly
and ordinarily used in other electric
light plants, and the manner and
methods of running and operating
them were the same. The rule has
become elementary that where a mas-
ter has furnished the servant with
machinery and appliances reasonably
safe and suitable and such are in
general use for carrying on the same
kind of business as that in which the
master is engaged, and the servant
is injured without any fault of the
master, the master cannot be held
liable because he failed to make use
of some attachment or special device
that might have rendered. the operat-
ing of the machinery less dangerous
and the accident thereby might have
been avoided.” Fritz v. Salt Lake &
O. Gas & Elec. L. Co., 18 Utah 493,
56 Pac. 90.

21. Martin v. Des Moines Edison
L. Co., 131 Iowa 724, 9 Am. Electl.
Cas. 654, 106 N. W. 359; Myhan v.
Louisiana Elec. L. & P. Co., 41 La.
Ann. 964, 6 So. 799, 7 L. R. A. 172,
17 Am. St. Rep. 436; Raker v. To-
ledo & Indiana Ry., 30 Oh. Cir. Ct.

(Tex. Civ.

78; San Antonio Gas & Elec. Co. v.
Mouton, (Tex. Civ. App.) 145 8. W.
1040. See also, Poor v. Madison
River Power Co., 41 Mont. 236, 108
Pac. 645,

Burning of building.— In an action
for damages for the death of an em-
ployee of defendant, caused by the
burning of a building in which he
was employed, a complaint which al-
leged that the fire originated in the
dynamo room of the building, by
reason of defects in the appliances
and machinery operated therein, and
by reason of the defective insulation
of electric light wires, the woodwork
thus being set on fire, and that the
fire was wholly due to the defend-
ant’s negligence — held, to set up a

.good cause of action, which is not

negatived by an allegation of negli-
gence of other employees of the de-
fendant in failing to put out the fire.
Pzepka v. American Glucose Co., 11
Mise. (N. Y.) 131, 5 Am. Electl. Cas.
366, 31 N. Y. Supp. 1019.

Grounding current from switch
board.— Evidence held to be sufficient
to justify the jury in finding that
the defendant was negligent in not.
properly grounding the current from
a switchboard whereby the deceased
was killed. Mehan v. Lowell Elec. L.
Corporation, 192 Mass. 53, 9 Am.
Elect]. Cas. 797, 78 N. E. 385.
836 Law or Evectriciry.

questions of the company’s negligence and the lineman’s
contributory negligence were for the jury.” Dangers which
are known to the employee or which are so obvious that he
is charged with constructive knowledge thereof, may be
assumed by him.* But, as to latent and unknown dangers,
the company must give the employee due warning so that
they may be avoided.

Sec. 549. Duty to Furnish Servant a Safe Place in Which
to Work; Poles.

A pole used to support wires may be classed as a place
to work or as an appliance.”> If a lineman is injured by
reason of defects in a pole on which he is working, it seems
to make little difference whether the company’s liability be
discussed from the point of view that the pole is a place to
work, or from the point of view that it is an appliance of the
company. In either case, the duty of the company is to use
due care to the end that its servants will not be injured
from defects in the pole. Though not liable for defects in
a pole which could not have been discovered by the exer-
cise of ordinary care,” it must exercise reasonable care to
provide poles which are sound.” And after such poles have
been procured and set up, it must employ reasonable cau-
tion in the inspection and repair thereof, so that employees
will not be injured by defects subsequently arising.** If it

22. Lee v. Elec. L., H. & P. Co.,
140 Pa. 618, 21 Atl. 405.

23. § 564.

24, § 562.

25. “The rule of safe place ap-

26. Southern Bell Telep. & Teleg.
Co. v. Covington, 139 Ga. 566, 77
8. E. 382; Essex County Elec. Co. v.
Kelley, 57 N. J. Law 100, 5 Am.
Electl. Cas. 360, 29 Atl. 427; Wash-

plies to a line of poles and wires such
as plaintiff was required to work
upon, and it was the duty of the
defendant to see that such poles,
cross-arms, and wires were reason-
ably safe and free from latent de-
fects and dangers, which ordinary
care on its part might avoid.” City
of Greenville v. Branch, (Tex. Civ.
App.) 152 S. W. 478. See also, Brit-
ton v. Cent. Union Tel. Co., 131 ol.
844, 65 C. C. A. 598.

ington, etce., Ry. Co. v. Taylor, 109
Va. 737, 64 S. E. 975,

27. Riker v. New York, 0. & W.
Ry. Co., 64 N. Y. App. Div. 357, 72
N. Y. Supp. 168; Terrell v. City of
Washington, 158 N. Car. 281, 73 8. E.
888; Abilene L. & Water Co. v. Rob-
inson, (Tex. Civ. App.) 131 S, W.
299, ‘

28. §§ 558, 560.
Inguries TO EMPLOYEES. 837
fails in its duty of using due care to maintain a pole in a
safe condition, and, by reason thereof, the pole breaks or
falls and a lineman thereon is injured, if the lineman is not
guilty of contributory negligence,” or has not assumed the
risk of injury from the defective pole,®° he will generally be
permitted to recover for his injuries.** Similarly, the com-
pany may be liable for an injury resulting from a defective
pin used in the climbing of the pole,” or from a metal rod
supporting an electric lamp on top of the pole.* But, where
it is the duty of the servant to inspect the poles before they
are set up and to reject one that is not sound, it has been

29. §§ 570 et seq.

30. § 565.

31. United States.— Jackson Fibre
Co. v. Meadows, 159 Fed. 110, 86
Cc. C. A. 300.

Arkansas.—Southwestern Telep. Co.
v. Woughter, 56 Ark. 206, 19 S. W.
575.

Georgia.— Southern Bell Telep. &
Teleg. Co. v. Covington, 139 Ga. 566,
77 8. E. 382.

Louisiana Bland v. Shreveport
Belt Ry. Co., 48 La. Ann. 1057, 6
Am. Elect]. Cas. 393, 20 So. 284, 36
L. R. A. 114.

Massachusetts— Dawson v. Law-
rence Gaslight Co., 188 Mass. 481,
74 N. E. 912.

Michigan.— Livingway v. Houghton
Co. St. Ry. Co., 145 Mich. 86, 4 St.
Ry. Rep. 507, 108 N. W. 662, 13
Det. L. N. 534.

Minnesota.— Holden v. Gary Telep.
Co., 109 Minn. 59, 122 N. W. 1018;
Kelly v. Erie Teleg. & Telep. Co., 34
Minn. 321, 25 N. W. 706. “It was
the duty of the defendant to use
reasonable care and prudence to have
the poles up which it required em-
ployees to climb, a work of danger,
safe. If it seb the pole in question,
it was its duty to set it deep enough
in the ground to be safe; if it
adopted for the use of its servants
a pole set by someone else, it wac its

duty to ascertain, by proper inspec-
tion, whether it was set deep enough
to be safe, and if it was not, then to
reset it so that it would be safe.”
Kelly v. Erie Teleg. & Telep. Co., 34
Minn. 321, 25 N. W. 706.

Missouri— Miller v. Missouri &
Kansas Telep. Co., 141 Mo. App. 462,
126 S. W. 187.

New Jersey.— Essex County Elec.
Co. v. Kelley, 57 N. J. Law 100, 5
Am. Electl. Cas. 360, 29 Atl. 427.

New York.— Walsh v. N. Y. & Q.
Co. Ry. Co., 80 N. Y. App. Div. 316,
80 N. Y. Supp. 767; affirmed without
opinion, 178 N. Y. 588, 70 N. E.
1111; Riker v. N. Y., O. & W. Ry.
Co., 64 N. Y. App. Div. 357, 72 N. Y.
Supp. 168; Byron v. N. Y. State Pr.
Teleg. Co., 26 Barber (N. Y.) 39.

South Carolina.— Berley v. West-
ern Union Teleg. Co., 82 S. Car. 360,
64 S. E. 157%.

Texas.— Southwestern Teleg. &
Telep. Co. v. Tucker, 50 Tex. Civ.
App. 476, 110 S. W. 481; San: An-
tonio Edison Co. v. Dixon, 17 Tex.
Civ. App. 320, 42 S. W. 1009.

32. Chisholm v. New Eng. Telep.
& Teleg. Co., 185 Mass. 82, 69 N. E.
1042.

33. Dupree v. Tamborilla, 27 Tex.
Civ. App. 603, 8 Am. Elect]. Cas. 779,
66 S. W. 595.
838 Law or ELectriciry.
held that the company is not negligent in furnishing a pole
with obvious defects."

Sec. 550. Duty to Furnish Servant a Safe Place in Which
to Work; Cross-Arms.

The legal situation of cross-arms is the same as that of
poles. An electric or other public service corporation
using cross-arms for the support of wires must exercise
reasonable care in the selection and installation of such
cross-arms. It is not liable for latent defects therein not
discoverable by an exercise of reasonable care.** After the
original affixing of the arm, the company must exercise
reasonable care in the inspection and repair thereof. If
the company fails in its duty, and a servant is injured on
account of the negligent maintenance of a cross-arm, the
company, as a general proposition, is liable for the in-
juries,** unless the servant is guilty of contributory negli-

gence or has assumed the risk of the danger.

34. Abilene L. & Water Co. v. Rob-
inson, (Tex. Civ. App.) 131 S. W.
299,

35. Maryland Telep. & Teleg. Co.
v. Cloman, 97 Md. 620, 8 Am. Electl.
Cas. 755, 55 Atl. 681. See also, Flood
v. Western Union Teleg. Co., 131
N. Y. 603, 4 Am. Elect]. Cas. 402,
30 N. E. 196.

Liability for defect—A lineman em-
ployed by the appellant telephone
company in stringing wires on the
telephone poles of the company was
injured by a fall from a pole caused
by the breaking of the cross-arm upon
which he was sitting. It appeared
that the cross-arm was defective in
that there was a knot at the point
where it broke, which to some extent
affected the strength of the arm. The
cross-arm was painted and the knot
was not visible by any ordinary in-
spection. The cross-arm had been
placed upon the pole on the day be-
fore the plaintiff was injured. The
cross-arms were painted at the time

they came into the possession of the
defendant. There was nothing to in-
dicate that there was any negligence
on the part of the defendant in the
purchase, selection or use of this
cross-arm, or that there was any ap-
parent difference in its construction
or weight from those in use by other
telephone companies. It was held
that the defendant was not liable for
the injury. Maryland Telep. & Teleg.
Co. v. Cloman, 97 Md. 620, 8 Am.
Electl. Cas. 755, 55 Atl. 681.

36. Cumberland Telep. & Teleg. Co.
v. Bills, 128 Fed. 272, 62 C. C. A.
620; Pence v. Chicago City Ry. Co.,
155 Ill. App. 480; Indianapolis Telep.
Co. v. Sproul, 49 Ind. App. 613, 93
N. E. 463; Jennison v. Waltham Gas
Light Co., 201 Mass. 352, 87 N. E.
594; Rutledge v. Swinney, 170 Mo.
App. 251, 156 S. W. 478. See also,
Flood v. Western Union Teleg. Co.,
131 N. Y. 603, 4 Am. Electl. Cas.
402, 30 N. E. 196.
Insunies TO EMPLOYEES. 839
Sec. 551. Duty to Furnish Servant a Safe Place in Which
to Work; Wires.

It is the duty of an electric or other public service cor-
poration to use at least reasonable care to avoid injuries
to its employees by reason of defects in its wires. While
not an insurer and while not bound to find and repair
defects which are not discoverable by an exercise of due
care, it is bound to use commensurate care in the selection,
installation, inspection, and reparation of its wires.’ If it
fails and its servant is thereby injured, it will be liable in
the absence of contributory negligence, assumption of risk
by the servant, or some other defense. The care imposed
on a company maintaining wires likely to cause serious
injury, requires that it insulate its wires at places where
its employees are obliged to work and use reasonable care
to keep them insulated.* The company must also use due

87. City of Greenville v. Branch,
(Tex. Civ. App.) 152 S. W. 478.

Breaking of wire.— A lineman hav-
ing received injuries, which caused
his death, by the breaking of a wire
causing his fall from a pole to the
ground, held, that under the circum-
stances the telegraph company was
negligent in not furnishing safe ap-
pliances, and that the lineman was
not negligent. Clairain v. Western
Union Teleg. Co., 40 La. Ann. 178,
2 Am. Electl. Cas. 344, 3 So. 625.

Defective sleeve— Where an em-
ployee of a street railway company,
while truing up a trolley wire, was
injured by reason of a defect in the
soldering of a “sleeve” in the wire,
it was held that the evidence was
sufficient to justify a verdict for the
employee. Arnold v. Connecticut Co.,
83 Conn. 97, 75 Atl. 78.

38. United States. Ellsworth v.
Metheney, 104 Fed. 119, 44 C. C. A.
484, 51 L. R. A. 389.

Arkansas.— Texarkana Telep. Co.
v. Pemberton, 86 Ark. 329, 111 8. W.
25%,

Connecticut. McAdam v. Central
Ry. & Elec. Co., 67 Conn. 445, 6 Am.
Electl. Cas. 348, 35 Atl. 341.

Illinois— Dunham v. Black Dia-
mond Coal Co., 239 Ill. 457, 88 N. E,
216.

Indiana. Evansville Gas & Elee.
Co. v. Robertson, (Ind. App.) 100
N. E. 689,

Kentucky.— O’Donnell’s Adm’r v.
Louisville Elec. L. Co., 21 Ky. Law
Rep. 1362, 7 Am. Electl. Cas. 587,
55 S. W. 202.

Louisiana.— Thompson v. New Or-
leans & C. R. Co., 108 La. 52, 32 So.
177.

Massachusetts.— Willey v. Boston
Elec. Co., 158 Mass. 40, 6 Am. Elect].
Cas. 364, 46 N, E. 395, 37 L. R. A.
723,

Michigan.— Huber v. Twin City
Gen. Elec. Co., 168 Mich, 531, 134
N. W. 980.

Minnesota.— Bernier v. St. Paul
Gaslight Co., 92 Minn. 214, 9 Am.
Elect]. Cas. 125, 99 N. W. 778.

Nebraska. New Omaha Thomson-
Houston Elee. L. Co. v. Rombold, 68
840 Law or Evecrriciry.

care to place and maintain its wires at such a height that
its workmen will not unexpectedly come in contact with
them. If they are permitted to sag or fall so that an
employee is injured by contact therewith, negligence may
be imputed to the company.*® If there are other wires in
the same vicinity, the company must use proper care to
place the new wires a sufficient distance from the older
wires, and thereafter must, by proper inspection and
repair, do everything that an ordinarily prudent employer
would do in order to prevent the different sets of wires from
coming in contact." If it fails and a dangerous current is
thereby diverted from one wire to another, it may be liable

for injuries accruing to its servant.”

Neb. 54, 8 Am. Elect]. Cas. 654, 93
N. W. 966; reversed, 68 Neb. 54, 9
Am. Electl. Cas. 302, 97 N. W. 1030.

Nevada.— Cutler v. Pittsburgh,
Silver Peak Gold Mining Co., 34 Nev.
45, 116 Pac. 418.

New York.—Harroun v. Brush Elec.
L. Co., 12 App. Div. 126, 6 Am.
Electl. Cas. 357, 42 N. Y. Supp. 716;
appeal dismissed, 152 N. Y. 212, 46
N. E. 291, 38 L. R. A. 615.

West Virginia.— Humphreys v. Ra-
leigh Coal & Coke Co., 80 S. E. 803.

Span wire.— Where an employee of
a street railway company was injured
by a shock communicated to him from
a trolley wire by an uninsulated span
wire, he was permitted to recover for
his injuries. McAdam v. Central Ry.
& Elee. Co., 67 Conn. 445, 6 Am.
Electl. Cas. 348, 35 Atl. 341.

39. Municipal ordinance.— A street
railway company which maintains its
cross wires closer to the ground than
is permitted by a city ordinance is
guilty of negligence, and is liable for
injuries to its conductor who, while
riding on the top of the car, collides
with such a wire. Pike v. Cedar
Rapids & M. C. Ry. Co., 152 lowa
53, 131 N. W. 50.

40. Meola v. Quincy Mining Co.,
174 Mich. 305, 140 N. W. 460.

Contact of powder keg with trolley
wire in mine.— Where a workman in
a mine in carrying a keg of powder
inadvertently brought it in contact
with an unguarded trolley wire which
was sagging, and an explosion thereby
occurred which resulted in the injury
of another workman, it was held that
the liability of the mining company
was a question for the jury. Reeder
v. Lehigh Valley Coal Co., 231 Pa.
St. 563, 80 Atl. 1121.

41. Wires twenty-six inches apart.
—An electric light company placed its
wires through the branches of trees,
so that high potential wires, charged
with 2,300 volts of electricity, were
within twenty-six inches of low poten-
tial wires. It was undisputed that
proper construction required such
wires to be at least five feet apart,
and, even when so placed, should not
be permitted to pass through the
branches of trees, thereby endanger-
ing contact. Held, that the company
was guilty of negligence as a matter
of law. Grimm v. Omaha Elec. L. &
Power Co., 79 Neb. 387, 112 N. W.
620, 114 N. W. 769.

42, Texarkana Telep. Co. v. Pem-
berton, 86 Ark. 329, 111 S. W. 257;
Belvidere Gas & Electric Co. v. Boyer,
122 Ill. App. 116; Cumberland Telep.
Insuntes To EMPLOYEES. 841

Guard Wires.— It has been held that no recovery can be
had for the death of a lineman who, while stringing tele-
phone wires, was killed by the wire coming in contact with
a high tension trolley wire, upon the theory that the dece-
dent’s master was negligent in failing to construct a guard
or protection or cradle between the two sets of wires, where
there is no evidence that such guard was feasible or
practicable.**

Sec. 552. Duty to Furnish Servant a Safe Place in Which
to Work; Turning Current On or Off.

If an electric employee is, to the knowledge of the com-
pany, working in contact with a wire free from electric
current, and the company causes the current to be turned
on without warning, and injury is thereby caused to the
employee, the company may be liable for the injury. The

& Teleg. Co. v. Adams, (Ky.) 28 Ky.
Law Rep. 1265, 9 Am. Elect]. Cas.
683, 91 S. W. 739; Kraatz v. Brush
Elee. L. Co., 82 Mich. 457, 3 Am.
Elect]. Cas. 491, 46 N. W. 787;
Hutchins v. Sleepy Eye Telep. Co.,
(Minn.) 147 N. W. 279; Grimm v.
Omaha Elec. L. & Power Co., 79 Neb.
387, 112 N. W. 620, 114 N. W. 769;
General Elec. Co. v. Murray, 32 Tex.
Civ, App. 226, 8 Am. Electl. Cas. 708,
74S. W. 50.

The stringing of wires by an elec-
tric lighting company so that the
wires of one circuit cross another,
and so that a slight sagging of one
wire will bring the two in contact,
thus wearing off the -insulation and
leaving the wires bare, and maintain-
ing one circuit as a live one while
employees are set to work handling
‘with bare hands the wires of the
dead circuit so crossing the wires of
the live one, is plain and unexcusable
negligence, Kraatz v. Brush Elec. L.
Co., 82 Mich. 457, 3 Am. Electl. Cas.
491, 46 N. W. 787.

43. Conklin v. Central N. Y. Telep.

& Teleg. Co., 130 N. Y. App. Div. 308,
114 N. Y. Supp. 190.

44. Colorado.— Colorado Elec. Co.
v. Lubbers, 11 Colo. 505, 2 Am. Electl.
Cas. 361, 19 Pac. 479, 7 Am. St. Rep.
255.

Florida.— Jacksonville Elee. L. Co.
v. Sloan, 52 Fla. 257, 9 Am. Electl.
Cas. 891, 42 So. 516.

Maine.— O’Brien v. J. G. White &
Co., 105 Me. 308, 74 Atl. 721.

Massachusetts.— Keeley v. Boston
Elev. Ry. Co., 192 Mass. 481, 9 Am.
Electl. Cas. 821, 78 N. E. 490.

New York.— Malay v. Mt: Morris
E. L. Co., 41 N. Y. App. Div. 574,
58 N. Y. Supp. 659.

Oregon.— Hough v. Grants Pass
Power Co., 41 Oreg. 531, 69 Pac.
655.

Wisconsin.— Massy v. Milwaukee
Elec. Ry. & L. Co., 143 Wis. 220,
126 N. W. 544, 40 L. R. A. (N. S.)
814; Zentner v. Oshkosh Gas Co., 126
Wis, 196, 105 N. W. 911.

Telephone message misunderstood.
—In an action to recover for the
death of a lineman in the employ of
842 Law or ELectriciry.

difficulty in such cases is to show that the company is
blamable for the turning on of the current. In many cases,
the presence of the current is said to be due to the negligent
act of a fellow servant in turning on the current.* But,
in other cases, it is held that the employee turning on the
current is not a fellow servant of the lineman, and that the
company is liable for his negligent act.** Moreover, it has
been held to be a question for the jury whether the com-
pany should not have promulgated a rule to the effect that
the electric current should not be turned on while employees
are engaged in repairing the line until notice is received
that the work is completed and the workmen are out of
danger.*’

Sec. 553. Duty to Furnish Servant a Safe Place in Which
to Work; Appliances of Other Companies.

The obligation of a public service corporation to use due
care to furnish its employees a safe place in which to work,
requires that it shall not permit other public service cor-
porations to make the place dangerous. Thus, if one com-
pany using the highways for its line of poles and wires
permits another company to fasten wires to its poles and

an electric lighting company who had
been sent out to repair certain wires,
it appeared that the lineman could
not get a proper telephone connection
so that he could order the man in
charge of the power house to shut off
the current; that the voices could
not be heard distinctly, and that in-
stead of receiving the lineman’s mes-
sage to shut down “after ten min-
utes” the man at the power house
was directed to shut down “for ten
minutes,” and that after the lineman
had been at work for ten or fifteen
minutes the power was turned on
and he was killed. Held, that a ver-
dict for the plaintiff was against the
law where the court charged without
exception being taken that the defend-
ant was not liable if the jury believed
that the proximate cause of the acci-

dent was a misunderstanding due to
the imperfect working of the tele-
phone. Van Alstine v. Standard L.,
H. & P. Co. of Unadilla, 116 N. Y.
App. Div. 100, 9 Am. Electl. Cas. 879,
101 N. Y. Supp. 696.

45. See Luther v. Standard L., H.
& P. Co., 208 N. Y. 383, 102 N. E:
514. See also, § 580.

The employee turning on the cur-
rent may be liable though the com-
pany escape liability on the ground
that the injury was caused by the
act of a fellow servant. Williams v.
North Wisconsin Lumber Co., 124
Wis. 328, 9 Am. Elect]. Cas. 393, 102
N. W. 589.

46. § 580.

47. Van Alstine v.. Standard Light,
Heat & Power Co., 128 App. Div.
58, 112 N. Y. Supp. 416,
Insuries to EMPLOYEES. 843
such wires become dangerous through want of insulation,
and the employee of the former company is not warned of
the danger, his employer may be liable for injuries to him.
Though the master has not given another company the ex-
press right to maintain dangerous appliances in proximity
to the working places of its servants, if it has actual or con-
structive knowledge that it is so doing, it is the master’s
duty to correct the dangerous situation, and if it fails to
do so within a reasonable time and sends its servant to work
in such place without warning of the dangers, it may be
liable for the injury to the servant.*® Where one company
gives a license to another for the use by the latter of the
poles of the former, the latter makes such poles a part of
its system so far as its obligation to furnish its servants
a safe place to work is concerned.” So, too, where two cor-

48. United States.—Heckert v. Cen-
tral District & Printing Teleg. Co.,
206 Fed. 653, 124 C. C. A. 441.

Georgia Southern Bell Telep. &
Teleg. Co. v. Shamos, 12 Ga. App.
463, 77 S. E. 312.

Iowa.— Barto v. Iowa Telep. Co.,
126 Iowa 241, 9 Am. Electl. Cas. 255,
101 N. W. 876, 106 Am. St. Rep.
347. “The obligation to provide the
employee a reasonably safe place to
work is an affirmative and continu-
ing duty on the part of the employer.
If the defendant chose to allow the
electric light company to use its
poles, it became its duty to see that
these were not so used as to expose
the telephone company’s employees to
perils the risk of which was not as-
sumed in entering such hazardous
employment.” Barto v. Iowa Telep.
Co., 126 Iowa 241, 9 Am. Electl. Cas.
255, 101 N. W. 876, 106 Am. St.
Rep. 347.

Missouri—Haworth v. Mineral Belt
Telep. Co., 105 Mo. App. 161, 79 S, W.
727.

New York.— Raab v. Hudson River
Telep. Co., 139 N. Y. App. Div. 286,
123 N. Y. Supp. 1037. “The defend-

ant in permitting the wires of an
electric lighting corporation to be
maintained upon its poles assumed
toward the plaintiff the same duty
that it would if it had itself main-
tained such high-voltage wires.”
Raab v. Hudson River Telep. Co.,
139 N. Y. App. Div. 286, 123 N. Y.
Supp. 1037,

Utah.— Speight v. Rocky Mt. Bell
Telep. Co., 36 Utah 483, 107 Pac.
742.

Canada.— See Wright v. Port Hope
Elec. Co., 13 O. W. R. (Canada) 210.

49. Olson v. Nebraska Telep. Co.,
87% Neb. 593, 127 N. W. 916; Postal
Teleg. Cable Co. v. Likes, 225 Ill. 249,
9 Am. Elect]. Cas. 986, 80 N. E. 136;
Combs v. Delaware & Atlantic Teleg.
& Telep. Co., 218 Pa. St. 440, 67
Atl. 751.

50. McGuire v. Bell Telep. Co., 167
N. Y. 208, 7 Am. Electl. Cas. 769,
52 L. R. A. 437, 60 N. E. 433, af-
firming 52 N. Y. App. Div. 635, 66
N. Y. Supp. 1137.

If a master constantly uses an in-
strumentality in his business, and so
deals with it as to practically adopt
it as his own, he becomes, relatively
844 Law or ELeEctrIciIry.

porations using the same street for their lines have an
agreement between themselves that the servants of each
shall have a right to use the poles of the other; one com-
pany thereby adopts the poles of the other as a working
place for its servants, and, if a servant is called upon to
work on the pole of the other company and is injured by
a dangerous condition there existing, the master may be
liable.** Where, however, a telephone company does not
know and has no reason to expect that its servant will
work on the portions of its line strung on electric light
poles, it has been held that it is under no obligation to
inspect such poles before its servant commences work, and
is not liable for the servant’s injury on such a pole.”

Sec. 554. Duty to Furnish Servant a Safe Place in Which
to Work; Interior Wiring.

As a general rule, an electric company is under no obliga-
tion to inspect and repair the interior wiring and appliances
placed in the building of its patron. So long as there is no
obligation on its part to keep the interior appliances in safe
condition, it follows that ordinarily it is not liable for an
injury to its servant caused by a defect therein.* But,
though the electric company is not responsible for the
defective conditions inside the building of its customer, the
customer may be. The customer, as to his own employees,
is under the obligation to use reasonable care to furnish
them a safe place to work; and, if he permits the interior
electric apparatus to become out of repair and his employee
is thereby injured, he may be liable for the injury. Inas-

to a servant injured thereby, the
owner, and is under the same duty
to the servant as if he were the
owner. Southern Bell Telep. & Teleg.
Co. v. Covington, 139 Ga. 566, 77
S. E. 382.

51. San Antonio Edison Co. v.
Dixon, 17 Tex. Civ. App. 320, 42
S. W. 1009; Miner v. Franklin Co.
Telep. Co., 83 Vt. 311, 75 Atl. 653,
26 L. R. A. (N. S.) 1195.

52. Geer v. N. Y. & Penn. Telep. &
Teleg. Co., 144 N. Y. App. Div. 874,
129 N Y. Supp. 784.

53. Byrd v. Pine Bluff Corporation,
102 Ark. 631, 145 S. W. 562.

54, Goddard v. Enzler, 222 Ill. 462,
9 Am. Elect]. Cas. 869, 78 N. E. 805;
Saures v. Stevens Mfg. Co., 196 Mass.
543, 82 N. E, 694; Aga v. Harback,
140 Iowa 606, 117 N. W. 669; Me-
Caughan v. Home Savings Bank, 160
Insunizes to EMPLOYEEs. 845
much as the master is, under the common-law rules, not
an insurer of the safety of his servant, injuries to the latter
from interior appliances may occur under ‘circumstances
when there is no liability on the part of the master. If
the occurrence by which a servant is injured was beyond
the reasonably probable consequences of the ordinary occur-
rences that reasonably prudent men would under the circum-,
stances have foreseen, the master is not liable because of
his omission to make an inspection which extraordinary
provision alone would have dictated.* In a powder plant,”
gashouse,** or other place, where an electric spark is likely
to cause an explosion, the master should use care to avoid
electric appliances which will make a spark.

Sec. 555. Duty to Furnish Servant a Safe Place in Which
to Work; Street Railways.

A street railway company is bound to exercise due care
to provide its employees a reasonably safe place to work.
Due care, so far as the appliances connected with the elec-
tric current are concerned, requires a high degree of dili-
gence and foresight.** Thus, if a street railway company

57. Powder on gloves— Where an
employee in a powder factory went
to turn on the electric current, and
a spark from the switch fell on his
glove or other clothing begrimed with
powder and an explosion occurred, it
was held that the powder company’s
negligence was a question for the
jury. Jewell v. Excelsior Powder
Mfg. Co., 143 Mo. App. 200, 127 8. W.
598; same case, 166 Mo, App. 555,

N. Y. App. Div. 123; Irish v. Union
Bag & Paper Co., 103 N. Y. App.
Div. 45, 92 N. Y. Supp. 695; affirmed
without opinion, 183 N. Y. 508, 76
N. E. 1097; Moran v. Corliss Steam
Engine Co., 21 R. I. 386, 7 Am. Electl.
Cas. 743, 43 Atl. 874, 45 L. R. A.
267; Galveston H. & 8. A. Ry. Co. v.
Pigott, 54 Tex. Civ. App. 367, 116
S. W. 841. See also, Clonts v. La-

clede Gaslight Co., 160 Mo. App. 456,
140 S. W. 970.

55. Aga v. Harback, (Iowa) 93
N. W. 601; Clonts v. Laclede Gas-
light Co., 144 Mo. App. 582, 129
S. W. 238; same case, Clonts v. La-
clede Gaslight Co., 160 Mo. App. 456,
140 S. W. 970.

56. Fulton v. Greib Rubber Co., 75
N. J. L, 525, 68 Atl. 116,

149 S. W. 1045.

58. Guile v. LaCrosse Gas & Elec.
Co., 145 Wis. 157,130 N. W, 234.

59. “It is well settled that the de-
gree of care required of an employer
is measured by the danger of the
forces employed. So that what would
be sufficient care and foresight in one
case would, perhaps, be utterly inade-
quate in another; and, while gener-
846 Law oF ELEctTRIcITy.

permits one of its cars to become defective so that the elec-
tric current escapes from its customary path and the motor-
man or conductor is thereby injured, the company may be
required to respond in damages.” But the burden is gen-
erally upon the employee to show that the shock which he
received was the result of his employer’s negligence; if he
fails in this burden, he cannot recover for his injuries.™
The company is also required to exercise reasonable care
to place and maintain the trolley posts a sufficient distance
from the track so that its servants in the ordinary course
of their employment will not come in contact therewith.
If an employee.is struck by a pole negligently placed near
the track, and the injury is not caused by the contributory
negligence of such employee and the risk of collision with
the pole is not a risk which he has assumed, he will gen-
erally be permitted to recover for his injuries.°® Where,
however, the employer is aware of the proximity of the
poles, by continuing in the employment of the railway com-
pany, he usually assumes the risk thereof and cannot re-
cover for his injuries.* A street railway employee is not
generally permitted to recover from his master for inju-
ries received from a pole placed by a third party outside
of the company’s right of way.*

ally the law requires simply reason-
able care and foresight by the em-
ployer in the selection and provision
of appliances for the use of the em-
ployee, that care and prudence must
be proportioned to what may prop-
erly be expected of him under the
circumstances, and increases in a cor-
responding ratio with the danger and
hazard necessarily connected with the
use of the appliances.” Nellis on
Street Railways (2d Ed.), § 438.

60. Miller v. Chicago, ete. R. Co.,
132 Tl. App. 41, 9 Am. Electl. Cas.
1133; Smith v. Chester Tract. Co.,
231 Pa. St. 308, 7 St. Ry. Rep. 941,
80 Atl. 254.

61. Merica v. Ft. Wayne & W. V.
Tract Co., 49 Ind. App. 288, 97 N. E,

192; Jenkins v. St. Paul City Py.
Co., 105 Minn. 504, 6 St. Ry. Rep.
616, 117 N. W. 928, 20 L. R. A.
(N. 8S.) 401; Beebe v. St. Louis Tran-
sit Co., 206 Mo. 419, 9 Am. Elect].
Cas. 1129, 5 St. Ry. Rep. 623, 12
L. R. A. (N. 8.) 112, 103 8. W. 1019.

62. Withee v. Somerset Traction
Co., 98 Me. 61, 2 St. Ry. Rep. 380,
56 Atl, 204; Tewksbury v. Metropoli-
tan St. Ry. Co., 153 Mo. App. 500, 134
S. W. 682.

63. § 569.

64. Moore v. Chattanooga “lec. Ry.
Co., 119 Tenn. 710, 109 S. W. 497,
16 L. R. A. (N. S.) 978; Chattanooga
Elec. Ry. Co. v. Moore, 113 Tenn.
531, 82 S. W. 478.

Negligence in operating cars near
INJURIES TO EMPLOYEES.

847

Sec. 556. Duty to Furnish Servant with Suitable Tools

and Appliances,

It is the duty of a public service corporation to use due
care in the selection and installation of it appliances, in-
cluding its poles, wires,® transformers,” and other appa-
ratus ;** and, after their original installation, the same care

electric light pole— A street railway
company, in the exercise of its duty
toward its employees, must place its
tracks at such distance from the line
of its right of way as to prevent in-
jury to its employees in the perform-
ance of their duties, by contact with
objects erected in close proximity to
its tracks on premises adjoining the
right of way. A failure of the com-
pany in this respect renders it liable
for the resulting damages, and it is
not essential to the company’s liabil-
ity that the object or structure on
the premises adjoining the right of
way, which caused the injury, should
have been placed there by the com-
pany. If the company has notice of
such object or structure or if notice
may be presumed from length of time
since the object or structure was
erected, the company is negligent in
continuing to operate its cars in dan-
gerous proximiity to such object or
structure. South Side Elev. R. Co. v.
Nesvig, 214 Ill. 463, 3 St. Ry. Rep.
86, 73 N. E. 749.

65. § 549.

66. § 551.

67. Aga v. Harback, 140 Iowa 606,
117 N. W. 669.

68. Telephone switchboard.— In an
action by a telephone operator for in-
juries resulting from a shock, the
failure of the defendant telephone
company to keep its apparatus in
repair, shown by its defective con-
dition, was evidence of negligence;
and if the shock was caused either
by want of repair or a proper adjust-
ment of the different parts, the ques-

tion of the defendant’s negligence was
for the jury. Cahill v. New England
Telep. & Teleg. Co., 193 Mass. 415, 9
Am. Electl. Cas. 939, 79 N. E. 821.

Automatic circuit breaker—In an
action brought to recover damages for
personal injuries sustained by the
plaintiff, it appeared that he was em-
ployed as an oiler at the D. street
station. And that one B. was em-
ployed in the 121st street station;
that on the night of the accident B.
turned a wrong switch, thus trans-
mitting an electrical current of an
excessive voltage to a machine in the
D. street station, which current
caused the latter machine to fly into
pieces, some of which struck and in-
jured the plaintiff. It appeared that
the machine in question was fitted
with a current breaker which was not
automatic in its action; that the
presence of an automatic current
breaker would have prevented the ac-
cident, and the evidence was suffi-
cient to warrant a finding that auto-
matic current breakers were in gen-
eral use on similar machines. Kre-
mer v. N. Y. Edison Co., 102 N. Y.
App. Div. 433, 9 Am. Electl. Cas.
424, 92 N. Y. Supp. 883; affirmed
without opinion, 186 N. Y. 557, 79
N. E, 1109.

Steps on poles.— Negligence may
be charged to the master where he
permits the steps on a pole to become
defective and they give way and
cause injury to a servant. Palmer
v. Kinlock Telep. Co., 91 Mo. App.
106.

Limb of tree— A lineman cannot
848 Law oF ELECTRICITY.

is required of the company in the inspection and reparation
of such defects, if any, as may subsequently arise from
climatic or other causes.*°° The master is not bound to
supply the latest and best improvements for the use of the
employees, but his duty is performed if he furnishes such
as are in general use and generally regarded as reasonably
safe." While, to a large extent, these duties may be placed
on a servant, so as to absolve the company from liability
for an injury arising from the failure of the particular
servant to perform his duty,” as to employees in general,
these duties cannot be delegated.” To sustain the master’s
liability for injuries arising from a defective appliance,

recover for injuries received by the
breaking of a limb of a tree standing
on private property, which he had
climbed in order to string wires, be-
cause the tree was not an appliance
furnished him by the company for
the defective condition of which it
was liable. Yearsley v. Sunset Telep.
& Teleg. Co., 110 Cal. 236, 6 Am.
Electl. Cas. 368, 42 Pac. 638.

69. Kentucky.— Cumberland Telep.
& Teleg. Co. v. Adams, 28 Ky. Law
Rep. 1265, 9 Am. Elect]. Cas. 683,
91 8. W. 739.

Michigan.— DeKallands v. Washte-
naw Home Telep. Co., 153 Mich. 25,
9 Am. Electl. Cas. 1106, 116 N. W.
564, 15 Det. Leg. N. 337, 15 Ann.
Cas. 593.

Missouri— Palmer vv.  Kinlock
Telep. Co., 91 Mo. App. 106.

New Jersey.— Essex Co. Elec. Co.
v. Kelly, 57 N. J. L. 100, 5 Am.
Electl. Cas. 360, 29 Atl. 427.

New York.— Kremer v. N. Y. Edi-
son Co., 102 N. Y. App. Div. 433, 9
Am. Electl. Cas. 424, 92 N. Y. Supp.
883; affirmed without opinion, 186
N. Y. 557, 79 N. E. 1109.

Oklahoma.— Choctaw Elec. Co. v.
Clark, 28 Okla. 399, 114 Pac. 730.

Oregon.— Blust v. Pacific States
Telep. Co., 48 Oreg. 34, 84 Pac. 847.

Virginia Washington, etc. Ry.
Co. v. Taylor, 109 Va. 737, 64 S. E.
975.

West Virginia— Mitchell v. U. S.
Coal & Coke Co., 67 W. Va. 480,
68 S. E. 366.

70. Lancaster’s Adm’x v. Central
City L. & P. Co., 137 Ky. 355, 125
S. W. 739, 27 L. R. A. (N. S.)
181; Blust v. Pacific States Telep.
Co., 48 Oreg. 34, 84 Pac. 847.

71. §§ 564, 567.

72. Stephens v. Pacifie Elec. Ry.
Co., 16 Cal. App. 512, 117 Pac. 559;
Twombly v. Consol. Elec. L. Co., 98
Me. 353, 57 Atl. 85, 64 L. R. A. 551;
Chisholm v. New England Telep. &
Teleg. Co., 185 Mass. 82, 69 N. E.
1042; Kelly v. Erie Teleg. & Telep.
Co., 34 Minn. 321, 25 N. W. 706;
Murphy v. Coney Island & Brooklyn
R. Co., 65 N. Y. App. Div. 546, 73
N. Y. Supp. 18; Moran v. Corliss
Steam Engine Co., 21 R. I. 386, 7
Am. Elect]. Cas. 743, 43 Atl. 874, 45
L. R. A. 267; Mitchell v. U. S. Coal
& Coke Co., 67 W. Va. 480, 68 S. E.
366; Williams v. North Wisconsin
Lumber Co., 124 Wis. 328, 9 Am.
Etectl. Cas. 393, 102 N. W. 589.
Compare, Essex Co. Elec. Co. v.
Kelley, 57 N. J. Law 100, 5 Am.
Electl. Cas. 360, 29 Atl. 427.
Ingurizs To EMPLOYEES. 849
the evidence must justify the inference that the master
knew, or, by the exercise of reasonable care and diligence,
might have known of the defect. A master is not respon-
sible for defects which could not have been discovered by
the most careful scrutiny.”

Tools.— Similar obligations are imposed on the master
in reference to the tools to be furnished to the servant.
The master is under the obligation of furnishing the serv-
ant tools which are reasonably safe; and this is a duty
which it may not delegate.” The company must consider
the danger of the electric current and use a corresponding
degree of care to furnish tools with which its workmen
may work and escape injury from the dangerous current.
Thus, if its employees are handling wires which may come
in contact with highly-charged wires, it should furnish for
their use a rope” or other appliance over which the cur-
rent will not readily pass.” So, too, where a workman is
employed to shovel snow from an elevated railway track
near an electrified rail, the shovel furnished by the com-
pany should not be of metal.” In the same way where a
telephone lineman is injured because he attempts, pursuant
to his foreman’s directions, to tie an electric wire to an
improper insulator with a piece of common iron wire, the

73. Essex Co. Elec. Co. v. Kelley,
57 N. J. Law 100, 5 Am. Electl. Cas.
360, 29 Atl. 427.

74, Jenney Elec. L. & P. Co. v.
Murphy, 115 Ind. 566, 18 N. E. 30;
Essex County Elec. Co. v. Kelly, 57
N. J. Law 100, 5 Am. Electl. Cas.
360, 29 Atl. 427; Orr v. Southern
Bell Telep. & Teleg. Co., 130 N. Car.
627, 8 Am. Electl. Cas. 777, 41 S. E.
880; Williams v. North Wisconsin
Lumber Co., 124 Wis. 328, 9 Am.
Electl. Cas. 393, 102 N. W. 589.

75. Twombly v. Consol. Elec. L. Co.,
98 Me. 353, 57 Atl. 85, 64 L. R. A.
551; Williams v. North Wisconsin
Lumber Co., 124 Wis. 328, 9 Am.
Elect]. Cas. 393, 102 N. W. 589.

54

76. Hicks v. Western Union Teleg.
Co., 157 N. Car. 519, 73 S. E. 139.

77. Rubber gloves.— In the absence
of a specific averment that a tele-
graph company was liable in not sup-
plying its linemen with rubber gloves
for protection from possible danger-
ous currents from other wires or
some general allegations to that
effect, it is error to admit evidence
of such negligence. City & Suburban
Teleg. Assoc’n v. Kelly, 28 Oh. Cir.
Ct. R. 820.

78. Smith v. Manhattan Ry. Co.
112 N. Y. App. Div. 202, 4 St. Ry.
Rep. 839, 9 Am. Electl. Cas. 936, 98
N. Y. Supp. 1.
850 Law oF ELEcrriciry.

company may be liable.” Likewise, negligence may be
charged where a master furnishes his servant with a linen
tape for measuring the distance between dangerous wires,
but such tape has small copper wires concealed therein.”
To the end that its lineman will not fall from a pole, it
must use reasonable care that spurs“ or other sustaining
apparatus” are not defective. It is held that the master
is not obliged to inspect tools in common use with which
the servant is conversant. But a forty-foot extension
ladder has been held not to be a common tool within this
class.*

Sec. 557. Duty of Inspection; in General.

An electric or other public service corporation having
electric appliances in a highway or other place where per-
sons may reasonably be expected to go, is charged with the
obligation of inspecting the same as frequently as is rea-
sonably necessary in order to discover and repair defects
therein.” This duty, while it is especially imperative as
to travelers and other persons not in the employ of the
company, is sometimes applied in favor of its servants.
Primarily, it is the duty of an electric, telephone, or tele-
graph company to use due care in the inspection of its
appliances at such places as its employees may be called
upon te work.** But, while the obligation of inspection is,

79. Cumberland Telep. & Teleg. Co.
v. Graves’ Adm’r, 31 Ky. Law Rep.
972, 104 S. W. 356.

80. Murphy v. Hudson River Telep.
Co., 127 N. Y. App. Div. 450, 113
N. Y. Supp. 149; affirmed without
opinion, 196 N. Y. 505, 89 N. E.
1106.

81. Indiana Natural & Tllum. Gas
Co. v. Marshall, 22 Ind. App. 121, 52
N. E. 232.

82. Van Duzer v. Commonwealth
Telep. Co., 236 Pa. 538, 84 Atl. 965.
See also, Lincoln Gas & Elec. L. Co.
v. Thomas, 74 Neb. 257, 104 N. W.
153.

83, Hart v. Village of Clinton, 155
N. Y. App. Div. 761, 100 N. Y. Supp.
1092.

84. Twombly v. Consol. Elec. L. Co.,
98 Me. 353, 57 Atl. 85, 64 L. R. A.
551.

Ladders of unusual length.— The
servant does not assume the risk of
injury from ladders of unusual
length. Pacific Telep. & Teleg. Co.
v. Starr, 206 Fed. 157, 124 C. C. A.
223,

85. §§ 473-476.

86. United States.— Jackson Fibre
Co. v. Meadows, 159 Fed. 110, 86
C. C. A. 300; Cumberland Telep. &
Ingunies To EMPLOYEES.

851

in the first instance, placed on the master, it is clear that
he can devolve that duty upon his servant, so that the
latter, if he fails to make the inspection, will be precluded

from recovering for his injuries.”

Teleg. Co. v. Bills, 128 Fed. 272, 62
C. C. A. 620; Western Union Teleg.
Co. v. Tracy, 53 C. C. A. 168, 8 Am.
Elect], Cas. 791, 114 Fed. 282.

Alabama.— Mobile Elec. Co. v.
Sanges, 169 Ala. 341, 53 So. 176,
(1912 B) Ann. Cas. 461; Citizens’
L., H. & P. Co. v. Lee, 62 So. 199.

Arkansas.—Southwestern Telep. Co.
v. Woughter, 56 Ark. 206, 19 S. W.
575.

Connecticut.— McGorty v. Southern
New England Telep. Co., 69 Conn.
635, 38 Atl. 359.

Iowa.— Barto v. Iowa Telep. Co.,
126 Iowa 241, 9 Am. Electl. Cas.
255, 101 N. W. 876, 106 Am. St.
Rep. 347.

Michigan.— Livingway v. Houghton
Co. St. Ry. Co., 145 Mich. 86, 4 St.
Ry. Rep. 507, 108 N. W. 662, 13 Det.
Leg. N. 534.

Missouri.— Corby v. Missouri & K.
Telep. Co., 231 Mo. 417, 132 S. W.
712.

Nevada.— Cutler v. Pittsburgh Sil-
ver Peak Gold Mining Co., 34 Nev.
45, 116 Pac. 418.

New Jersey.— Essex County Elec.
Co. v. Kelly, 57 N. J. L. 100, 5 Am.
Elec. Cas. 360, 29 Atl. 427.

New York—LaDuke v. Hudson
River Telep. Co., 136 N. Y. App.
Div. 136, 120 N. Y. Supp. 171; Row-
ley v. Am. Illum. Co., 83 N. Y. App.
Div. 609, 81 N. Y. Supp. 1099; Walsh
v. N. ¥. & Q. C. Ry. Co, 80 N. Y.
App. Div. 316, 80 N. Y. Supp. 767;
affirmed without opinion, 178 N. Y.
588, 70 N. E. 1111; Riker v. N. Y., 0.
& W. Ry. Co., 64 N. Y. App. Div. 357,
72 N. Y. Supp. 168.

South Carolina— Jones v. Postal

At the same time it is

Teleg. Cable Co., 91 S. Car. 273, 74
S. E. 492.

Texas.— Dupree v. Alexander, 29
Tex. Civ. App. 31, 68 S. W. 739;
City of Greenville v. Branch, (Civ.
App.) 152 S. W. 478.

Washington.— Anderson v. Inland
Telep. & Teleg. Co., 19 Wash. 575,
7 Am. Electl. Cas. 725, 53 Pac. 657,
41 L. R. A. 410.

Inspection of controller.— An elec-
tric passenger carrier fulfills its duty,
so far as the controller of an electric
car is concerned, if the controller is
shown to have been of standard char-
acter, made by a reputable manufac-
turer, in good condition, and to have
been subjected to such inspection as
is reasonable and practicable. The
carrier is required to inspect with
adequate care, but not to dismantle
complicated machinery for purposes
of inspection. Jenkins v. St. Paul
City Ry. Co., 105 Minn. 504, 6 St. Ry.
Rep. 616, 117 N. W. 928, 20 L. R. A.
(N. 8.) 401. “The duty of furnish-
ing reasonably safe appliances and
equipment with which to operate
electric cars rests upon the operating
company, and is a duty which such
company owes to its employees oper-
ating such cars. This obligation in-
cludes the duty of reasonable inspec-
tion sufficient to enable the company
to know the condition of its cars and
equipment so far as it may be ascer-
tained by such inspection.” Merica
v. Ft. Wayne & W. V. Tract. Co., 49
Ind. App. 288, 97 N. E. 192.

87. McGorty v. Southern New Eng-
land Telep. Co., 69 Conn. 635, 38
Atl. 359; Southern Bell Telep. &
Teleg. Co. v. Covington, 139 Ga. 566,
852 Law or ELecrriciry.

to be remembered that the duty of inspection is one which
cannot be delegated by the master. If the master attempts
to delegate the duty to one servant who fails to perform
his duty, the company may be liable for injuries received
by another servant to whom the duty of inspection was not
‘delegated, though the particular servant charged with the
‘duty, if he were injured, would not be permitted to re-
cover.” Danger from patent defects is, as a general rule,
assumed by the servant;® but the obligation of inspection
requires the company to search for latent defects in the
appliances and to warn the employees of such, if any are
found.* The company will not be liable for failure to find
a defect which could have been discovered only by the most
critical examination ;® all that is required, is that the com-
pany, considering the dangerous nature of electric cur-
rent, use commensurate care to detect such dangerous con-
ditions as are likely to cause injury to its workmen. The
fact that a wire or other appliance is intended merely for
temporary purposes does not excuse the company from the
obligation of inspection. On the contrary, the insecurity
of temporary apparatus may compel the company to make
more frequent inspections.* In the absence of any special

77'S E. 382; Corby v. Missouri & K.
Telep. Co., 231 Mo. 417, 132 8S. W.
712; Rutledge v. Swinney, 170 Mo.
App. 251, 156 S. W. 478; Hulse v.
Home Telep. Co., 164 Mo. App. 126,
147 S. W. 1124; Griffin v. N. Y.
Telep. Co., 141 N. Y. App. Div. 1,
125 N. Y. Supp. 642; Smith v. Alle-
gheny County Light Co., 62 Pitts.
Leg. Jour. (Pa.) 655; Dupree v. Alex-
ander, 29 Tex. Civ. App. 31, 68 S. W.
739.

88. City of Greenville v. Branch,
(Tex. Civ. App.) 152 S. W. 478.

89. Cumberland Telep. & Teleg. Co.
v. Bills, 128 Fed. 272, 62 C. C. A.
620; Western Union Teleg. Co. v.
Tracy, 52 C. C. A. 168, 8 Am. Electl.
Cas. 791, 114 Fed. 282; Livingway v.
Houghton Co. St. Ry. Co.,.145 Mich.
86, 4 St. Ry. Rep. 507, 108 N. W.

662, 13 Det. Leg. N. 534; Jones v.
Postal Teleg. Cable Co., 91 S. Car.
273, 74S. E, 492,

90. § 564.

91. Walsh v. N. Y. & Q. C. Ry.
Co., 80 N. Y. App. Div. 316, 80 N. Y.
Supp. 767; affirmed without opinion,
178 N. Y. 588, 70 N. E. 1111.

92. Essex County Elec. Co. v.
Kelly, 57 N. J. L. 100, 5 Am. Elec.
Cas. 360, 29 Atl. 427; Riker v. N. Y.,
0. & W. Ry. Co., 64 N. ¥. App. Div.
357, 72 N. Y. Supp. 168.

93. “Appellants’ objection that the
defendant corporation was relieved of
its legal duty to inspect the wires
because the wires were temporary
does not impress this court as being
well taken. We rather incline to
the view that the fact of the wires
being temporarily strung and not of
Insuries TO EMPLOYEES. 853-
agreement on the question, an electric company is not
bound to inspect electric wiring or appliances on the inside
of a consumer’s building.“ The consumer is, of course,
bound to exercise due care in the inspection of such appli-
ances in order that injury will not ensue to his own.
employee.*®

Sec. 558. Duty of Inspection; Poles and Cross-Arms.
While the decisions in some jurisdictions tend to sup--
port the view that an electric or other public service cor-
poration is not required to inspect its poles and cross-arms
for the discovery of defects therein,” the overwhelming
weight of authority supports the view that such a duty is
imposed upon the company.” In the absence of statute,.

@ permanent nature, and possibly
not placed with that care and fore-
sight as they should have been, or
would have been, had they been in-
tended for permanent use and per-
manently placed, would require the
defendant corporation to a more
strict and frequent accountability
and imspection of the wires than
otherwise, before sending an employee
to work among the wires so tem-
porarily strung, at the peril of life
and limb.” Cutler v. Pittsburgh
Silver Peak Gold Mining Co., 34 Nev.
45, 116 Pac. 418.

94. Byrd v. Pine Bluff Corpora-
tion, 102 Ark. 631, 145 8. W. 562.

95. Saures v. Stevens Mfg. Co., 196
Mass. 543, 82 N. E. 694.

Frequency of inspections.— “The
duty of a master to make inspection
of appliances furnished to workmen,
or located in the place in which they
are working, does not require such
inspection to be continuous. It is to
be made at reasonably frequent in-
tervals. Where the appliance is not
normally subjected to any wear and
tear, and there is no apparent likeli-
hood of its getting out of order, or,
if it does so, of its being in the

slightest degree dangerous to em-:
ployees, much less frequent inspec--
tions by the master are necessary, in.
the discharge of his duty to his serv-
ants, than where the appliance is a
machine in constant use, and danger-
ous to them when out of order. Ful-
ton v. Greib Rubber Co., 69 N. J. L.
221, 8 Am. Electl. Cas. 669, 54 Atl.
561.

96. Kellogg v. Denver Cons. Tram--
way Co., 18 Colo. App. 475, 8 Am.
Electl. Cas. 749, 1 St. Ry. Rep: 27,.
72 Pac. 609; Evansville Gas & Elec..
L. Co. v. Raley, 38 Ind. App. 342, 76.
N. E, 548, 78 N. E. 254,

Inspection below surface of ground.
—In a few jurisdictions, it has been
held that there is no duty on the-
company of inspecting poles beneath
the surface of the ground. MclIsaac
v. Northampton Elec. L. Co. 17%
Mass. 89, 51 N. E. 524, 70 Am. St.
Rep. 244; Southwestern Teleg. &
Telep. Co, v. Tucker, 102 Tex. 224,
114 8. W. 790.

97. United States— Jackson Fibre
Co. v. Meadows, 159 Fed. 110, 86.
C. C. A. 300; Cumberland Telep. &
Teleg. Co. v. Bills, 128 Fed. 272, 62
C. C. A. 620; Western Union Teleg.
854 Law or ELEctTRICITY.

however, the company may delegate such duty to his serv-
ant, so that, if the particular servant charged with the
duty fails to perform the same, he will be unable to recover
for injuries received by reason of defects he should have
discovered.“ Whether the duty of inspection has been
devolved upon the employee injured is sometimes a ques-
tion for the jury.” Also, the sufficiency of the inspections
made may be a question to be submitted to the jury.

Sec. 559. Duty of Inspection; Appliances of Other Com-
panies.

Acquiescence in the construction of two or more lines of
poles and wires in proximity to each other, in some cases,
authorizes the inference that each company has adopted
the appliances of the other so that the appliances of each
form a part of the working place of the servants of the

Co. v. Tracy, 114 Fed. 282, 8 Am.
Electl. Cas. 701, 52 C. C. A. 168.

Alabama.— Mobile Elec. Co. v.
Sanges, 169 Ala. 341, 53 So. 176,
(1912 B) Ann. Cas, 461.

Missouri.— Corby v. Missouri & K.
Telep. Co., 231 Mo. 417, 132 S. W.
712; Rutledge v. Swinney, 170 Mo.
App. 251, 156 S. W. 478; Hulse v.
Home Telep. Co., 164 Mo. App. 126,
147 S. W. 1124. ,

New York.—LaDuke v. Hudson
River Telep. Co., 136 N. Y. App. Div.
136, 120 N. Y. Supp. 171; Rowley v.
Am. Illum. Co., 83 N. Y. App. Div.
609, 81 N. Y. Supp. 1099; Walsh v.
N. Y. & Q. C. Ry. Co., 80 N. Y. App.
Div. 316, 80 N. Y. Supp. 767; af-
firmed without opinion, 178 N. Y.
588, 70 N. E. 1111; Riker v. N. Y.,
O. & W. Ry. Co., 64 N. ¥. App. Div.
357, 72 N. Y. Supp. 168.

North Carolina.— Terrell v. City of
Washington, 158 N. Car. 281, 73S. E.
888,

Rhode Island.—MeDonald v. Postal
Teleg. Co., 22 R. I. 131, 46 Atl. 407.

South Carolina— Jones v. Postal

Teleg. Cable Co., 91 S. Car. 273, 74
S. E. 492.

Texas.— Dupree v. Alexander, 29
Tex. Civ. App. 31, 68 S. W. 739.

98. Mobile Elec. Co. v. Sanges, 169
Ala. 341, 53 So, 176, (1912B) Ann.
Cas. 461; McGorty v. Southern New
England Telep. Co., 69 Conn. 635, 38
Atl. 359; Southern Bell Telep. &
Teleg. Co. v. Covington, 139 Ga. 566,
77 S. E. 382; Corby v. Missouri & K.
Telep. Co., 231 Mo. 417, 132 S. W.
712; Rutledge v. Swinney, 170 Mo.
App. 251, 156 S. W. 478; Hulse v.
Home Telep. Co., 164 Mo. App. 126,
147 8S. W. 1124; Griffin v. N. Y.
Telep. Co., 141 N. Y. App. Div. 1, 125
N. Y. Supp. 642; LaDuke v. Hudson
River Telep, Co., 136 N. Y,. App. Div.
136, 120 N. Y. Supp. 171.

99. Mobile Elec. Co, v. Sanges, 169
Ala. 341, 53 So. 176, (1912 B) Ann.
Cas. 461; McGorty v. Southern New
England Telep. Co., 69 Conn. 635,
38 Atl. 359.

1. Rowley v. Am. Illum. Co., 83
N. Y. App. Div. 609, 81 N. Y. Supp.
1099.
IngurRies TO EMPLOYEES. 855

other.? Where such is the case, the duty of each company
in furnishing its employees a safe place to work requires
that it exercise due care in the discovery of defects in such
place to work. This may require one company to inspect
the appliances owned by another.’ Of course a company
cannot be expected to inspect the appliances of another
unless it has some reason to believe its workmen will come
in proximity to such appliances.*

Sec. 560. Duty to Make Repairs.

The ultimate design of the law in requiring electric and
other public service corporations to inspect their appli-
ances is that defects therein will be repaired. An employer
is required, not only to exercise due care to provide a
reasonably safe place in which his employee is to work, but
also to use the same degree of care to keep the place in a
safe condition.* The company is required to use due care
to repair the defects in its system of which it has acquired
actual knowledge, and also those defects of which it would
have acquired knowledge, had it exercised due care in its
inspections.® Where a defective condition is one for which
it is blamable, the company may be liable though it has had
no notice of the defect and no opportunity to remedy the
situation; but, where the defect is caused by an act of God
or the wrongful act of another for which it is not respon-
sible, the liability of the company commences only when
it has or should have acquired knowledge of the condition
and has failed within a reasonable time thereafter to

2. § 553. Teleg. Co., 144 N. Y¥. App. Div. 874,
8. McGuire v. Bell Telep. Co., 167 129 N. Y. Supp. 784.
N. Y. 208, 7 Am. Electl. Cas. 769, 52 5. Jacksonville Elec. L. Co. v.
L, R. A. 437, 60 N. E. 433; Raab v. Sloan, 52 Fla. 257, 9 Am. Electl. Cas.
Hudson River Telep. Co., 139 N. Y. 891, 42 So. 516.
App. Div. 286, 123 N. Y. Supp. 1037. 6. Citizens L., H. & P. Co. v. Lee,
See also, Bergin v. Southern New (Ala.) 62 So. 199; Texarkana Telep.
Eng. Telep. Co., 70 Conn. 54, 38 Atl. Co. v. Pemberton, 86 Ark. 329, 111
888, 39 L. R. A. 192; Anderson v. 8S. W. 257; Aga v. Harback, 140 Iowa
Inland Telep. & Teleg. Co., 19 Wash. 606, 117 N. W. 669; Myhan v. Louisi-
575, 7 Am. Electl. Cas. 725, 53 Pac. ana Elec. L. & P. Co. 41 La. Ann.
657, 41 L. R. A. 410. 964, 6 So. 799, 7 L. R. A. 122, 17
4. Geer v. N. Y. & Penn. Telep. & Am. St. Rep. 436.
856 Law or Exeotriciry.

remedy the situation.’ If, however, the defect is one which
it is the duty of the particular servant to discover and
report to the master, if he fails to perform his duty of
notifying the master thereof, the company should not be
required to pay damages for his injuries therefrom.°

Sec. 561. Duty to Warn Employees.

Stated as a proposition of general application, it is the
duty of the master to warn his servants of such dangers
which are or should be known to the master, but which are
unknown to the servant. This general obligation is espe-
cially applicable to servants employed in the handling of
wires or other electrical apparatus.° When the employee

7. Citizens’ Telep. Co. of Kentucky
v. Wakefield, (Ky.) 126 S. W. 127;
Frazier v. St. Louis, etc., Refining
Co., 150 Mo. App. 419, 130 S. W. 485.

8. Gardner v. Schenectady Ry. Co.,
128 N. Y. App. Div. 12, 112 N. Y.
Supp. 369.

9. United States—Co-Operant
Telep. Co. v. St. Clair, 168 Fed. 645,
94 C. C. A. 109; Britton v. Cent.
Union Tel. Co., 131 Fed. 844, 65
C. C. A. 598; Cumberland Telep. &
Teleg. Co. v. Bills, 128 Fed. 272, 62
C. C. A. 620.

California.— Reeve v. Colusa Gas &
Elestric Co., 152 Cal. 99, 92 Pac. 89;
Tedford v. Los Angeles Elec. Co., 134
Cal. 76, 8 Am. Elec. Cas. 635, 66
Pac. 76, 54 L. R. A. 85.

Colorado.—Colorado Springs Gazette
Co. v. Simmons, 22 Colo. App. 303,
123 Pac, 968. j

Illinois— Postal Teleg. Cable Co.
v. Likes, 225 Ill. 249, 9 Am. Elect.
Cas. 986, 80 N. E. 136; Chicago Edi-
son Co. v. Hudson, 66 Ill. App. 639.

Indiana.— Lyons v. City of New
Albany, (Ind. App.) 103 N. E. 20.

Iowa.— Aga v. Harback, 140 Iowa
606, 117 N. W. 669; Long v. Johnson
County Telep. Co., 134 Iowa 336, 111
N. W. 984.

Kentucky.— Citizens’ Telep. Co. of
Kentucky v. Wakefield, (Ky.) 126
S. W. 127.

Louisiana.— Thompson v. New Or-
leans & C. R. Co., 108 La. 52, 32 So.
177; Myhan v. Louisiana Elec. L. &
P. Co., 41 La. Ann. 764, 6 So. 799,
7 L, R. A. 122, 17 Am. St. Rep. 436.

Maine.— Dirken v. Great Northern
Paper Co., 110 Me. 374, 86. Atl. 320.

Michigan— Huber v. Twin City
Gen. Elec. Co., 168 Mich. 531, 134
N. W. 980; Argersinger v. Com.
Power Co., 164 Mich. 282, 129 N. W.
889, 17 Det. Leg. N. 1201.

Mississippi— Cumberland Telep. &
Teleg. Co. v. Cosnahan, (Miss.) 62
So. 824.

Missouri— Clark v. Union Iron &
Foundry Co., 234 Mo. 436, 137 S. W.
577; Werner v. Metropolitan St. Ry.
Co., 138 Mo. App. 1, 119 S. W. 1076.

Nebraska— Elliott ov. General
Const. Co., 93 Neb. 453, 140 N. W.
1024.

New Hampshire.—Willisv. Plymouth
& C. Telep. Exch. Co., 75 N. H. 453,
75 Atl. 877, 30 L. R. A. 477.

New Jersey— Western Union
Telep. Co. v. McMullen, 58 N. J. Law
155, 6 Am. Elect]. Cas. 338, 33 Atl.
384, 32 L. R, A. 35,
Insuries TO EMPLOYEES.

8957

commences work, the company should inform him of all
the dangers to be encountered in the ordinary pursuit of
his work, and, if any changes subsequently occur which
increases the danger and the change is not patent, the

New York.— Greif v. Buffalo, etc.,
Ry. Co., 205 N. Y. 239, 98 N. E. 462;
Carey v. Manhattan Ry. Co., 116 N. Y.
App. Div. 247, 101 N. Y. Supp. 63.
“When danger lurks in apparently
harmless instrumentalities the duty
of instruction and warning is im-
perative. A stick of dynamite car-
ries no terrors to the ignorant. A
wire may transmit by an innocuous
current the messages of commerce or
of social life through the inductive
agency of the telegraph or telephone
instrument, or it may carry an elec-
tric current for light or motive
power of such force and intensity as,
if interfered with, to cause instant
death. To inform and instruct under
such circumstances becomes part of
the duty of the master which cannot
be delegated.” Carey v. Manhattan
Ry. Co., 116 N. Y¥. App. Div. 247,
101 N. Y. Supp. 63.

Oklahoma.— Fisher v. Prairie, 26
Okla. 337, 109 Pac. 514.

Pennsylvania. Myers v. Edison
Electric Illuminating Co., 225 Pa. St.
387, 74 Atl. 223.

South Carolina— Latimer v. Gen-
eral Electric Co., 81 8. Car. 374, 62
8. E. 438.

Canada.— Russell v. Bell Telep. Co.,
11 0. W. R. 800.

Lineman.— Although the duty of
inspection of wires and poles upon
and around which a lineman is work-
ing may ordinarily be upon such line-
man where his knowledge or previous
experience is such that he may know
and appreciate the danger to which
he is exposed, yet where the master
knows of peculiar and unusual dan-
gers which a lineman will encounter

in the performance of certain work,
or has reason to anticipate the pres-
ence of such danger, and the danger
is of such a nature that the servant,
from lack of knowledge, may not ap-
preciate or understand it, the master
owes the servant the duty of warning
him of such danger. Postal Teleg.
Cable Co. v. Likes, 225 Ill. 249, 9 Am.
Electl. Cas. 986, 80 N. E. 136.

The credibility of the defendant’s
superintendent, who was required to
warn men to keep away from the
wires, and who testified that he in-
formed the deceased of the risk and
that the current would jump, is for
the jury. Courtney v. Niagara Falls,
ete., Mfg. Co., 138 N. Y. App. Div.
383, 122 N. Y. Supp. 721; affirmed
without opinion, 201 N. Y. 584, 95
N. E. 1126.

The burden of proof on the issue
of warning is generally placed on the
plaintiff. This is so even in case of
the death of the servant. Causullo v.
Lenox Construction Company, 122
N. Y. App. Div. 672, 107 N. Y. Supp.
431. Evidence of fellow workmen
that they never heard him warned of
the danger has no probative force on
the issue whether a warning was
given. Causullo v. Lenox Construc-
tion Company, 122 N. Y. App. Div.
672, 107 N. Y. Supp. 431. But, if
the company claims that the servant
had actual knowledge of the danger
and it therefore was released from
the obligation of instruction, the bur-
den is on it of establishing the fact
of such knowledge. Myhan v. Louisi-
ana Elec. L. & P. Co., 41 La. Ann.
764, 6 So. 799, 7 L. R. A, 122, 17
Am. St. Rep. 436.
858

master should inform the servant thereof.”

Law oF ELEctTRIcITy.

There is, of

course, no obligation to inform the servant of dangers as
to which he is already cognizant," or as to those dangers
which are so obvious that he is charged with constructive
knowledge thereof.? The obligation of the master, there-
fore, depends upon the knowledge of the servant. In the
case of youthful or inexperienced workmen, the duty is

10. Snyder v. N. Y. & N. J. Telep.
-Co., 73 N. J. Law 535, 9 Am. Electl.
Cas. 817, 64 Atl. 122.

Time for turning on electric cur-
rent.— A telephone company may be
liable where it fails to inform its
lineman that the time at which an
electric company will turn its cur-
rent on wires near which the tele-
phone lineman are required to work,
has been changed from five to four
o’clock in the afternoon. East Ten-
nessee Telep. Co. v. Carmine,. 29 Ky.
Law Rep. 479, 9 Am. Elect]. Cas.
802, 93 S. W. 903.

Change in intensity of current.—
The plaintiff was employed by a tele-
phone company to string some of its
wires above and across certain elec-
tric light wires of another company.
There was evidence, if believed, that
the electric light wires did not
usually carry any current, except at
night, and that this fact was known
to plaintiff. Shortly before plain-
tiff’s injury the telephone company
received notice from the electric light
company that it would thereafter
send through its wires in the daytime
a current of dangerous intensity.
Plaintiff testified that this fact was
not communicated to him. Held, that
there was a question for the jury
whether the failure of the defendant
telephone company to give plaintiff
notice was a breach of its duty to
him. Snyder v. New York & N. J.
Telep. Co., 73 N. J. Law 535, 9 Am.
Electl. Cas. 817, 64 Atl. 122.

11. Arkansas.—Southwestern Telep.
Co. v. Woughton, 56 Ark. 206, 19
8. W. 575.

Kentucky.— Union L., H. & P. Co.
v. Young’s Adm’r, 141 Ky. 805, 133
S. W. 991.

Maine.— Dunbar v. Hollingsworth
& Whitney Co., 109 Me. 461, 84 Atl.
992.

Massachusetts.— Pembroke v. Cam-
bridge Electric Light Co., 197 Mass.
477, 84 N. E. 331.

Minnesota.— Wendler v. Red Wing
Gas & Electric Co., 92 Minn. 122,
9 Am. Electl. Cas. 114, 99 N. W.
625. ,

Nebraska.— Wilkins v. Water & L.
Co. of Nebraska City, 92 Neb. 513,
138 N. W. 754.

New York—LaDuke v. Hudson
River Telep. Co., 124 N, Y. App. Div.
106, 108 N. Y. Supp. 189.

South Carolina.— Latimer v. Gen-
eral Electric Co., 81 S. Car. 374, 62
S. E. 438.

Washington.— Sandquist v. Inde
pendent Telep. Co., 38 Wash. 313, 80
Pac. 539.

12. Chicago Edison Co. v. Hudson,
66 Ill. App. 639; Kelly v. Boston
Elev. Ry., 214 Mass. 461, 101 N. E.
999; Greberstein v. Stone & Webster
Engineering Corp., 205 Mass. 431, 91
N. E. 411; Gavin v. Fall River Auto-
matic Telep. Co., 185 Mass. 78, 69
N. E. 1055; Myers v. Edison Electric
Illuminating Co., 225 Pa. St. 387, 74
Atl. 223.
Insuntes TO EMpuovess. 859
especially clear,® but it decreases proportionally as the
servant acquires experience and knowledge of the dangers.
Where an employee is promoted from one position to
another, he should be instructed as to the dangers of the
second position which have not been learned in the former
employment.* The fact that a person is experienced in
telephone work, which involves slight, if any, danger from
electric shocks, does not excuse a master using high ten-
sion currents from a failure to warn him of the dangers
from such currents.* An electric company need not warn
a lineman of twenty years’ experience that there is greater
danger from electric appliances in wet weather than in
dry weather.** Where there is no reason why the master
should anticipate danger from an electric appliance, there
is no duty to warn the servant.’’ The employer may not
delegate the duty of warning inexperienced servants so as
to release him from damages arising from his failure so
to do."*

The extent of the warning depends upon the danger and
the capacity of the servant.’® It should be sufficient to

13. North Arkansas Telep. Co. v.
Steiner, 95 Ark. 275, 129 S. W. 810;
Tedford v. Los Angeles Elec. Co., 134
Cal. 76, 8 Am. Elec. Cas. 635, 66 Pac.
76, 54 L. R. A, 85; Elliott v. General
Const. Co., 93 Neb. 453, 140 N. W.
1024; Sias v. Consolidated Lighting
Co., 79 Vt. 224, 64 Atl. 1104.

Representation of knowledge.—The
fact that an employee, when solicit-
ing employment, represented that he
was competent, will not in all cases
excuse the failure of the employer
to warn him of the dangers. Fisher v.
Prairie, 26 Okla. 337, 109 Pac. 514.

14. Olson v. Nebraska Telep. Co.,
87 Neb. 593, 127 N. W. 916; Fisher
y. Prairie, 26 Okla. 337, 109 Pac. 514.

15. Elliott v. General Constr. Co.,
93 Neb. 453, 140 N. W. 1024.

16. Carr v. Manchester Elec. Co.,
70 N. H. 308, 7 Am. Electl. Cas. 746,
48 Atl. 286.

17. Williams v. Anniston Elec. &
Gas Co., 164 Ala. 84, 51 So. 385;
Fisher v. Prairie, 26 Okla: 337, 109
Pac. 514.

18. Tedford v. Los Angeles Elec.
Co., 134 Cal. 76, 8 Am. Electl. Cas.
635, 66 Pac. 76, 54 L. R. A. 85;
Carey v. Manhattan Ry. Co., 116
N. Y. App. Div. 247, 101 N. Y. Supp.
63; Fisher v. Prairie, 26 Okla. 337,
109 Pac. 514.

19. “ The extent to which the mas-
ter should enter into details in giv-
ing instruction to the servant de-
pends upon the apparent or known
capacity of the servant to reasonably
utilize the information which he re-
ceives for the purpose of securing his
own safety. * * * It seems that the
notice and instruction, if such is
necessary, at all, should be graduated
to the age, intelligence and experi-
ence of the servant. They should be
860 Law or HLEctTRICITY.
enable the employee, if he exercises due care for his safety,
to avoid injury from the appliances.”

Sec. 562. Duty to Promulgate Rules.

One of the common law duties imposed on an employer
is that of promulgating rules if reasonably necessary, for
the safety of his employees.” The necessity of rules or
regulations for the guidance of servants is important
where there are a large number of servants at work, and
the danger or safety of each one depends largely upon
the prompt and efficient performance of duty by the others.
As to linemen and other employees working on poles and
wires, ordinarily they are so few, comparatively speaking,
that the company is under no obligation of making regu-
lations for the performance of their work. But, in an-
action for the death of a lineman who was killed by the

such as a master of ordinary pru-
dence and sagacity would give under
like circumstances for the purpose of
enabling the inexperienced person,
not only to know the dangerous
nature of his work, but also to un-
derstand and appreciate its risks and
to avoid its dangers. They should
be governed by the experience and
capacity of the servant. * * * It is
not necessary that a servant. should
be warned of every possible manner
in which an injury may oceur. He
must examine his surroundings and
take notice of obvious dangers and
operations of familiar laws.” Fisher
v. Prairie, 26 Okla. 337, 109 Pac. 514.

20. Fisher v. Prairie, 26 Okla. 337,
109 Pac. 514.

Question for jury.—Whether or not
a warning to such workman, not to
touch the machinery or wires placed
in a room in which he was working,
should be regarded as a warning of
the extreme personal danger to him-
self, or merely a calling of his atten-
tion to the wires and machinery
which should not be disturbed, is for

the jury to determine when the evi-
dence is such as would lead reason-
able minds to differ. Raker v. Toledo
& Indiana Ry., 30 Oh. Cir. Ct. 78.
21. Adoption of rules— The ques-
tion whether there is negligence in
failing to adopt suitable rules is not
for the jury unless there is some-
thing in the testimony from which
the inference may be drawn that it
was practicable to have provided
against the occurrence of the accident
complained of by the adoption of a
particular rule. Where a number of
fellow servants were engaged in tak-
ing down electric wires and were not
acting under any direction, the cut-
ting of a wire at the proper place
for the convenience of the work, and
to insure the safety of the employees,
is a detail of the work which was
for the judgment and control of the
workmen themselves and not for the
city to regulate by the adoption of
rules for their guidance. Wagner v.
City of Portland, 40 Oreg. 389, 8
Am. Elect]. Cas. 671, 67 Pac. 300.
Inzurtres to EMPLOYEES. 861

turning on of an electric current from the power house
while he was engaged in repairing wires, it was held that
it was a question for the jury whether the company was
negligent in not promulgating a rule to the effect that the
electric current should not, while employees were engaged
in repairing the line, be turned on until the person in
charge of the power house had received notice that the
work was completed and that the workmen were out of
danger.” But in the same case it was held that it was
reversible error for the trial judge to decline to charge
that no negligence can be predicated upon a failure to
promulgate a rule that the power should not be turned on
while a lineman was working on the lines, as such a rule
is unnecessary, being merely a direction to the manager of
the power house not to injure a fellow servant. Rules are
not necessary where the safety of the servant depends, not
on the conduct of fellow servants, but solely on the skill
and caution exercised by himself.” Nor are rules neces-
sary where the work is simple and the use of the appliances
obvious, as, for example, the work of putting up telephone
cables by wire ropes and hooks.”

Sec. 563. Duty to Employ Competent Workmen.

Another common law duty of employers is the use of
reasonable care to procure a sufficient number of capable
fellow workmen.” Negligence may be inferred from the
failure of the company to furnish an adequate force of
men for the performance of the work.” ‘Thus, where a
master requires his servants to take down or put up a
heavy pole, and the force of men employed is insufficient
for that purpose, and by reason thereof the pole falls and

22. Van Alstine v. Standard Light, 25. Choctaw Elec. Co. v. Clark, 28
Heat & Power Co., 128 N. Y. App. Okla. 399, 114 Pac. 730; Williams v.
Div. 58, 112 N. Y. Supp. 416. North Wisconsin Lumber Co., 124

23. Fritz v. Salt Lake & O. Gas & Wis. 328, 9 Am. Electl. Cas. 393,
Elec. L. Co., 18 Utah 493, 56 Pac.90. 102 N. W. 589.

24, Blust v. Pacific States Telep. 26. Sandquist v. Independent Telep.
Co., 48 Oreg. 34, 84 Pac. 847. Co., 38 Wash. 313, 80 Pac. 539.
862 Law or ELecrriciry.

injures a servant, the master may be liable.” Negligence
may be imputed to a master where he has actual or con-
structive knowledge of the incompetency of a servant, but
he nevertheless retains such servant in his employment
and thereby endangers the safety of other servants.” For
an injured servant to recover for his injuries on such a
charge of negligence, it is essential that he show that the
injury was caused by the negligent act of such incompetent
co-servant.”

Sec. 564. Assumption of Risk by Servant; in General.

In the absence of some statutory provision, an employee
assumes the obvious and natural risks of his employment.”

27, Di Bari v. J. W. Bishop Co.,
199 Mass. 254, 85 N. E. 89, 17 L. R.
A. (N. 8S.) 773; Sandquist v. In-
dependent Telep. Co., 38 Wash. 313,
80 Pac. 539.

28. Malay v. Mt. Morris E, L. Co.,
41 N. Y. App. Div. 574, 58 N. Y.
Supp. 659.

29. Brady v. Western Union Teleg.
Co., 113 Fed. 909, 8 Am. Electl. Cas.
792.

30. United States.—Dixon v. West-
ern Union Teleg. Co., 68 Fed. 630.

Arkansas.—Southwestern Telep. Co.
v. Woughton, 56 Ark. 206, 19 S. W.
575.

Indiana. Ambre v. Postal Teleg.
Cable Co., 43 Ind. App. 47, 86 N. E.
871.

Iowa— Clark v. Johnson County
Telep. Co., 137 Iowa 81, 114 N. W.
554; Barto v. Iowa Telep. Co., 126
Towa 241, 9 Am. Electl. Cas. 255,
101 N. W. 876, 106 Am. St. Rep. 347,

Louisiana— Smart v. Louisiana
Elec. L. Co., 47 La. Ann. 869, 17 So.
346.

Michigan.— Harrison vv. Detroit,
ete., Ry. Co., 137 Mich. 78, 9 Am.
Electl. Cas, 152, 3 St. Ry. Rep. 432,
100 N. W. 451, 11 Det. Leg. N. 228.

Missouri.— Roberts v. Missouri &

K. Tel. Co., 166 Mo. 370, 8 Am.
Electl. Cas. 767, 66 S. W. 155;
Werner v. Metropolitan St. Ry. Co.,
138 Mo. App. 1, 119 S. W. 1076.

Nebraska.— Grimm v. Omaha Elec.
L. & Power Co., 79 Neb. 387, 112
N. W. 620, 114 N. W. 769; New
Omaha Thompson-Houston Elec. L.
Co. v. Dent, 68 Neb. 668, 8 Am.
Elect]. Cas. 648, 94 N. W. 819, 103
N. W. 1091.

New Jersey.— Western Union
Teleg. Co. v. McMullen, 58 N. J. Law
155, 6 Am. Electl. Cas. 338, 33 Atl.
384, 32 L, R. A. 35; Essex County
Elec. Co. v. Kelly, 57 N. J. Law 100,
5 Am. Elect]. Cas. 360, 29 Atl. 427;
Foley v. Jersey City Elec. L. Co., 54
N. J. Law 411, 24 Atl. 487.

Oklahoma.— Fisher v. Prairie, 26
Okla. 337, 109 Pac. 514.

Texas.— Western Union Teleg. Co.
v. Burton, 53 Tex. Civ. App. 378, 115
S. W. 364; Taylor v. White, (Civ.
App.) 156 S. W. 349.

Vermont.— Miner v. Franklin Co.
Telep. Co., 83 Vt. 311, 75 Atl. 653,
26 L. R. A. (N. S.) 1195.

Washington.— Anderson v. Inland
Telep. & Teleg. ‘Co., 19 Wash. 575,
7 Am. Elect]. Cas. 725, 53 Pac. 657,
41 L. R. A. 410.
Insunries To EMPLOYEES.

863

While in some jurisdictions it is said that the employee
does not assume the risk of his employer’s negligence,”
the rule more generally adopted is that he assumes defects
which are the result of the master’s negligence where he
has actual knowledge thereof or they are so obvious as to
charge him with constructive knowledge thereof, and, after
acquiring such knowledge, he continues in the same employ-
ment.*? If he assumes any risks due to the master’s negli-

Wisconsin.— Zentner v. Oshkosh
Gas Co., 126 Wis. 196, 105 N. W.
911,

Injury to telephone operator.—
Plaintiff, a telephone operator, in an
action for injuries resulting from a
shock received while in the perform-
ance of her duties, may be held to
have assumed the ordinary risks of
nervous annoyance and irritation
that might be reasonably connected
with the performance of her duties,
but this did not include shocks from
an electric current which could be
found to have caused pronounced
bodily prostration, even if the degree
of voltage was not sufficiently high
to imperil life. Cahill v. New Eng-
land Telep. & Teleg. Co., 193 Mass.
415, 9 Am. Elect]. Cas. 939, 79 N. E.
821.

“Necessarily incident” to employ-
ment.— An instruction that a serv-
ant assumes such risks only as are
necessarily incident to his employ-
ment, is erroneous. Southwestern
Telep. Co. v. Woughton, 56 Ark. 206,
19 S. W. 575.

31. Erwin v. Missouri & Kansas
Telep. Co., 173 Mo. App. 508, 158
S. W. 913; Kile v. Union Elec. L. &
P. Co., 149 Mo. App. 354, 130 S. W.
89; Jewell v. Excelsior Powder Mfg.
Co., 143 Mo. App. 200, 127 S. W.
598; Werner v. Metropolitan St. Ry.
Co., 138 Mo. App. 1, 119 S. W. 1076;
Grimm v. Omaha Elec. L. & Power
Co., 79 Neb. 387, 112 N. W. 620, 114
N. W. 769.

32. United States.—Burke v. Union
Coal & Coke Co., 157 Fed. 178, 84
C. C. A. 626. “The contention that
the servant never assumes the risk
of the negligence of the master is
untenable in the national courts.
The rule established by repeated de-
cisions of the Supreme Court is that
by entering or continuing in the em-
ployment a servant assumes the risk
of defects in the place and in the
machinery caused by the negligence
of the master, when those defects are
obvious or plainly observable by a
person of ordinary prudence in the
servant’s situation as completely as
he assumes those of which he is
actually aware.” Burke v. Union
Coal & Coke Co., 157 Fed. 178, 84
C. C. A. 626.

Illinois.— Kath v. East St. Louis,
ete, Ry. Co., 232 Til, 126, 83 N. E.
533, 15 L. RB. A. (N. S.) 1109.

Indiana— Hammond v. Kingman &
Co., (Ind. App.) 101 N. E. 385.

New Hampshire— Carr v. Man-
chester Elec, Co., 70 N. H. 308, 7 Am.
Electl. Cas. 746, 48 Atl. 286,

New Jersey.— Western Union
Teleg. Co. v. McMullen, 58 N. J. Law
155, 6 Am. Elect]. Cas. 338, 33 Atl.
384, 32 L. R. A. 351; Foley v. Jersey
City Elec. L. Co., 54 N. J. Law 411,
24 Atl. 487.

New York— Courtney v. Niagara
Falls Hydraulic P. & Mfg. Co., 138
N. Y. App. Div. 383, 122 N. Y. Supp.
721; affirmed without opinion, 201
N. Y. 584, 95 N. E. 1126; James v.
864

Law oF ELECTRICITY.

gence, he does not assume those which are not brought to
his actual knowledge and which are not so obvious that
by ordinary care he would have discovered them.* Knowl-
edge—either actual or constructive—is the important
ingredient of the doctrine of assumed risks.** As a general

Cranford, 123 N. Y. App. Div. 558,
108 N. Y. Supp. 142; Carey v. Man-
hattan Ry. Co., 116 N. Y. App. Div.
247, 101 N. Y. Supp. 63. :

Pennsylvania.— Myers v. Edison
Electric INuminating Co., 225 Pa. St.
387, 74 Atl. 223.

Texas.— Western Union Teleg. Co.
v. Burton, 53 Tex, Civ. App. 378, 115
S. W. 364.

Forgetfulness of danger—If an
employee has full knowledge of the
dangers of his employment, moment-
ary forgetfulness does not relieve
him from the assumption of risk.
Courtney v. Niagara Falls Hydraulic
P. & Mfg. Co., 188 N. Y. App. Div.
383, 122 N. Y. Supp. 72; affirmed
without opinion, 201 N. Y. 584, 95
N. E. 1126.

Use of rubber gloves and boards.—
Where an employee has worked in
connection with electric wires for two
months and a half without the protec-
tion of rubber gloves, and wooden
boards to stand upon, and it is shown
that he still continued the employ-
ment, knowing the hazards attending
the work, he must be deemed to have
assumed the risk of performing his
work without them. Wagner v. City
of Portland, 40 Oreg. 389, 8 Am.
Electl. Cas. 671, 67 Pac. 300.

38. United States— Williams v.
Bunker Hill & Sullivan, ete., Co., 200
Fed. 211, 118 C. C. A. 397; reversing
190 Fed. 79.

Alabama.— Citizens’ L., H. & P.
Co. v. Lee, (Ala.) 62 So. 199.

Florida.— Jacksonville Elec. L. Co.
v. Sloan, 52 Fla. 257, 9 Am. Electl.
Cas. 891, 42 So. 516.

Indiana.— Marion L. & H. Co. v.
Vermillon, 51 Ind. App. 418, 94 N. E,
1038.

Kentucky.—.Cumberland Telep. &
Teleg. Co. v. Graves’ Adm’r, 31 Ky.
Law Rep. 972, 104 S. W. 356.

Maine.— Dirken v. Great Northern
Paper Co., 110 Me. 374, 86 Atl. 320.

Massachusetts.— Greene v. Boston
Elev. Ry. Co., 207 Mass. 467, 93 N. E.
837; Keeley v. Boston Elev. Ry. Co.,
192 Mass. 481, 9 Am. Electl. Cas.
821, 78 N. E, 490.

Michigan.— Meola v. Quincy Min-
ing Co., 174 Mich. 305, 140 N. W.
460; DeKallands v. Washtenaw Home
Telep. Co., 153 Mich. 25, 9 Am. Electi.
Cas. 1106, 116 N. W. 564, 15 Det.
Leg. N. 337, 15 Ann. Cas. 593.

Minnesota. Bernier v. St. Paul
Gaslight Co., 92 Minn. 214, 9 Am.
Electl. Cas. 125, 99 N. W. 778.

Montana.— Poor v. Madison River
Power Co., 38 Mont. 341, 99 Pac. 947.

Nevada— Cutler v. Pittsburgh
Silver Peak Gold Mining Co., 34 Nev.
45, 116 Pac. 418.

New York.—Carey v. Manhattan
Ry. Co., 116 N. Y. App. Div. 247,
101 N. Y. Supp. 63.

Oklahoma.— Fisher v. Prairie, 26
Okla. 337, 109 Pac. 514.

Utah.— Speight v. Rocky Mountain
Bell Telep. Co., 36 Utah 483, 107
Pac. 742.

Vermont.— Miner v. Franklin Co.
Telep. Co. 83 Vt. 311, 75 Atl. 653,
26 L. R. A. (N. S.) 1195.

Canada.— Montreal Park & Island
Ry. Co. v. McDougall, 36 Can. Sup.
Ct. 1.

34. Arnold v. Connecticut Co., 83
Ingurnizes TO EMPLOYEES. 865

rule, all patent dangers are assumed, but latent ones are
not assumed unless known to the servant. These general
rules are applied between electric, telegraph and telephone
companies and their respective employees. Assumption
of risk is generally a question for the jury, though undis-
puted facts may sometimes in the absence of statute make
a question of law for the court. A servant employed to
make a safe place dangerous or to make a dangerous place
safe, assumes the risk of the dangerous place ;* but it has
been held that an employee in such a dangerous place does
not assume the risk of an unnecessarily hazardous method
of doing the work.*

Sec. 565. Defective Pole.

A servant of an electric or other public service corpora-
tion assumes the risk of injury from all the obvious defects
in a pole used for the support of wires.*” He also, accord-
ing to the view adopted in some jurisdictions, assumes the
risks of latent defects.** But, according to the view gener-

Conn. 97, 75 Atl. 78; Barto v. lowa
Telep. Co., 126 Iowa 241, 9 Am.
Elect]. Cas. 255, 101 N. W. 876, 106
Am. St. Rep. 347. “Assumption of
risk implies knowledge of danger.
Denial of knowledge is equivalent to
a denial of assumption of risk.” Ten-
nis Co. v. Davis, 46 Ind, App. 436,
92 N. E. 986.

Knowledge of danger. A man of
mature years and judgment, not
laboring under any mental disability,
who has been warned from time to
time of the danger of being killed
while performing duties in proximity
to electric light wires, and who had
heard his fellow servants say that
they had received shocks while in the
same employment, and who witnessed
the effeet. of electricity on a horse,
communicated by a sagging wire, is
precluded from gainsaying knowledge
of the danger of electricity, and of
the hazards he was. incurring while

55

engaged in the service. Wagner v.
City of Portland, 40 Oreg. 389, &
Am. Electl. Cas. 671, 67 Pac. 300.

Question for jury— A telephone
operator after reporting previous
shocks, received while working at a
switchboard, continued at work. It
was held that whether she knew or
appreciated the danger was for the
jury. Cahill v. New England Telep.
& Teleg. Co., 193 Mass. 415, 9 Am.
Electl. Cas. 939, 79 N. E. 821.

35. Wight v. Cumberland Telep. &
Teleg. Co., 187 Ky. 299, 125 S. W.
718; White v. Thomasville L. & P.
Co., 151 N. Car. 356, 66 S. E. 210.

36. Clark v. Johnson County Telep.
Co., 146 Iowa 428, 123 N. W. 327.

37. Abilene L. & Water Co. v. Rob-
imson, (Tex. Civ. App.) 131 S. W.
299,

38. Kellogg v. Denver Cons. Tram-
way Co., 18 Colo. App. 475, 8 Am.
Electl. Cas. 749, 1 St. Ry. Rep. 2%,
866

Law oF EILEctRICcITY.

ally adopted, he does not assume the risk of injury from
latent defects in the pole unless he has actual knowledge
thereof, or it is his duty to acquire knowledge as to such
defect, and especially is this true where the company has
workmen employed exclusively for the inspection of ‘its
appliances.** The master may, however, require a servant

72 Pac. 609; Adams v. Central In-
diana Ry. Co., 38 Ind. App. 607, 78
N. E. 687; Evansville Gas & Elec. L.
Co. v. Raley, 38 Ind. App. 342, 76
N. E. 548, 78 N. E. 254; Sias v. Con-
solidated Lighting Co., 73 Vt. 35, 8
Am. Elect]. Cas. 787, 50 Atl. 554.
“We are of opinion that the risk of
falling on account of the weakness of
old poles was a risk of the business,
which the plaintiff. assumed by his
contract to work as a lineman for
the defendant; that, as between the
plaintiff and the defendant, the de-
fendant was under no obligation to
inspect 'the poles to see whether they
were decayed and unsafe, and there
was, therefore, no evidence of negli-
gence on the part of the defendant.”
Kellogg v. Denver Consol. Tramway
Co., 18 Colo. App. 475, 1 St. Ry. Rep.
27, 8 Am. Electl. Cas. 749, 72 Pac.
609.

39. United States— Jackson Fibre
Co. v. Meadows, 159 Fed. 110, 86
C. C. A. 300; Munroe v. Fred T. Ley
& Co., 156 Fed. 468, 84 C. C. A. 278;
Cumberland Telep. & Teleg. Co. v.
Bills, 128 Fed. 272, 62 C. C. A. 620.

Alabama.— Mobile Elec. Co. v.
Sanges, 169 Ala. 341, 53 So. 176,
Ann. Cas. (1912 B) 461.

Arkansas.— Southwestern Telep, Co.
v. Woughter, 56 Ark. 206, 19 S. W.
575, :

Massachusetts.— Dawson v. Law-
rence Gaslight Co., 188 Mass, 481, 74
N. E. 912; Lord v. Inhabitants of
Wakefield, 185 Mass. 214, 70 N. E.
123; Chisholm v. New England Telep.
& Teleg. Co., 185 Mass. 82, 69 N. E.

1042. See also, McIsaac v. North-
ampton Elec. L. Co., 172 Mass. 89,
51 N. E. 524, 70 Am. St. Rep. 244;

‘Tanner v. N. Y., N. H. & H. R. Co,

180 Mass. 572, 8 Am. Electl. Cas.
762, 62 N. B. 993.

Missouri— Corby v. Missouri & K.
Telep. Co., 231 Mo. 417, 132 S. W.
712; Hulse v. Home Telep. Co., 164
Mo. App. 126, 147 S. W. 1124,

New Hampshire Willis v. Plym-
outh & C. Telep. Exch. Co., 75 N. H.
453, 75 Atl. 877, 30 L. R. A. 477.

New York.— McGuire v. Bell Telep.
Co., 167 N. Y. 208, 7 Am. Electl. Cas.
769, 52 L. R. A. 437, 60 N. E. 433.

Rhode Island.— McDonald v. Postal
Teleg. Co., 22 R. I. 131, 46 Atl. 407.

South Carolina.— Jones v. Postal
Teleg. Cable Co., 91 S. Car. 273, 74
S. E. 492.

Texas.— Abilene L. & W. Co. v.
Robinson, (Civ. App.) 146 S. W.
1052; Abilene L. & Water Co. v. Rob-
inson, (Civ. App.) 131 S. W. 299.
See also, Southwestern Teleg. & Telep.
Co. v. Tucker, 50 Tex. Civ. App. 476,
110 S. W. 481.

Washington Murphy v. Pacific
Telep. & Teleg. Co., 68 Wash, 643,
124 Pac, 114.

Pole not sufficiently guyed.— It has
been held in the federal courts that
a lineman assumes the risk of injury
from the negligence of a fellow serv-
ant in guying a pole in an insecure
manner. Greene v. Western Union
Teleg. Co., 72 Fed. 250, 6 Am. Electl.
Cas. 393.

If a telephone pole is negligently
erected, by reason of having its lower
Inguries to EMPuovees.

867

to make an inspection of a pole before going upon the
same; and, if he imposes this duty on the servant, the
latter assumes the risks of all defects which he could have

discovered by an inspection.‘

Thus, the question of

assumed risks sometimes turns on whether the master
employs independent workmen for the inspection of the
poles or whether such duty is to be performed by each

end inserted too short a distance in
the ground, and a lineman while en-
gaged in stretching wires on the pole
is injured, and the defect is latent
and not known to him or discoverable
by him by the use of ordinary care
in the discharge of the duties im-
posed on him, a rule of the company
that linemen must inspect poles be-
fore climbing them would not neces-
sarily debar the servant from recover-
ing from the master. The nature of
the servant’s duties, the exigencies
thereof, the opportunity on his part
for discovering the defect, and the
knowledge of opportunity for know-
ing by the master, as disclosed by
the evidence, are elements for con-
sideration. Southern Bell Telep. &
Teleg. Co. v. Covington, 139 Ga. 566,
77 8. EL 382.

40. United States—Britton v.
Cent. Union Tel. Co., 131 Fed. 844,
65 C. C. A. 598. “ We see no reason
why a lineman, in view of the pecu-
liar character of his work, may not
lawfully contract to do any inspecting
or testing reasonably necessary to de-
termine whether he can safely climb
a particular pole for the purpose of
adjusting, transposing or placing new
wires. His acceptance of service with
knowledge of the way in which the
company conducts this part of its
business, whether that way be the
safest for him or not, would imply
an assumption of the risks incident
to that mode of carrying on its
work.’ Britton v. Cent. Union Tel.
Co., 131 Fed. 844, 65 C. C. A. 598.

Alabama.— Mobile Elec. Co. v.
Sanges, 169 Ala. 341, 53 So. 176,
Ann, Cas. (1912 B) 461.

Georgia— Southern Bell Telep. &
Teleg. Co. v. Covington, 139 Ga. 566,
77'S. E. 382.

MIllinois.—DeF rates v. Central Union
Telep. Co., 243 Ill. 356, 90 N. E. 719.

Louisiana.— Eigenbrod v. Cumber-
land Telep. & Teleg. Co., 121 La. 228,
46 So. 219.

Michigan.— Lynch v. Saginaw Val-
ley Tract. Co., 153 Mich. 174, 116
N. W. 983, 15 Det. Leg. N. 444, 21
L. R. A. (N. S.) 774; Krimmel v.
Edison Illum. Co., 130 Mich. 613, 8
Am. Elect]. Cas. 766, 90 N. W. 336,
9 Det. Leg. N. 134.

_ South Carolina— Jones v. Postal
Teleg. Cable Co., 91 S. Car. 273, 74
8. E. 492.

Texas.— Abiline L. & Water Co. v.
Robinson, (Tex. Civ. App.) 131 S. W.
299.

Washington.—Hord v. Pacific Telep.
& Teleg. Co., 68 Wash. 119, 122 Pac.
598.

Original construction— Where a
telephone company has two gangs of
workmen for the construction of a
telephone line, one to set the poles,
and the other to string the wires
thereon, a lineman of the second gang
does not assume the risk of a defect-
ive pole though the company has
given him a written notice requiring
him to inspect its poles and know
they are safe before climbing them.
Ault v. Nebraska Telep. Co., 82 Neb.
434, 118 N. W. 73.
868 Law or ELEcTRICITY.

servant before going upon the poles. If the foreman of
a gang of workmen, one of whom is about to climb a pole,
gives the lineman no opportunity to inspect the pole, he
does not assume the risk of defects therein although the
company employs no inspectors to do such work." In
some states it is held that, if the lineman knows that the
company employs no workmen for the inspection of poles,
he assumes the risk though the duty of inspection is not
expressly devolved on him.*? Where the employment of
the lineman is the taking down of old and decayed poles
and the replacing of them with new ones, the employee
assumes the risk of the falling of a pole while he is working
on it. A servant cannot recover damages for an injury
caused by a defect he is employed to repair.**

Poles of Other Companies.— One company sometimes
uses the pole of another company maintained in the same
street, and thereby adopts such pole as a working place
for its employees.** Where such is the case, the company
is charged with the same care in keeping such place safe,
to the end that its employees will not be injured by defects
therein. If the pole is adopted by the master so as to
become a part of the servant’s working place, he assumes
the risk of defects therein the same as though the pole was
owned by the master.** Likewise, as in the case of the
poles owned by the master, if the latter employs workmen
for the purpose of inspecting its appliances, a servant does
not assume the risks of latent defects.**

41. Munroe v. Fred T. Ley & Co.,
156 Fed. 468, 84 C. C. A. 278; West-
ern Union Teleg. Co. v. Holtby, 29
Ky. Law Rep. 523, 93 S. W. 652;
Miller v. Missouri & Kansas Telep.
Co., 141 Mo. App. 462, 126 S. W.
187. See also, Western Union Teleg.
Co. v. Tweed, (Tex. Civ. App.) 138
S. W. 1155.

42. Ewald v. Mich. Cent. R. Co.,
107 Ill. App. 294; Lynch v. Saginaw
Valley Tract Co., 153 Mich. 174, 116
N. W. 983, 15 Det. Leg. N. 444, 21
L. R. A. (N. 8.) 774; Hulse v. Home

Telep. Co., 164 Mo. App. 126, 147
S. W. 1124.

48. Saxton v. Northwestern Telep.
Exch. Co., 81 Minn. 314, 84 N. W.
109. But see, Corby v. Missouri & K.
Telep. Co., 231 Mo. 417, 132 S. W.
712.

44. § 553.

45. Dixon v. Western Union Teleg.
Co., 71 Fed. 143, 6 Am. Electl. Cas.
370; Dixon v. Western Union Teleg.
Co., 68 Fed. 630.

46. McGuire v. Bell Telep. Co., 167
N. Y. 208, 7 Am. Electl. Cas. 769,
60 N. E. 433, 52 L. R. A. 437.
Ingurres to EMPLOYEES. 869

Sec. 566. Assumption of Risk by Servant; Cross-Arms.

The legal position of cross-arms and of injuries arising
from defects therein is similar to that of poles and injuries
therefrom. Some authorities sustain the view that the
servant does not assume the risk of injury from latent
defects in cross-arms,* but others insist that an employee
assumes the risk of the breaking of a cross-arm,* unless
workmen are employed by the company for the specific
purpose of examining and discovering defects therein.”
Different results will necessarily be reached in different
cases, for the question ultimately depends on the nature
of the servant’s employment in the particular case. If he
is required under his contract of employment to make the
inspection himself, he cannot recover for injuries which
result from his failure to make a proper examination of
the appliances before using them.”

Sec. 567. Assumption of Risk by Servant; Shock from
Master’s Appliances.

A servant employed by an electric company to work
around dangerous electrical appliances assumes the risk
of injury from the ordinary and usual incidents of the
business. Thus, if employed to handle or work near
electric wires, the danger of which he appreciates, he gen-
erally assumes the risk of injury therefrom.” So, too, a

47. Indianapolis Telep. Co. v. 49. Consolidated Gas, Electric L. &

Sproul, 49 Ind. App. 613, 93 N. E.
463; Jennison v. Waltham Gaslight
Co., 201 Mass. 352, 87 N. E. 594;
Rutledge v. Swinney, 170 Mo. App.
251, 156 S. W. 478; McDonald v.
Postal Teleg. Cable Co., 22 R. I. 131,
46 Atl. 407.

48. Consolidated Gas, Electric L. &
P. Co. v. Chambers, 112 Md. 324, 75
Atl. 241, 26 L. R. A. (N. S.) 5095
Johnston v. Syracuse Lighting Co.,
193 N. Y. 592, 86 N. E. 539; Flood
v. Western Union Teleg. Co, 131
N. Y. 603, 4 Am. Electl, Cas. 402,
30 N. E. 196.

P. Co. v. Chambers, 112 Md. 324, 75
Atl. 241, 26 L. R. A. (N. 8.) 509.

50. Roberts v. Missouri & K. Tel.
Co., 166 Mo. 370, 8 Am. Electl. Cas.
767, 66 S. W. 155.

51. Junior v. Missouri E. L. & P.
Co., 127 Mo. 79, 5 Am. Elect]. Cas,
369, 29 S. W. 988; Shelton v. Kirks-
ville Light, Power & Ice Co. (Mo.
App.) 167 S. W. 544; Carr v. Man-
chester Elec. Co., 70 N. H. 308, 7
Am, Elect]. Cas. 746, 48 Atl. 286;
Register v. Tidewater Power Co.,
(N. Car.) 81 S. E. 326; Zentner v.
Oshkosh Gaslight Co., 132 Wis. 447,
870 Law or ELEctTRICITY.

trouble hunter of a telephone or electric company who
knows that a high tension current has become diverted or
grounded and who is sent to locate or repair the difficulty,
assumes the risk of injury from wires or appliances which
he touches in his attempt to locate the trouble.” But the
facts may justify a lineman or other employee in assuming
that a wire is not dangerous to contact. For example, if
it is the custom of the company to shut off the current
when the linemen are working on the wires, or if the
employee relies upon an assurance by his foreman that the
wire is not dangerous to touch, the question of assumption
of risk may be one for the jury." An employee generally
assumes the risk of injury from defects he is employed to

remedy.**

112 N. W. 449. Sea also, Argersinger
v. Commonwealth Power Co., 164
Mich, 282, 129 N. W. 889, 17 Det.
Leg. N. 1201.

Third rail— A servant employed to
paint an elevated railroad structure
and furnished with a metal “swab”
with which to paint places not other-
wise accessible, who knows that it is
dangerous to bring the swab in con-
tact with the electrically charged
third rail near which he is working,
assumes the risk of injuries which
result from a short circuit caused
by the simultaneous contact of the
swab with the third rail and a girder.
Under the circumstances the place
itself is a risk assumed by the serv-
ant. The assumption of risk is not
lessened because the servant may be
ignorant of the exact result of bring-
ing his tool in contact with the rail
or that the result is technically
known as w short circuit, if in fact
he' knew that to make the contact
was “very dangerous.” James v.
Cranford, 123 N. Y. App. Div. 558,
108 N. Y. Supp. 142.

52. People’s Telep. Co. v. Conant,
198 Fed. 624, 117 C. C. A. 328; Bell
Telep. Co. v. Detharding, 148 Fed.

A telephone employee assumes the danger of

371, 9 Am, Electl. Cas. 852, 78 C. C.

A. 185; Cumberland Telep. & Teleg.
Co. v. Magness’ Adm’x, 156: Ky. 330,
160 S. W. 1061.

Ordered to shake wire—JIn an ac-
tion by a trouble shooter, a man em-
ployed to repair and correct outside
lines, to recover for injuries sustained
by coming in contact with a live wire,
while placing a fuse plug in a trans-
former, it appeared that the plaintiff
was ordered by the chief electrician
to shake certain wires and was
thereby injured, that the wires in
question were improperly insulated,
and that plaintiff had no knowledge
that they were dangerous; and it was
held that the question whether plain-
tiff assumed the risk or was guilty
of contributory negligence was for the
jury. Chicago Suburban Water &
Light Co. v. Hyslop, 227 Ill. 308, 9
Am. Electl. Cas. 1037, 81 N. E. 379.

53. Reeve v. Colusa Gas & Electric
Co., 152 Cal. 99, 92 Pac. 89; Chicago
Edison Co. v. Hudson, 66 Ill. App.
639.

54. Manager of electric light plant.
—Where an electrician, employed as
the manager of an electric light plant,
undertook to put the plant in proper
Insunies TO EMPLOYEES. 871
passing a rope under an electric wire where he knows the
danger of his act. But an engineer at an electric light
plant does not, it has been held, assume the risk of injury
from a low tension wire which has become dangerous on
account of the crossing of wires outside of the building.”
As to defects in appliances existing by reason of the negli-
gence of the master, the servant does not generally assume
the risk of injury therefrom,” unless he has actual knowl-
edge of the defect,** or the danger is so obvious that in the
exercise of reasonable care he should acquire knowledge
thereof.” But, it has been held, that a person employed to
paint a transformer does not necessarily assume the risk

working order, the owners of the
plant, placing him in a position where
he could obtain all the necessary ma-
terials for that purpose, and about
three months after he was placed in
charge of the works, he was killed by
coming in contact with an incandes-
cent lamp socket with insufficient in-
sulation which had been there during
the whole of the time he Was in
charge, it was held that there could
be no recovery for his death. David-
son v. Stuart, 34 Can. Sup. Ct. 215.

55. Newnom v. Southwestern Teleg.
& Telep. Co., (Tex.) 47 S. W. 669.

56. Belvidere Gas & Electric Co. v.
Boyer, 122 Ill. App. 116.

57. Greene v. Boston Elev. Ry. Co.,
207 Mass. 467, 93 N. E. 837; Berner
vy. St. Paul Gaslight Co., 92 Minn.
214, 9 Am. Electl. Cas. 125, 99 N. W.
778; Cessna v. Metropolitan St. Ry.
Co., 118 Mo. App. 659, 9 Am. Elect.
Cas, 810, 5 St. Ry. Rep. 619, 95 S. W.
277; New Omaha Thomson-Houston
Elec. L. Co. v. Dent, 68 Neb. 668, 8
Am. Electl. Cas. 648, 94 N. W. 819,
103 N, W. 1091; Cutler v. Pittsburgh
Silver Peak Gold Mining Co., 34 Nev.
45, 116 Pac. 418; Carey v. Manhattan
Ry. Co., 116 N. Y. App. Div. 247, 101
N. Y. Supp. 63.

Contact with third rail— In an ac-
tion by a laborer against an elevated

railway company for personal injuries
received as a result of striking a
third rail with a chisel, it was held
that it could not be said as a matter
of law that he assumed the risk.
Keeley v. Boston Elev. Ry. Co., 192
Mass. 481, 9 Am. Electl. Cas. 821, 78
N. E. 490.

Defective splice— A lineman does
not necessarily assume the risk of in-
jury from a defective splice in a
cable, where there is nothing on the
outside to indicate the defect in the
cable. Greene v. Boston Elev. Ry.
Co., 207 Mass. 467, 93 N. E. 837.

58. Blalack v. Texas Tract Co.,
(Tex. Civ. App.) 149 S, W. 1086.

59. Burke v. Union Coal & Coke
Co., 157 Fed. 178, 84 ©. C. A. 626.

Insulation not obviously defective.
—A break in insulation of an elec-
tric wire handled by a lineman is not
an open and obvious defect, notice of
which will be imputed to him, where
under the evidence there exists rea-
sonable grounds for difference of
opinion as to his being able to ob-
serve such break in the prosecution
of his work in the ordinary way and
without a special effort. New Omaha
Thomson-Houston Elec. Co. v. Dent,
68 Neb. 668, 8 Am. Electl. Cas. 648,
94 N. W. 819, 103 N. W. 1091.
872 Law or ELEctTRICcITY.

of shock from a nearby wire, where he relies upon an
assurance of safety given by his master. Similarly,
where a carpenter was employed by an electric company
to do work around the power house and he was told by the
foreman that the wires near which he was working were
not dangerous, it was held that he did not necessarily
assume the risk of injury therefrom. An employee
intrusted with the duty of inspecting electric appliances
assumes the risk of injury from defects he should discover
by an exercise of ordinary care;* and, while he is actually
engaged in the duty of inspection, he assumes all dangers
incident thereto, whether latent or patent.”

Sec. 568. Assumption of Risk by Servant; Shock from
Appliances of Another Company.

If one company having electrical appliances in a highway
permits another to maintain its appliances so close thereto
that the servant of the former may come in contact there-
with while engaged in the ordinary pursuit of his employ-
ment, his master may thereby adopt the appliances of the
other company as part of the working place of its servant.
If such is the case and the servant is not specifically
charged with the duty of inspecting the appliances of the
other company, he has a right to assume that his master
has not permitted a dangerous condition to exist in his
working place without warning him thereof, and he does
not, therefore, assume the risk of injuries from unknown
dangers in the appliances of other companies not dis-
coverable by an exercise of reasonable care. If, how-

versed, 68 Neb. 54, 9 Am. Electl. Cas.
302, 97 N. W. 1030.

63. Redding v. Central Georgia
Telep. Co., 6 Ga. App. 831, 65 S. E.

60. Latimer v. General Electric Co.,
81 S. Car. 374, 62 8. E. 438.
61. Chicago Edison Co. v. Hudson,

66 Ill. App. 639; Poor v. Madison
River Power Co., 39 Mont. 341, 99
Pac. 947.

62. Quebec Ry., L. & P. Co. v. For-
tin, 40 Can. Sup. Ct. 181. See also,
New Omaha Thomson-Houston Elec.
L. Co. v. Rombold, 68 Neb. 54, 8 Am.
Elect]. Cas. 654, 93 N. W. 966; re-

1068.

64. § 553.

65. United States.— Co-Operant
Telep. Co. v. St. Clair, 168 Fed. 645,
94 C0. C. A. 109.

IHinois.— Postal Teleg. Cable Co.
v. Likes, 225 Ill. 249, 9 Am. Electl.
Cas. 986, 80 N. E. 136,
Insuries to EMPLOYEES. 873
ever, he has actual knowledge of the danger or if the defect
is one which in the exercise of due care he should have
discovered, he is deemed to have assumed the risk of
injury therefrom.” If he is required to inspect appli-
ances before coming in' proximity to them, he will be
charged with knowledge of all dangers that an inspection
would have disclosed.“ Where a telephone lineman is
injured by contact between the telephone wire he is han-
dling and the high tension wire of another company, it has

Indiana Ambre v. Postal Teleg.
Cable Co., 43 Ind. App. 47, 86 N. E.
871; Lyons v. City of New Albany,
(Ind. App.) 103 N. E. 20.

Kansas.— Biddle v. Leavenworth L.,
H. & P. Co., 87 Kan. 604, 125 Pace. 51.

Kentucky.— Cumberland Telep. &
Teleg. Co. v. Graves’ Adm’x, 31 Ky.
Law Rep. 972, 104 S. W. 356.

New Jersey.— Snyder v. New York
& N, J. Telep. Co., 73 N. J. Law 535,
9 Am. Electl. Cas. 817, 64 Atl. 122;
Western Union Teleg. Co. v. MeMul-
len, 58 N. J. Law 155, 6 Am. Electi.
Cas. 338, 33 Atl, 384, 32 L. R. A.
351.

Utah.— Speight v. Rocky Mountain
Bell Telep. Co., 36 Utah 483, 107 Pac.
742.

Vermont.— Drown v. New England
Telephone & Teleg. Co., 81 Vt. 358, 70
Atl. 599.

Compare, Chisholm v. New England
Telep. & Teleg. Co., 176 Mass, 125,
57 N. E. 383.

Danger from feed wires attached to
aepole at a point below telegraph or
telephone wires was not one of the
ordinary risks assumed by a lineman
engaged in stringing telegraph wires,
where the wires appeared to be ordi-
nary telephone or telegraph wires,
and harmless, and their dangerous
character could not be discovered by
ordinary inspection. Postal Teleg.
Cable Co. v. Likes, 225 Ill. 249, 9
Am. Electl. Cas. 986.

A telephone lineman, who was not
an inspector and was ignorant of the
method of testing live wires, cannot
be held to have assumed the risk, as
a matter of law, of injury from an
electric light wire fastened to the
telephone pole by an electric light
company. Barto v. Iowa Telep. Co.,
126 Iowa 241, 9 Am. Electl. Cas. 255,
101 N. W. 876, 106 Am. St. Rep. 347.

66. Co-Operant Telep. Co. v. St.
Clair, 168 Fed. 645, 94 C. C. A. 109;
Anglea’s Adm’x v. East Tennessee
Telep. Co., 142 Ky. 539, 134 8S. W.
1119; Snyder v. New York & N. J.
Telep. Co., 73 N. J. Law 535, 9 Am.
Electl. Cas. 817, 64 Atl. 122; Ft.
Worth L. & P. Co. v. Moore, 55 Tex.
Civ. App. 157, 118 8. W. 831.

67. Employee required to inspect
wires.— An insulator on a pole used
in common by a street railway com-
pany and a telephone company broke,
thus causing a span wire to come in
contact with the charged trolley wire.
An employee of the telephone com-
pany touched the span wire and re-
ceived a fatal shock. It appeared
that inspection was one of the duties
of linemen; and he had with him ap-
paratus for testing the wire. Held,
that he had no right of recovery
against his employer, the telephone
company. Anderson v. Inland Telep.
& Teleg. Co., 19 Wash. 575, 7 Am.
Elect]. Cas. 725, 53 Pac. 57, 41 L. R.
A. 410.
874 . Law oF ELECTRICITY.

been held that the question of assumed risk is for the jury,
where there is evidence that he had no knowledge of the
danger of the situation.** But in other cases, it has been
held that the risk of injury from the contact of the two
wires is one which is assumed by the servant. Where an
employee, in the stringing of a wire for a call bell, goes
upon the roof of a building over which a dangerous electric
wire is maintained, and he, knowing the character of the
wire and the danger of contact therewith and that the roof
is in a wet and'slippery condition, assumes the risk of
injury from slipping and coming in contact with such
wire.” Where a telephone employee was ‘‘ riding ’’ the
messenger wire and came in contact with an electric wire
not insulated as required by municipal ordinance, it was
held that the risk was not one which he assumed as a mat-
ter of law.”

Sec. 569. Assumption of Risk by Servant; Street Rail-
way Employees.

While a street railway company must use reasonable
care to locate and maintain its street railway posts at such
a distance from its track that employees, in the ordinary
course of their employment, will not come in contact there,
with,” it is clear that, if the employee has acquired actual
knowledge of the location of the posts,” or if the danger-
ous proximity is obvious and he has continued in the
employment for such a length of time that knowledge

68. New England Telep. & Teleg.
Co. v. Butler, 156 Fed. 321, 84 C. C.
A. 217.

69. De Kallands v. Washtenaw
Home Telep. Co., 153 Mich. 25, 9
Am. Elect]. Cas. 1106, 116 N. W.
564, 15 Det. Leg. N. 337, 15 Ann.
Cas. 593; Western Union Teleg. Co.
v. Burton, 53 Tex, Civ. App. 378, 115
S. W 364.

70. Davis v. Port Huron Engine &
Thresher Co., 126 Mich. 429, 85 N. W.
1125, 8 Det. Leg. N. 120.

71, Olson v. Nebraska Telep. Co.,
83 Neb. 735, 120 N. W. 421; modified,
85 Neb. 331, 123 N. W. 422; same
case, 87 Neb. 593, 127 N. W. 916.

72. § 555.

78. Govan v. New Orleans & C. Ry.
Co., 111 La. 125, 2 St. Ry. Rep. 336,
35 So. 484; Savage v. Rhode Island
Co., 28 R. I. 391, 5 St. Ry. Rep. 829,
67 Atl. 633; Houston Elec. Co. v.
Robinson, (Tex. Civ. App.) 2 St. Ry.
Rep. 893. 76 S. W. 209.
Insunies To EMPLOYEES. 875
thereof may be imputed to him, he assumes the risk of
injury therefrom. In the absence of evidence, however,
showing that the employee had actual knowledge of the
location of the pole with which he collided, or that its
proximity was so patent as to exclude his ignorance, he
cannot be held to have assumed the danger.” As one of
the natural incidents of his employment, a street railway
servant assumes the risk of injury from poles which are
located and maintained in a proper manner.”

Sec. 570. Contributory Negligence; in General.

In the absence of Workmen’s Compensation Laws, or
other statutes abrogating the defense, a servant may not
recover from his master damages for injuries, where the
servant’s negligence contributed to the receipt of the
injury. Broadly stating a rule of general application,
whether an employee is guilty of contributory negligence
is a question for the jury,” but in particular instances the
undisputed facts frequently require courts to hold that

74. Kath v. East St. Louis, etc.,
Ry. Co., 232 Ill. 126, 83 N. E. 533, 15
L. R. A. (N. 8S.) 1109; Ladd v. Brock-
ton St. Ry. Co., 180 Mass. 454, 62
N. E. 730; Moore v. Chattanooga
Elec. Ry. Co., 119 Tenn. 710, 109
S. W. 497, 16 L. R. A. (N. 8S.) 978.

75. Hoffmeier v. Kansas City &
Leavenworth R. Co., 68 Kan. 831, 2
St. Ry. Rep. 288, 75 Pace. 1117;
Louisville, etc., R. Co. v. Hardin’s
Adm’r, 154 Ky. 282, 157 S. W. 15;
Withee v. Somerset Tractions Co., 98
Me. 61, 2 St. Ry. Rep. 380, 56 Atl.
204; Pikesville, etc., R. Co. v. State,
88 Md. 563, 42 Atl. 214; Pierce v.
Camden, G. & W. Ry. Co., 58 N. J.
Law 400, 6 Am.+Electl. Cas. 377, 35
Atl, 286. “The plaintiff, upon en-
tering the defendant’s service, ac-
cepted no risk arising from its negli-
gence. He had a right to assume
that the company had not set him to
toil in the midst of danger. He had

a right to assume the road was built
with ordinary care and consideration
for the safety of the men who were
to operate it, and he was not obliged
to make any independent investiga-
tion for hazards resulting from the
disregard of such care. Without ac-
tual knowledge of his peril, or a pat-
ency so ample as to exclude ignor-
ance, the plaintiff assumed no risk
in continuing to work under the con-
ditions surrounding him.” Hoffmeier
v. Kansas City & Leavenworth R. Co.,
68 Kan. 831, 2 St. Ry. Rep. 288, 75
Pac. 1117.

76. Pikesville, etc., R. Co. v. State,
88 Md. 563, 42 Atl. 214, 5 Am, Neg.
Rep. 358.

77. O’Donnell’s Adm’r y. Louisville
Elec. L. Co., 21 Ky. Law Rep. 1362,
7 Am. Electl. Cas. 587, 55 8, W. 202;
Martin v. North Jersey St. Ry. Oo,
81 N. J. Law 562, 80 Atl, 477,
(1912 D) Ann. Cas. 212,
876 Law or ELectrictry.

employees have been guilty of negligence as a matter of
law.** Engaging in a hazardous occupation, such as the
handling of high tension electric currents, is not, of itself,
contributory negligence ;” the employee’s conduct is to be
judged, not solely from the nature of his occupation, but
from his acts or omissions in view of the hazards of his
employment. Electric employees and linemen of experi-
ence are charged with knowledge of the danger of per-
mitting electric currents of high voltage to pass through
their bodies, and they are held to the obligation of exer-
cising care proportionate to the danger in order that such
currents will cause no injury. On the trial, the question
is whether the servant, considering the dangers of his
employment, his knowledge and experience, the surround-
ing physical conditions and all the other attending
circumstances, exercised that degree of care which an
ordinarily prudent servant would have exercised under
the same circumstances. But, though required to exercise
a high degree of caution for his own safety, an electrical
employee may generally assume that the company has not
by its negligence or wrongful act enhanced the danger
ordinarily incident to his employment.*°

The burden of proof on the issue of contributory negli-
gence is generally governed by statute. In the absence of
statute on the question, it is generally held that freedom
from contributory negligence must be shown by the serv-
ant in order to recover for his injuries, though the courts
of some jurisdictions otherwise place the burden.*? When

78. Dixon v. Louisiana Elec. L, & 81. In the federal courts it is held
P. Co., 47 La. Ann. 1147, 17 So. 696; that the burden of showing contribu-
Mulligan v. McCaffrey, 182 Mass. 420, tory negligence rests on the defendant.
65 N. E. 831, But this rule does not apply where

79. Myhan v. Louisiana Elec. L. & the negligence is plainly inferable
P. Co., 41 La. Ann. 964, 6 So. 799, 7 from the plaintiff’s own statement of
L, R. A. 122, 17 Am. St. Rep. 436, his cause of action. Moore v. East

80. Birmingham Ry., H.& P.Co.v. Tennessee Telep. Co., 74 C. C. A. 227,
Canfield, 177 Ala. 422, 59 So. 217; 142 Fed. 965,

Myhan v. Louisiana Elec. L. & P. Co.,
41 La. Ann. 964, 6 So. 799, 7 L. R. A.
122, 17 Am. St. Rep. 436.
Insurtes To EMPLOYEES. 877
statutes have been enacted on the matter, they have gener-
ally placed the obligation on the matter to show the con-
tributory negligence of the injured servant.

Sec. 571. Contributory Negligence; Failure to Use Rubber
Gloves.

Where a servant is employed to handle wires which are
or may reasonably be expected to be charged with a deadly
current of electrcity, and the master furnishes rubber
gloves for the use of such servant but the latter fails to
use them, he may be charged with contributory negligence
as a matter of law. Ordinary prudence requires the serv-
ant under such circumstances to use such appliances and
devises as are furnished by the master for his protection,
and the failure to do so may constitute such a clear case
of negligence that the court may be authorized as a mat-
ter of law to refuse recovery for injuries to the servant.
But the issue of contributory negligence is not one which
may be arbitrarily decided by the criterion of rubber
gloves or no rubber gloves. What is required of the
servant is that he exercise due care under the circum-
stances. He may fulfill his obligation under the law by
laying aside his gloves-and using some other method of
protecting himself from electric shock. Moreover, where
the employee has no reason to believe that the wire he is
about to handle is charged with a dangerous current of
electricity, he may not be negligent in touching it without
guarding against shock therefrom.” The case when con-
tributory negligence is disposed of as a matter of law is
where the servant knows or should know the danger of
contact with the wire, and the master has furnished gloves

82. Harroun v. Brush Elec. L. Co.,
12 N. ¥. App. Div. 126, 6 Am. Electl.
Cas. 357, 42 N. Y. Supp. 716; appeal
dismissed, 152 N. Y. 212, 46 N. E.
291, 38 L. R. A. 615; Marion L. & H.
Co. v Vermillion, 51 Ind. App. 418,
94 N. E. .1038; same case, 51 Ind.
App. 677, 99 N. E. 55, 100 N. E. 100.

Live wires near.— An electric line-

man is not necessarily guilty of con-
tributory negligence in failing to wear
rubber gloves while taking down dead
electric wires, though such wires are
immediately over live wires, but the
issue of contributory negligence is for
the jury. Kelly v. Com. Elec. Co.,
167 IT]. App. 210.
878 Law or ELectriciry.

to avoid injury from the contact, but the servant fails to
avail himself of that protection or any reasonable sub-
stitute for the avoidance of injury.*

Sec. 572. Contributory Negligence; Use of Safety Belt.

If a lineman knows or should know that the wearing of
a safety belt is reasonably necessary for the avoidance of
injury, and that linemen doing similar work ordinarily
wear such belts, the failure to use such a precaution as a
guard against injury may constitute contributory negli-
gence.* But ordinarily contributory negligence will not
be inferred from the failure of a servant to use a belt to
protect himself from falling from a pole.*

Sec. 573. Contributory Negligence; Contact with Appli-
ance Known to be Dangerous.

A lineman, who, knowing that an electric appliance is
dangerous to contact, nevertheless deliberately touches the
same, should not be allowed to complain of the injuries he
receives from the contact. Under the common law rule,
his contributory negligence or deliberate act will bar any
recovery for his injury; and, even under the Workmen’s
Compensation Laws of some states, it may, perhaps, be
that under such circumstances he will be precluded from
recovering compensation. A different rule may prevail
where the touching of the appliance may be said to be an
act in an emergency.“ And a different situation is, of
course, created where the servant attempts to avoid con-
tact, but fails. In such a case his contributory negligence
is to be determined on the issue whether he acted in a
reasonably prudent manner in his attempts to avoid con-

83. Junior v. Missouri E. L. & P. 84. Roberts v. Missouri & K. Tel.
Co., 127 Mo. 79, 5 Am. Electl. Cas. Co., 166 Mo. 370, 8 Am. Elect]. Cas.
369, 29 S. W. 988; Larkin v. Queens- 767, 66 S. W. 155.
boro Gas & Elec. L. Co., 158 N. Y. 85. Smithgall v. American Union
App. Div. 414, 143 N. Y. Supp. 578;  =Telep. Co., 45 Pa. Super. Ct. 372.
Hart v. Allegheny County L. Co., 201 85a. § 579.

Pa. St. 234, 8 Am. Electl. Cas, 832,
50 Atl. 1010.
Insuries TO HMPLOYEEs. 879
tact. His failure to avoid contact may, under the circum-
stances of a particular case; constitute contributory negli-
gence as a matter of law;* but, on the other hand, different
circumstances may require that the issue of contributory
negligence be presented to the jury. Where the servant
goes into a place close to wires he knows to be dangerous,
and the place is so dark that the wires cannot be seen,
contributory negligence may be inferred as a matter of
law.*” The employee cannot escape the charge of negli-
gence by testifying that he forgot the danger. In places of
extreme danger, to forget may be negligent.** Where the
servant thinks that a wire or other appliance is dangerous
but is assured by his foreman that there is no danger, he
will not usually be charged with contributory negligence
as a matter of law. But the servant is, nevertheless,
required to exercise due care for his safety; if he knows
of the danger he has no right to rely upon the assurance
of another that contact is safe, and contributory negligence
as a matter of law may be found in spite of his reliance
upon the opinion of his superior. Negligent reliance may
forbid his recovery.”

Sec. 574. Contributory Negligence; Contact with Appli-
ance Not Known to be Dangerous.

As a general proposition, an employee is not necessarily
guilty of contributory negligence where he touches an
electric appliance from which he believes no dangerous
electric current will pass to his person.” Thus, where an

86. Sweezo v. Cheboygan Elec. L. &
P. Co., 166 Mich. 25, 131 N. W. 125;
Anglin v. American Constr. & Trad-
ing Co., 109 N. Y. App. Div. 237, 96
N. Y. Supp. 49; affirmed without
opinion, 186 N. Y. 590, 79 N. E.
1100.

87. Woelflen v. Lewiston-Clarkston
Co., 49 Wash. 405, 95 Pac. 493.

88. Ergo v. Merced Galle Gas &
Elec. Co., 161 Cal. 334; 119 Pac. 101,
41 L. R. A. (N. 8.) 79.

89. East Tenn. Telep. Co. v. Bower,
143 Ky. 777, 187 8. W. 523.

90. Epperson v. Postal Teleg. Cable
Co., 155 Mo. 346, 7 Am. Electl. Cas.
736, 50 S. W. 795, 55 S. W. 1050.

91. Jordan v. Missouri & Kansas
Telep. Co., 136 Mo. App. 192, 116
S. W. 432; Cessna v. Metropolitan St.
Ry. Co., 118 Mo. App. 659, 9 Am.
Electl. Cas. 810, 5 St. Ry. Rep. 619,
95 8S. W. 277; Poor v. Madison River
Power Co., 38 Mont. 341, 99 Pac.
947; Latimer v. General Electric Co.,
81 S. Car. 374, 62 S. E. 438; South-
western Telep. & Teleg. Co. v. Sand-
ers, (Tex. Civ. App.) 138 S, W. 1181.
880 Law oF ELEctRicity.

electric lineman has been informed by his foreman that
the current would be turned off from certain wires, his
negligence in touching them is a question for the jury.”
So, too, if it is the custom of an electric company to turn
the current off its wires where its lineman is required to
work, he is not necessarily guilty of negligence in assuming
and believing that such wires are dead.® Likewise, a tele-
phone or telegraph lineman, not discerning the danger of
an electric wire close to the place he is required to work,
is not necessarily guilty of contributory negligence because
he fails to avoid contact therewith.** But the servant is
charged by the law with such knowledge as he would have
acquired had he been in the exercise of due care; and,
therefore, if the defect in or danger of the appliance was
so obvious that the court can say, as a matter of law, that,
if he had exercised due care, he would have detected the
danger, he cannot recover for injuries caused by a deliber-
ate contact, though he actually be ignorant of the danger.*®
Where a servant receives an injurious shock of electricity
from a defective electric appliance, knowledge of the
danger is not to be imputed to him merely because he
knows that other persons have received light shocks from

92. Smith v. Milwaukee Elec. Ry.
& L. Co., 127 Wis. 253, 9 Am. Electl.
Cas. 638, 106 N. W. 829. “If plain-
tiff was ignorant of the hidden dan-
ger, and was acting in reliance on
the defendant’s promise to cut off
the current and assurance of safety,
he would naturally and reasonably
regard the wire harmless, and thus
fail to take the necessary precaution
to avoid contact with it.” Latimer
v. General: Electric Co., 81 S. Car.
374, 62 S. E. 438.

93. Reeve v. Colusa Gas & Electric
Co., 152 Cal. 99, 92 Pac. 89.

94. Co-Operant Telep. Co. v. St.
Clair, 168 Fed. 645, 94 C. C. A. 109;
Southern Bell Telep. & Teleg. Co. v.
Shamos, 12 Ga. App. 463, 77 S. E.
312; Jordan v. Missouri & Kansas

Telep. Co., 136 Mo. App. 192, 116
S. W. 432; Harworth v. Mineral Belt
Telep. Co., 105 Mo. App. 161, 79S. W.
727; City v. Suburban Teleg. Ass’n
v. Kelly, 28 Oh. Cir. Ct. R. 820.

Where a telephone lineman has
no knowledge of or reason to suspect
the presence of a high voltage wire
on a telephone pole, he is not guilty
of contributory negligence as « mat-
ter of law because be failed to in-
spect such wire. Raab v. Hudson
River Telep. Co., 139 N. Y. App. Div.
286, 123 N. Y. Supp. 1037.

95. Law v. Cent. Dist. Printing &
Teleg. Co., 140 Fed. 558, 9 Am. Electl.
Cas. 513; Memphis Consol. Gas. &
Elec. Co. v. Simpson, (Tenn.) 109
S. W. 1155.
InguRIES TO EMPLOYEES. 881
the appliance.” Where a telephone employee engaged in
‘‘yiding the cables’’ came in contact. with a defectively
insulated electric wire, it was held that he was not neces-
sarily guilty of negligence because he failed to discover
that the distance between the cable and the cone wire
had gradually lessened.”

Sec. 575. Contributory Negligence; Touching Wire While
Grounded.

An experienced lineman is charged with knowledge that,
if he handles a wire of high voltage while he himself is
‘* grounded,’’ the current. will pass through his body. To
prevent the passage of the current through his body, an
imperative duty is placed on the servant te use rubber
gloves, or some other efficient means. Ordinarily it mat-
ters little what means or devise is used by the servant, so
long as he exercises ordinary prudence in the adoption of
some method of preventing injury. If an employee, work-
ing in such a position that an electric current will pass from
him to the ground, and knowing the circumstances of his
position, handles a wire which he knows to be charged with
an electric current of high potential, he is guilty of con-
tributory negligence as a matter of law. Thus, a lineman
who touches two wires at the same time, one of which he
knows to be highly charged, will not generally be permitted
to recover.”

Sec. 576. Contributory Negligence; Failure to Discover
Defect in Pole.

In many cases, especially where the servant is charged

with the duty of inspecting poles before climbing them, he

47 La. Ann. 869, 17 So, 346; Hart v.

Allegheny County L. Co., 201 Pa. St.
234, 8 Am. Electl. Cas. 832, 50 Atl.

96. Belvidere Gas & Electric Co. v.
Boyer, 122 Ill. App. 116; Grimm v.
Omaha Elec. L. & Power Co., 79 Neb.

387, 112 N. W. 620, 114 N. W. 769.

97. Southern Bell Telep. & Teleg.
Co. v. Shamos, 12 Ga. App. 463, 7%
S. E. 312.

98. § 571.

99. Smart v. Louisiana Elec. L. Co.,

56

1010; Piedmont Elec. Illum. Co. v.
Patterson’s Adm’x, 84 Va. 747, 2 Am.
Elecl. Cas. 350, 6 S. E. 4, Compare,
Texarkana Telep. Co. v. Pemberton,
86 Ark. 329, 111 S. W. 257.
882 Law oF ELecrriciry.

assumes the risk of defects therein.1 But even though he
does not assume the risks of injury from a defective pole,
his climbing and working upon such a pole may constitute
an act of negligence. The question of contributory negli-
gence is to be determined, in a large measure, by the
obviousness of the defect in the pole. If the defect is
patent, he may be guilty of negligence to the same extent
as though he had actual knowledge thereof and continued
to work without remedying the situation. If, on the other
hand, the danger is latent, 7. e., not discoverable by the
exercise of due care, he cannot be charged with negligence
because he failed to discover the defect.2 The mere fact
that the servant did not use all the precautions required
of one knowing the defects in the pole, does not deprive
him of the right to recover for his injuries, where it appears
that he used all the precautions which were demanded from
the apparent condition of the pole.* Where the master has
inspected the pole and assures the servant that it is safe,
and the latter is directed to climb it without being per-
mitted to examine it for himself, the servant is not guilty
of contributory negligence because he relies on the master’s
assurance of safety, unless the danger is so obvious and
imminent that a reasonably prudent man in his position
would refuse to encounter it.* A lineman is not necessarily

1, § 565. : 8. E. 492; Berley v. Western Union

2. Kentucky.—Western Union Teleg.
Co. v. Holtby, 29 Ky. Law Rep. 523,
93 8. W. 652.

Michigan.— Livingway v. Houghton
County St. R. Co., 145 Mich. 86, 4
St. Ry. Rep. 507, 108 N. W. 662, 13
Det. Leg. N. 534.

New York.— Walsh v. N. Y. & O.
Cc. Ry. Co., 80 N. Y. App. Div. 316,
80 N. Y. Supp. 767; affirmed without
opinion, 178 N. Y. 588, 70 N. BE. 1111.

North Carolina.— Terrell v. City of
Washington, 158 N. Car. 281, 73 8. E.
888,

South Carolina. Jones v. Postal
Teleg. Cable Co., 91 S. Car. 273, 74

Teleg. Co., 82 S, Car. 360, 64 S. E.
157.

Texas.— Abiline L. & Water Co. v.
Robinson, (Civ. App.) 131 S. W.
299.

Virginia. Southern Bell Telep. &
Teleg. Co. v. Clements, 98 Va. 1, 34
8. E. 951.

8. Walsh v. New York & Q. C. Ry.
Co., 80 N. Y. App. Div. 316, 80 N. Y.
Supp. 767; affirmed without opinion,
178 N. Y. 588, 70 N. E, 1111.

4, Miller v. Missouri & Kansas
Telep. Co. 141 Mo. App. 462, 126
S. W. 187.
Ingunizes TO EMPLOYEES. 883

negligent because he uses a cross-arm as a place to work.°
Whether his conduct is consistent with an exercise of due
care is to be determined by the surrounding circumstances.
If there is an obvious defect in the cross-arm, he may be
guilty of negligence as a matter of law in supporting his
weight upon the arm, though he has no actual knowledge
of the danger of his act.* The mere fact that an electric
light employee does not support himself in precisely the
same way that his instructor did is not negligence per se."

Sec. 577. Contributory Negligence; Disobedience of Mas-
ter’s Orders.

If a servant disregards the orders of his master and, by
reason of such disobedience, receives an injury, it is not
fair to compel the master to respond in damages. Whether
the decision be placed on the ground of his wilful wrongful
act or on the ground of his contributory negligence, it is
clear that at common law he cannot recover.* Thus, if a
master expressly directs his servant not to go to a certain
place, there is no liability for an injury to the servant by
reason of defective conditions existing in such place.® So,
too, if an employer directs his employee not to fix a certain
electric appliance, e. g., an are light, but the employee
disobeys the direction and receives an injury from the
appliance, the employer is not liable.*° Likewise, where an
electric company had a rule that all persons working on its
wires should quit work for a certain period in order to
enable the company to test its wires, it was held that a line-
man failing to observe such rule could not recover for
injuries received from a live wire during such period." An
order once given may, however, be rescinded. A printed

5. Rutledge v. Swinney, 170 Mo. kendall’s Adm’r, 151 Ky. 384, 151
App. 251, 156 S. W. 478; McDonald ‘8S. W. 928.

v. Postal Teleg. Cable Co., 22 R. I. 9. Lapsely v. United Electric Co. of
131, 46 Atl. 407. N. J., 79 N. J. L. 181, 74 Atl. 283.
6. Johnston v. Syracuse Lighting 10. Illinois Steel Co. v. Kinnare,
Co., 193 N. ¥. 592, 86 N. E. 539. 100 Ill. App. 208.
7. McQuillan v. Willimantic Elec. 11. McIsaac v. Woonsocket Elee.,
L. Co., 70 Conn. 715, 40 Atl. 928. ete, Co., (R. 1.) 83 Atl. 754,

8. West Kentucky Coal Co. v. Kuy-
884. Law or Evecrricrry.

rule for the guidance of employees is sometimes considered
abrogated where the employer does not enforce obedience
thereto, and the employee may recover for his injuries
though he has violated the rule.”

Sec. 578. Contributory Negligence; Street Railway Em-
ployees.

A street railway employee is, under the common law
theory of the relation between master and servant, bound,
like all other employees, to exercise reasonable care for
his safety, and a failure to exercise such care precludes
recovery from the master for personal injuries.** Thus a
street railway conductor, having full knowledge of the
proximity of poles to the track, must exercise caution not
to project. his body beyond the side of the car so as to
collide with a pole. If he heedlessly places himself in a
position where he is injured by a trolley post, he cannot
recover for his injuries.** Where an interurban conductor
was killed by striking his head against a trolley-support
pole as he leaned from the front platform of an empty car,
where he was riding with the motorman, to see whether
the ear had run over some chickens, instead of looking
through the rear door as he might have done with safety,
it was held that he was guilty of contributory negligence in
choosing the unsafe way of performing his act.** But cir-
cumstances may be such as to permit recovery for injuries
to a street railway servant from a nearby pole. If he has
not acquired actual knowledge of the danger from the pole,
and the conditions are such as not to charge him with con-

12. Southern Bell Telep. & Teleg.
Co. v. Shamos, 12 Ga. App. 463, 77
8. E. 312; Western Union Teleg. Co.
v. Tweed, (Tex. Civ. App.) 138 8. W.
1155.

18. In Nellis on Street Railways
(2nd: Edition), sections 446 et seq.,
is a discussion of the contributory
negligence of street. railway servants,
ineluding both electrical and other
questions,

14, Moore v. East Tennessee Telep.

Co., 74 C. C. A. 227, 142 Fed. 965;
Govan v. New Orleans & C. Ry. Co.,
111 La. 125, 2 St. Ry. Rep. 336, 35
So. 484; Savage v. Rhode Island Co.,
28 R. I. 391, 5 St. Ry. Rep. 829, 67
Atl. 633; Moore v. Chattanooga Elec.
Ry. Co., 119 Tenn. 710, 109 S. W.
497, 16 L. R. A. (N. S.) 978.

15. Kath v. East St. Louis, ete.,
Ry. Co., 232 Ill. 126, 83 N. E. 533,
15 L. R. A. (N. S.) 1109.
Inguries To HMPLOYEES. 885

structive knowledge thereof, his contributory negligence
may be a question for the jury.* A conduetor experienced
on other roads and sent on a certain portion of a road to
learn conditions attending its operation, was held guilty
of contributory negligence where he sat on the running
board of an open car next to the trolley posts without
looking to see whether there were any obstructions or
whether it was safe to sit there.”

Sec. 579. Contributory Negligence; Acts in Emergencies.

Where a person is suddenly confronted by an apparent
or real danger, and he takes that course which without
deliberation seems best to him, the law is not harsh when
sitting in judgment on his conduct.** Aets in emergencies
generally present a question of contributory negligence for
the jury, though such acts, if committed umder different
circumstances, would constitute contributory negligence as
a matter of law. Hence, a servant engaged in taking down
a pole who, knowing that the pole is about to fall, rams away
to avoid the danger, is not guilty of contributory negli-
gence though he would have been uninjured had he remained
at his post. Nor is a servant guilty of contributory negli-
gence as a matter of law because he does not run in the
right direction to eseape injury when he discovers that a.
pole is about to fall.° When an emergeney occurs in a
master’s business, whose serious nature calls a servant
from his regular employment, and he is injured or killed
while engaged in the effort to relieve the situation, in
consequence of some defect or danger imputable to the
negligence of the master, the servant is not, as a matter of
law, to be charged with contributory negligence, although
but for the existence of such emergency he should be barred

16. Pikesville, etc., R. Co. v. State, Mfg. Co. 143 Mo. App. 200, 127
88 Md. 563, 42 Atl. 214; Pierce v. S. W. 598.
Camden, G. & W. Ry. Co., 58 N. J. 19. Sandquist v. Independent Telep.
Law 400, 6 Am. Electl. Cas. 377, 35 Co., 38 Wash. 313, 80 Pac. 539.

Atl. 286. 20. Kansas City Southern Ry. Co.
17. Ladd v. Brockton St. Ry. Co., v. Rogers, 203 ‘Fed. 462, 121 C. C. A.
180 Mass. 454, 62 N. E. 730. 586.

18. See Jewell v. Excelsior Powder
886 Law oF ELectricity,

from recovering, on the ground of being a volunteer and of
having accepted the risk.”

Sec. 580. Negligence of Fellow Servants.

‘The common law places, as a general rule, the risk of
injury to a servant from the negligence of a fellow work-
man on the servant rather than on a master. This common
law doctrine has been largely abrogated by Workmen’s Com-
pensation Laws and other statutes extending the liability
of the master for injuries to his servants. However, even the
common law admitted some exceptions to the general rule.
For example, if the master knew or should have known of
the incompetency of a workman but he nevertheless con-
tinued his employment, it would be held that the master
was liable for injuries caused to another servant by reason
of the incompetency of such workman.” So, too, a servant
is permitted to recover from the master for his injuries
caused in part by the negligence of the master, though
negligence of a fellow servant also contributed to the
injury.” While the general principles relative to the law
of fellow servants has not caused unusual difficulty, it has
been troublesome for the courts to determine who are
fellow servants within the meaning of the fellow-servant
rule. The circumstances under which different servants
are working and the different relations existing between
them, present a great variety of questions as to who are
fellow servants. To some extent, the question depends

21. Jacksonville Elec. L. Co. v.
Sloan, 52 Fla. 257, 9 Am. Electl.
Cas. 891, 42 So. 516.

question whether the emergency jus-
tified and required the deceased to
give the assistance which he did was

Question for jury..—mIn an action
by plaintiffs against an electric light-
ing company to recover for the death
of their son, an oiler, it was shown
that the deceased met his death while
employed in the defendant’s power
house by receiving a shock from an
iron bar, that at the time of the
accident he was assisting another em-
ployee to reach the source of trouble
in the power house; held, that the

for the jury. Mehan v. Lowell Elec.
L. Corporation, 192 Mass. 53, 9 Am.
Electl. Cas. 797, 78 N. B. 385.

22. Scott v. Iowa Telep. Co., 126
Towa 524, 102 N. W. 432.

23. DeKallands v. Washtenaw
Home Telep. Co., 153 Mich. 25, 116
N. W. 564, 15 Det. Leg. N. 337,
15 Ann. Cas. 593; Berley v, Western
Union Teleg. Co., 82 S. Car. 360, 64
S. E. 157.
Insurtes TO EMPLOYEES. 887
upon the circumstances of each particular case. A fore-
man of an electric company who has the management,
superintendence, and control of a branch of its work, is not
generally a fellow servant of the workmen under him.™
Thus, it has been held that the foreman of a gang of men
employed to put up,”° or take down” poles, or to string
wires on poles,” or do analagous work, is not a fellow
servant of the men under him. But, in other cases, the
foreman of such a gang has been considered a co-employee.
of the workmen under his charge." Where the work of
erecting a line of poles and wires is done by two gangs of
workmen, the first digging the post holes and setting the
posts, and the second stringing the wire on the poles, it
has been held that the workmen of the first are not fellow
servants of the workmen of the second gang.”® But a con-
trary position on this question has been taken.*° An em-
ployee in a power plant who turns on the current while a
lineman is working on a wire, in some cases, has been held
to be a fellow servant of the lineman,™ though a contrary

24. New Omaha Thomson-Houston
Elec. L. Co. v. Baldwin, 62 Neb. 180,
87 N. W. 27.

25. Vicars v. Cumberland Telep. &
Teleg. Co., 52 La, Ann. 2153, 28 So.
367; Kelly v. Erie Teleg. & Telep. Co.,
34 Minn. 321, 25 N. W. 706.

26. Sandquist v. Independent Telep.
Co., 38 Wash. 313, 80 Pac. 539.

27. Black v. Rocky Mountain Bell
Telep. Co., 26 Utah 541, 8 Am. Electl.
Cas. 724, 73 Pac. 514; Fritz v. West-
ern Union Teleg. Co., 25 Utah 263,
8 Am. Elect]. Cas. 730, 71 Pac. 209.

28. American Telep. & Teleg. Co.
vy. Bower, 20 Ind. App. 32, 49 N. E.
182; Knutter v. N. Y. & N. J. Tel.
Co., 67 N. J. Law 646, 52 Atl. 565,
58 L, R. A. 808; Goodman v. Western
Union Teleg. Co., 87 S. Car 449, 69
S. E. 1089; Brabham v. Am. Telep.
& Teleg. Co., 71 S. C. 53, 50 S. E.
716. See also, Wagner v. City of
Portland, 40 Oreg. 389, 8 Am. Electl.
Cas. 671, 67 Pac. 300.

“Neb. 434, 118 N. W. 73.

Removing sheathing from cable.—
The negligence of the foreman in as-
suring a servant that a cable from
which he is removing the lead sheath-
ing and in ordering him to do the
work with a chisel instead’ of a ham-
mer, is the negligence of a fellow
servant. Greberstein v. Stone & Web-
ster Engineering Corp., 205 Mass. 431,
91 N. E. 411.

29. Ault v. Nebraska Telep. Co., 82
See also,
Livingway v. Houghton County St.
Ry. Co., 145 Mich. 86, 4 St. Ry. Rep.
507, 108 N. W. 662, 13 Det. Leg. N.
634,

30. Mullin v. Genesee Co. Elec. L.,
P. & Gas Co., 202 N. Y. 275, 95
N, E. 689,

31. Shank v. Edison Electrie Illu-
minating Co., 225 Pa, St. 393, 74
Atl. 210, 30 L. R. A. (N. S.) 46;
Williams v. North Wisconsin L. Co.,
124 Wis. 328, 102 N. W. 589. See
also, Quinlan v. Lackawanna Steel
888 Law or ELectricirty.

conclusion has been reached in other cases.*” An electrician
in charge of electrical apparatus in a manufacturing plant
and his helper have been considered not fellow servants.”
And a carpenter making alterations in a power station and
the superintendent of the electric company in charge of the
station have been held not fellow servants.** Go, too, it
has been held that a wire chief employed by a telephone
company to whom all defects in the wires are to be re-
ported and whose duty it is to make tickets of these defects
and give them to the trouble men to make the necessary
repairs, is a vice-principal as to a trouble shooter injured

because repairs are not made.**

Co., 107 N. Y. App. Div. 176, 94
N. Y. Supp. 942; affirmed, 191 N. Y.
329, 84 N. EB. 73.

Substation.— Where an employee is
injured while working in a substation
by reason of the negligence of a fel-
low-servant having control of the elec-
tric current, either in notifying the
party injured that the current was
shut off or in failing to turn it off,
there can be no recovery for the in-
juries. Bridges v. Los Angeles Pac.
Ry.. 156 Cal. 492, 105 Pac. 586, 25
L. R, A. (N. S.) 914.

32. Massy v. Milwaukee Elec. Ry.
& L. Co., 143 Wis. 220, 126 N. W.
544, 40 L. RB. A. (N. S.) 814; Zent-
ner v. Oshkosh Gas Light Co., 126
Wis. 196, 105 N. W. 911. “ We now
confront an industry relatively new,
at least in present development, where
constantly employés must work in
places which are rendered safe or un-
safe by either agents or employés
hired to do the determining act for
the very purpose of creating the
safety —employés with whom the
exposed workmen have no contact or
community save that both are em-
ployed to carry on the general busi-
ness of generating and distributing
the master’s merchandise, as are trav-
eling salesmen and the janitor or

But it has been held that

elevator operator in his master’s
store Reasons which may have led
to classing as fellow servants men
employed in conduct of railroads may
fail to control situations in this field,
though apparently closely analogous.
One distinction is in the sudden and
unavoidable nature of the peril from
a failure to take the proper and easy
precautions, as in this ease. A man
at one moment is handling a cold
and harmless wire which it is the
duty of his master to keep so. The
next he is in contact with a deadly
peril, unforeseeable and unescapable,
by reason of the act of another whom
his master has employed to perform
the duty resting on the latter to make
and keep safe the place of work. We
think reasons to hold that the per-
sons so employed are agents perform-
ing a nondelegable duty are very ap-
parent.” Massy v. Milwaukee Elec-
Ry. & L. Co., 143 Wis. 220, 126 N. W.
544,40 L. R. A. (N.S.) 814.

33. Marquette Cement Mfg. Co. v.
Williams, 230 Ill. 26, 82 N. E, 424;
affirmed, ‘132 Ill. App. 629.

34. Poor v. Madison River Power
Co., 38 Mont. 341, 99 Pac. 947.

85. Texarkana Telep. Co. v. Pem-
berton, 86 Ark. 329, 111 S. W. 257.
Insunies TO EMPLOYEES. 889
the conductor of a street car and a car inspector employed
to inspect the electrical apparatus of street cars are fellow
servants.**

Sec. 581. Independent Contractors.

In order that an injured person may recover for his
injuries under the rules of the law of master and servant,
it is, of course, essential that such relation exist. Though
the work done is ultimately for the benefit of the party
against whom suit is brought, it does not necessarily follow
that the doctrine of respondeat superior is applicable.
Where certain work is to be accomplished by an ‘‘ inde-
pendent contractor,’’ the relation of master and servant
does not apply between the original contractor and the
independent contractors and the latter’s employees or sub-
contractors; and the original contractor is not liable for
injuries to such persons so far as the doctrine of respondeat
superior is concerned.” The company is required, as to
persons with whom it has no contractual relations, to exer-
cise due care to prevent injury to persons who may be
reasonably expected to come in contact with its appliances

36. Shugard v. Union Traction Co.,
201 Pa. St. 562, 8 Am. Electl. Cas.
687, 51 Atl. 325.

37. Myers v. Edison Electric Iu-
minating Co. 225 Pa. St. 387, 74 Atl.
223; Proctor v. San Antonio St. Ry.
Co., 26 Tex. Civ. App. 148, 62 S. W.
939; Texas Tract. Co. v. George,
(Tex Civ. App.) 1498. W. 438.

Written contract— Whether the
doctrine of respondeat superior ap-
plies to any particular case between
the original contractor and a sub-
contractor is determined by the con-
tract between the parties with refer-
ence to the right of the former to
control or direct the latter as to the
time, place, and manner of perform-
ing the work. The true relation of
the parties in this respect is prima
facie as expressed by the terms of the
written contract, if there be one. But

such contract is to be considered in
view of the circumstances under
which it was made and the manner
in which the work was performed. If
it appears that the writing was not
executed in good faith to express the
real relation of the parties, or if it
appears that, notwithstanding such
éontract, supervision or control of
the work was assumed by the orig-
inal contractor, then the application
of the rule is to be determined by the
conduct of the parties. Klages v.
Gillette-Herzog Mfg. Co., 86 Minn.
458, 8 Am. Electl. Cas. 818, 90 N. W.
1116. But liability may be based on
other grounds. It is not essential to
the liability of an electric company
to one receiving injuries from its ap-
pliances, that there be a contractual
relation existing between the com-
pany and the injured. § 407.
890 Law or HLEcrricity.

for business or pleasure. Thus, when an electric company
enters into a contract with a person for the performance
of certain work, on or near its electric system, though the
latter has such control over the doing of the work as to be
an independent contractor, the company is, nevertheless,
required by law to anticipate that such contractor and his
workmen may come in proximity to its appliances, and the
duty, therefore, is imposed on the company of exercising
due care to the end that such contractor and workmen do
not receive injuries from defects in the appliances.
Where a servant of an independent contractor is required
to work in a position of danger, and the danger is not
obvious, he should be warned thereof.** The knowledge of
the danger by the independent contractor is not generally
imputed to the latter’s servant,** though in some jurisdic-
tions it is held that the original contractor is under no
obligations to inform the servants of the independent con-

tractor of the dangers to which they may be exposed.*

38. Dunn v. Cavanaugh, 185 Fed.
451; Hoppe v. City of Winona, 113
Minn. 252, 129 N. W. 577, 33 L. R. A.
(N, S.) 449, (1912) Ann. Cas. 247;
Smith v. Twin City Rapid Transit
Co., 102 Minn. 4, 5 St. Ry. Rep. 527,
112 N. W. 1001; Clark v. St. Louis
& S. Ry. Co., 234 Mo. 396, 137 S. W.
583; Ryan v. St. Louis Transit Co.,
190 Mo. 621, 4 St. Ry. Rep. 634, 9
Am. Elect]. Cas. 536, 89 S. W. 865,
2L. R. A. (N. S.) 777; Stevens v.
United Gas & Elee. Co., 73 N. H. 159,
9 Am. Electl. Cas. 338, 60 Atl. 848,
70 L. R. A. 119; Sommer v. Public
Service Corp. of N. J., 79 N. J. Le
349, 75 Atl. 892; Kennealy v. West-
chester Elec. Ry. Co., 86 App. Div.
293, 8 Am. Electl. Cas. 827, 1 St. Ry.
Rep. 639, 83 N. Y. Supp. 823; af-
firmed without opinion, 181 N. Y.
582, 74 N. E. 1119. See also, Halli-
day v. National Telep. Co., (1899)
2Q. B. (Eng.) 392.

39. Stevens v. United Gas & Elec.

Co., 73 N. H. 159, 9 Am. Electl. Cas.
338, 60 Atl 848, 70 L. R. A. 119.

40. Clark v. St. Louis & S. Ry. Co.,
234 Mo. 396, 137 S. W. 583; Stevens
v. United Gas & Elec. Co., 73 N. H.
159, 9 Am. Electl. Cas. 338, 60 Atl.
848, 70 L. R. A. 119; Sommer v.
Publie Service Corp. of N. J., 79
N. J. Law 349, 75 Atl. 892.

41. Myers v. Edison Electric Illu-
minating Co., 225 Pa. St. 387, 74
Atl. 223; Proctor v. San Antonio St.
Ry. Co., 26 Tex. Civ, App. 148, 62
S. W. 939. “When the plaintiff was
selected to work in the room where
the accident occurred, which was a
dangerous place, the defendant com-
pany was not aware of his selection
to do that work. It was an act with
which it had nothing to do, and, not
knowing that he was going there to
work, it would be exacting entirely
too much of it to require that it
should have instructed him as to the
dangers. But the plaintiff had a
Insuries TO EMPLOYEES.

right to assume that the contractor’s
representative knew whether or not
the place he was taking him to work
was a dangerous one, and he says he
did know it, and that he would prop-
erly instruct him, if it was not ob-
vious and subject of common knowl-
edge, or of such knowledge which his

891

employer’s foreman knew he had ac-
quired during the weeks which he
had been employed in and about the
place. It was a duty which his em-
ployer, and not the defendant, owed
to him.” Myers v. Edison Electric
Illuminating Co., 225 Pa, St. 387, 74
Atl. 223.
892 Law or ELecrsiciry,

CHAPTER XXXI.
EVIDENCE.

SECTION 582. Judicial Notice; in General.
583. —— Properties of Electricity.
584. —— Danger of Electricity.
585. —— Generation and Transmission of Electricity.

 

 

 

586. Electric Lights.

587. Lightning.

588. —— Poles.

589. —— Electric Companies.

590. Telephone and Telegraph.
591. Street Railways.

592. Res Ipsa Loquitur; in General.

 

 

 

 

593. Relation between Parties.
594. ——— Wires.

595. Poles.

596. —— Street Lamps.

597. —— Interior Appliances.

598. Telephones.

599. Street Railway Operation.

600. Real Evidence.
601. Hearsay; in General.

 

 

 

 

602. To Show Mental State.
603. Res Gesta.

604. —— Admissions.

605. Expert Evidence; in General.
606. ——— Competency Demanded.
607. Relevancy Demanded.
608. —— Ultimate Fact for Jury.
609. —— Propriety of Construction.
610. ——- Management.

611. —— Electrical Action.

612. Street Railways.

613. Res Inter Alios Acta; in General.

 

 

614. To Show Mental State.
615. To Show Cause of Accident.
616. Condition of Same Appliance at Different Time

 

617. —— Subsequent Repairs or Precautions.
618. Sufficiency of Evidence.

Sec. 582. Judicial Notice; in General.

In reference to the judicial notice taken by the courts
of the properties of matter, it is said in Chamberlayne’s
EVipence. 893
Modern Law of Evidence: ‘‘A court, suo motu, will know
whatever everyone, as a rule, knows about the character-
istic properties of material substances, in solid, liquid,
gaseous, etherie or eleetrieal forms.’’* And the same
author, in another place in the same work, states the rule
as to judicial notice of electricity as follows: ‘‘ Courts
know the general properties and effects of electricity. The
special manner in which it is generated or transported must
be proved. Whether electricity has any and, if so, what,
curative properties when applied to the human system is
not commonly known to courts. It need not be proved that
electricity is dangerous. It is commonly known and recog-
nized as being of this nature.’’?

Sec. 583. Judicial Notice; Properties of Electricity.

The courts take judicial notice of electricity and of its
properties.* It is known by the courts that electric wires
maintained over the roofs of buildings are capable of set-
ting fires or obstructing the extinguishment of fires.* Sim-
ilarly, it is known by the courts that electricity does not
have certain properties. For example, it is known judi-
cially that electrieity does not, of itself, explode, though it

1. § 705.

2. § 719.

8. City of Crawfordville v. Braden,
130 Ind. 149, 28 N. E. 849, 14 L. RB.
A, 268, 30 Am. St. Rep. 214. “The
courts are probably required to take
judicial knowledge of natural laws
which govern the causation of physi-
cal phenomena, such as electric ac-
tivity, and in that respect the expert
testimony may be regarded as in-
tended more for the judicial enlight-
enment of the court than the estab-
lishment of probative facts.” South-
ern Teleg. & Telep. Co. v. Evans, 54
Tex. Civ. App. 63, 116 S. W. 418.
“ We take judicial notice of the laws
of nature, and of nature’s powers and
forces, and therefore take judicial
notice of that which is known as

electricity, and of its properties; not,
of course, of the various methods of
generating and transmitting or using
it, but of the thing itself, and of its
nature. As in many other cases, here
the judicial presumption outruns the
fact, and we are supposed to know,
and to take judicial notice of more
than we can, in fact, know in the
present state of scientific knowledge.
We must know, however, that it can
be generated and transported from
place to place.” City of Crawfords-
ville v. Braden, 430 Ind. 149, 28 N, E.
849, 14 L. R. A. 268, 30 Am. St. Rep.
214.

4. Electric Imp. Co. v. City &
County of San Francisco, 45 Fed. 593,
3 Am. Electl. Cas, 89, 13 L, R. A. 131.
894 Law or ELecrriciry.
may be capable of producing the explosion of other sub-
stances.°

Sec. 584. Judicial Notice; Danger of Electricity.

It is a matter of common knowledge, and, hence, judicially
noticed by the courts, that electric currents under high
pressure are dangerous and capable of producing death
or serious injury.° Thus, it is unnecessary to produce
proof on the question of the danger of contact with wires
charged with a current of high voltage;’ and, it being gen-
erally known that electric light wires carry a current of
high electrical energy, the courts take judicial notice that
such wires are dangerous.* Such wires are recognized as
particularly dangerous where their insulation is absent or
inadequate.® And, likewise, the court judicially knows that

5. Brinckkord v. Western Union
Teleg. Co., 58 Hun (N. Y.) 610, 12
N. Y. Supp. 534.

6. National Fire Ins, Co. v. Denver
Consol. Elec. Co., 16 Colo. App. 86,
7 Am. Electl. Cas. 715, 63 Pac. 949;
Denver Tramway Co. v. Reid, 4 Colo.
App. 53, 4 Am. Electl. Cas. 332, 35
Pac. 269; De Kallands v. Washtenaw
Home Telep. Co., 153 Mich. 25, 9 Am.
Electl. Cas. 1106, 116 N. W. 564, 15
Det. Leg. N. 337, 15 Ann. Cas. 593;
Warren v. City Elec. Ry. Co., 141
Mich. 298, 9 Am. Electl. Cas. 527, 4
St. Ry. Rep. 487, 104 N. W. 613, 12
Det. Leg. N. 415. “The court will
take judicial notice that electricity,
developed to some high degree of in-
tensity, is exceedingly dangerous, and
even fatally so, to men or animals,
when brought in contact with them.”
Taggart v. Newport St. Ry. Co, 16
R, I. 668, 3 Am. Electl. Cas. 306, 19
Atl. 326, 7 L. R. A. 205. “It is a
matter of common knowledge, and in
fact of universal knowledge, that an
electric current is dangerous, and
must be discreetly and prudently
handled in order to avoid danger

either to life or to property.”
National Fire Ins. Co. v. Denver Con-
sol. Elec. Co., 16 Colo. App. 86, 7 Am.
Electl. Cas. 715, 63 Pac. 949.

7. Winegarner v. Edison L, & P.
Co., 83 Kan. 67, 109 Pac. 778, 28
L, R, A. (N. 8S.) 677; Sweezo v.
Cheboygan Elec. L. & P. Co, 166
Mich. 25, 131 N. W. 125,

8. Consolidated Elec. L. Co. v.
People’s Elec. L. & Gas Co., 94 Ala.
372, 4 Am. Elect]. Cas. 255, 10 So.
440; Sweezo v. Cheboygan Elec. L. &
P. Co., 166 Mich. 25, 131 N. W. 125;
Johnston v. New Omaha, ete., Elec.
Light Co., 78 Neb. 24, 110 N. W. 711,
17 L. R. A. (N. 8S.) 4355 affirmed on
rehearing, 78 Neb. 27, 113 N. W. 526.

9. “It is the subject of common
knowledge that electric light wires
are dangerous, particularly so, as was
the case here, where the connections
have no insulation.” Myers v, Edison
Elee. Illuminating Co. 225 Pa. St.
387, 74 Atl. 223. “It is a matter of
common knowledge that electric light
and power wires carry powerful and
death dealing currents, and that they
are the frequent cause of severe and
895

EVvmwence.

wires carrying a feeble or no electric current are not dan-
gerous to touch.’°

Sec. 585.- Judicial Notice; Generation and Transmission of
Electricity.

While the courts take judicial notice of the properties of
electricity, it has been said that they do not take notice of
the several methods of generating and transmitting the
electric current." The courts, however, judicially recog-
nize the fact that electricity may be transmitted from one
place to another by means of wires. ‘The courts also know
that the electric current follows the path of the least re-
sistance and that it will pass from one wire to another if
the wires are in contact. It also is a fact which need not
be proved that the passage of a high-tension current from
one wire to a wire intended to carry only light currents
is likely to cause injury, and that it is dangerous to have
two sets of wires close together, where they are charged

from different generating machinery.”

fatal accidents, and that ordinary
prudence requires all persons to avoid
contact with them, especially if they
are imperfectly or defectively insu-
late.” Johnston v. New Omaha, etc.,
Elec. Light Co., 78 Neb. 24, 110 N. W.
711,17 L. R. A. (N. 8.) 435; affirmed
on rehearing, 78 Neb. 27, 113 N. W.
526. :

10. Ambre v. Postal Teleg. Cable
Co., 43 Ind. App. 47, 86 N. E. 871.
“It is a matter of common knowledge
that wires carrying only a light
voltage, like, for instance, a telephone
wire, are not liable to produce any
injury by contact, and that wires
carrying a high voltage, as shown in
this case, are extremely dangerous in
case of contact.” Winegarner v. Edi-
son L. & P. Co., 83 Kan. 67, 109 Pac.
778, 28 L. R. A. (N. 8.) 677.

11. City of Crawfordville v. Braden,
130 Ind. 149, 28 N. E, 849, 14 L. R.
A. 268, 30 Am. St. Rep. 214. It
seems fairly evident, however, that

That copper wires

judicial notice would be taken of
some of the well known features of
electrical generation and transmis-
sion,

Water power.— The court will take
judicial notice of the fact that there
is water power other than that of
Niagara Falls nearer to the city of
Fulton sufficient to supply all the
electricity the city may require. Gage
v. Conners, 142 App. Div. (N. Y.)
228, 126 N. Y. Supp. 1041,

12. Consolidated Elec. L. Co. v.
People’s Elec. L. & Gas Co., 94 Ala.
372, 4 Am. Electl. Cas. 250, 10 So.
440.

Electric and telephone wires.— The
courts will take judicial notice of the
fact that an electric light wire so
placed that it sometimes comes in
contact with a telephone wire, is dan-
gerously near. Central Union Telep.
Co. v. City of Conneaut, 167 Fed. 274,
93 C. C. A. 196.
896 Law or EQLEctRicIry.

are better conductors of electricity than most other things, is
judicially known by the courts."* The liability of guy wires
to become charged from contact with other wires is judi-
cially known. It is a matter of eommon knowledge that
very great skill and circumspection must be employed in
direeting and controlling the electric current.*

Sec. 586. Judicial Notice; Electric Lights.

The court takes judicial notice of the fact that buildings
and streets may be, and frequently are, illuminated by
means of the electrie current. The difference between the
are lights and the incandescent lights, in a general way, is
known by the courts. It need not be proved that an elec-
tric current necessary to illuminate an arc light.is sufficient
to destroy animal life.* Jt has been noticed by one court
that ineandescent lights are safer to property and more
conducive to health than ordinary systems. of lighting.”
And it has also been stated that the court will take notice
that, in 1875, a state legislature did not contemplate the
possibility of the use of electricity for the lighting of public
streets.”*

Sec. 587. Judicial Notice; Lightning.

In one case, with reference to judicial knowledge of light-
ning, it was said: ‘‘ These may be said to be familiar facts
in physics, and therefore within the common knowledge
of mankind and within the judicial knowledge of courts:
That atmospheric eleetricity, or lightning, is frequently dis-
charged from clouds and passes to the earth; that metal
wires strung in the air are good conductors of electricity,

13. Owen v. Portage Telep. Co., 126
Wis. 412, 9 Am. Electl. Cas. 598, 105
N. W. 924.

14, Law v. Cent. Dist. Printing &
Teleg. Co., 140 Fed. 558, 9 Am. Electl.
Cas. 513.

15. Consolidated Elec, L. Co. v.
People’s Elec. L. & Gas Co., 94 Ala.
372, 4 Am. Electl. Cas. 250, 10 So.
440.

16. Consolidated Elec. L. Co. v.
People’s Elec. L. & Gas Co., 94 Ala.
372, 4 Am. Elect]. Cas. 250, 10 So.
440.

17. City of Crawfordville v. Braden,
130 Ind. 149, 28 N. E. 849, 14 L. R.
A. 268, 30 Am. St. Rep. 214.

18. City of Carthage v. Carthage
Light Co. 97 Mo. App. 20, 8 Am.
Electl. Cas, 143, 70 S. W. 936.
EVIDENCE. 897
much better than the air; that animal bodies, the bodies of
human beings among the rest, are also better conductors
than the air or than wood; that electricity so discharged
in the.vicinity of such wires is liable and apt to pass into
them and along them to their ends, and thence through the
best conductor at hand into the earth; that, if a human body
is in contact with the end of the wire, the current will pass
through it to the ground, and that, though not in actual
contact with the end of the wire whence the current must
go to the ground, but near to it, the current, instead of pass-
ing through the air to the ground, will seek the better con-
ductor of the body, pass through the air to it, and through
it to the earth. Of course, the higher the wires extend,
the nearer to the point of discharge in the air, the greater
the likelihood that the current will pass into them, and, the
greater the extent of the wires horizontally, the more dan-
ger there is of receiving and carrying such electric cur-
rents. It may also be said to be common knowledge that
where two wires are strung near to each other, within a
foot or two, on poles, through the air, after the manner of
telephone and telegraph wires, there is a likelihood or lia-
bility that lightning, in its descent from the clouds, will
strike and follow both of them to their ends, unless diverted
by other more attractive conductors, and must necessarily
then pass from them to the earth through the best con-
ductor then in its general pathway.’’’® Other courts have
stated in language of similar import, their understanding
of the judicial notice of the nature, operation, and effect of

lightning.”

19. Southern Bell Telep. & Teleg.
Co. v. MeTyer, 137 Ala. 601, 8 Am.
Elect]. Cas. 591, 34 So. 1020, 97 Am.
St. Rep. 62.

20. Wells v. Northeastern Telep.
Co., 101 Me. 371, 9 Am. Electl. Cas.
749, 64 Atl. 648; Starr v. Southern
Bell Telep. & Teleg. Co., 156 N. Car.
435, 72 S. E. 484; Owen v. Portage
Telep. Co., 126 Wis. 412, 9 Am. Elect.
Cas. 598, 105 N. W. 924. “Now,

57

there are some facts of common
knowledge known to every reasonable
person who has passed the age of
childhood. Among these facts are
that in this latitude there are at
certain seasons of the year frequent
and violent thunderstorms; that at
such times the clouds are heavily
charged with electricity, which con-
stantly finds its way to the earth in
what we call strokes of lightning;
898

Law oF ELEctRICITY.

Sec. 588. Judicial Notice; Poles.

The courts take judicial notice of the fact that telephone
_ and other poles must be set near the sides of the street or
highway, and that they are generally outside of the curb
or ditch line, and in line with the trees.” ‘‘ It is a matter
of common observation that telegraph poles and wires have
become usual incidents on railroad rights of way — always
on one side, and frequently on both.’’” The courts also
know, as a matter of common knowledge, that for the
proper regulation of the apparatus for distributing elec-
tric current, it is necessary that street railway employees
ascend its poles and go among its wires.”

Sec. 589. Judicial Notice; Electric Companies.

It is a matter of common knowledge that electric power
companies supply electricity to corporations and to persons
engaged in lighting cities, in operating street cars, and in
furnishing individuals with light and power.* It is also
a matter of common knowledge that, when one applies to
an electric company for service, certain things have to be
done in order to connect the applicant’s premises with the
company’s system, and it is equally well known that the

that these lightning strokes, in the
great majority of cases, strike prom-
inent objects, such as trees, poles and
high buildings, and follow them to
the ground; that fire is frequently
the result of such strokes. These
facts are well known to all persons,
and no proof of them by expert evi-
dence is necessary.” Jackson v. Wis-
consin Telep. Co., 88 Wis. 243, 5 Am.
Elect]. Cas. 335, 60 N. W. 430, 26
L. R. A. 101.

Protection of telephone.— “It is a
matter of common knowledge that
lightning frequently plays along or
near telephone lines and that our
houses are secure though telephones
are placed in them; rather than a
menace a well installed telephone has
come to be regarded a protection

against the lightning’s stroke.”
Peninsular Telep. Co. v. McCaskill,
64 Fla. 420, 60 So. 338.

21. Bevis v. Vanceburg Telep. Co.,
121 Ky. 177, 28 Ky. Law Rep. 142,
89 S. W. 126; Wyant v. Central
Telep. Co., 123 Mich. 51, 7 Am.
Electl. Cas. 256, 81 N. W. 928, 6 Det.
Leg. N. 951, 47 L. R. A. 497, 81 Am.
St. Rep. 155,

22, American Telep. & Teleg. Co. v.
St. Louis, etc., Ry. Co., 202 Mo. 656,
101 S. W. 576.

28. Consolidated Elec. L. Co. v.
People’s Elec. L. & Gas Co., 94 Ala.
372, 4 Am. Elect]. Cas. 250, 10 So.
440,

24, Hill v. Pacific Gas & Elec, Co.,
22 Cal. App. 788, 136 Pac. 492.
EVIDENCE.

899

company and not the applicant usually attends to such mat-
ters, except where they may be controlled by special rules
and regulations applicable to the particular service.”

Sec. 590. Judicial Notice; Telephone and Telegraph.
The general nature and operation of telephonic and tele-
graphic communication is a matter of common knowledge

which is judicially known by the courts.”

25. State ex rel. Mason v. Con-
sumers Power Co., 119 Minn. 225, 137
N. W. 1104, 41 L. R. A. (N. S.) 1181.
“More specifically it is a matter of
common knowledge, and hence proper
to be judicially noticed, that cities
are divided by streets and alleys into
blocks and subdivisions of blocks, the
blocks and subdivisions thereof being
very generally owned by private in-
dividuals, and the streets and alleys
being subject to a public use and
under the police control of the mu-
nicipality; that public service com-
panies, using wires for the distribu-
tion of the service supplied by them,
such as telephone and electric-light
companies, customarily set poles in
the streets and alleys and string
wires along and over and across the
same; that such wires can be strung
only a few hundred feet in any di-
rection without crossing a street or
an alley, even where the line is
strung upon poles set upon a private
right of way; that many persons are
served by these wires or lines that
are thus strung along and across the
streets and alleys as above stated;
and that when the consent of the
city is necessary, in order that the
company may lawfully set such poles
and string such wires as may be
necessary to carry the service to the
persons so served or to be served, the
company, and not its patrons or ap-
plicants for service, attends to the
obtaining of such necessary consent

It is a matter

by application to the council or other-
wise, and it is to the company, and
not to its numerous patrons, that the
permission is granted and the per-
mits issued.” State ex rel. Mason v.
Consumers Power Co., 119 Minn. 225,
137 N. W. 1104, 41 L. R. A. N.S.)
1181.

26. Telegraph.—*“ Certain facts with
regard to lines for telegraphic com-
munication, as that the building of
such a line is a public improvement
and notorious facts regarding their
operation, as that telegraphic mes-
sages are usually written, or that the
use of the telegraph is necessary to
the successful operation of a rail-
road, but that care is required on
the part of a telegraph company that
its wires may not obstruct a public
highway will be known. But facts
of a technical nature, as what space
along a railroad location is required
for the repair of the wires, must be
proved.” Chamberlayne Modern Law
of Evidence, § 839.

Telephone— “Among the more
salient features of modern industrial
development of which judges possess
the same knowledge as other intelli-
gent members of the community is
the improved facility of communica-
tion due to the general introduction
of the telephone into business and
social life. ‘Courts of justice do not
ignore the great improvement in the
means of communication which the
telephone has made. Its nature,
900 Law or ELEctriciry,

of common knowledge that electricity is used for the pur-
pose of transmitting sound by telephone, for transmitting
messages by telegraph, as well as for other purposes.”
The courts take judicial notice of the fact that in the early
history of the telephone, its use was confined to commercial
purposes, and that the great bulk of the telephone business
originated in, if it was not absolutely confined to, incor-
porated cities and towns, and that, in order to secure the
business and accommodate the public, the terminals for
long distance lines and the local exchanges were, of neces-
sity, located in the business centers.”

Sec. 591. Judicial Notice; Street Railways.

Well-known facts pertaining to the construction and
operation of street railways are judicially known by the
courts. ‘‘ Facts of notoriety concerning the history of
street railway travel, as when electricity succeeded animals
as the motive power, may well be treated as matters of
common knowledge.’’*® While the court will take judicial
notice that electricity is a dangerous force, it will not take
notice that, as used by a certain street railway company,
it is dangerous.*° The court will not take judicial notice
of the fact, if it is a fact, that there is no mechanical con-
trivance in use that will prevent trolleys from becoming
detached from the wires.*

Sec. 592. Res Ipsa Loquitur; in General.

The expression res ipsa loquitur — the thing itself speaks
— signifies a certain class of phenomena which, if they

operation and ordinary uses are facts
of general scientific knowledge of
which the courts will take judicial
notice as part of public contemporary
history.’ The judge knows, as a mat-
ter of common knowledge, notorious
facts concerning the use of the tele-
phone as a means of communicating
thought.” Chamberlayne Modern Law
of Evidence, § 794.

27. State ex rel. Laclede Gaslight
Co. v. Murphy, 130 Mo. 10, 5 Am.
Elect]. Cas. 71, 31 S. W. 594, 31

L. R. A. 798; affirmed, 170 U. S. 78,
18 S. Ct. 505, 42 L. Ed. 955.

28. State v. City of Helena, 34
Mont. 67, 85 Pac. 744.

29. Chamberlayne Modern Law of
Evidence, § 835.

80. Taggart v. Newport St. Ry. Co.,
16 R. I. 668, 3 Am. Electl. Cas. 306,
19 Atl. 326, 7 L. R. A. 205.

31. Kirkpatrick v. Metropolitan St.
Ry. Co., 161 Mo. App. 515, 8 St. Ry.
Rep. 252, 143 N. W. 865.
EvipEnce. gL
result in an injury, are so probative on the issue of negli-
gence, that they may authorize the jury to find a verdict
for the person sustaining the injury against the party hav-
ing control of the appliance or thing causing the injury.
In other words, the jury is authorized to say that it is rea-
sonable to presume that the accident would not have hap-
pened had a party been in the exercise of due care. Where
that which causes an injury is under the management and
control of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who
have the management and control use proper care, it affords
reasonable evidence, in the absence of explanation, that the
accident is the result of a want of care.” It is, perhaps,
not accurate to say that the burden of proof is on the
defendant to show that the accident is not the result of its
negligence,®* but the accident itself makes a prima facie

32. “Now where the defendant
owes a duty to plaintiff to use care,
and an accident happens causing in-
jury, and the accident is caused by
the thing or instrumentality that is
under the control or management of
the defendant, and the accident is
such that in the ordinary course of
things it would not occur if those
who have the control and manage-
ment use proper care, then, in the
absence of evidence to the contrary,
this would be evidence that the acci-
dent occurred from the lack of that
proper care. In such case the hap-
pening of the accident from which
the injury results is prima facie evi-
dence of negligence, and shifts to the
defendant the burden of proving that
it was not caused through any lack
of care on its part. * * * Now this
rule applies to electric companies in
the control and management of their
lines and apparatus for the further
reason that they have almost exclu-
sive knowledge of the facts relative
thereto. The plaintiff ordinarily has
not the power or opportunity to test

these lines and apparatus, and. it is
reasonable that the party having the
power and opportunity should be re-
quired to give an explanation of the
accident, and to prove that it did not
occur through a lack of care on its
part.” Southwestern Teleg. & Telep.
Co. v. Bruce, 89 Ark. 581, 117 S. W.
564,

Gross negligence.— Though the hap-
pening of an accident may import
negligence, it will not be held to
raise a prima facie case of gross
negligence. Martin v. Boston, etc., R.
Co., 205 Mass. 16, 91 N. E. 159.

33, Patterson v. San Francisco, etc.,
Ry. Co., 147 Cal. 178, 4 St. Ry. Rep.
44, 9 Am. Electl. Cas, 485, 81 Pac.
531; Goddard v. Enzler, 123 Ill. App.
108; affirmed, 222 Ill. 462, 78 N. E.
805; Continental Ins. Co. v. N. Y.
Gas, Electric, etc., Co., 193 N. Y. 186,
85 N. E. 1006; Ludwig v. Metropoli-
tan St. Ry. Co., 174 N. Y. 546, 67
N EE. 1084; adopting dissenting
opinion in 71 N. Y. App. Div. 210,
75 N. Y. Supp. 667; Brown v. Con-
solidated Light, Power & Ice Co., (Mo,
902

Law or ELectricirty.

case of negligence, and casts upon the defendant the burden
of explanation. The prima facie case afforded by the acci-
dent may be rebutted by the defendant, by evidence tending
to show that the injury was not the result of its negligence.*
The defendant is not required to give a satisfactory account
of the cause of the accident; all that is required is that he
rebut the inference that he has failed to exercise due care.”
As a general proposition, the credibility of the explanation

and its sufficiency are questions for the jury.**

The prima

facie case is not necessarily overcome by evidence of the

App.) 109 S. W. 1032; Huscher v.
New York & Queens Elec. L. & P. Co.,
158 N. Y. App. Div, 422, 143 N. Y.
Supp. 639; Lynch v. Metropolitan St.
Ry. Co., 90 N. Y. Supp. 378. But see
Abrams v. City of Seattle, 60° Wash.
356, 111 Pac. 168.

34. Southwestern Teleg. & Telep.
Co, v. Bruce, 89 Ark, 581, 117 S. W.
564; Garner v. Chicago Consol. Tract.
Co., 150 Ill. App. 149; Heiberger v.
Missouri & Kansas Telep. Co., 133
Mo. App. 452, 113 S. W. 730; Gay v.
Milwaukee Elec. Ry. & L. Co., 138
Wis. 348, 120 N. W. 283. “This pre-
sumption may be overcome by evi-
dence showing precisely the cause of
the occurrence, and that the cause is
attributable to some person other
than defendant, for whose acts he is
not responsible, or by evidence show-
ing precisely the cause of the occur-
rence, and that such cause, although
not attributable to a third person, is
of such a character that defendant
is not culpable in connection there-
with, but that such occurrence is in
the nature of an accident unavoidable
by the use of that degree of care with
which defendant is chargeable, or,
finally, by evidence which, while it
may not be sufficient to disclose the
precise cause of the occurrence, is
wufficient to show that defendant’s en-
tire duty in connection therewith was
discharged.” Huscher v. New York &

Queens Elec. L. & P. Co., 158 N. Y.
App. Div. 422, 143 N. Y. Supp. 639.

35. Garner v. Chicago Consol.
Tract. Co., 150 Ill. App. 149; Sweeney
v. Edison Elec. Illum. Co. of Brook-
lyn, 158 N. Y. App. Div. 449, 143
N. Y. Supp. 636,

Evidence balancing the presump-
tion.— The presumption of negligence
is legally overcome, when the defend-
ant has introduced sufficient evidence
to balance the presumption. Patter-
son v. San Francisco, etc., Ry. Co.,
147 Cal. 178, 4 St. Ry. Rep. 44, 9 Am.
Electl. Cas. 485, 81 Pac. 531.

36. Southwestern Teleg. & Telep.
Co. v. Bruce, 89 Ark. 581, 117 S. W.
564; Chicago Union Tract. Co. v.
Newmiller, 215 Ill. 383, 4 St. Ry. Rep.
165, 74 N. E. 410; Gilmore v. Mil-
ford & U. St. Ry. Co., 193 Mass. 44,
9 Am. Elect]. Cas. 936, 5 St. Ry. Rep.
439, 78 N. E. 744; Wolpers v. New
York & Queens Elec. L. & P. Co., 91

N.Y. App. Div. 424, 9 Am. Electl.

Cas. 43, 86 N. Y. Supp. 845;
O’Flaherty v. Nassau Elec. L. Co., 34
N. Y. App. Div. 74, 7 Am. Electl. Cas.
535, 54 N. Y. Supp. 96; affirmed
without opinion, 165 N. Y. 624, 59
N. E, 1128; Chaperon v. Portland
Gen. Elec. Co., 41 Oreg. 39, 8 Am.
Electl. Cas. 468, 67 Pac. 928; Boyd
v. Portland Elec. Co., 40 Oreg. 126,
7 Am. Electl. Cas. 661, 66 Pac. 576,
57 L. R. A. 619; Memphis Street
EVIDENCE. 903
employees of the defendant that the appliance was con-
structed and maintained in a proper manner; the credibility
of such witnesses is for the jury.” Evidence that the appli-
ance or thing causing the difficulty was of standard make
and such as was usually used by similar companies, does
not release the company as a matter of law.** But, where
the evidence clearly excuses the defendant from the impu-
tation of negligence, or his explanation is uncontradicted
by the plaintiff, the prima facie case is overcome as a mat-
ter of law, and there is no question for the jury.®

Allegation of Specific Negligence.— In some jurisdictions
it is held that a plaintiff abandons the advantage of the
doctrine of res ipsa loquitur if he alleges and takes upon
himself the burden of proving that the act was the result

of some specific act of negligence.*°

Railway Co. v. Kartright, 110 Tenn.
277, 1 St. Ry. Rep. 763, 8 Am. Elect.
Cas. 430, 75 S. W. 719; Firebaugh v.
Seattle Elec. Co., 40 Wash. 658, 4
St. Ry. Rep. 1055, 82 Pac. 995, 2
L. R. A. (N. 8.) 836, 111 Am. St.
Rep. 990. “The happening of the
accident under the circumstances
tended to prove the existence of con-
ditions necessary to cause it which
could not arise without either negli-
gence on the defendant’s part, or a
defect of some kind, for which, if such
a thing be possible, it was not to
blame; and proof merely that no de-
fect whatever existed would not serve
to remove the case from the province
of the jury, where the proof was
furnished by an interested witness in
the defendant’s employment, and the
question of credibility was accord-
ingly a factor.” Brahane v. Nassau
Elec. R. Co., 72 N. Y. App. Div. 456,
76 N. Y. Supp. 578.

87. O'Flaherty v. Nassau Elec. L.
Co., 34 N. Y. App. Div. 74, 7 Am.
Electl. Cas. 535, 54 N. Y. Supp. 96;
affirmed without opinion, 165 N. Y.
624, 59 N. E. 1128; Boyd v. Portland

In other jurisdictions

Elec. Co., 40 Oreg. 126, 7 Am. Electl.
Cas. 661, 66 Pac. 576, 57 L. R. A.
619; Norfolk Railway and Light Co.
v. Sprately, 103 Va. 379, 3 St. Ry.
Rep. 859, 9 Am. Elect]. Cas. 329, 49
8. E. 502.

38. Paine v. Geneva, ete., Tract.
Co., 115 N. Y. App. Div. 729, 6 St.
Ry. Rep. 812, 101 N. Y. Supp. 204;
Poulsen v. Nassau Elec. R. Co., 30
N. Y. App. Div. 246, 7 Am. Electl.
Cas. 677, 51 N. Y. Supp. 933.

39. Jenkins v. St. Paul City Ry.
Co., 105 Minn. 504, 6 St. Ry. Rep.
616, 117 N. W. 928, 20 L. BR. A.
(N. 8.) 401; Huscher v. New York &
Queens Elec. L. & P. Co., 158 N. Y.
App. Div. 422, 143 N. Y¥. Supp. 639;
Brown v. Consolidated Light, Power
& Ice Co., (Mo. App.) 109 S. W.
1032; Scarpelli v. Washington Water
Power Co., 63 Wash. 18, 114 Pac.
870.

40. Beebe v. St. Louis Transit Co.,
206 Mo. 419, 9 Am. Elect]. Cas. 1129,
5 St. Ry. Rep. 623, 12 L. R. A.
(N. 8S.) 112; Kennedy v. Metropoli-
tan St. Ry. Co., (Mo. App.) 107 S. W.
16. See also, Kight v. Metropolitan
904 Law or ELectricity.

it is held that the plaintiff may still rely on the general
presumption of negligence, though he has attempted to
show specific negligence.**

Sec. 593. Res Ipsa Loquitur; Relation Between Parties.

In early decisions there was a tendency in the courts of
some jurisdictions to restrict the operation of the doctrine
of res ipsa loquitur to cases where there was a contractual
relation between the parties. Hven though so confined,
the doctrine would apply to injuries received by passengers
of street railway cars and to customers of an electric com-
pany injured by the current. But it is obvious that, as to
injuries from electricity, the rule is not limited in its opera-
tion to parties standing in contractual relations to each
other. For example, the presumption of negligence is
almost universally applied where travelers along a high-
way come in contact with a wire charged with a deadly cur-
rent of electricity.? Theoretically, the doctrine is merely
a rule of evidence. That is, it gives to certain phenomena
such probative force as to authorize the jury to say without

R. Co., 21 App. D. C. 494; Black v.
Metropolitan St. Ry. Co., 217 Mo.
672, 117 S. W. 1142.

41. Chicago City Ry. Co. v. Car-
roll, 206 Ill. 318, 2 St. Ry. Rep. 124,
68 N. E. 1087; McDonough v. Boston
Elev. Ry. Co., 208 Mass. 436, 94
N. E. 809; D’Arcy v. Westchester
Electric Ry. Co., 82 N. Y. App. Div.
263, 81 N. Y. Supp. 952.

Res ispa loquitur applies only to
specific acts alleged—fIn one case,
where specific acts of negligence were
set up in the complaint, it was held
that, though the maxim of res ipsa
loquitur was applicable, it could be
applied only as to the specific negli-
gence alleged. Boyd v. Portland Gen-
eral Elec. Co., 41 Oreg. 336, 8 Am.
Electl. Cas, 476, 68 Pac. 810.

Specific allegations of negligence.—
Where three of six counts in a decla-
ration allege general negligence, the

fact that the other three allege spe-
cific negligence does not make it
incumbent upon the plaintiff to pro-
duce evidence substantiating such
specific charges, nor relieve the de-
fendant from its burden of rebutting
the presumption of negligence. Chi-
cago City Ry. Co. v. Carroll, 206 Ill.
318, 2 St. Ry. Rep. 124, 68 N. E.
1087.

Pleading — Where a traveler was
injured by contact with a live wire
in a street, it was held that he did
not lose the benefit of the presump-
tion of negligence, by an allegation
in his pleading that the wire was
weak and defective, and insufficiently
stretched and fastened. Boyd v.
Portland Elec. Co., 40 Oreg. 126, 7
Am. Elect]. Cas. 661, 66 Pac. 576,
57 L. R. A. 619.

42. § 594.
Eviwence. 905

other evidence that a party has been guilty of negligence.
The relation between the parties, as a matter of logic,
should not affect the weight to be given to the evidentiary
phenomena. And the present tendency of the courts is to
abrogate any distinction in the application of the rule based
on the relation of the parties.“ In some jurisdictions it
is held that the presumption of negligence does not arise
as between master and servant.‘ But in other jurisdic-
tions the rule, though not applied with the same freedom as
between parties in other relations, is, nevertheless, some-
times applied in favor of an employee and against the
master.** Thus, the maxim res ipsa loquitur has been
applied to a shock received by the employee of an electric
company when using an incandescent light.** So, too, it
has been held that, where a master has inspected a pole and
assured his servant that it is safe and the servant is
directed to climb without being permitted to examine it for
himself, the fall of the pole constitutes a prima facie case
of the negligence on the part of the master.*’

Sec. 594. Res Ipsa Loquitur; Wires.

If a wire suspended in a street or highway or other place
falls or sags from its normal position and an injury is
thereby occasioned, it is generally held that the rule of
res ipsa loquitur is applicable, and the injured person is
entitled to recover for his injuries against the party main-
taining the wire, unless the latter rebuts the inference of

43. “The rule [res ipsa loquitur]
is no longer limited to cases in
which the injured party occupied con-
tractual relations to the defendant.”
Richmond Ry. & Elec. Co. v. Hudgins,
100 Va. 409, 41 S. E. 736.

44, Williams v. Anniston Elec. &
Gas Co., 164 Ala. 84, 51 So. 385;
Denton v. Mammoth Spring Elec. L.
& P. Co., 105 Ark. 161, 150 S. W.
572,

45. Jenkins v. St. Paul City Ry.

Co., 105 Minn. 504, 6 St. Ry. Rep.
616, 117 N. W. 928, 20 L. R. A.
(N. 8.) 401.

46. Goddard v. Engler, 123 Ill.
App. 108; affirmed, 222 Ill. 462, 78
N. E. 805.

47, Miller v. Missouri & Kansas
Telep. Co., 141 Mo. App. 462, 126
S. W. 187. Compare, Essex Co.
Elee. Co. v. Kelly, 57 N. J. Law 100,
5 Am. Elect]. Cas. 360, 29 Atl. 427,
906

negligence.

Law or ELEctricity.

Or, stating the principle in other words, the

fact that a person, while traveling along a public highway,
is injured by contact with a highly-charged electric wire,

48. Arkansas.—Southwestern Teleg.
& Telep. Co. v. Bruce, 89 Ark. 581,
117 S. W. 564; Jacks v. Reeves, 78
Ark, 426, 95 S. W. 781.

California.— Diller v. Northern Cali-
fornia Power Co., 162 Cal. 531, 123
Pac. 359, Ann. Cas. (1913D) 908.

Colorado.— Denver Consol. E. Co.
v. Simpson, 21 Colo. 371, 5 Am.
Electl. Cas. 278, 41 Pac. 499, 31
L. R. A. 566.

Georgia Southern Bell Telep. &
Teleg. Co. v. Davis, 12 Ga. App. 28,
76 S. E. 786. See also, Augusta Ry.
& Elec. Co. v. Weekly, 124 Ga. 384,
9 Am. Electl. Cas. 555, 4 St. Ry. Rep.
151, 52 S. E. 444.

Illinois— Larson v. Cent. Ry. Co.,
56 Ill. App. 263.

Kansas.— Leavenworth Coal Co. v.
Ratchford, 8 Kan. App. 150, 7 Am.
Electl. Cas. 433, 48 Pac. 927.

Louisiana.—Herbert v. Lake Charles
Ice, L. & Waterworks Co., 111 La.
522, 35 So. 731, 64 L. R. A. 101, 100
Am. St. Rep. 505.

Maryland.— Walter v. Baltimore
Electric Co., 109 Md. 327, 71 Atl.
953; Western Union Teleg. Co. v.
State, Nelson, 82 Md. 293, 6 Am.
Electl. Cas. 210, 33 Atl. 763, 51 Am.
St. Rep. 464, 31 L. R. A. 572,

Massachusetts.— Linton v. Wey-
mouth L. & P. Co., 188 Mass. 276,
9 Am. Elect]. Cas. 465, 74 N. E. 321.

Missouri.— Gannon v. Laclede Gas-
light Co., 145 Mo. 502, 7 Am. Electl.
Cas. 509, 46 S. W. 968, 47 S. W. 907,
43 L. R. A. 505; Booker v. South-
west Missouri R. Co., 144 Mo. App.
273, 128 S. ‘W. 1012; Heiberger v.
Missouri & Kansas Telep. Co., 133
Mo. App. 452, 113 S. W. 730; Cleary
v. St. Louis Transit Co., 108 Mo. App.
433, 9 Am. Electl. Cas. 236, 3 St. Ry.

Rep. 581, 83 S. W. 1029; Brown v.
Consolidated Light, Power & Ice Co.,
(Mo. App.) 109 S. W. 1032.

New Jersey.— Newark Elec. L. &
P. Co. v. Ruddy, 62 N. J. Law 505,
7 Am. Elect]. Cas. 524, 41 Atl. 712,
57 L. R. A. 624; affirmed, Ruddy v.
Newark Elec. L. & P. Co., 63 N. J.
Law 357, 46 Atl. 1100, 57 L. R. A.
624,

New York.— Hebert v. Hudson
River Elec. Co., 136 N. Y. App. Div.
107, 120 N. Y. Supp. 672; O’Leary v.
Glens Falls Gas & Elec. L. Co., 107
N. Y. App. Div. 505, 9 Am. Electl.
Cas. 522, 95 N. Y. Supp. 232; Wol-
pers v. N. Y. & Queens Elec. L. & P.
Co., 91 N. Y. App. Div. 424, 9 Am.
Elect]. Cas. 43, 86 N. Y. Supp. 845;
Clancy v. N. Y. & Queens Co. Ry.
Co., 82 N. Y¥. App. Div. 563, 81
N. Y. Supp. 875; Smith v. Brooklyn
(Heights R. Co., 82 N. Y. App. Div.
531, 81 N. Y. Supp. 838; O’Flaherty
v. Nassau Elec. R. Co., 34 N. Y. App.
Div. 74, 7 Am. Elect]. Cas. 535, 54
N. Y. Supp. 96; affirmed without
opinion, 165 N. Y. 624, 59 N. E. 1128;
Jones v. Union Ry. Co., 18 N. Y. App.
Div. 267, 7 Am. Electl. Cas. 447, 46
N. Y. Supp. 321.

North Carolina.—Haynes v. Raleigh
Gas Co., 114 N. Car. 203, 5 Am.
Electl. Cas. 264, 19 S. E. 344, 41 Am.
St. Rep. 786, 26 L. R. A. 810.

Ohio.— Citizen’s Elec. Ry. & P. Co.
v. Bell, 26 Oh. Cir. Ct. R. 691; af-
firmed without opinion, 70 Oh. St.
482, 72 N. E, 1155.

Oregon.— Crosby v. Portland Ry.
Co., 53 Oreg. 496, 6 St. Ry. Rep. 685,
101 Pac. 204; Chaperon v. Portland
Gen. Elec. Co., 41 Oreg. 39, 8 Am.
Electl. Cas. 468; Boyd v. Portland
Elec. Co., 40 Oreg. 126, 7 Am. Electl.
EVIDENCE.

907

raises a presumption of negligence on the part of the com-

pany maintaining the wire.”

This rule applies to a wire

not normally dangerous, such as a telephone or telegraph

Cas. 661, 66 Pac. 576, 57 L. RB. A.
619,

Tennessee— Memphis St. Ry. Co.
v. Kartright, 110 Tenn. 277, 8 Am.
Electl. Cas. 430, 1 St. Ry. Rep. 763,
75 S. W. 719; Chattanooga Elec. Ry.
Co. v. Mingle, 103 Tenn. 667, 7 Am.
Electl. Cas. 594, 56 S. W. 23.

Texas.— Citizens’ Telep. Co. v.
Thomas, 45 Tex: Civ. App. 20, 9 Am.
Elect]. Cas. 950, 99 S. W. 879; South-
western Teleg. & Telep. Co. v. Shir-
ley, (Civ. App.) 155 S, W. 663.

Virginia.—Norfolk Railway & Light
Co. v. Spratley, 103 Va. 379, 9 Am.
Electl. Cas. 329, 3 St. Ry. Rep. 859,
49 S. E. 502.

Washington.— Scarpelli v. Wash-
ington Water Power Co., 63 Wash.
18, 114 Pae. 870.

West Virginia—Mannon v. Camden
Interstate Ry. Co., 56 W. Va. 554, 3
St. Ry. Rep. 928, 49 S. E. 450; Sny-
der v Wheeling Elec. Co., 43 W. Va.
661, 7 Am. Electl. Cas. 473, 28 S. E.
733, 39 L. R. A. 499, 64 Am. St. Rep.
922. “A wire charged with a deadly
current of electricity falls from its
proper place of elevation above the
street to the surface of the street, and
there, by contact with a man law-
fully passing along the highway, kills
him with its current. Are we to pre-
sume that its fall came from some
negligence of the owner, unless the
circumstances of the case or facts
shown by him shall show that its fall
is not attributable to his negligence,
but from some defect which that rea-
sonable care and prudence proper in
the case of such deadly wire was un-
able to discover, or some accident be-
yond his control; in other words,
from inevitable accident; I answer
that the law raises a prima facie case

‘of negligence.”

Snyder v. Wheeling
Elec. Co., 43 W. Va. 661, 7 Am. Electl.
Cas. 473, 28 S. E. 733, 39 L. R. A.
499, 64 Am. St. Rep. 922.

Span wire—The plaintiff, while
standing in the street at night, was
struck on the head by the end of a
span wire used to support the de-
fendant’s trolley wire, and it was
held that the doctrine res ipsa loqui-
tur must be applied. Jones v, Union
Ry. Co. 18 N. Y. App. Div. 267, 7
Am. Electl. Cas. 447, 46 N. Y. Supp.
321.

Private lands.—Where a wire trans-
mitting a dangerous charge of elec-
tricity breaks and falls upon private
lands causing injury to one living
thereon, and the defective condition
of the wire is shown, the doctrine of
res ipsa loquitur applies, casting upon
the electric company the burden of
rebutting the presumption of negli-
gence. Hebert v. Hudson River Elec.
Co., 136 N. ¥. App- Div. 107, 120
N. Y. Supp. 672.

49, Diller v. Northern California
Power Co., 162 Cal. 531, 123 Pac.
359, Ann. Cas. (1913 D) 908; Walter
v. Baltimore Electric Co., 109 Md.
327, 71 Atl. 953; Hoover v. Kansas
City Elev. Ry. Co., 159 Mo. App. 416,
140 S. W. 321; Boyd v. Portland Elec.
Co., 40 Oreg. 126, 7 Am. Electl. Cas.
661, 66 Pac. 576, 57 L. R. A. 619;
Southwestern Teleg. & Telep. Co. v.
Shirley, (Tex. Civ. App.) 155 S. W.
663. “In view of the exceedingly
dangerous character of electric light
and power wires, and the peril to
which their suspension over the pub-
lic streets exposes the public who con-
stantly traverse and use the streets,
we think it both just and reasonable
to hold that the injury of a person
908

Law or ELsEctrIcItTy.

wire, which in falling comes in contact with a wire convey-
ing a dangerous current and carries the current to the
street. Likewise, where two wires of different electric
tension are maintained in such proximity that they come in
contact and injury is thereby occasioned, it is held that the
injury creates a prima facie case of negligence. So, too,
it is an unusual condition for a guy wire at a place where
people frequently pass to be charged with a dangerous cur-
rent of electricity, and where it is so charged and injury
results therefrom, in an action for the injuries, the doctrine
res ipsa loquitur applies. In the same way, where a person
receives a shock from contact with an electric wire main-
tained in a place where persons may reasonably be expected
to go, it is held that the receipt of the shock presents a
prima facie case that the maintainer of the wire has been
guilty of negligence in the insulation of the wire;* and in

upon the surface of the street by con-
tact with a hanging or fallen wire
of that character, in itself, if unex-
plained, affords sufficient prima facie
evidence of negligence on the part of
the owner of the wire to entitle the
plaintiff to go to the jury in an action
for damages for the injury.” Walter
v. Baltimore Electric Co., 109 Md. 327,
71 «Atl. 953.

50. Southwestern Teleg. & Telep.
Co. v. Bruce, 89 Ark. 581, 117 8S. W.
564; Western Union Teleg. Co. v.
State, Nelson, 82 Md. 293, 6 Am.
Electl. Cas. 210, 33 Atl. 763, 51 Am.
St. Rep. 464, 31 L. R. A. 572;
Brown v. Consolidated Light, Power
& Ice Co., (Mo. App.) 109 S. W.
1032; Citizens’ Telep. Co. v. Thomas,
45 Tex. Civ. App. 20, 9 Am. Electl.
Cas. 950, 99 S. W. 879. Southwest-
ern Teleg. & Telep. Co. v. Shirley,
(Tex. Civ. App.) 155 S. W. 663.

51. Southern Bell Telep. Co. v.
Davis, 12 Ga. App. 28, 76 S. E. 786;

Indianapolis L. & H. Co. v. Dolby, 47
Ind, App. 406, 92 N. E. 739.

52. Hoover v. Kansas City Elev. Ry.
Co., 159 Mo. App. 416, 140 S. W. 321;
Haynes v. Raleigh Gas Co., 114
N. Car. 203, 5 Am. Electl. Cas. 264,
19 S. E. 344, 41 Am, St. Rep. 786,
26 L. R. A. 810; Shawnee Light &
Power Co. v. Sears, 21 Okl. 13, 95
Pac. 449.

58. Colusa Parrot Mining and
Smelting Co. v. Monahan, 162 Fed.
276, 89 C. C. A. 256; Giraudi v. Elec.
Imp. Co., 107 Cal. 120, 5 Am. Electl.
Cas. 318, 40 Pac. 108, 28 L. R. A. 596,
48 Am. St. Rep. 114; Brown v. Edi-
son Elec. I!um. Co. of Baltimore
City, 90 Md. 400, 7 Am. Elect]. Cas.
576, 45 Atl. 182, 46 L. R. A. 745, 78
Am. St. Rep. 442; Drown v. New
England Telep, & Teleg. Co., 80 Vt. 1,
9 Am. Elect]. Cas. 1053, 66 Atl. 801;
Runyan v. Kanawha W. & L. Co., 68
W. Va. 609, 71 S. E. 259; Thomas v.
Wheeling Elec. Co., 54 W. Va. 395,
8 Am. Electl. Cas. 528, 46 S. E. 217.
EviIpENcE. 909

some jurisdictions it is said that the receipt of the injury
is conclusive evidence of the insufficiency of the insulation.™

Contrary Rule in Pennsylvania.— With reference to the
presumption of negligence which generally follows an in-
jury received from the falling of an electric wire in a pub-
lic highway, the courts of Pennsylvania take a position
opposed to that of the courts of all the other states. It is
there held that the doctrine res ipsa loquitur is not appli-
cable to an injury caused by the falling of high-tension wire
in a public place.

©

Sec. 595. Res Ipsa Loquitur; Poles.

Where a person in a public highway receives a shock
from a pole maintained and under the control of the defend-
ant, the rule of res ipsa loquitur applies, and the burden is
on the defendant to rebut the presumption of negligence.

Sec. 596. Res Ipsa Loquitur; Street Lamps.

Where injuries are caused to a traveler by the falling of
an electric street light, a presumption that the maintainer
thereof is guilty of negligence arises.” So, too, the maxim

54, McLaughlin v. Louisville Elec.
L. Co., 110 Ky. 1733 6 Am. Electl.
Cas. 255, 37 S. W. 851, 34 L. R. A.
12, 18 Ky. Law Rep. 693; Van Trebra
v. Laclede Gaslight Co., 209 Mo. 648,
108 S. W. 559; Geismann v. Missouri
Edison Elec. Co., 173 Mo. 634, 8 Am.
Electl. Cas. 569, 73 S. W. 654.

55. Kahn v. Kittanning Elec. L.
Co., 238 Pa, 70, 85 Atl. 1117; Lan-
ning v. Pittsburg Railways Co., 229
Pa. St. 575, 7 St. Ry. Rep. 361, 79
Atl. 136, 32 L. R. A. (N. 8.) 1043;
Cavanaugh v. Allegheny County Light
Co., 226 Pa. St. 86, 75 Atl, 21; Kep-
ner v. Harrisburg Tract. Co., 183 Pa.
St. 24, 38 Atl. 416, 4 Am. Neg. Rep.
77; Patterson Coal & Supply Co. v.
Pittsburg Rys. Co., 37 Pa. Super. Ct.
212, 9 Am. Electl. Cas. 1134. “ What-
ever may be the rule in other juris-

dictions as to the presumption of neg-
ligence whenever one traveling on the
street of a municipality is injured by
an appliance of a company using elec-
tricity upon or over the street, our
cases recognize no such presumption.
With us the rule res ipsa loquitur
does not apply in such a case, and
the burden was upon the appellees to
show more than the mere breaking of
the wire.” Lanning v. Pittsburg
Railways Co., 229 Pa. St. 575, 7 St.
Ry. Rep. 361, 79 Atl. 136, 32 L. R. A.
(N. 8S.) 1043.

56. Moglia v. Nassau Elec. R. Co.,
127 N. Y. App. Div. 243, 111 N. Y.
Supp. 70.

57. Louisville Lighting Co. v.
Owens, 32 Ky. Law Rep. 283, 9 Am.
Electl. Cas. 1097, 105 S. W. 435;
Excelsior Elec. Co. v. Sweet, 57
910 Law oF ELectriciry.

res ipsa loquitur is applicable where a street lamp has
fallen to the ground and a traveler along the highway comes
in contact with the lamp or wires connected thereto and
receives an injurious shock of electricity.

Sec. 597. Res Ipsa Loquitur; Interior Appliances.

The electric current ordinarily used for interior electric
illumination is of such low voltage that it will seldom. cause
injury though it happens to pass through one’s body.
When, therefore, a person, while turning on an electric
incandescent light or otherwise coming in contact with an
interior wire or appliance, receives a shock which results
in death or serious injury, the maxim res ipsa loquitur
applies, and the burden of explanation is on the electric
company to produce evidence showing that the excessive
current was not sent to the building through its negli-

gence.”®

N. J. L. 224, 30 Atl. 553; Sweeney
v. Edison Elec. Illum. Co. of Brook-
lyn, 158 N. Y. App. Div. 449, 145
N. Y. Supp. 636.

Rebuttal of presumption—In an
action for injuries sustained by a
traveler, who while passing along the
street was struck by an electric lamp
which because of the breaking of a
rope fell as an employee of the de-
fendant was raising it to its position,
the defendant in order to relieve itself
from liability must show that its em-
ployee in charge was reasonably pru-
dent and skillful, and that the rope
had a latent defect which could not
have been discovered by a person
with reasonable skill and prudence in
the business. Louisville Lighting Co.
y. Owens, 32 Ky. Law Rep. 283, 9
Am. Electl. Cas. 1097, 105 8S. W. 435.

58. Potera v. City of Brookhaven,
95 Miss. 774, 49 So. 617; Huscher
v. New York & Queens Elec. L. & P.
Co., 158 N. Y. App. Div. 422, 143
N. Y. Supp. 639.

59, United States— San Juan L. &

In such a case it is immaterial that the electric

Transit Co. v. Requena, 224 U. 8S.
89, 32 S. Ct. 399, 56 L. Ed. 680;
affirming 4 Porto Rico Fed. Rep. 356;
Memphis Consol. Gas & Elec. Co. v.
Letson, 135 Fed. 969, 9 Am. Electl.
Cas. 367, 68 C. C. A. 453. See also,
Whitten v. Nevada P., L. & W. Co.,
132 Fed. 782, 9 Am. Electl. Cas. 179.
“ Customers who contract for a harm-
less current to light their houses are
entitled to rely on such inspection
and repair as will effectually guard
them against a dangerous current.
They cannot guard themselves. Any
attempt to do so would expose them
to immediate peril. They must take
and use the current on trust, relying
upon the protection of the company.
In view of this, when a deadly cur-
rent enters a customer’s house and
kills him, it is not too much to eall
upon the company to explain the ex-
istence of the defect which caused the
tragedy. If attributable to some force
which the company could not foresee
and guard against, it should not be
held culpable. But an unexplained
EVIDENCE.

911

light or immediate fixture is not under the control or man-
agement of the defendant, so long as the injurious current
is carried to the building over the wires of the defendant.
Negligence is presumed from the defendant’s control of
the agency which caused the injury in question, and whether
or not the defendant has the control and management of
the interior appliance from which incidentally the injury

defect is a blamable one. A company
which, for purposes of gain, creates
or carries a deadly current, must take
care of it, and if it gets away because
the wires are out of order, and enters
a residence and kills a customer with-
out any fault on his part, negligence
is presumed, and the company is
bound to exculpate itself.”
Consol. Gas & Elec. Co. v. Letson,
135 Fed. 969, 9 Am. Electl. Cas. 367,
68 C. C. A. 453.

Alabama.— Alabama City, etc., Ry.
Co. v. Appleton, 171 Ala, 324, 54
So. 638, Ann. Cas, (1913 A) 1181.

Colorado.— Denver Consol. Elec. Co.
v. Lawrence, 31 Colo. 301, 8 Am.
Electl. Cas. 617, 73 Pac. 39.

Georgia.— Augusta Ry. & Elec, Co.
v. Beagles, 12 Ga. App. 849, 78 S. E.
949.

Illinois.— Quincy Gas & Elec. Co. v.
Schmitt, 123 Ill. App. 647, 9 Am.
Electl. Cas. 932; Goddard v. Enzler,
123 Ill. App. 108; affirmed, 222 Ml.
462, 78 N. E. 805; Alton Ry. & Illum.
Co. v. Foulds, 81 IH. App. 322, 7 Am.
Elect]. Cas. 548; affirmed, 190 IIl.
367, 60 N. E. 537.

North Carolina.— Turner v. South-
ern Power Co., 154 N. Car. 131, 69
S. E. 767, 32 L. R. A. (N. 8.) 848,
See also, Houston v. Durham Tract.
Co., 155 N. Car. 4, 71 8. E. 21.

Ohio.— Wheeler v. Northern Ohio
Traction Co., 27 Ohio Cir. Ct. 517, 9
Am. Electl. Cas. 606.

Pennsylvania.— Crowe v. Nanticoke
L. Co., 209 Pa. 580, 9 Am. Electl. Cas.
195, 58 Atl. 1071; Alexander v. Nan-

Memphis -

ticoke L. Co., 209 Pa, 571, 9 Am.
Elect], Cas. 188, 58 Atl. 1068, 67
L. R. A. 475.

Rhode Island.— Reynolds v. Narra-
gansett Elec. L. Co., 26 R. I. 457, 9
Am. Elect]. Cas. 207, 59 Atl. 393.

Washington.— Abrams v. City of
Seattle, 60 Wash. 356, 111 Pac. 168.

West Virginia— Bice v. Wheeling
Elec. Co., 62 W. Va. 685, 59 S. E.
626.

Canada.— Royal Electric Co. v.
Heve, 11 Quebec K. B, 436; Ottawa
Elec. Co. v. Cunningham, 20 Que.
K. B. 481. “The wires in the build-
ing were supposed to carry only a
certain voltage, insufficient to cause
death. Death ensues to a person who
touches one‘of the wires in the build-
ing, and it is proved that the voltage
which killed the man was in excess
of what the wires were supposed to
be carrying. It is then for the com-
pany to show how the excess of cur-
rent came to be in the wires. It is
for the company to disengage itself
from responsibility by positive proof
on that point. It does not fall to
the plaintiffs to show that.” Ottawa
Elec. Co. v. Cunningham, 20 Que.
K. B (Canada) 481.

A transformer, being wholly under
the control of an electric light com-
pany, its breaking down or functual
derangement is inferentially evidence
of negligence, thus casting upon the
company the burden of rebutting the
same. Reynolds v. Narragansett Elec.
L. Co., 26 R. I. 457, 9 Am. Electl.
Cas. 207, 59 Atl, 393.
912 Law oF ELEcTRICITY.

arose, is not material.°° Where, however, it appears that
the interior appliance was defective and that the defect in
such appliance materially contributed to the injury, no
presumption of negligence arises as against a defendant
under no obligation to inspect and repair such interior
appliance. For example, where a hotel guest received a
shock from the falling of an electric light wire on him, and
it appeared that the wiring was not done by the electric
company which furnished the electricity and that it was
under no obligation to inspect and repair such wiring, its
negligence will not be presumed. So, too, where a person
received a shock of electricity from defective insulation on
an interior wire, and the company furnishing the current
was under no obligation as to such wire, it was held that
there was no presumption of negligence as against the com-
pany.” Not only in such cases is there no presumption of
negligence against the electric company, but the facts indi-
cate an absence of liability. The presence of the excessive
current is usually due either to defects in the transformer
or to contact between the primary and secondary wires of
the company, but the defendant does not, as a matter of
law, overcome the effect of the presumption of negligence
by showing that neither of such conditions was responsible
for the injury.

Sec. 598. Res Ipsa Loquitur; Telephones.

It has been held that the doctrine of res ipsa loquitur
applies where a subscriber of a telephone company, when
taking hold of the transmitter, receives an electric shock
which kills him instantly.* But, on the other hand, it has

60. See the cases cited above. Com- 62. Minneapolis Gen. Elec. Co. v.

pare, Union Light, Heat & P. Co. v.
Lakeman, 156 Ky. 33, 160 S. W. 723;
Peters v. Lynchburg, etc., Light Co.,
108 Va. 333, 9 Am. Elect]. Cas. 1117,
61 8S. EB. 745, 22 L. R. A. (N. S.)
1188.

61. Harter v. Colfax Elec. L. & P.
Co., 124 Iowa 500, 9 Am. Electl. Cas.
161, 100 N. W. 508.

Cronon, 166 Fed. 651, 92 C. GC. A.
345, 20 L. R. A. (N.S.) 816.

63. See § 494,

64, Wheeler v. Northern Ohio Trac-
tion Co., 27 Oh. Cir. Ct. 517, 9 Am.
Electl. Cas., 606.

65. Delahunt v. United Telep. &
Teleg. Co., 215 Pa. St. 241, 9 Am.
Elect]. Cas. 792, 64 Atl. 515,
EVIDENCE. 913

been held that the maxim does not apply to an injury re-
ceived by one using a telephone during a thunder shower,
where it appeared that the company had maintained on the
telephone the best known device in general use for pro-
tection against lightning.“ The latter decision would, per-
haps, be more satisfactory if it had been placed, not on the
ground that the doctrine of res ipsa loquitur did not apply,
but upon the ground that the defendant had met and over-
come the presumption of negligence.

Sec. 599. Res Ipsa Loquitur; Street Railway Operation.

The doctrine of res ipsa loquitur is peculiarly applicable
to injuries received by a passenger on a street railway
car.” As to passengers, the contractual relation, which is
deemed of importance by the courts of some jurisdictions,

66. Rocap v. Bell Telephone Co. of
Philadelphia, 230 Pa, St. 597, 79 Atl.
769, 36 L, R. A. (N. S.) 279.

67. In Nellis on Street Railways
(2d Ed.), section 495, it is said:
“Negligence is not generally pre-
sumed from the fact of damage or
proof of the occurrence of an injury.
So a presumption of negligence does
not follow the simple and unexplained
fact of an injury to a passenger while
on a car, but the cause or, at least,
the nature of the accident resulting
in the injury must be shown, for it
is upon the character or nature of
the accident that presumption of neg-
ligence must rest. The presumption
of the proper performance of duty ap-
plies in cases of alleged negligence, as
in all other cases, yet the circum-
stances under which an injury oc-
curred may be such as to create the
presumption of negligence. In such
cases the rule res ipsa loquitur ap-
plies, and, when that which caused
the injury is shown to have been
under the management and control of
the defendant or his servants, and

58

the accident is such as in the ordi-
nary course of things does not hap-
pen if those who have the manage-
ment use proper care, it affords rea-
sonable evidence, in the absence of ex-
planation, that the accident arose
from want of care, and there is said
to be a presumption of negligence
sufficient to entitle plaintiff to go to
the jury. The reasons of the rule are
that defendant is liable for the negli-
gence of his employees as well as for
his own, and that he or his servants
being in the exclusive management
and control of that which caused the
injury, the injury is more naturally
to be attributed to his own acts or
omissions than to those of a stranger,
and his means and sources of knowl-
edge are superior to those of the
plaintiff. Therefore, in the absence
of an explanation showing by proof
that the accident was caused by an-
other, or by some other cause for
which the carrier was not responsible,
there is a presumption of negligence
on his part.”
914

exists.©

Law or ELecrricirty.

Thus, if an unusual explosion occurs in the con-

troller or other electrical machinery of a street car, accom-
panied by an outburst of flame or other extraordinary con-
ditions, and an injury is thereby occasioned to a passenger,
the doctrine of res ipsa loquitur is applicable. So, too,
if a passenger while entering or leaving a street railway

68. “ Where an injury occurs to a
person who is a passenger in the exer-
cise of ordinary care, upon the car
of a common carrier, by some defect
in the machinery wholly under the
control of the carrier, a prima facie
ease of negligence on the part of the
carrier is established, and the burden
of proof is upon it to show that the
accident was without its fault.” Chi-
cago Union Tract. Co. v. Newmiller,
215 Ill. 383, 4 St. Ry. Rep. 165, 74
N. E. 410.

“No presumption of negligence on
the part of the carrier arises in cases
where the passenger is injured by
some cause wholly disconnected from
the operation of the vehicle in which
he is riding. Thus, if he is injured
by a missile projected from outside of
the vehicle, the carrier cannot be held
liable except on the showing that the
injury was the result of some negli-
gent act connected with the transpor-
tation. The carrier is not an insurer
of the safety of the passenger, and is
liable only for injuries inflicted by
its negligence, and the burden of proof
always is on the passenger to estab-
lish the fact of the carrier’s negli-
gence by evidence. But, where the
passenger shows that his injury was
caused by some breaking of machin-
ery, a collision, derailment of cars, or
something improper or unsafe in the
conduct of the business or in the ap-
pliances of transportation, he needs
go no further, since from any such
happening a presumption of negli-
gence on the part of the carrier
arises.” McRae v. Metropolitan St.

Ry. Co., 125 Mo. App. 710, 103 S. W.
142,

69. California— Patterson v. San
Francisco, ete., Ry. Co., 147 Cal. 178,
4 St. Ry. Rep. 44, 9 Am. Electl. Cas.
485, 81 Pac. 531; Waniorek v. United
Railroads of San Francisco, 17 Cal.
App. 121, 118 Pac. 947.

Illinois.— Chicago Union Tract. Co.
v. Newmiller, 215 Ill. 383, 4 St. Ry.
Rep. 165, 74 N. E. 410; Garner v.
Chicago Consol. Tract. Co., 150 Ill.
149.

Indiana.— Louisville & S. I. Trac-
tion Co. v. Worrell, 44 Ind. App. 480,
86 N. E, 78.

Massachusetts.— Beattie v. Boston
Elev. Ry. Co., 201 Mass. 3, 86 N. E.
920; Gilmore v. Milford, ete., Ry. Co.,
193 Mass. 44, 5 St. Ry. Rep. 439, 9
Am. Electl. Cas. 936, 78 N. E. 744.
See also, Martin v. Boston, etc. R.
Co., 205 Mass, 16, 91 N. E, 159.

Missouri.— See Trotter v. St. Louis,
ete., Ry. Co., 122 Mo. App. 405, 99
S. W. 508.

New York.— Blumenthal v. Brook-
lyn Union Elev. R. Co., 158 App. Div.
558, 143 N. Y. Supp. 811; Paine v.
Geneva, etc., Tract. Co., 115 N. Y.
App. Div. 729, 6 St. Ry. Rep. 812,
101 N. Y. Supp. 204; Williams v.
New York & Queens County Ry. Co.,
97 N. Y. App. Div. 133, 89 N. Y.
Supp. 669; Poulson v. Nassau Elec.
R. Co., 30 N. Y. App. Div. 246, 7 Am.
Elect]. Cas. 677, 51 N. Y. Supp. 933;
Poulson v. Nassau Elec. R. Co., 18
N. Y. App. Div. 221, 7 Am. Electl.
Cas. 675, 45 N. Y. Supp. 941.

Pennsylvania.— See Green v. Pitts-
EVIDENCE.

915

car or while riding thereon receives an electric shock by
contact with a metal part of the car, a presumption of negli-
gence on the part of the carrier arises.” In the same way,
if the pole connecting the service wire with the car falls
and injures a passenger, a prima facie case of the com-
pany’s negligence is afforded by the accident.” Similarly,

burg, ete, Ry. Co, 219 Pa. St. 241,
68 Atl. 675.

Washington.— Firebaugh v. Seattle
Elee. Co., 40 Wash. 658, 4 St. Ry.
Rep. 1055, 82 Pac. 995, 2 L. R. A.
(N. 8.) 836, 111 Am. St. Rep. 990.

Wisconsin.—Gay v. Milwaukee Elec.
Ry. & L. Co., 138 Wis. 348, 120 N. W.
283.

Explosion of controller of car on
adjoining track.— The doctrine of res
ipsa loquitur is applicable where a
passenger on one car receives an in-
jury as the result of an explosion of
the controller of a car on an adjoin-
ing track, German v. Brooklyn
Heights R. Co., 107 N. Y. App. Div.
354, 9 Am. Electl. Cas. 933, 4 St.
Ry. Rep. 848, 95 N. Y. Supp. 112.

Burning out of a fuse.— A fuse as
used in the machinery connected with
an electric car is a safety device to
prevent injury to the electric mechan-
ism arising from variation in the
electric current. The fuse is expected
to burn out when, for any cause, the
electric current exceeds the carrying
capacity of the mechanism. When,
therefore, a fuse burns out it is not
prima facie evidence of negligence.
Where the evidence warrants a con-
clusion that the intensity and dura-
tion of the flame caused by the explo-
sion was greatly in excess of what
would have been the result if the fuse
had been in proper condition, and that
its imperfect condition might have
been discovered by the use of reason-
able care, the defendant is not en-
titled to a ruling to the effect that
the doctrine of res ipsa loquitur does

not apply. It was proper to instruct
the jury that the matter was before
them to decide how far negligence
could be inferred from the accident
itself. Cassady v. Old Colony St. Ry.
Co., 184 Mass. 156, 8 Am. Electl. Cas.
815, 1 St. Ry. Rep. 330, 68 N. E. 10,
63 L. R. A, 285.

70. Denver Tramway Co. v. Reid, 4
Colo. App. 53, 4 Am. Electl. Cas. 332,
35 Pac. 269; Eickhof v. Chicago North
Shore St. R. Co., 77 Ill. App. 196;
South Covington & Cincinnati St. Ry.
Co. v. Smith, 27 Ky. Law Rep. 811, 3
St. Ry. Rep. 264, 9 Am. Electl. Cas.
452, 86 S. W. 970; McDonough v.
Boston Elev. Ry. Co., 208 Mass. 436,
94 N. E, 809; Black v. Metropolitan
St. Ry. Co., 162 Mo. App. 90, 144
S. W. 131; McRae v. Metropolitan
St. Ry. Co., 125 Mo. App. 562, 5 St.
Ry. Rep. 636, 102 S, W. 1032; D’Arcy
v. Westchester Electric Ry. Co., 82
N. Y. App. Div. 263, 81 N. Y. Supp.
952; Dallas Consol. Elec. St. Ry. Co.
v. Broadhurst, 28 Tex. Civ. App. 630,
68 8S. W. 315. See also, Black v.
Metropolitan St. Ry. Co., 217 Mo.
672, 117 8. W. 1142.

71. Chicago City Ry. Co. v. Carroll,
206 Ill. 318, 2 St. Ry. Rep. 124, 68
N. E. 1087, affirming 102 Il. App.
202; Cincinnati Traction Co. v. Hol-
zenkamp, 74 Oh. St. 379, 5 St. Ry.
Rep. 796, 113 Am. St. Rep. 980, 78
N. E, 529, 6 L. R. A. (N. 8S.) 800.

Falling of wheel from trolley pole.
—Res ipsa loquitur is applicable where
a passenger is injured by the falling
of a wheel from a trolley pole. Dono-
van v. Kansas City Elevated Ry. Co.,
916 Law or ELectrictry.

where a horse” or a person™ steps on a rail and receives
a shock therefrom, a presumption of negligence may arise.
Likewise, where a portion of an iron ear used to attach a
guy wire to the trolley falls and inflicts an injury, the
injured person is entitled to recover for his injuries with-
out other proof of the company’s negligence. So, too,
where a horse is frightened by a loud noise and smoke
arising from the machinery of an electric car, it has been
held that the doctrine of res ipsa loquitur is applicable.”
Whether the doctrine of res ipsa loquitur is applicable in
case of injury from the wires of a street railway company,
is discussed in another section.”

Sec. 600. Real Evidence.

““ Real evidence ’’ is a term which covers such facts as
are presented to the perceptive faculties of the court and
jury by things. It is distinguished from ‘‘ personal evi-
dence ’’ which denotes such facts as have their origin and
source in persons.” For practical purposes, it may be said
that real evidence is the evidence furnished by things and
that personal evidence is the evidence furnished by per-
sons. Real evidence, if relevant to an issue, is, as a general
proposition, admissible. Thus, if one of the issues on a
trial is the soundness of a pole,”* wire, or other electrical

157 Mo. App. 649, 7 St. Ry. Rep. 190,
138 S. W. 679.

72. Wood v. Wilmington City Ry.
Co., 5 Pen. (Del.) 369, 9 Am. Electl.
Cas. 477, 64 Atl. 246; St. Louis v.
Bay State St. Ry. Co., (Mass.) 103
N. E. 639; Clarke v. Nassau Elec. R.
Co., 9 N. Y. App. Div. 51, 6 Am.
Elect]. Cas. 234, 41 N. Y. Supp. 78,
75 N. Y. St. Rep. 539; Trenton Pass.
Ry. Co. v. Cooper, 60 N. J. L. 219, 7
Am. Electl. Cas. 444, 37 Atl. 730, 38
L. R. A. 637, 64 Am. St. Rep. 592.

73, Sullivan v. Brooklyn Heights
Ry. Co., 117 N. Y. App. Div. 784, 6
St. Ry. Rep. 850, 9 Am. Electl. Cas.
1009, 102 N. Y. Supp. 982; Braham
v. Nassau Electric R. Co., 72 N. Y.

App. Div. 456, 76 N. Y. Supp. 578;
Ludwig v. Metropolitan St. Ry. Co.,
71 N. Y. App. Div. 210, 75 N. Y.
Supp. 667; reversed on other grounds,
174, N. Y. 546, 67 N. E. 1084.

74, Uggla v. West End R. Co., 160
Mass. 351, 4 Am. Electl. Cas. 389,
35 N. E. 1126.

75. Richmond Ry. & Elec. Co. v.
Hudgins, 100 Va. 409, 41 S. E. 736.

76. § 594.

77. A philosophical discussion of
the distinction between real and per-
sonal evidence will be found in Cham-
berlayne’s Modern Law of Evidence,
§§ 27-31.

78. Choctaw Elec. Co. v. Clark, 28
Okla. 399, 114 Pac. 730.
Eiviwence. 917

appliance, it may be produced in court and examined by
the judge and jury. It is, of course, not admissible unless
it is practically in the same condition as at the time of the
occurrence under investigation.” Clothing worn by an
injured person at the time of an accident may be admissible
to illustrate the manner in which the injury was occa-
sioned.* In an action for injuries received by a lineman
while working on a pole, a request to be allowed to suspend
wires over a model of a pole erected in the court-room to
illustrate the power wires with which he came in contact,
may be denied as a matter of discretion.** Where a person
was injured by an electric wire in a street, it was held
proper to admit a cross-arm and the appliances connected
therewith to show the method adopted by the defendant for
stringing its wires on the poles, though such appliances
were not admissible to show that the appliances in ques-
tion were defective.” Photographs of the locus in quo, if
shown to be accurate representations of conditions, are
frequently admitted.*

Sec. 601. Hearsay; in General.

Unsworn statements, unless within one of recognized
exceptions to the general rule, are hearsay and are inad-
missible, however relevant they may be to the issue involved
in a litigation.** The hearsay rule, though condemned by
eminent jurists and text-writers, remains in full force in
practically every English-speaking country. Thus, where
the question is whether certain electrical wiring has been
properly done, rules of various boards of fire underwriters
and electric light companies prescribing the way in which
electric wiring should be done, are inadmissible.* So, too,

79. Annapolis Gas & Elec. L. Co. v.
Fredericks, 112 Md. 449, 77 Atl. 53.

80. Quincy Gas & Electric Co. v.
Baumann, 203 Ill. 295, 8 Am. Electl.
Cas. 460, 67 N. E. 807; affirming 104
Ill. App. 600,

81. Drown v. New England Telep.
& Teleg. Co., 81 Vt. 358, 70 Atl. 599.

82. City of Madison v. Thomas, 130
Ga. 153, 60 S. E. 461.

83. Bowling Green Gaslight Co. v.
Dean’s Ex’x, 142 Ky. 678, 134 S. W.
1115; Consolidated Gas, Electric Light
& Power Co. v. State, 109 Md. 186,
72 Atl. 651.

84. See Chamberlayne on Evidence,
§§ 2574, et seq.

85. Dechert v. Municipal Elec. L.
Co., 39 N. Y. App. Div. 490, 57 N. Y,
Supp. 225, wherein it was said:
918 Law or Evecrricirty.

in an action for the death of a traveler coming in contact
with a dangerous wire in a highway, the testimony taken
at the inquest held by the coroner on the body of the
deceased, is inadmissible.** But the exceptions to the
hearsay rule are several and are as well established as the
primary rule itself.

Sec. 602. Hearsay; to Show Mental State.

One exception to the hearsay rule permits the introduc-
tion of unsworn statements to show the mental state or the
mental condition of a person.*’ Thus, where a workman
was killed by striking his head against an electric wire, as
bearing upon his contributory negligence, it is proper to
introduce a statement made by him to the effect that the
place was safe.** Evidence of this nature is not admissible
to show the safety or unsafety of the place, but is received
to show the mental state of the deceased. Unsworn state-
ments may also be heard to prove notice or knowledge.”
Thus, evidence may be received of statements made by or
to officers of an electric company where they indicate notice

‘or knowledge of defective conditions.”

“The rules of other companies were
neither statements of fact, nor sworn
testimony of opinion. They were, at
best, only the declarations of various
people, and made out of court and
not under sanction of an oath, as to
what in their opinion would be a
proper mode of insulating wires
through which electricity was in-
tended to be conducted. They were
of no greater force than the declara-
tions of anybody else and for that
reason they were entirely incompe-
tent.”

86. Fox v. Village of Manchester,
183 N. Y. 141, 9 Am. Electl. Cas.
559, 75 N. E. 1116, 2 L. R. A. (N.S.)
474,

87. See Chamberlayne on Evidence,
§§ 2638, et seq.

88. Raker v. Toledo & Indiana Ry.,
30 Oh. Cir, Ct. 78.

89. “Few mental states sre of
greater importance in view of the
law than that of knowledge. The sig-
nificance and legal consequences of
conduct are determined, in large man-
ner, by consideration of what the per-
son in question knew. In this connec-
tion, as in so many others, a glimpse
at the contents of the person’s mind
may be gained by a consideration of
the relevant judicial statements which
have been made by or to him. In
other words, in judging as to what
A knew at a given time, it may be
helpful to consider (1) what state-
ments were made to A and, (2) what
statements were made by A which
tend to throw light upon the sub-
ject.” Chamberlayne, Modern Law of
Evidence, § 2666.

90. Birmingham L. & P. Co. v. Mur-
phy, 2 Ala. App. 588, 56 So. 817;
EVIDENCE. 919

Sec. 603. Hearsay; Res Gestae.

Unsworn statements made under such circumstances as
to constitute a part of the res gestae are generally admis-
sible if relevant to an issue involved.” This is true though
the res gestae declarations are self-serving in their nature.”
For example, where a person was killed by coming in con-
tact with an electric wire, an exclamation made by him as
he fell from the wire and expired, may be admitted.™
Similarly, where a person is killed by an electric shock
while turning off a switch, it is held that his statements
just before the accident to the effect that there is no danger
are admissible as part of the:res gestae.* Declarations of
employees of the defending company may also be admis-
sible as part of the res gestae. But where statements are
not part of the occurrence itself, but constitute merely a
narrative of past occurrences, they are not admissible as a
part of the res gestae.** Thus, in an action for injuries
received by an employee in a municipal lighting plant, a
statement of the general superintendent of the plant made
on the morning following the accident to the effect that the
accident was his fault, is not part of the res gestae. In

Diller v. Northern California Power
Co., 162 Cal. 531, 123 Pac. 359, Ann.
Cas. (1913 D) 908.

91. For a complete discussion of the
nature and admissibility of res geste
declarations, see Chamberlayne, Mod-
ern Law of Evidence, sections 2581,
et seq., and sections 2984-3050.

92. “The prompting of self-interest
being silenced by the agencies which
have rendered an extrajudicial state-
ment spontaneous, the circumstances
that the utterance is a self-serving
one is regarded by judicial adminis-
tration as of no consequence.” Cham-
berlayne, Modern Law of Evidence,
section 2994.

93. Lewis’s Adm’r v. Bowling Green
Gaslight Co., (Ky.) 117 8. W. 278;
Harrington v. Com’rs of Wadesboro,
153 N. Car. 437, 69 S. E. 399.

94, Witmer v. Buffalo, etc., L. & P.

Co., 112 N. Y. App. Div. 698, 9 Am.
Electl. Cas. 787, 98 N. Y. Supp. 781;
affirmed without opinion, 187 N. Y.
572, 80 N. E. 1122.

95. Zentner v. Oshkosh Gas Light
Co., 126 Wis. 196, 105 N. W. 911.

Twenty-five minutes after accident.
—In an action against a telephone
company for injuries to a patron, re-
sulting from lightning entering the
building because of the failure of the
defendant to maintain a proper light-
ning arrestor, declarations of an oper-
ator at the switchboard about twenty-
five minutes after the accident that
the phone in question was torn up
by lightning are admissible as part
of the res geste. Southern Teleg. &
Telep. Co. v. Evans, 54 Tex. Civ. App.
63, 116 S. W. 418. a

96. City of Wynnewood v. Cox, 31
Okla. 563, 122 Pac. 528.
920 Law or ELectrictry.

some cases, however, statements of employees or officers
may be received as admissions of the company, though
they are not part of the res gestae. But such statements
are generally inadmissible unless made in the course of the
declarant’s employment or duty.®”

Sec. 604. Hearsay; Admissions.

An admission by an agent of an electric or other cor-
poration, when relevant to the issue on trial, will generally
be received in evidence if the statement was made in the
course of his employment.®* And it is equally true that
such a statement, however relevant it may be to the issue,
will not generally be admitted, if not made by the agent
in the course of his employment.” Especially is this true,
when the declaration is made by an officer or employee of
a municipality; declarations of municipal agents are not
generally admissible against the municipality, unless they
constitute a part of the res gestae.

Sec. 605. Expert Evidence; in General.

The opinions or judgments of expert witnesses are fre-
quently received as to matters involving technical or
scientific knowledge not within the ordinary knowledge of
judges and jurors.” While the danger of high voltage cur-
rents and many other electrical matters of everyday occur-
rence are within the knowledge of the men ealled to deter-
mine issues of fact, it is obvious that they need enlighten-
ment as to many of the phenomena of electricity, and the
manner of its generation, control, etc. A suit involving the
action of electrical currents generally affords ample oppor-
tunity for the expression of the views of electrical experts.
Certain electrical appliances, such as poles, wires, etc., are

97. § 604. Sims’ Adm’r, 18 Ky. Law Rep. 761, 6
98. City of Austin v. Nichols, 42 Am. Elect]. Cas. 297, 20 Ky. Law
Tex. Civ. App. 5, 9 Am. Electl. Cas. Rep. 330, 38 S. W. 131.

938, 94 S. W. 336; Lynchburg Telep. 1. City of Wynnewood v. Cox, 31
Co. v. Booker, 103 Va. 594, 9 Am. Okla. 563, 122 Pac. 528.
Elect]. Cas. 406, 50 S. E. 148. 2. See Chamberlayne, Modern Law

99. East Tennessee Telep. Co. v. of Evidence, 3d volume.
EVIDENCE. 921

better known by jurors than are the phenomena of the cur-
rent itself. Thus, it has been held that the stringing of
wires from one pole to another through the branches of an
intervening tree is a matter within the range of ordinary
knowledge, experience, and observation, and is not a mat-
ter as to which expert testimony will be admitted.* So, too,
in an action by a telephone lineman for injuries received
by contact with an electric light wire strung above the
telephone poles, it was held that it was improper to per-
mit the foreman of the telephone company’s linemen to
give an opinion that the lighting company’s poles could
have been placed nearer the fence or could have been taller,
and safety could have thus been insured.* On the other
hand, it has been held that expert evidence is admissible
for the purpose of showing the number of linemen which
should be employed in stringing telegraph wires over the
feed wires of an electric light company and where such
linemen should be stationed.® So, too, it has been held
that an expert may give his opinion as to how long a defect
in the insulation of a wire has existed. Similarly, it has
been held that evidence of an expert line constructor was
admissible as to the usual and proper method of erecting
or setting a pole.’

Sec. 606. Expert Evidence; Competency Demanded.
It is elementary that, before an expert can be permitted
to give his opinion on a proposition, it is necessary to show

3. Flynn v. Boston Elec. L. Co., 171
Mass. 395, 50 N. E. 937.

The process of stringing a cable
wire on the arms of poles erected for
that purpose is so plain and simple
that it is well within the scope of
common observation and knowledge,
and is not a subject in respect to
which opinion evidence or expert tes-
timony is admissible. Meehan v. Hol-
yoke St. Ry. Co., 186 Mass. 511, 9
Am. Electl. Cas. 204, 3 St. Ry. Rep.
378, 72 N. E. 61.

4. Drown v. New England Tele-

phone & Teleg. Co., 81 Vt. 358, 70
Atl, 599.

5. Fritz v. Western Union Teleg.
Co., 25 Utah 263, 8 Am. Electl. Cas.
730, 71 Pac. 209.

6, Berner v. St. Paul Gaslight Co.,
92 Minn. 214, 9 Am. Electl. Cas. 125,
99 N. W. 778.

7. Kansas City Southern Ry. Co. v.
Rogers, 203 Fed. 462, 121 C. C. A.
586; Barrett v. New England Telep.
& Teleg. Co., 201 Mass. 117, 87 N. E.
565.
922 Law or Evecrricrry.

his competency to render the opinion.’ The grade of the
expert depends upon the nature of the opinion to be
elicited; an electrical engineer is not required for the estab-
lishment of all electrical matters. Thus, the superinten-
dent of the light department of a municipality may testify
that the shock from 110 volts of electricity is not deadly,
and also that he had examined a certain transformer and
that it was all right.’ So, too, testimony of a physician may
sometimes be received in electrical matters, especially
where the question at issue involves the effect of electricity
on the human body.*°

Sec. 607. Expert Evidence; Relevancy Demanded.

Not only must the witness be competent to express an
opinion, but the opinion sought to be elicited from him must
be one which touches a material fact involved in the liti-
gation. In other words, the opinion must be relevant to
an issue at trial. This relevancy has been termed ‘‘ objec-
tive relevancy ’’ in distinction to the necessity that the wit-
ness be competent, which has been called ‘‘ subjective

relevancy.’’**

8. Chamberlayne, Modern Law of
Evidence, sections 2379, et seq. See
also, United Railways & Electric Co.
v. Corbin, 109 Md. 442, 72 Atl. 606;
Anthony v. Cass County Home Telep.
Co., 165 Mich. 388, 130 N. W. 659,
18 Det. Leg. N. 193.

One having a long experience in
electrical work cannot give an opin-
ion whether one could be permanently
injured by a shock which did not
manifest itself by a mark on the body,
as the question calls for the opinion
of a medical expert. Denison L, & P.
Co. v. Patton, (Tex. Civ. App.) 135
S. W. 1040.

9, Monds v. Town of Dunn, 163
N. Car. 108, 79 S. E. 303.

10. See Anthony v. Cass County
Home Telep. Co., 165 Mich. 388, 130
N. W. 659, 18 Det. Leg. N. 193.

11. “In order to render the judg-

ment of an expert admissible it is
essential not only than an adminis-
trative necessity should exist for re-
ceiving it, but also that it should be
shown to be relevant, objectively and

- subjectively, to some issue in the

case With the objective relevancy of
the judgments of experts judicial ad-
ministration gives itself but slight
concern. A difficulty at this point
seldom arises and the rare instances
where it occurs are readily detected.
Theoretically, it is as objectionable
for a person who possesses adequate
knowledge on a relevant subject to
announce a proposition entirely wide
of the mark as for one to make a per-
tinent observation regarding the same
subject, although his knowledge of it
is inadequate. Practically, however,
it is the second danger against: which
judicial administration has to guard
EVIDENCE. 923

Sec. 608. Expert Evidence; Ultimate Fact for Jury.

One of the difficulties experienced in the admissibility of
expert evidence is the doctrine that opinions will not be
received on the ultimate question for the determination of
the jury.” It is thought that one’s constitutional right to
a trial by jury may be impaired, and a trial by experts
substituted, if witnesses are allowed to state their opinions
on the very issue which determines the rights of the
parties.** Thus, in an action for the recovery of injuries
sustained by reason of the close construction of telephone
and electric wires, it has been held that conclusions of wit-
nesses as to the danger of the construction are inadmis-
sible.** But on the other hand, where a telephone lineman
was injured by the fall of a telephone pole which broke
when he cut the wires owing to a strain from a covering
of ice, it was held competent for experts to testify as to
the usual method of procedure under the conditions in
which the plaintiff was put to work.* ° ,

Sec. 609. Expert Evidence; Propriety of Construction.

One of the subjects on which electrical experts are
required to testify is the safety or danger of certain elec-
trical construction. An expert may be permitted to describe
the proper method for the installation of interior fixtures,"
or to explain the imperfections in certain construction.”

with especial care. Of the two, sub- Moines Edison L. Co., 131 Iowa 724,

jective relevancy is by far the more
important.” Chamberlayne, Modern
Law of Evidence, section 2378.

12. Consolidated Gas, Electric Light
& Power Co. v. State, 109 Md. 186,
72 Atl. 651.

Cause of death.—In an action for
the death of an employee from an
electric shock, it was the theory of
the defendant that death resulted
from heart disease or other natural
cause and not from an electric shock.
It was held that the opinion of an
expert, as to whether or not deceased
received an electric shock before he
fell, was inadmissible. Martin v. Des

9 Am. Electl. Cas. 654, 106 N. W.
359.

18. See Chamberlayne, Modern Law
of Evidence, sections 2372, 2373.

14, Swan v. Salt Lake, etc., Ry. Co.,
(Utah) 127 Pac. 267. But see § 609.

15. Clark v. Johnson County Telep.
Co., 146 Iowa 428, 123 N. W. 327.

16. See also, Fish vy. Waverly Elec-
tric L. & P. Co., 189 N. Y. 336, 82
N. E. 150, 13 L. R. A. (N.S.) 226,

17. Excelsior Elec. Co. v. Sweet, 57
N. J. Law 224, 30 Atl, 553.

Whether or not the proper method
has been adopted in installing and
maintaining the electric wires in a
924 Law oF Evecraicrry.

So, too, a skilled witness may be permitted to give his
opinion that the proper construction of a telephone line at
the point of its intersection with an electric light wire
required a clearance of at least five feet. Where the
issue was whether an electric company should have installed
arrestors to avoid the passage of lightning along its wires
into the house of its customer, an expert should be per-
mitted to testify that it was customary for electric com-
panies to use a devise for that purpose. An expert may
properly be asked as to the efficiency of a certain kind of
insulators; the necessity of guying a pole;”* whether a
wire was properly insulated;” or if there is a method by
which wires of an upper system can be prevented from
falling on the wires of a lower system.”

Sec. 610. Expert Evidence; Management.

Certain incidents in the management of electric lighting
systems may be beyond the knowledge of jurors, so that
expert evidence thereof may be required. For example, an
experienced electrician may testify as to the precautions
necessary in repairing broken electric wires. Similarly,
an expert may be allowed to testify whether it is proper to
turn on the electric current when there is known to be a
‘* ground ’’ on the wire which a lineman has been unable

building is a matter which may be
shown by expert testimony. The ex-
perts may properly be asked whether
a specified manner of installing and
maintaining electric wires is good con-
struction. German-American Ins. Co.
v. N. Y. Gas & Elec. L., H. & P. Co.,
103 N. Y. App. Div. 310, 9 Am. Electl.
Cas. 446, 93 N. Y. Supp. 46; affirmed
without opinion, 185 N. Y. 581, 78
N. E. 1103.

18. Southwestern Teleg. & Telep.
Co. v. Luckie, (Tex. Civ. App.) 153
S. W. 1158.

19. Webster v. Richmond Light Co.
& R. Co., 158 N. Y. App. Div. 210,
143 N. Y. Supp. 57.

20. Warren v. City Elec. Ry. Co.,
141 Mich. 298, 9 Am. Elect]. Cas. 527,
4 St. Ry. Rep. 487, 104 N. W. 613,
12 Det. Leg. N. 415.

21. Murphy v. Pacific Telep. &
Teleg. Co., 68 Wash. 643, 124 Pac.
114.

22. Denver Consol. Elec. Co. v. Wal-
ters, 39 Colo. 301, 9 Am. Electl. Cas.
1013, 89 Pac. 815.

23. Citizens’ Telep. Co. v. Thomas,
45 Tex. Civ. App. 20, 9 Am. Electl.
Cas. 950, 99 S. W. 879.

24. Jacksonville Elec. Co. v. Sloan,
52 Fla. 257, 9 Am. Electl. Cas. 891,
42 So. 516.
E\vIpENcE. 925

to detect after a search of several hours.”> So, too, a skilled
witness may testify that the insulation had been removed
from certain wires for the purpose of testing them.”

Sec. 611. Expert Evidence; Electrical Action.

An expert may properly be asked whether contact with
a wire containing a certain voltage of electricity will pro-
duce death.” Moreover, a physician may be permitted to
testify that less voltage is required to kill a horse than is
required to effect the death of a human being.** Where,
previous to an accident, sparkling had been observed in
trees where wires were conducted, an expert may testify
that the omission of flame or light indicates that the wires
were in a defective condition.” It is also proper to admit
the evidence of an expert electrician as to the distance a
nail would have to be from an iron bank for an electric
current to pass from one to the other.*°

‘Sec. 612. Expert Evidence; Street Railways.*

The adaptation of electricity as a motive power, with the
construction and operation of appliances by which the cur-
rent is transmitted to the moving mechanism of the car,

25. Cleburne Elec. & Gas Co. v. Mc-
Coy, (Tex. Civ. App.) 149 8. W. 534.

26. Consolidated Gas, Electric Light
& Power Co. v. State, 109 Md. 186, 72
Atl. 651.

27. Escambia County Electric L. &
P. Co. v. Sutherland, 61 Fla. 167, 55
So. 83.

In Chamberlayne, Modern Law of
Evidence, section 2424, it is said:
“Reasoning with regard to the fact
of death may form a legitimate sub-
ject for the judgment of an expert.
He will be permitted, for example, to
testify as to whether enumerated facts
set forth a sufficient cause for its oc-
currence in a particular case. The
witness, moreover, may diagnose from
the appearances presented in the evi-
dence what was the cause or, should

this be regarded as invading the prov-
ince of the jury, whether the phe-
nomena would indicate a sufficient
cause for the death.”

28. Anthony v. Cass County Home
Telep. Co., 165 Mich. 388, 130 N. W.
659, 18 Det. Leg. N. 193.

29. Prince v. Lowell Elec. Light
Corporation, 201 Mass. 276, 87 N. E.
558.

“30. Riley v. City of Independence,
(Mo.) 167 S. W. 1022.

31. Street railway experts—— As to
the admissibility, in general, of the
opinions of experts relative to street
railways, see Chamberlayne’s Modern
Law of Evidence, sections 2088, 2447-
2450; and Nellis on Street Railways
(2nd Ed.), sections 486, 487, 488.
926 Law or Evecrricity.

may be the subject of expert testimony.*? Where an expert
witness on the part of a street railway company has given
testimony tending to show that electricity could not be
transmitted to a trail-car in sufficient quantities to injure
a person, it is proper to ask him on cross-examination if
there were not, on certain metal railings of all the defend-
ant’s cars, blisters caused by the escape of electricity from
trail-cars.*

Sec. 613. Res Inter Alios Acta; in General.

The circumstance that a person did or omitted to do a
certain act on one occasion is not admissible to show that
he did or omitted to do a similar act on another occasion
unless the two tranactions are connected in some particular
manner.** Or, stating the rule in terms of the negligence
of an electric company, the fact that an electric company
was guilty of negligence in a collateral instance is not, as
a general rule, admissible to show its negligence in a par-
ticular case under investigation. Thus, in an action to
recover for the death of one employed to trim electric lamps
caused by the alleged negligence of the defendant electric
company in failing to equip a lamp with a proper hood, it
is error to admit evidence that hoods on other lamps were
defective.**> In the same way, where a person sustains a
shock by touching the metal arm of a telephone receiver,
it is not proper to show a similar injury to another person
from another telephone at another time in the same city.**
Similarly, in an action for a death caused by contact with
a broken telephone wire which had crossed a feed. wire of

32. Nolan v. Newton Street Rail- similar to the one received by the

way Co., 206 Mass. 384, 7 St. Ry.
Rep. 215, 92 N. E. 505.

83. Denver Tramway Co. v. Reid, 4
Colo. App. 53, 4 Am. Elect]. Cas. 332,
35 Pac. 269.

34. An extended discussion of the
res inter alios rule will be found in
Chamberlayne’s Modern Law of Evi-
dence, sections 3150-3264.

Evidence of experts of instances
where persons had received shocks

plaintiff and were not injured, is in-
admissible. Black v. Metropolitan St.
Ry. Co., 162 Mo. App. 90, 144 S. W.
131.

35. Gardner v. Schenectady Ry. Co.,
128 N. Y. App. Div. 12, 112 N. Y.
Supp. 369.

86. Brucker v. Gainesboro Telep.
Co., 125 Ky. 92, 9 Am. Elect]. Cas.
1011, 30 Ky. Law Rep. 1162, 100
S. W. 240.
Evipence. 927

an electric company on the night of the accident, evidence
that the insulation of other wires of the defendant was
defective at other points and on other occasions, is not
admissible.” Likewise, in an action for an injury occa-
sioned by the falling of telephone poles, it is error to admit
evidence of the condition of other poles forming part of
the same telegraph line.** So, too, where the issue is the
proper maintenance of wires on a bridge, the height at
which they were suspended along streets and on other
bridges cannot be received.®® In the trial of an action for
damages against an electric light company for injury to
plaintiff’s realty by the operation of defendant’s plant
upon adjoining premises, evidence of similar damage to
other adjacent property is incompetent.*° In an action
against a traction company for the death of the employee
of an electric company caused by the act of the defendant
in raising its wires so as to charge an electric wire, it was
held that evidence was incompetent which tended to show
that on other occasions when cars were being operated
on a certain street the trolley came off the trolley wire and
was brought in contact with electric wires.** But, on the
other hand, in an action to recover for injuries sustained
by glass falling from an electric lamp globe broken by a
trolley pole attached to a street car, while such car was
rounding a curve at the corner where the electric lamp was
located, it was held error to refuse to admit evidence that
electric lamps had been broken in the same way at previous
times, not only at the particular curve in question, but also
on other curves on the line of the road.*

Sec. 614. Res Inter Alios Acta; to Show Mental State.
One of the recognized exceptions to the res inter alios
rule is the doctrine that collateral occurrences may be

37. United Elec. L. & P. Co. v. 40. Hughes v. Gen. Elec. L. & P.
State, 100 Md. 634, 9 Am, Electl.Cas. Co. 107 Ky. 485, 21 Ky. Law Rep.

416, 60 Atl. 248. 1202, 54 S. W. 723.

38. Western Union Teleg. Co. v. 41. Beyer v. Peoria, ete., Traction
Levi, 47 Ind. 552, 1 Am. Elect]. Cas. Co., 156 Ill. App. 47.
133. 42. Nelson v. Union Railroad Co.,

89. Annapolis Gas & Elec. L. Co.v. 26 R. I. 251, 3 St. Ry. Rep. 778, 58
Fredericks, 112 Md. 449, 77 Atl. 53. Atl. 780.
928

Law or ELEctTRICITY.

admissible to show a relevant mental state.** Thus, if the
knowledge of a certain party as to a certain condition is a
material issue on a trial, other occurrences of a similar
nature as the one under investigation may illuminate the
issue.“* For example, in an action for injuries arising from
a defect in an electric system, on the issue of the company’s
knowledge of the defect, the fact that other accidents have
been occasioned by the same defect is highly probative.*
Thus, it has been held, in an action for injuries caused to
a street railway passenger by the breaking of the trolley
wire, that it is proper to prove, for the purpose of charg-
ing the company with notice of its unsafe condition, that
the same wire had broken frequently during the same
season.** So, too, where the issue is whether a master has
knowledge of the incompetency of a fellow servant, it is
sometimes proper to show acts of negligence of such serv-
ant other than the one particularly under investigation.*’
But in an action against a municipality for injuries from
its electric plant, it was held to be error to permit the
plaintiff to prove, for the purpose of charging the defend-
ants with knowledge of the dangerous condition of the
wires, that eight or ten months previous to the accident in
question, at a point nearly a quarter of a mile from the
scene of the accident, several persons had received shocks
from a wire hanging down.

Sec. 615. Res Inter Alios Acta; to Show Cause of Accident.

Collateral occurrences are sometimes useful in deter-
mining the cause of a certain phenomena.‘ Where it is
conceded that an accident happened, but the defendant

43. See Chamberlayne’s Modern
Law of Evidence, sections 3217, et

47. Malay v. Mt. Morris E. L. Co.,
41 N. Y. App. Div. 574, 58 N. Y.

seq.

44, Evansville & S. Traction Co. v.
Montgomery, 50 Ind. App. 528, 8 St.
Ry. Rep. 38, 98 N. E. 731.

45, Nelson v. Union Railroad Co.,
26 R. I. 251, 3 St. Ry. Rep. 778, 58
Atl. 780.

46. Richmond Ry. & Elec. Co. v.
Bowles, 92 Va. 738, 6 Am. Electl.
Cas. 449, 24 S. E. 388.

Supp. 659.

48. Fox v. Village of Manchester,
183 N. Y. 141, 9 Am. Electl. Cas. 559,
75 N. E, 1116, 2 L. R. A. (N. S.)
474 See also, Monds v. Town of
Dunn, 163 N. Car. 108, 79 S. E. 303.

49. Chamberlayne, Modern Law of
Evidence, sections 3177-3181. See
Union Light, Heat & P. Co. v. Lake-
man, 156 Ky. 33, 160 S. W. 723.
EvIpENCE. 929

claims that the cause of an accident was one beyond its
control, while the plaintiff claims that the cause of the
accident was one within the control of the defendant, the
plaintiff should be permitted to show collateral occurrences
when the same cause was present and the same result fol-
lowed, or to show collateral occurrences when the cause
claimed by the defendant was present and the same effect
did not follow. On the other hand, the defendant should
be permitted to show other occurrences when the cause
claimed by the plaintiff was present and the result did not
follow. Thus, in an action for the death of a person com-
ing in contact with an electric appliance, if the electric com-
pany makes an issue of the cause of death and claims that
death was occasioned by some other cause, for example,
heart disease, the plaintiff. should be allowed to show that
other persons who came in contact with the same appliance
at about the same time received a shock of electricity.
Where it is claimed that the death of a person was caused
by contact between the primary and secondary wires of an
electric system, it is proper to show that another person
in a nearby building served with the same secondary wire
was also killed at about the same time.” Where a person
receives a shock from an electric car, the fact that other
persons received shocks on the same day or the day before,
tends to prove that the car and its equipment were not in
proper condition. In an action for injury to a horse while
crossing a street railway track, the plaintiff is entitled to
show a continuous series of accidents to other horses cross-
ing the track. The evidence is admissible to show that the
injury was not caused by an inevitable accident, but was
the result of long-continued negligence.

Sec. 616. Res Inter Alios Acta; Condition of Same Appli-
ance at Different Time.

Tn an action involving the conditi6n of an electrical appli-
ance at one time, under favorable conditions, the condition
50. Ohrstrom v. City of Tacoma, 57 _—-v. Broadhurst, 28 Tex. Civ. App. 630,

Wash. 121, 106 Pac. 629. 68 S. W. 315.
51. Dallas Consol. Elec. St. R. Co. 52. Vicksburg Ry. & L. Co. v. Miles,

59
930 Law or ELecrricrry.

of the same appliance at another time, either prior or sub-
sequent, may be probative. The weight of the evidence
and also, to a certain extent, its admissibility, depends on
the duration of time intervening between the principal
occurrences and the other observation. The admissibility
of its condition at one time does not tend to prove its con-
dition at another, unless it can be said with some degree of
assurance that in the meantime there has been no material
change in its condition. The condition of an electric appli-
ance the next day after an accident, or within a few days
thereafter, in the absence of evidence of a change in its
condition, tends to prove its condition at the time of the
occurrence under investigation, and evidence thereof is
generally admissible. But, in proportion to the elapsed

88 Miss. 204, 4 St. Ry. Rep. 556, 9
Am. Electl. Cas. 785, 40 So. 748.

53. Iowa.— Snyder v. Mutual Telep.
Co., 135 Iowa 215, 112 N. W. 776, 14
L. R. A. (N. 8S.) 321.

Michigan.— Kraatz v. Brush Elec.
L. Co., 82 Mich. 457, 3 Am. Electl.
Cas. 491, 46 N. W. 787.

Minnesota. Musolf v. Duluth Edi-
son Elec. Co., 108 Minn. 369, 122
N. W. 499, 24 L. R. A. (N. 8.) 451;
Gilbert v. Duluth Gen. Elec. Co., 93
Minn. 99, 9 Am. Electl. Cas. 166,
100 N. W. 653, 106 Am. St. Rep.
430.

Missouri— Smith v. Missouri & K.
Telep. Co., 113 Mo. App. 429, 9 Am.
Electl. Cas. 455, 87 S. W. 71.

New York.—Harroun v. Brush Elec.
L. Co., 12 N. Y. App. Div. 126, 6 Am.
Elect]. Cas. 357, 42 N. Y. Supp. 716;
appeal dismissed, 152 N. Y. 212, 46
N. E. 291, 13 L. R. A. 615.

Pennsylvania.—Pennsylvania Telep.
Co. v. Varnau, 5 Lanc. Law Rev. 401,
16 Atl. 524.

Rhode Island.— Moran v. Corliss
Steam Engine Co., 21 R. I. 386, 7
Am. Electl. Cas. 743, 43 Atl. 874, 45
L. R. A. 267.

Texas.— Temple Elec. L. Co. v. Hal-

liburton, (Civ. App.) 136 S. W. 584;
Jacksonville Ice & Elec. Co. v. Moses,
(Civ. App.) 134 S. W. 379.

Contra, Annapolis Gas & Elec. Co.
v. Fredericks, 109 Md. 595, 72 ‘Atl.
534,

Few minutes.— In an action for a
personal injury caused by the plain-
tiff’s hand coming in contact with one
of the defendant’s wires which was
defectively insulated, evidence is ad-
missible showing the height of the
wire above the place where the plain-
tiff was walking, five or ten minutes
after the accident, as bearing upon
the question as to whether or not the
wire was so situated as to unreason-
ably and carelessly expose the plain-
tiff to danger. Gloucester Elec. Co. v.
Kankas, 120 Fed. 490, 8 Am. Electl.
Cas. 493, 56 C. C. A. 640.

Six months—The case of Han-
num v. Hill, 52 W. Va. 166, 8 Am.
Elect]. Cas. 436, 43 S. E. 223, was
an action for personal injuries re-
ceived by reason of the negligence of
a telephone company in permitting its
wires to be stretched so low down
over the highway as to be caught by
a horse’s feet in passing. It was held
incompetent to prove the condition of
Eviwence. 931

time between the accident in question and the subsequent
observation, the weight of the evidence decreases. As time
elapses, the evidence, though still admissible, may yet be
received and given its due weight by the jury; but eventu-
ally the time comes when it can be said that the forces of
nature have worked such a change in the appliance that its
condition is no longer probative evidence of its condition at
the time of the occurrence under investigation.™

Sec. 617. Res Inter Alios Acta; Subsequent Repairs or
Precautions.

The fact that, after a person had received an injury from
an electric appliance, the maintainer thereof made repairs
or took precautions for the avoidance of another injury,
does not legally tend to prove an absence of due care in
the prior management of the appliance. Therefore, sub-
sequent repairs or precautions are not admissible to show
antecedent negligence in the maintenance of an appliance.®
But they may be received on some other issue in the case.*
For example, though the subsequent repair of an electric
appliance is not admissible to show that previously it was
negligently maintained, if the defendant contests its owner-
ship or its maintenance of the appliance, the fact that, after
an accident was received from the appliance, it was repaired
or otherwise cared for, such appliance is highly probative

the wire at that point six months sub-
sequent to the injury complained of.

Nine months.— Evidence of the ab-
sence of guard wires nine months
after an accident has been admitted
as tending to show their absence at
the time of the accident. Western
Union Teleg. Co. v. Thorn, 64 Fed.
287, 5 Am. Electl. Cas. 283, 12 C. C.
A, 104, 28 U. S. App. 123.

54. Annapolis Gas & Elec. Co. v.
Fredericks, 112 Md. 449, 77 Atl. 53
(two years).

55. Colorado Elec. Co. v. Lubbers,
11 Colo. 505, 2 Am. Elect]. Cas. 361,
19 Pac. 479, 7 Am. St. Rep. 255;

Ziehm v. United Elec. L. & P. Co. of
Baltimore, 104 Md. 48, 9 Am. Elect].
Cas. 813, 64 Atl. 61; Kraatz v. Brush
Elec. L. Co., 82 Mich. 457, 3 Am.
Electl. Cas. 491, 46 N. W. 787; City
of Wynnewood v. Cox, 31 Okla. 563,
122 Pac. 528. See also, Geer v. N. Y.
& Penn. Telep. & Teleg. Co., 144 N. Y.
App. Div. 874, 129 N. Y. Supp. 784;
Harrington v. Com’rs of Wadesboro,
153 N. Car. 437, 69 S. E. 399.

56. Alabama City, ete., Ry. Co. v.
Appleton, 171 Ala. 324, 54 So. 638,
(1913 A) Ann Cas. 1181; Pennsyl-
vania Telep. Co. v. Varnau, 5 Lane.
Law Rev. (Pa.) 401, 16 Atl. 524.
$32 Law or ELEctRIiciry.

on the issue of ownership or control thereof.” So, too, the
subsequent repairs may be incidentally admissible in proof
of the conditions existing at the time of the accident. And,
in proof of the cause of an injury, it may be shown that
when a certain condition was remedied soon after an acci-
dent, the difficulty causing the particular injury ceased.”

Sec. 618. Sufficiency of Evidence.

Whether the evidence of one who claims to have been
injured by a defective electric appliance is sufficient to
warrant a court in granting him relief is frequently a vital
question, but the facts and circumstances of each case are
so different that an adjudication in one litigation is of no
assistance in solving the problem in a different suit.°°
Broadly speaking, the doctrine of res ipsa loquitur™ is
merely a rule for the determination of the sufficiency of
the evidence in certain cases. In other words, the phe-
nomena bringing into action the maxim res ipsa loquitur
is sufficient evidence of negligence to sustain the verdict,

57. Wittleder v. Citizens’ Elec.
Tlum. Co. of Brooklyn, 47 N. Y. App.

admissible to show that the condition
complained of caused the injury.”

Div. 410, 7 Am. Elect]. Cas. 581, 62
N. Y. Supp. 297; Southwestern Teleg.
& Telep. Co. v. Thompson, (Tex. Civ.
App.) 157 S. W. 1185.

58. Dow v. Sunset Telep. & Teleg.
Co., 157 Cal. 182, 106 Pac. 587; Kath
v. East St. Louis, etc, Ry. Co., 232
Ill. 126, 83 'N. E. 533, 15 L. R. A.
(N. S.) 1109; Consolidated Gas,
Electric Light & Power Co. v. State,
109 Md. 186, 72 Atl. 651.

59. Dow v. Sunset Telep. & Teleg.
Co., 157 Cal. 182, 106 Pac. 587; Union
Light, Heat & P. Co. v. Lakeman, 156
Ky. 33, 160 S. W. 723, wherein it was
said: ‘Changes, repairs, or pre-
cautions after an injury are not ad-
missible to show negligence, or as
amounting to an admission of negli-
gence. But one well settled exception
to the rule is that such evidence is

60. Injury to horse.— Where it ap-
pears that the driver of a horse, upon
the horse suddenly falling, springs to
the ground and observes for the first
time a wire hanging close to the
wheel of his wagon, emitting sparks
and flashes of light, and subsequently
while the horse was struggling to his
feet he was seen to come in contact
again with the wire, whereupon he
again fell, it was held sufficient to
show that the horse was injured by
an electric shovk received from con-
tact with a broken wire. Chaperon
v. Portland Gen. Elec. Co., 41 Oreg.
39, 8 Am. Electl. Cas. 468, 67 Pac.
928. See also, Smith v. Brooklyn
Heights R. Co., 82 N. Y. App. Div.
531, 81 N. Y. Supp. 838.

61. §§ 592-599.
EvIpENceE. 933
unless explanation of the accident is made which over-
comes the prima facie sufficiency of the evidence.

Cause of Death.— Difficulty is sometimes experienced in
producing sufficient evidence to justify a judge or jury in
finding that an electric shock is the cause of the death of a
person. The electric current is invisible, the indications
of shock to the body may not be satisfactory, and the only
witness who can tell how he received his injury may be
dead. The fact that electricity was the cause of death may,
like most other facts, be proved by circumstantial evidence,
if there is no direct primary evidence procurable. In civil
cases, a litigant is not required to prove his right to recover
beyond a reasonable doubt; all that is required is that
evidence be produced which indicates with reasonable
probability the truth of the party’s contention.” Where
a person is found dead in proximity to an electrical appli-
ance, contact with which is capable of producing death, and
no cause for his death other than the electric current is
presented, the jury may be authorized to find that death
was caused by an electric current passing from the appli-

ance.**

62. Indianapolis L. & H. Co. v.
Dolby, 47 Ind. App. 406, 92 N. E. 739.

63. Staab v. Rocky Mt. Bell Telep.
Co., 23 Idaho 314, 129 Pac. 1078;
Indianapolis L. & H. Co. v. Dolby, 47
Ind. App. 406, 92 N. E. 739; Smith
v. Twin City Rapid Transit Co., 102
Minn. 4, 5 St. Ry. Rep. 527, 112 N. W.
1001; Suburban Elec. Co. v. Nugent,
58 N. J. Law 658, 6 Am. Electl. Cas.
238, 34 Atl. 1069; Morgan v. West-
moreland Elec. Co., 213 Pa. St. 151,
9 Am. Elect]. Cas. 612, 62 Atl. 638;
Citizen’s Telep. Co. v. Thomas, 45
Tex. Civ. App. 20, 9 Am. Electl. Cas.
950, 99 S. W. 879; Ohrstrom v. City
of Tacoma, 57 Wash. 121, 106 Pac.
629.

Telephone lineman.— The plaintiff’s
intestate. was a lineman in the em-
ploy of a telephone company, and
while engaged in his duties as such

The inference that death was the result of elec-

upon one of the poles of the telephone
company received a, shock of elec-
tricity, fell from the pole and was
instantly killed. It appeared that
the decedent was standing on the
cross-arm of the pole upon which an
electric light wire was strung, hold-
ing in his hands a telephone sus-
pension wire which hung to the
ground; the shoes of the decedent
were wet. The electric light wire was
defectively insulated and was charged
with an electric current of about
1,100 volts pressure; while in this
position the decedent was heard to
scream as if in great pain and he
fell from the pole to the ground.
There was no direct proof that he
came in contact with the electric
wire. It was held that the facts and
circumstances were sufficient to jus-
tify an inference that a contact with
934

Law or Eecrriciry.

tricity passing from the appliance is strengthened by
evidence of a burn on his body or clothing such as might
result from electric shock“ or by exclamations or screams
uttered by the deceased at the time of the injury.

the electric wire was the cause of his
death, and that it was, therefore,
proper to submit the case to the jury.
Economy L. & P. Co. v. Sheridan, 200
Ill, 439, 8 Am. Electl. Cas. 795, 65
N. E. 1070.

64. Staab v. Rocky Mt. Bell Telep.
Co., 23 Idaho 314, 129 Pac. 1078.

The absence of a burn on the body
or clothing of the deceased, though
not conclusive, is nevertheless against
the theory that death was the result
of an electric shock. Byerly v. Con-
solidated Light, Power & Ice Co., 130
Mo. App. 593, 109 S. W. 1065,
 

 

INDEX.

 

 

[935]
INDEX.

(References are to pages.)

ABANDONED POLES :
removal of, from streets, 722.

ABANDONED WIRES
injuries from, 763.
lightning passing over, 681.

ABANDONMENT
franchise, of, as ground for forfeiture, 318.
poles, of, removal from streets, 722.
wires, of, injury from, 681, 763.

ABATEMENT
nuisances, of, 643.

ABUSE
franchise, of, as ground for forfeiture, 318.

ABUTTING OWNERS
company not having franchise, 422.
condemnation of rights of, 128.
consent of, to construction of line, 443.
Statute of Frauds, 443.
oral grant as a license, 444.
acquisition of right by prescription, 445.
consent of agent of owner, 445.
husband and wife, 446.
consent of, to granting of franchise by municipality, 373, 382.
fee not owned by abutting owner, 420.
injury to shade trees, 430.
extent and mode of cutting, 432.
damages, 433.
amount of, 435.
punitive damages, 435.
penalties, 436.
property rights of, are protected, 398.
constitutional law, 399.
remedies of, 437.
ejectment, 437.
injunction, 439.

damages, 441.
[937]
938 InpEx.

(References are to pages.)

ABUTTING OWNERS — continued
rights of, 397 et seq.
rights of purchaser subsequent to construction of line, 442.
special damages sustained by, 424.
placing of pole in front of premises, 425.
buzzing in telephone, 425.
abatement of unauthorized use of street, 425.
liability of wires to blow down, 426.
noises from maintenance of wires, 426.
increased danger of lightning, 426.
impediment to firemen, 426.
obstruction of ingress and egress, 426, 427.
interference with drainage, 426.
unsightly poles, 427.
what constitutes additional servitude, 399.
conflict of opinion, 399.
distinction between city and rural highways, 400.
electric lines as, 403.
public lighting, 405.
subsequent contract for, 407.
uncertainty in several decisions, 408.
private lighting, 408.
street railway line, 410.
telegraph or telephone lines, 410.
view that line is additional servitude, 415.
view that line is not additional servitude, 416.
telephone and telegraph contrasted, 418.
conduits, 419.
fee not owned by abutting owner, 420.
absence of franchise, 422.

ACCEPTANCE
franchise containing conditions, of, 334.
franchise, of, proof of, 396.
Post Roads Act, of, to be filed, 277.

ACCORD AND SATISFACTION
electrical contract, of, 182.

ACT OF GOD
injuries occasioned by, 673.

storms, 673.

anticipation of act of God, 675.

negligence concurring with act of God, 676.

timely repairs to be made, 678, 702, 708.

lightning, 679.
conduction into buildings, 679.
installation of lightning arrestors, 680.
failure to remove dead wires, 681.
InveEx. 939

(References are to pages.)

ACT OF GOD — continued
injuries occasioned by — continued
lightning — continued
burning of buildings in proximity to line, 682.
injury to person passing near wire, 683.
licensees, 683.
warning not to use telephone during storm, 684.
inspection of appliances after storm, 678, 702.
proximate cause of accident, 661.
repairs after storm, 678, 708.

ACTS IN EMERGENCIES
contributory negligences, as, 825.
servant, of, 885.

ADDITIONAL SERVITUDE
what constitutes, 399.

conflict of opinion, 399.

distinction between city and rural highways, 400.

electric lines as, 403.
public lighting, 405.
private lighting, 408.

street railway line, 410.

telegraph or telephone line, 410.
view that line is additional servitude, 415.
view that line is not additional servitude, 416.
telephone and telegraph contrasted, 418.

conduits, 419.

easement of railroad, telegraph line on, 450.
telephone line, 453.
electric line, 453.

ADMISSIONS
evidence, as, 920.

ADVERTISEMENT
bids for construction or equipment of municipal electric plant, of, 250.

AGENCY (See INTERVENING AGENCY.)

AGENT
abutting owner, of, consent to construction of line along highway, 445.
husband and wife, 446. :
grant of right of way for lines by, 466.
husband and wife, 466.

AIR SHAFT
clubhouse, of, insulation of wires in, 790.

AMOUNT
damages, of, for cutting shade trees along highway, 435.
940 INDEX.

(References are to pages.)

AMPERE
defined, 34.

ANNEXATION
one municipality to another, effect on lighting contract, 198.

ANTICIPATION
injury, of, proximate cause, 655.
act of God, 675.

APPARATUS (See APPLIANCES.)

APPLIANCES
act of God, injuries occasioned by, 673.
additional servitude, as (See ABUTTING OWNEBS.)
contributory negligence of one touching dangerous, 801 et seq.
servant, 878.
defective interior, failure of company to furnish current on account of,
72,
designation of location by municipality, 367.
duty of master to furnish suitable, 847.
governmental regulation of (See REGULATION.)
injuries to, 537 et seq.
injury to, from moving buildings, as impairment of franchise, 309.
inspection by master, 850.
installation of, assignability of contract for, 179.
liability for injuries from, in general, 698.
inspection, 699.
municipality, by, 700.
sufficiency of inspection, 700.
after storm, 702.
notice of defects, 702.
repairs, 703.
constructive knowledge of defects, 706.
after creation of conditions for which company is not responsi-
ble, 708.
act of God, 708. /
wrongful act of third person, 708.
negligence in making repairs, 710.
municipality, 710.
duty upon discontinuance of service, 711.
duty to shut off or turn on current, 712.
injury to employees of other companies, 714.
in case of fire, 715.
poles, 715.
location, 715.
streets and highways, 716.
proximity to house, 720.
soundness, 720.
abandoned poles, 722.
Inpex. . 941

(References are to pages.)
APPLIANCES — continued
liability for injuries from — continued
poles — continued.
cross-arms, 723,
metal brace, 724.
electric shock from, 724.
transformers, 725.
liability to customer, 725.
liability of customer, 726.
street lights, 727.
location of, 727.
struck by trolley pole, 727.
falling of, 728.
shock from, 729.
interior wiring, 729.
installed by electric company, 729.
ground device, 731.
line along or across railroad right of way, 447 et seq.
manufacture or installation of, by electric company, 47.
nuisance, as a, 641.
ownership of, liability as dependent on, 616.
defective appliances of customers, 618.
inspection of, 618.
insulation of, 618.
interior wiring, 619.
wiring maintained by company, 620.
successors of company, 622.
transfer of electric system, 622.
wires permitted on same pole, 623.
power of corporations dealing in, to furnish electricity, 44.
private property, over, 465 et seq.
proximate cause of injuries from, 652.
real or personal property, 28.
taxation, 29.
telegraph lines, 28.
poles, 28.
wires, 28.
dynamos, 29.
switch boards, 29.
electric lamps, 29.
telephone conduits, 29.
conduits, 29.
meters, 29.
between debtor and creditor, 30.
execution, 30.
mechanic’s lien, 30.
poles, 30.
wires, 30.
interior wiring, insulation of, 31.
942 INDEX.

(References are to pages.)
APPLIANCES — continued

real or personal property — continued

contracts, 31.

telegraph line along railroad, 31.

trespass, 32.
regulation by municipality of franchise granted by state, 366.
assumption of risks from defects in, 862.
streets, in, liability of municipality for, 634.
title to, effect of forfeiture of franchise, 319.
trespassers and licensees on, 685.

APPROVAL
ordinance granting franchise, of, by mayor, 390.

ARRESTORS. (See LigHTNING ARRESTORS. )

ASHES
power plant, of, as a nuisance, 639.

ASSENT
parties to contract for street lighting, of, 201.

ASSESSMENTS (See Taxation; SPECIAL ASSESSMENTS.)

ASSIGNABILITY
contract for electric service, 178.
installation of fixtures, 179.

ASSIGNMENT (See also, TRANSFER.)
rights under Post Roads Act, 276.

ASSUMPTION OF RISK
as defense to action for injuries by servant, 862.
pole, 865.
of another company, 868.
cross-arms, 869.
shock from master’s appliances, 869.
shock from appliances of other companies, 872.
street railway employees, 874.
collision with posts, 874.
persons not servants, by, 826.
injury from appliances along railroad, 461.

ATTRACTIVE NUISANCES
doctrine of, 693.
third rail, 694.
poles, 694.
wires, 695.
guy wires, 696.

AWARD
contracts for construction or equipment of municipal electric plant, of,
250.
public lighting contract to lowest bidder, of, 207.
InpEx. 943

(References are to pages.)

AWNINGS
insulation of wires near, 775.

AYES AND NOES
recordation of, on granting of franchise, 388.

BALCONY d
insulation of wires near, 775.

BANKRUPTCY ACT
electric companies as manufacturers within meaning of, 14.

BASEMENT ROOM
power house, of, insulation of wires in, 790.

BATTERIES
defined, 34,

BIDS
construction of municipal electric plant, 250.
advertisement for, 250.
award to lowest bidder, 250.
contract for public lighting, 207.
sale of franchise, 393.

BOARD OF ALDERMEN
grant of franchise by, 387.

BOARD OF ESTIMATE
approval of granting of franchise, 391.
submission of expenditures for proposed electric plant to, 251.

BOARD OF TRUSTEES
grant of franchise by, 387.

BONDS
condition of franchise grant, giving of, as, 339.
electric company, issuance regulated by public utilities commissions, 478.
electric company, of, trust mortgage to secure, 56.
payment for municipal electric plant by, 252.

BOOTH
insulation of wires in, 790.

BOROUGH (See also, MUNICIPAL CORPORATIONS.)
contract for street lighting, 203n.

BOROUGH COUNCIL
contract for public lighting by, 203n.

BRIDGES
insulation of wires near, 778.
944 Invex,

(References are to pages.)

BUILDING COVENANT.
electric companies as manufacturers within meaning of, 18.

BUILDINGS
electric wires on roofs of, may be prohibited, 486.
height of wires over roof of, 735.
insulation of wires inside of, 790.
insulation of wires near side of, 773.
lightning conducted into, 679.
installation of lightning arrestors, 680.
burning of building in proximity to line, 682.
moving of, along street, 541.
moving of building an extraordinary use of street, 541.
injury to street railway line, 542.
constitutional protection of franchise, 542.
restraint by injunction, 543.
injury to electric line, 544.
municipal permit, 544.
injury to telephone line, 545.
negligence of building mover, 546.
state or municipal regulation of building moving, 490, 546.
injury from wires to person moving building, 548.
contract to move wires, 549.
as impairment of franchise, 309, 542.
raising of wires for moving of, by street railway, when regulated, 490.
proximity of charged wire to, 751.
roofs of, insulation of wires near, 776.

BULBS (See Lamps.)

BURDEN OF PROOF
contributory negligence, of, 793.
in case of death, 793.
assumption of avoidance of danger, 795.
injury to servant, 876.
establishing excuse for failure to supply current, 70.

BUSINESS
telegraph company, taxation of, 158.

BUZZING
telephone, in, as special damages from construction of electric line along
highway, 425.
C.

CABLES
oceanic, 286.

CABLE SLOT (See also, Street RAILWaAy.)
injury to traveler from, 581.
INDEX. 945

(References are to pages.)
CAP
handling dangerous wire with, as contributory negligence, 806.

CAPACITY
parties, of, to contract for street lighting, 200.

CAPITAL STOCK
electric company, of, taxation of, 145.
telegraph company, of, taxation of, 157.

CAR BARN
street railway company, of, condemnation for, 110.

CARE
electric company, to be exercised by, 591.
ordinary care, 595.
high care, 597.
very high, 598.
great, 599.
very great, 599.
extraordinary care, 600.
highest, 600.
very highest, 603.
greatest, 603.
utmost, 604.
exercise of, by street railway, 563.
injury to servant, to avoid, 829.
master not an insurer, 829.
commensurate care, 830.
reasonable, 831.
ordinary, 831.
high, 831.
very high, 831.
highest, 831. ‘
greatest, 831.
utmost, 831.

CARRIERS. (See also, Common CARRIERS; PASSENGERS; STREET RAILWAYS.)
CARS (See STREET CARS; STREET RAILWAYS.)

CAUSE (See ProxiMatTE CAusE.)
accident, of, other occurrences to show, 928.
death, of, sufficiency of evidence as to, 933.

CENTRAL (See TELEPHONE CENTRAL.)

c. G. S. SYSTEM
defined, 35.

CHANGE
location of poles, of, regulation by municipality, 479, 484.
motive force of street railway, of, 559, 562.
$46 InpDEx.

(References are to pages.)
CHILDREN (See also, PARENT AND CHILD.)
contributory negligence by, 822.
injury to, trespassers, 692.
doctrine of attractive nuisances, 693.

third rail, 694.

poles, 694,

wires, 695.

guy wires, 696.
liability of electric company for injuries to, 611.

CINDERS
power plant, of, as a nuisance, 639.

CIRCUIT BREAKERS
duty of master to install, 847n.
guy wires, in, 757.
span wires, in, 759.

CITY (See MuNiIcIPAL CORPORATIONS.)
officers making contract for public lighting, 204.

CITY COUNCIL
contract for public lighting by, 204.
grant of franchise by, 387.

CLOTHES
handling dangerous wire with, as contributory negligence, 806.

CLOTHING
admissibility in evidence, as-real evidence, 917.
COAL (See Sorr COAL.)

COLLECTION
license fees, of, charged against electric company, 150.
telegraph company, 169.

COLLISION
pole, with, contributory negligence of person injured, 801.
wire in highway, with, contributory negligence of person injured, 796.
failure to see wire, 797.
knowledge of presence of wire, 799.

COMMON CARRIERS
telephone and telegraph companies as, 20.

COMMON COUNCIL
grant of franchise by, 387.
records of, to prove franchise, 396.

COMMON KNOWLEDGE (See EvipENcE;: Jupici1aL NOTICE.)

COMPARATIVE NEGLIGENCE
doctrine of, 792.
Inpex. 947

(References are to pages.)
COMPENSATION
electric service, for, recovery by company of, 180.

COMPETENCY
expert witnesses, of, 921.

COMPETITION
restriction of, by electric companies, 53.
division of new territory, 55.
consolidation of companies, 55.
purchase of stock of rival company, 55.

COMPLAINT
condemnation proceedings, in, 130.

CONCURRING NEGLIGENCE
proximate cause of injury, 654.

CONDEMNATION (See Eminent Doman.)

CONDITIONS
annexed to franchise grants, 332.
regulation contrasted, 332.
franchise granted by state, 333.
acceptance of franchise, 334.
not to engage in lighting, 334.
waiver of conditions, 336.
estoppel, 337.
enforcement of conditions, 336.
bonds, 339.
duration of, 340.
free service to municipality, 340.
liability for damages, 341.
poles, 341.
location, 341.
painting, 342.
use of, by municipality, 342.
party lines, 343.
percentage of proceeds, 343.
power plant, 344.
rates for service, 53, 344,
revocation of right, 345.
time limit for construction of system, 346.
wires, 347.
imposition of, upon designation of location for appliances, 372.
precedent to municipal ownership of electric plant, 227.

CONDUCTION
interference of electric currents, 525.

CONDUIT COMPANY (See Conpuits.)
948 INDEX.

(References are to pages.)
CONDUITS (See also, APPLIANCES.)
additional servitude, as, 419.
compelling company to place wires underground, 497.
when requirement is unreasonable, 500.
municipality providing for single conduit, 500.
electric wires distinguished from telephone or telegraph wires, 501.
corporate ownership of conduits, 505.
franchise to construct conduit, 505.
revocation or impairment of, 506.
conditions annexed, 507.
excavations in streets, 507.
regulations as to, 507.
cannot be prohibited, 507.
permit may be required for, 508.
duty to permit companies to use conduits, 508.
injuries from, 511.
explosion of gas in, 511.
injuries to, 509.
injuries to manholes, 511.
interference of electric currents, 535.
municipal ownership of conduits, 236, 502.
contract by municipal officers for, 504.
owner of, does not acquire easement, 496.
personal property, are, 496.
real or personal property, 29.
regulations as to, 486.
municipal ordinances, 480.
requiring wires to be placed in, as condition of franchise, 347.

CONSENT
stockholders, of, to mortgage of electric company’s property, 57.

CONSEQUENTIAL DAMAGES (See also, DAmaGgEs.)
condemnation proceedings, in, 133.

CONSIDERATION
contract for street lighting, of, 200.

CONSOLIDATION
corporations, of, electric companies as manufacturers, 18.
electric companies, of, effect on territory served, 45.
electric companies, of, as unlawful restriction of competition, 55.

CONSTITUTIONAL LAW
abutting owners, protection of rights of, 399.
electrocution of criminals, 32.
eminent domain, entry on land before payment of damages, 142.
eminent domain, taking property under right of, 81.
eminent domain, withdrawal of power from electric company, 104.
exclusiveness of franchises, 325.
InpEx. 949

(References are to pages.)

CONSTITUTIONAL LAW — continued
franchise granted by constitution, 357.
liability of landlord for electricity furnished to tenant, 254.
municipal ownership of electric plant, 224.
purchase by municipality, 241.
Post Roads Act, 265.
protection of franchises from impairment, 302.
federal constitutional, 304.
regulation of company, 306.
discontinuance of highway, 307.
taxation, 308.
grant to other companies, 308.
municipal ownership of system, 309.
moving buildings along street, 309, 542.
grant not utilized, 310.
enforcement of conditions annexed to grant, 311.
reservation of right to revoke, 312.
construction of conduit, 506.
unreasonable regulations of electric companies, 475.

CONSTRUCTION

electric system, propriety of, subject of expert evidence, 923.
grant of easement for lines, of, 466.

admissibility of parol evidence, 466.
lines of electric companies, of, regulated by statute, 476.
municipal electric plant, contracts for, 250.

advertisement for bids, 250.

award to lowest bidder, 250.

vote of taxpayers, 250.

submission of expenditures to board of estimate, 251.
Post Roads Act, of, a federal question, 265.
system, of, within certain time, as condition of franchise, 346.

CONSUMERS (See also, RaTEs.)
appliances of, liability of injury of company, 618.
contracts for electric service, 173 et seq.
contributory negligence, 791 et seq.
duty to furnish current without discrimination, 59 et seq.
electric company, of, liability of company for injuries to, 606.
injury to property, 609.
excessive voltage in building, 606.
persons on customer’s premises, 610.
members of family, 610.
employees, 610.
injury to, defective transformer, 725.
negligence of company after discontinuance of service to, 711.
rates, 49-53.
modification of rate in franchise, 321.
telephone company, of, injuries to, 614.
950 InpeEx.

(References are to pages.)
CONTRACTOR (See INDEPENDENT CONTRACTOR.)

CONTRACTS
conduits, by municipal officers for, 504.
construction or equipment of electric plant, 250.
advertisement for bids, 250.
award to lowest bidder, 250.
vote of taxpayers, 250.
submission of expenditures to board of estimate, 251.
duty to furnish current in absence of, 73.
rule in England, 73.
effect on real or personal character of appliances, 31.
electrical service, for, 173 et seq.
in general, 173.
territorial limitations, 173n.
municipality not having power to operate plant, 174.
contract providing for renewal thereof, 174.
monopolistic contracts, 175.
contract forbidding customer to take current of another com-
pany, 175.
meter rate, 175.
ascertainment of amount of current, I76.
inaccuracy of meter, 176.
meter books as evidence, 176n.
minimum charge, 178.
assignability of contract, 178.
contract for electric installation, 179.
release of company from liability for negligence, 180.
recovery by company of compensation, 181.
maturity of contract price, 182.
no current during strike of employees, 182.
non-performance by electric company, 182.
accord and satisfaction, 182.
recovery by customer of damages, 183.
recovery by customer of over-payment, 185.
specific performance of contract, 186.
injunction to restrain breach of contract, 187.
breach by customer, 188.
unreasonable rule of company, 189.
electric companies as manufacturers, 18.
experimental, as unlawful discrimination, 66.
for electric service, rate, 50.
moving wires to permit moving of building, for, 549.
municipal lighting contracts, 191 et seq.
discretion as to lighting of streets, 192.
contract an exercise of proprietary powers, 194.
power of municipality to make, 195.
additional contracts, 196.
intention to operate municipal plant, 196.
Inpex. 951

(References are to pages.)
CONTRACTS — continued
municipal lighting contracts — continued
power of municipality to make — continued
effect of exclusive grant to gas company, 196.
contract with individual, 197.
alternative right to operate municipal plant, 197.
contract involving franchise, 197.
contract with promoters of company, 198.
provision relative to erection of poles and wires, 198.
effect of annexation of municipality to city, 198.
validity of contract, 199.
exclusive franchise to gas company, 199.
offer by another company to furnish light cheaper, 199.
capacity of parties, 200.
subject matter and consideration, 200.
assent of parties, 201.
formalities prescribed by law, 202.
who may make contract on behalf of municipality, 203.
township committee, 203n.
town board, 203n.
borough council, 203n.
city council, 204.
mayor of city, 204.
municipal boards, 204.
delegation of power, 205.
officer interested in electric company, 205.
submission to vote of inhabitants, 206.
providing of electricity as “ necessary expense,” 207.
award of contract to lowest bidder, 207.
debt. limit, 209.
duration of contract, 210.
absence of statutory restriction, 210.
contract giving franchise to company, 211.
statutory limitation upon period, 212.
effect of provisions relative to levy of taxes, 213.
evasion of limitation, 213.
totally void, if in excess of limitation, 214.
beyond term of officers executing contract, 214.
exclusiveness of contract, 215.
implied contracts for street lighting, 215.
special assessments for street lighting, 217.
remedy of company, 218.
recovery of contract price, 218.
damages, 218.
specific performance, 219.
mandamus, 219.
injunction, 219.
defenses of municipality, 219.
non-performance by company, 219.
952 InpDeEx,

(References are to pages.)
CONTRACTS — continued
municipal lighting contracts — continued
defenses of municipality — continued
contract and franchise combined, 220.
ultra vires, 221.
remedy of taxpayers, 222.
prerequisite to exercise of eminent domain, as, 114.
rights given by franchisse, 300.

CONTRACTUAL RELATION
not essential for liability of electric company, 605.

CONTRIBUTION
joint tort-feasors, between, 647.

CONTRIBUTORY NEGLIGENCE
acts in emergencies, 825.
assumption or risk, 826.
children, 822.
burden of proof as to, 793.
in case of death, 793.
assumption of avoidance of danger, 795.
collision with pole, 801.
collision with wire in highway, 796.
failure to see wire, 797.
knowledge of presence of wire, 799,
comparative negligence, 792.
employee, of, 875.
burden of proof, 876,
failure to use rubber gloves, 877.
use of safety belt, 878.
contact with appliances known to be dangerous, 878.
contact with appliance not known to be dangerous, 879.
touching wire while grounded, 881.
failure to discover defect in pole, 88].
disobedience of master’s orders, 883.
street railway employees, 884.
acts in emergencies, 885.
imputed negligence, 824.
parent and child, 824.
master and servant, 825.
driver and passenger, 825.
interior appliance, injury from, 820.
ordinance, violation of, 628.
owners of vessel injured by lines across navigable waters, of, 283.
passenger of, 568.
electrical explosion, 568.
electrical shock, 571.
collision with trolley post, 575.
person injured by wire along or across railroad, 463.
precludes recovery for injuries, 791.
InpeEx. 953

(References are to pages.)
CONTRIBUTORY NEGLIGENCE — continued
proximate cause, 671.
touching dangerous appliance, 801.
knowledge of danger an important factor, 802.
knowing danger of appliance, 803.
deliberate touching of wire to demonstrate opinion that there is
no danger, 804.
carelessly coming in contact, 804.
using handkerchief or clothes to handle wire, 806.
danger greater than anticipated, 807.
not knowing danger of appliance, 808.
lineman on pole, 810.
negligence in not knowing danger, 811.
apparent insulation, 814.
necessity of touching wire, 815.
lineman touching wire when grounded, 816.
contact between two wires, 817.
failure to use rubber gloves, 818.
workmen’s compensation law, 792.

CONTROLLER
defective, causing injury to passenger, 564.

CONTROLLER BOX (See also, ConTROLLER.)
shock to passenger from, 571.

CORONER’S INQUEST
admissibility of testimony taken at, 918.

CORPORATIONS (See also, ELecrgic ComMPaNiIes; STREET RaiLway Com-

PANIES; TELEGRAPH COMPANIES; TELEPHONE COMPANIES.)

consolidation, electric companies as manufacturers within meaning of
statute, 18.

reorganization, electric companies as manufacturers within meaning of
statute, 18.

de facto electric company, 40.

electric companies as quasi-public, 9.

dealing in appliances, power of, to furnish electricity, 44.

right to exercise eminent domain, 101.

CO-TENANT
construction of electric line over property by, 465.

COULOMB
defined, 35.

COURTS
function of, proximate cause, 671.
function of, relative to forfeiture of franchises, 320.
function of, electrolysis, 552.

franchise grants by, 375.
designation of location of appliances in municipal streets, 371.
954 Inpex.

(References are to pages.)

COVENANT
building, electric companies as manufacturers within meaning of, 18.

CRIMINAL LAW
electrocution of criminals, 32.
injuries to lines, 538.
tapping wire, 538n.
malicious mischief, 539.
tampering with electric light meter, 539.
larceny of electricity, 7.
of telephone service, 7.
telephone as telegraph within meaning of statutes, 25.

CROSS-ARM
admissibility of, as real evidence, 917.
injuries from, 723.
inspection of, 699.
injury to servant from defective, 838.
assumption of risk, 869.
CUSTOMER (See CoNnsUMER.)

DAM
electric company, as prerequisite to exercise of eminent domain, 113.
power plant, for, as a nuisance, 640.

DAMAGES
abutting owners, remedy in form of, 441.
condemnation proceedings, in, 132.
fee of land taken, 132.
plant of electric company, 133.
consequential damages, 133.
transmission line, 134.
telegraph or telephone line along highway, 134.
amount of damages, 135.
value of land for building lots, 135n.
telegraph or telephone line along railroad right of way, 136.
amount of damages, 140.
entry on lands before payment of, 142.
constitutional objections to, 142.
cutting of shade trees along highway, 433.
amount of, 435.
punitive damages, 435.
penalties, 436.
failure to furnish current, for, 75.
injuries to lines, for, 537.
lines maintained over private property, 471.
punitive damages, 472.
nuisance, for maintenance of, 643, 644.
recovery of, by customer, for failure of company to perform contract, 183.
special, sustained by abutting owner, 424-427.
street lighting contract, breach of, 218.
Inpex. 955

(References are to pages.)

DANGER (See ASSUMPTION oF RISK.)
electricity, of, judicially known, 894.

DEAD WIRES
injuries from, 763.
lightning, 681.
removal of, after discontinuance of service, 711.

DEATH
cause of, sufficiency of evidence, 933.
expert evidence as to voltage producing, 925.

DEBT LIMIT
effect on public lighting contract, 209.
municipal electric plant, 248.
time of indebtedness, 249.
evasion of limit, 249.
power of municipality to operate plant implied from statutes relative to,
233.

DEFENSES
excuses for failure to furnish electric current, 69.

DEFINITIONS
ampere, 34.
batteries, 34.
C. G. S. System, 35.
coulomb, 35.
dynamo, 35.
electric companies, 8.
electrolysis, 35, 550.
electrolyte, 35.
farad, 36.
fuse, 36.
generator, 36.
ground, 37.
Henry, 37.
Joule, 37.
lineman, 37.
ohm, 37.
street railway companies, 19.
transformer, 38.
trouble-shooter, 38.
volt, 38.
watt, 39.

DELEGATION
municipality, by, of right to grant franchises, 388.
municipality, to, of power to grant franchises, 379.
of eminent domain to corporation required, 101.
power to make contract for public lighting, of, 205.
state, by, to municipality of power to grant franchises, 354.
956 INDEX.

(References are to pages.)
DEMONSTRATIVE EVIDENCE (See REAL EVIDENCE.)

DERRICKS
height of wires for passage of, 734.

DESTRUCTION
spring, of, in construction of lines, 469.

DICTIONARIES
use of, in determining whether electric companies are manufacturers, 12.

DIRT
power plant, of, as a nuisance, 639.

DISCONTINUANCE
business, of, by electric company, 62, 63, 64.
highway, of, as impairment of franchise, 307.

DISCOUNT
customer purchasing lamps, to, as unlawful discrimination, 68.

DISCRETION
municipal officers, of, as to lighting streets, 192.

DISCRIMINATION °
duty of electric company to furnish electricity without, 59.
municipality owning electric plant, 61.
charter need not define duty, 61.
maximum rates fixed by ordinance, 61.
connecting wires, 61.
territory served, 62.
discontinuance of business, 62.
burdensome municipal ordinances no excuse for, 63.
telephone company, 63.
remedy by injunction, 64.
pleading, 64.
remedies, 74, 79.
injunction, 74.
damages, 75.
recovery of difference between charged and customary rates, 75.
telephone company, statute relative to telegraph company, 25.
what constitutes, 65.
difference in rates, 65.
experimental contracts, 66.
contract and meter classes of patrons, 68.
procurement of right of way to customer’s premises, 68.
furnishing transformers, 69.

DISOBEDIENCE
master by servant, of, as contributory negligence, 883

DISTANCE
unimportant, on questions of proximate cause, 659.
Invex. 957

(References are to pages.)
DISTRICT OF COLUMBIA
Post Roads Act, application of, to, 265.

DITCH
condemnation of, 120.

DIVISIBILITY
of electricity recognized by courts, 5n.

DIVISION
of territory between electric companies, 55.

DRIVER
contributory negligence of, imputed to passenger, 825.
driver a servant of passenger, 825.

DURATION
franchise, of, 322.
condition in franchise, 322, 340.
corporate life of grantee, 322.
company a trespasser after expiration of term, 323.
renewal, 324.
public lighting contract, of, 210-214.

DUST
power plant, of, as a nuisance, 639.

DUTIES
electric companies, 40-58.
furnish current without discrimination, 59.

DYNAMO
defined, 35.
real or personal property, 29.

E.

EASEMENTS
franchises, given by, 301.
lines over private property, 465.
construction by co-tenant, 465.
grant of easement, 465.
by agent, 466.
husband and wife, 466.
construction of grant, 466.
admissibility of parol evidence, 466.
license, 467.
revocation of, 467.
Statute of Frauds, 467.
free service as consideration of, 468.
proper use of easement granted, 468.
additional wires, 469.
destruction of spring, 469.
line along water main easement, 469.
958 InpDEx.

(References are to pages.)
EASEMENTS — continued
lines over private property — continued
rights of purchaser subsequent to erection of line, 470.
remedies of owner, 470.
removal of line, 470.
ejectment, 470.
injunction, 470.
damages, 471.
punitive damages, 472.
owner of conduits does not acquire, 496.

EGRESS
obstruction to, as special damage to abutting owner from line in street,
426, 427.

EJECTMENT
abutting owners, by, 437.
removal of wires over private property, for, 470.

ELECTION
approval of granting of franchise, 392.
approval of public lighting contract, 206, 207.
contract for construction or equipment of municipal electric plant, on,
250.
operation of municipal electric plant, 245.
as a necessary expense, 245.
proposition to be voted on, 247.
combined waterworks and electric plant, 247.

ELECTRICAL APPLIANCES (See AppLIANCES; POLES; TRANSFORMERS;
WIRES. )

ELECTRICIANS
license of, matter of regulation, 489.
municipal lighting plant, of, 235.

ELECTRICITY

as property, 6.

capable of measurement, 7.

contracts for supply of, 173 et seq.

danger of, judicially known, 894.

defined, 1.

divisibility of, recognized by courts, 5n.

duty to furnish without discrimination, 59 et seq.

electrocution of criminals, 32.

franchises to use streets and highways for (See FRANCHISES.)

generation of, by municipality, 223 et seq.

injury to street railway passenger from, 570.

interfering currents of, 513.
electric company versus individual, 514.
electric company versus electric company, 515,
INDEX. 959

(Reftrences are to pages.)
ELECTRICITY — continued
interefering currents of — continued
electric company versus electric company — continued
priority gives superior right, 515.
limitations on prior occupant’s rights, 517.
later company engaged in public lighting, 518.
remedy by injunction, 519.
telephone versus telephone company, 520.
telephone or telegraph versus street railway, 524.
induction, 524.
conduction, 525.
street railway superior in some states, 526.
different views, 527.
negligence of street railway company, 528.
contact of lines, 530.
effect. of municipal regulations, 530.
remedy by injunction, 531.
telegraph or telephone not along highway, 532.
submarine cable, 532.
railroad, 533.
telephone or telegraph versus street railway, 524.
negligence, 535.
conduits, 535.
remedy by injunction, 536.
larceny, subject of, 7.
motive power of street railway, as, 556.
state may prescribe motive force, 556.
delegation of state’s power to municipality, 490, 556, 560.
delegation of power to state commission, 556, 562.
when right to use, is granted, 557.
change of motive power, 559, 562.
permission to use, granted by municipality, 556, 559.
charter power of company to use, 561.
state commission, power to prescribe, 562.
distinction between railroad and street railway, 562.
nature of, 2.
scientifically speaking, 2.
judicial view of, 3.
ownership of, 7.
possession of, 7.
properties of, judicially known, 893. “
right of way for lines, 258 et seq.
street railway company, power to furnish, 43.
lighting of streets and cars, 44.
subject to sale, 7.
supply, as a, 7.
transmission of, judicially known, 895.
use of, for lighting streets, 191 et seq.
960 INDEX.

(References are to pages.)

ELECTRIC COMPANIES
abutting owners, rights of, 397 et seq.
act of God, injuries occasioned by, 673.
appliances, manufacture or installation of, by electric company, 47.
application of Post Roads Act to, 275.
appliances, power of corporations dealing in, to furnish electricity, 44.
competition, restriction of, 53.
division of new territory, 55.
consolidation of companies, 55.
purchase of stock of rival, 55.
condemnation of plant of, damages, 133.
contracts for electric service, 173 et seq.
contracts for street lighting, 191 et seq.
contributory negligence of person injured, 791 et seq.
de facto corporation, 40.
defined, 8.
degree of care to be exercised by electric company, 591.
ordinary care, 595.
high care, 597.
very high, 598.
great, 599.
very great, 599.
extraordinary care, 600.
highest, 600.
very highest, 603.
greatest, 603.
utmost, 604.
discontinuance of business by, 62.
duties, 40-58.
duty to furnish current without discrimination, 59 et seq.
municipality owning electric plant, 61.
charter need not define duty, 60.
maximum rates fixed by ordinance, 61.
connecting wires, 61.
territory served, 62.
discontinuance of business, 62.
burdensome municipal ordinances no excuse for, 63.
telephone company, 63.
remedy by injunction, 64.
pleading, 64.
discrimination, what constitutes, 65.
difference in rate, 65.
experimental contracts, 66.
contract and meter classes of patrons, 67.
discount to customer furnishing lamps, 68.
procurement of right of way to customer’s premises, 68.
furnishing transformers, 69.
INDEX. 961

(References are to pages.)

ELECTRIC COMPANIES — continued
duty to furnish current without discrimination — continued
excuses for failure to furnish current, 69.
burden of establishing defense, 70.
violation of company’s rules, 70.
discontinuance of current on non-payment, 71.
prohibition of use of other lights, 71.
penalty on reinstatement, 71.
defective interior wiring, 72.
absence of contract, 73.
in England, 73.
non-payment of rates, 73.
waiver of excuse, 74.
remedies, 74.
injunction, 74.
federal question involved, 75.
damages for failure to serve, 75.
recovery of differences between charged and customary rates, 75.
action by company, 76.
penalty for fuilure to furnish current, 77.
statute is independent of actual damages, 77.
distance of building from supply wire, 77.
written application to company, a prerequisite, 78.
prepayment of sums due company, 79.
penalties accruing after commencement of action, 79.
eminent domain, exercise of right of, by, 102.
condemnation for telephone line, 103.
public nature of corporation not stated in articles of incorporation,
103.
private corporation generating electricity for own purposes, 103.
withdrawal of power from company, 104.
constitutional objections, 104.
not necessary that company generate its own electricity, 104.
employees of, injuries to, 828.
erection of refuse destructor, 42.
franchise of. (See FRANCHISES.)
franchise of, as bar to municipal ownership, 238.
franchise, primary, 40.
gas company, power to furnish electricity, 42.
gas, furnishing of, by electric company, 47.
incorporation, 40.
injuries from appliances, in general, 698.
insulation of wires, 765.
insurer, not an, 583.
rule in Kentucky, 587.
rule of Ryland v. Fletcher, 589.
analogy between electric company and keeper of ferocious animal,
590.

61
962 InpDEx.

(References are to pages.)
ELECTRIC COMPANIES — continued
interference of electrical currents, 513.
individual, by, 514.
electric company against electric company, 515.
priority gives superior rights, 515.
limitations on prior occupant’s rights, 517.
can occupy only sufficient space, 517.
unnecessary crossing of streets, 517.
unnecessary use of both sides, 517.
maintenance of dead wires, 518.
later company engaged in public lighting, 518.
remedy by injunction, 519.
telephone or telegraph versus electric company, 534,
priority gives superior right, 534,
negligence, 535.
conduits, 535.
remedy by injunction, 536.
joint tort feasors, 645.
judicial knowledge as to, 898.
liability for negligence, 605.
contractual relation not essential for liability, 605.
injuries to children, 611.
customers, 606.
injury to property of, 609.
excessive voltage in building, 606.
persons on customer’s premises, 610.
members of family, 610.
employees, 610.
lines, injury to, 537.
liability for wrongful injury, 537.
punitive damages, 537.
criminal liability, 538.
removal of wire crossing railroad, 539.
moving building along street, 541, 544.
negligence of building mover, 546.
injury from wires to person moving building, 548.
contract to move wires, 549.
lines of, as additional servitude, 403.
public lighting, 405.
subsequent contract for, 407.
private lighting, 408. 2
lines of railroad easement as additional burden on owner of servient
estate, 450.
manufacturers, as, 9.
lexicology, 12.
Bankruptcy Act, within meaning of, 14.
tax exemption statutes, 14.
remedial statutes, 16.
mechanic’s lien, 16.
Inpex. 963

(References are to pages.)
ELECTRIC COMPANIES — continued
manufacturers, as — continued
" employers’ liability acts, 17.
condemnation statutes, 17.
corporate consolidation, 18.
corporate reorganization, 18,
contracts, 18.
building covenant, 18.
mining company as, 8.
mortgage of property, 56.
trust mortgage to secure bonds, 56.
after-acquired property, 56.
consent of stockholders, 57.
foreclosure sale without right of redemption, 57.
preferential claims, 57.
advance for power house, 57n.
municipality operating electric plant, 41.
necessity of franchise, 294-300.
non-performance of contract to furnish electricity, 182.
nuisances, maintenance of, 637 et seq.
powers, 40-58.
preréquisites to exercise of eminent domain, 113.
proximate results of negligence of, 652.
quasi-public corporations, as, 9.
rates, 49.
absence of regulation, 49.
reasonableness, 50.
contract with consumer, 50.
authority of manager to fix, 50n.
minimum charge, 51.
reasons for, 51.
prohibition of, 52.
condition in franchise forbidding, 53.
regulation of, 474.
reasonableness of regulations, 475.
free incandescent lamps, 475.
state statutes, 476.
location of poles and wires, 476.
manner of construction of lines, 476.
insulation of wires, 476.
use of soft coal at power plant, 477.
rates, 477.
public utility commissions, 477.
rates, 478.
“issuance of stocks and bonds, 478.
mining corporation, 478.
municipal regulations, 479.
location of lines, 479.
964 INDEX.

(References are to pages.)

ELECTRIC COMPANIES — continued
regulation of — continued
> municipal regulations — continued
insulation and protection of wires, 479.
location of poles, 479.
change of, 479.
conduits, 480.
regulations must be reasonable, 480.
municipality cannot deprive itself of police power, 481.
form of regulation, 481.
rates, 481.
matters which may be regulated, 483.
poles, 484.
location, 484.
change of, 484.
procurement of license for excavation for, 485.
license fee for, 485.
wires, 485.
location of, 486.
conduits, 486.
height, 486. ;
over and upon roofs of buildings prohibited, 486.
security of fastenings, 486.
insulation, 486.
guard wires, 486.
rates, 486.
minimum, 487.
electricians, 489.
' license of, 487.
release of, from liability for negligence, 180.
right of way for lines, 258.
street railway company as, 8, 19.
street railway company, power to furnish electricity, 43.
lighting of cars and streets, 44.
street railway, operation of, by electric company, 47.
supply of current by, 42.
supply of heat and power by, 42.
taxation of, 143 et seq.
capital stock, 145.
exemption of lighting plants, 144.
municipal plant, 144.
franchises, 145, 146.
license fees for poles, 146.
as rental of streets, 147.
as exercise of police power, 148.
amount of fee, 149.
collection of fees, 150.
patent rights, 145.
InpEx. 965

(References are to pages.)
ELECTRIC COMPANIES — continued
taxation of — continued
receipts, 150.
as a franchise tax, 146.
special assessments, 151.
telegraph company as, 8.
telegraph and telephone companies, power to engage in electric lighting, 44.
telephone company as, 8.
territory served, 45.
consolidation with another company, 45.
contract with another company, 45.
“adjoining towns,” 46.
action for abuse of power, 46.
telegraph and telephone companies, 46.
trespassers or licensees, injury to, 685.
use of poles of municipality, 256.
water power, use of, to generate electricity, 48.
wires, injuries from, 733.

ELECTRIC LAMPS' (See LAmps.)

ELECTRIC LIGHTS (See Lamps.)
judicial knowledge as to, 896.

ELECTROCUTION
criminals, of, 32.

ELECTROLYSIS.
defined, 550.
a question of minor importance, 551.
complaining party, 553.
owner of waterworks, 553.
municipality, 553.
expert evidence, 554.
function of courts, 552.
responsibility of other railways as defense, 554.
result of negligence, 551.

ELECTROLYTE
defined, 35.

ELEVATED RAILROAD
insulation of wires near structure of, 780.

EMERGENCIES
acts in, as contributory negligence, 825.
servant, 885.

EMINENT DOMAIN
constitutional limitations against taking private property, 81.
corporations entitled to exercise, 101.
statutory delegation of power is required, 101.
966 InpDEx.

(References are to pages.)
EMINENT DOMAIN — continued
corporations entitled to exercise — continued
electric companies, 102.
condemnation for telephone line, 103.
public nature not expressly stated in articles of incorporation,
103.
private corporation generating electricity for own purposes, 103.
withdrawal of power from company, 104.
constitutional objections, 104.
not necessary that company generate its own electricity, 104.
municipal corporations, 105.
city, 105.
village, 105.
town, 105.
lands beyond municipal boundary, 106.
foreign corporations, 106.
domestic authority required, 107.
domestic corporation subordinate to foreign, 108.
street railway corporations, 108.
power site, 109, 110.
water power, 109.
transmission line, 109.
car barn, 110.
telegraph companies, 110.
telegraph and telephone company, 111.
telephone companies, 111.
lessees of public service corporations, 112.
damages, 132.
fee of land taken, 132.
plant of electric company, 133.
consequential damages, 133.
transmission line, 134.
telegraph or telephone line along highway, 1384.
amount of damages, 135.
value of land for building lots, 135n.
telegraph or telephone line along railroad right of way, 136.
amount of damages, 140.
entry on lands before payment of, 142.
constitutional objections to, 142.
discretion of company exercising power, 84.
necessity of taking property, 85.
route for transmission line, 85.
electric companies as manufacturers within meaning of statute, 17.
expediency or propriety of taking may be legislative question, 84.
furnishing electricity as a public use, 86.
conservation of water power by state, 88.
power lost by vagueness in description of persons benefited, 88.
contrary view as to power, 90.
lighting of municipal streets, 91.
InpDEx. 967

(References are to pages.)
EMINENT DOMAIN — continued
furnishing electricity as a public use — continued
operation of railroad, 92.
lands for power plant, 92n.
delivery of current to other electric companies, 93.
not necessary that every inhabitant be benefited, 94.
service to inhabitants of another state, 95.
railroad operating in two states, 95.
combination of public and private uses, 96.
legislative questions relative to, 84.
nature of power of, 80.
necessity of taking, 116.
different meanings of “ necessity,” 116.
excessive voltage sought, 117.
may be legislative question, 84.
petition or complaint, 130.
Post Roads Act, effect of, 275.
prerequisites to exercise of power of, 113.
intention to serve public to be shown, 113.
public nature of corporation, 113.
not required to complete dam, power plant, or transmission line, 113.
municipal franchise, 113.
contracts for furnishing service, 114.
Tmunicipal regulation, 115.
property beyond municipal limits, 84.
property condemnable, 118.
water power, 118.
of another company, 118n.
rights of flowage, 119.
riparian rights, 120.
ditch or flume, 120.
interference with navigable waters, 120.
millrace, 120 n.
location for power plant, 121.
transmission line, 121.
not along highway, 122.
railroad right of way, 123.
rights of owners abutting highway, 128.
property of other corporations, 129.
right is strictly construed, 100.
sovereign power, is a, 80.
telephone as telegraph within meaning of statutes, 24, 26.

EMPLOYEES (See MASTER AND SERVANT.)

EMPLOYERS’ LIABILITY ACTS (See also, MAstTeER AND SERVANT.)
electric companies as maufacturers within meaning of, 17.

ENCASEMENT
guy wires, of, 758.
968 InpEx.

(References are to pages.)
ENFORCEMENT
conditions annexed to franchise grant, of, 337.

ENGINEERS
municipal lighting plant, of, 255.

EQUIPMENT
municipal electric plant, of, contracts for, 250.
advertisement for bids, 250.
award to lowest bidder, 250.
vote of taxpayers, 250.
submission of expenditures to board of estimate, 251.

ERECTION
refuse destructor, of, by electric company, 42.
telegraph and telephone poles, of, regulation of, 493.
wires, of, injuries from, 754.

ESTOPPEL
conditions annexed to franchise grant, as to, 337.
transfer of assignment, of, 315.

EVIDENCE
burden of proof as to contributory negligence, 793.
in case of death, 793.
assumption of avoidance of danger, 795. —
servant, 876.
expert evidence, 920.
stringing of wires from pole to pole, 921.
proper place to set pole, 921.
number of lineman required, 921.
time defect in insulation has existed, 921.
proper method of erecting poie, 921.
competency demanded, 921.
superintendent of light department of municipality, 922.
physician, 922.
relevancy demanded, 922.
ultimate fact for jury, 923.
propriety of construction, 923.
management of electric lighting systems, 924.
repair of wires, 923.
propriety of turning on current, 924.
purpose of removal of insulation, 925.
electrical action, 925.
voltage producing death, 925.
indications of defects in line, 925.
street railways, 925.
electrolysis, 554.
franchise, proof of, 395.
parol statements of witnesses, 395.
records of common council, 396.
acceptance of franchise, 396.
Invex. 969

(References are to pages.)
EVIDENCE — continued
hearsay, 917.
rules of fire underwriters, 917.
testimony at coroner’s inquest, 918.
mental state, to show, 918.
res gestae, 919.
admissions, 920.
by agent, 920.
judicial notice, 892.
properties of electricity, 893.
setting of fires, 893.
does not explode, 893.
danger of electricity, 894.
generation and transmission of electricity, 895.
electric lights, 896.
lightning, 896.
poles, 898.
electric companies, 898.
telephone and telegraph, 899.
street railways, 900.
license fees, pertaining to, 165n, 166n. <
meter books, as evidence of current used, 176n.
parol, construction of easement for lines, 466.
real evidence, 916.
pole, 916.
wire, 916.
clothing worn by person killed, 917.
cross-arm, 917.
photographs, 917.
res inter alios acta, 926.
mental state, to show, 927.
cause of accident, to show, 928.
condition of same appliance at different time, 929.
subsequent repairs or precautions, 931.
res ipsa loquitur, 900.
allegation of specific negligence, 903.
relation between parties, 904.
wires, 905.
falling, 905..
sagging, 905.
defective insulation, 908.
poles, 909.
shock frqm, 909.
street lamps, 909.
falling of, 909.
shock from, 910.
interior appliances, 910.
shock from, 910.
970 INDEX.

(References are to pages.)
EVIDENCE — continued
res ipsa loquitur — continued
telephones, 912.
shock from, 912.
street railway operation, 913.
electrical explosion, 914.
shock from metal part of car, 915.
fall of trolley pole, 915.
shock from rail, 916.
sufficiency of, 932.
cause of death, 933.

EXCAVATIONS
procurement of license for, 485.
streets to construct conduits, in, 507.
regulations as to, 507.
cannot be prohibited, 507.
permit may be required for, 508.

EXCESSIVE
cutting of shade trees along highway, 432.

EXCLUSIVE FRANCHISE
telegraph company, to, as-violation of Post Roads Act, 271.

EXCLUSIVENESS
contract for public lighting, 215.
franchise, of, 324.

EXECUTION
appliances subject to, 30.

EXEMPTION
electrical plants from taxation, 144.
municipal plants, 144.

EXPERIMENTAL CONTRACTS
discrimination, as unlawful, 66.

EXPERTS
evidence of, in electrical matters, 920.

stringing of wires from pole to pole, 921

proper place to set pole, 921.

number of linemen required, 921.

time defect in insulation has existed, 921.

proper method of erecting pole, 921.

competency demanded, 921.
superintendent of light department of municipality, 922.
physician, 922.

relevancy demanded, 922.

ultimate fact for jury, 923.

propriety of construction, 923.
InpeEx. 971

(References are to pages.)
EXPERTS— continued
evidence of, in clerical matters — continued
management of electric lighting system, 924.
repair of wires, 923.
propriety of turning on current, 924,
purpose of removal of insulation, 925.
electrical action, 9265.
voltage producing death, 925.
indications of defects in line, 925.
street railways, 925.
electrolysis, 554.

EXPIRATION
grant to maintain telegraph line along railroad, of, 454.

EXPLOSION
electrical apparatus of street railway of, 564.
presumption of negligence, 914.
electricity does not explode, judicially known, 893.
gas in conduits, of, 511.

EXTENT
cutting of shade trees along highway, of, 432.

EXTRAORDINARY CARE
exercise of, by electric company, 600.

F,
FALLING

pole, of, injury from, 720.
street lamp, of, injury from 727.

presumption of negligence, 909.
trolley pole, presumption of negligence from, 915.
wires, of, injuries from, 735.

injury to servant, 839.

presumption of negligence, 905.

FARAD
defined, 36.

FASTENING ;
wires, of, security of, matter of regulation, 486.

FEES (See Licenst Fens.)

FELLOW SERVANTS
duty of master to employ, 861.
negligence of, 886.

FIRE ALARM WIRES
injuries from, liability of municipality, 631.
972 Inpex.

(References are to pages.)
FIRE ESCAPE
maintenance of wire near, 751.

FIREMEN
impediment of wires to, as special damage to abutting owner from wires
in street, 426.
injury to, 691.

FIRE UNDERWRITERS
rules of, admission in evidence, 917.

FIXTURES (See INTERIOR APPLIANCES.)
installation of, assignability of contract for, 179.
manufacture and installation of, by electric companies, 47.

FLOWAGE
rights of, condemnation of, 119.

FLUME
exercise of eminent domain, 120.

FORECLOSURE (See also, Mortcace.)
sale without right of redemption, 57.
preferential claims, 57.

advance for power house, 57n.

FOREIGN CORPORATIONS
eminent domain by, 106.
domestic authority required, 107.
domestic corporation subordinate to foreign, 108.
necessity of franchise by, 297.

FORFEITURE
franchises, of, 317.
abandonment or non-user, 318.
wrongful acts or abuse of franchise, 318.
no forfeiture of title to physical property, 319.
waiver of, by municipal officials, 319.
function of court, 320.

FRANCHISES

abutting owners, rights of, in case company has no, 422

conditions annexed to, 332.
regulation contrasted, 332.
franchise granted by state, 333.
acceptance of franchise, 334.
not to engage in lighting, 334.
waiver of conditions, 336.
estoppel, 337.
enforcement of conditions, 337.
bonds, 339.
duration of franchise, 340.
InveEx. 973

(References are to pages.)
FRANCHISES — continued
conditions annexed to — continued
free service to municipality, 340.
liability for damages, 341.
poles, 341.
location, 341.
painting, 342.
use of, by municipality, 342.
party lines, 343.
percentage of proceeds, 343.
power plant, 344.
rates for service, 53, 344.
revocation of right, 345.
time limit for construction of system, 346.
wires, 347.
conduits, 347.
guard wires, 347.
construction of conduit, for, 505.
revocation or impairment of, 506.
conditions annexed, 507.
contract for municipal lighting involving, 197, 211, 220.
duration of, 322.
condition in franchise, 322, 340.
corporate life of grantee, 322.
company is a trespasser after expiration of term, 323.
renewal, 324.
electric company, of, as bar to municipal ownership, 238.
electric company, of, taxation of, 145, 146.
percentage of receipts, 146.
emanate from sovereign power, 354.
delegation of power to grant fgranchise to municipality, 354.
permission of state board, 356.
franchise granted by constitution, 357.
exclusiveness of, 324.
constitution may prohibit, 325.
grant by municipality, 325.
telegraph and telephone companies, 328.
implication of right to grant, 329.
exclusive feature does not render entire franchise void, 330.
as against one not having franchise, 331.
forfeiture of, 317.
abandonment or non-user, 318.
wrongful acts or abuse of franchise, 318.
no forfeiture of title to physical property, 319.
waiver of, 319.
by municipal officials, 319.
function of court, 320.
grant by court, 375.
974 InpEx.

(References are to pages.)
FRANCHISES — continued
grant by municipality, 377.
legislative, not proprietary act, 377.
right to grant depends on delegation of sovereign power, 379.
what constitutes delegation of power, 380.
power to regulate streets, 381.
consents of abutting owners, 382.
subsequent grant as ratification of prior grant, 383.
modern tendency of home rule, 383.
grant to corporation not organized, 384.
power conferred on company after acceptance by company of statu-
tory grant, 385.
effect of annexation of municipalities, 385.
necessity of designating location of poles, 386.
body or officials authorized to make grant, 387.
legislative body of municipality, 387.
common council, 387.
municipal assembly, 387.
board of aldermen, 387.
board of trustees, 387.
superintendent of parks, 387.
street and water commissioners, 388.
delegation by municipality, 388.
procedure for granting franchise, 388.
substantial compliance required, 388.
recordation of ayes and noes, 388.
delay after introduction of ordinance until passage, 389.
publication or posting of proposed ordinance, 389.
title of ordinance, 389.
approval of mayor, 390.
sufficiency of resolution, 390.
approval of board of estimate, 391.
approval of inhabitants, 392.
sale of franchise to highest bidder, 393.
rule in Kentucky, 394.
proof of franchise, 395.
parol statements of witnesses, 395.
records of common council, 396.
acceptance of franchise, 396.
grant by state, 354. ;
statute giving general right to use of highway, 358.
application to city streets, 359.
grant not to incommode public use of highway, 361.
statute giving right along streets, 362.
statutes giving rights outside of municipalities, 363.
incorporation subsequent to placing of poles, 363.
statutory grant subject to control of municipality, 364.
municipal regulation of poles and wires, 366.
Inpex. 975

(References are to pages.)
FRANCHISES — continued
grant by state — continued
statutory grant to control, ete.— continued
municipal designation of location, 367.
revocation of designation, 370.
public lighting, 370.
streets or appliances, 370.
court designation on failure of municipality to act, 371.
location pursuant to designation is proper location, 372.
imposition of conditions, upon designation, 372.
special charter provisions in particular municipalities, 373.
legislative grant subject to consent of abutting owners, 373.
impairment of, 302.
constitutionally protected, 303.
federal constitution, 304.
regulation of company, 306.
discontinuance of highway, 307.
taxation, 308.
grant to other companies, 308.
municipal ownership of system, 309.
moving buildings along street, 309.
grant not utilized, 310.
enforcement of conditions annexed to grant, 311.
reservation of right to revoke, 312.
maintenance of lines without, as a nuisance, 642.
modification of, 321.
rate of service to patrons, 321.
necessity of, 294.
corporation engaged in interstate commerce, 295.
operation of telephone exchange, 295.
use of wires laid by predecessor, 296.
foreign electrie company, 297.
line of individual along rural highway, 297.
turnpikes, 300.
necessity of, interfering with electric line, 514.
not invested in stockholders, 289.
Post Roads Act forbidding exclusive, 271.
prerequisite to exercise of eminent domain, as, 113.
primary, 40.
primary and secondary, 289.
remedies, 347.
franchise holder, 347.
removal of appliances of another company, 347.
attack on franchise of another, 347.
injunction, 350.
damages for injury to property, 350.
state, 351.
quo warranto, 351.
976 InpeEx.

(References are to pages.)
FRANCHISES — continued
remedies — continued
municipality, 351.
attack on franchise, 352.
injunction, 352.
summary proceedings, 353.
taxpayers, 353.
rights given by franchise, 300.
contract rights, 300.
easements, 301.
construction of line from streets to power house, 301.
supply of power by street railway company, 302.
use of appliances likely to frighten horses, 302.
secondary, 289.
streets may be used for lighting and communication, 290.
surrender of, 321.
telegraph company, of, taxation of, 155.
transfer of, 313.
condition in franchise forbidding, 314.
statute prohibiting, 314.
ratification, 315.
estoppel, 315.
assignment of part of franchise, 316.
mode of transfer, 316.
Statute of Frauds, 316.
rights of parties after transfer, 317.
invalid franchise, 317.
conditions annexed to franchise, 317.
what constitutes a franchise, 290.
permission given by municipality, 291.
indeterminate permits, 291n.
license, 292.
permit, 292.

FRAUDS, STATUTE OF (See Stature or Fravps.)
FUSE

defined, 36.

burning out of, injury to passenger, 567.

G.

GAS
explosion of, in conduits, 511.
furnishing of, by electric company, 47.
GAS COMPANY
franchise of, as bar to contract for electric lighting of streets, 196, 199.
power to furnish electricity, 42.

GENERATING PLANT (See Power Pant.)
InpeEx. 977

(References are to pages.)
GENERATION
electricity, of, judicially known, 895.

GENERATOR
defined, 36.

GLOVES (See RUBBER GLOVES.)

GRANT
abutting owner, by, for construction of line along highway, 443.
easement for lines, of, 465 et seq.
railroad, by, right to maintain telegraph line along right of way, 449.

GREAT CARE
exercise of, by electric company, 599.

GREATEST CARE
exercise of, by electric company, 603.
safety of servant, 831.

GROUND
defined, 37.

GROUND DEVICE (See LicgHtNine ARRESTOR.)
necessity of installation of, 731.

GUARDING (See also, GuaRD WIRES.)
wires of telephone or telegraph companies, of, regulation of, 493.

GUARD RAIL
street car, of, shock from, 571.

GUARD WIRES
injury to servant, 841
necessity for, 762.
requirement of, matter of regulation, 486.
requiring, as condition of franchise, 347.
street railways, by, regulations as to, 490.

GUY WIRES
attractive nuisance, as an, 696.
cutting, proximate cause of injury, 663.
injuries from, 755.
location, 755.
proximity to charged wires, 756.
circuit breakers, 757.
encasement, 758.

HAND-HOLDS
street car, of, shock from, 571.

HANDKERCHIEF
handling dangerous wire with, as contributory negligence, 806.

62
978 InpEx.

(References are to pages.)
HAY STACKERS
height of wires for passage of, 734.

HEARSAY EVIDENCE
admissibility of, in electrical matters, 917
rules of fire underwriters, 917.
testimony at coroner’s inquest, 918.
mental state, to show, 918.
res gestae, 919.
admissions, 920.
by agent, 920.

HEAT
supply of, by electrical company, 42.

HEIGHT
wires, of, 733.
passage of high machinery, 734.
over roof of building, 735.
injury to servant, 840.
matter of regulation, 486.
wires of telephone or telegraph company, regulation of, 493.

HENRY
defined, 37.

HIGH CARE
exercise of, by electric company, 597.
safety of servant, 831.

HIGHEST CARE
exercise of, by electric company, 600.
master for safety of servant, by, 831.

HIGHWAYS (See Streets anp HigHways.)

HORSES
frightening, use of appliances likely to, 302.
injury to, from street railway, 578.

HOUSE (See BUILDING.)

HUSBAND AND WIFE
one spouse as agent for other, in consenting to construction of line along
highway, 446.
grant of right of way for lines by spouse, 466.

I.

IMPAIRMENT
franchises, 302 et seq.
conduits for, 505.
rights granted by Post Roads Act, of, 270.
InpEx. 979

(References are to pages.)
IMPLIED CONTRACTS
street lighting, for, 215.

IMPLIED LICENSEES
injuries to, 688.

IMPUTED NEGLIGENCE
doctrine of, 824.
parent and child, 824.
master and servant, 825.
driver and passenger, 825.

INACCURACY
meter, of, 176.

INCANDESCENT LAMPS (See Lamps.)

INCORPORATION
electric company, of, 40.
telephone company, of, under statute relative to telegraph company, 25.

INDEMNITY
joint tort feasors, between, 647.

INDEPENDENT CONTRACTOR
effect on liability of master, 889.

INDETERMINATE PERMITS (See also, FRANCHISES.)
use of streets and highways under, 291n.

INDIAN RESERVATIONS
telephone and telegraph lines through, 261.

INDUCTION
interference of electric currents, 524.

INGRESS

obstruction to, as special damage to abutting owner from line in street,
426, 427.

INJUNCTION
abutting owner, by, 439.
discontinuance of service, to restrain, 74.
federal question involved, 75.
injury to wires from moving of building, 543.
‘interference with electric currents, 519.
electric company, 519.
street railway, 531.
telephone or telegraph company, 536.
nuisance, relief from, 643.
operation of telegraph line, of, to collect license fees, 169.
remedy by franchise holder, 347.
remedy by municipality, as to appliances in streets, 352.
980 InpDEx.

(References are to pages.)

INJUNCTION — continued
removal of wires over private property, 470.
restraining breach of contract for electrical service, 187.
breach by customer, 188.
unreasonable rule of company, 189.
restraining discontinuance of business by electric company, 64.

INJURIES (See also, NEGLIGENCE.)
act of God, occasioned by, 673.
duty and liability of electric companies, 583 et seq.
lines, to, 537.
liability for wrongful injury, 537.
punitive damages, 537.
criminal liability, 538.
tapping, 538n.
malicious mischief, 539.
tampering with electric light meter, 539.
removal of wire crossing railroad, 539.
moving building along street, 541.
moving building an extraordinary use of street, 541.
injury to street railway line, 542.
constitutional protection of franchise, 542.’
restraint by injunction, 543.
injury to electric line, 544.
municipal permit, 544.
injury to telephone line, 545.
negligence of building mover, 546.
state or municipal regulation of building moving, 546.
injury from wires to person moving building, 548.
contract to move wires, 549.
proximate cause of, 652.
street railway passenger, to, 563 et seq.

INSPECTION

appliances, of, 699,
municipality, by, 700.
sufficiency of inspection, 700.
after storm, 702.
customer, of, 618.

master, by, 850.
poles and cross-arms, 853.
appliances of other companies, 854,

INSTALLATION
electric appliances, of, by elecctric companies, 47.
fixtures, assignability of contract for, 179.

INSULATION
electric wires, of, matter of regulation, 479, 486.
presumption of defective, from shock, 908.
INDEX. 981

(References are to pages.)
INSULATION — continued
time defect in, has existed, subject of expert testimony, 921.
wires, of, 765.
against lightning, 770.
injury to person not coming in contact with wire, 771.
question for jury, 771.
an alternative duty, 772.
insulation at particular places, 772.
trees, 772.
side of buildings, 773.
balcony, 775.
awnings, 775.
roofs of buildings, 776.
bridges, 778.
elevated railroad, 780.
poles, 781.
between poles, 785.
near other wires, 787.
over vacant lots, 788.
air shaft of club house, 790.
booth, 790.
inside of building near window, 790.
basement room of power house, 790.
interior appliances, 790.
injury to servant, 839.
wires of customer, of, 618.
wires of electric companies, of, statutes relative to, 476.

INSURER
electric company not an, 583.
rule in Kentucky, 587.
rule of Rylands v. Fletcher, 589.
analogy between electric company and keeper of ferocious animal, 590.
master, not an, 829.
street railway not an, 563.

INTERFERENCE
electrical currents, of, 513.
electric company versus individual, 514.
franchise essential, 514.
electric company versus electric company, 515.
priority gives superior right, 515.
limitations on prior occupant’s rights, 517.
can occupy only sufficient space, 517.
unnecessary crossing of streets, 517.
unnecessary use of both sides, 517.
maintenance of dead wires, 518.
later company engaged in public lighting, 518.
remedy by injunction, 519.
982 InveEx.

(References are to pages.)
INTERFERENCE — continued
electrical currents, of — continued
telephone versus telephone company, 520.
priority gives superior right, 522.
limitations on prior occupant’s rights, 522.
telephone or telegraph versus street railway, 524.
induction, 524.
conduction, 525.
street railway superior in some states, 526.
different views, 527.
negligence of street railway company, 528.
contact of lines, 530.
effect of municipal regulations, 530.
remedy by injunction, 531.
telephone or telegraph line not along highway, 532.
submarine cable, 532.
on line of railroad, 533.
telephone or telegraph line versus electric company, 534.
priority gives superior right, 534.
negligence, 535.
conduits, 535.
remedy by injunction, 536.

INTERIOR APPLIANCE (See also, INTERIOR WIRING.)
contributory negligence as bar to recovery for injury from, 820.
insulation of, 790.
installation of, assignability of contract for, 179.
presumption of negligence from injury from, 910.

INTERIOR WIRING (See also, APPLIANCES; INTERIOR APPLIANCES; LAMPS;
WIRES.)
defective, failure of company to furnish current on account of, 72.
defective, liability of company, 619.
defects in, 729.
installed by electric company, 729.
ground device, 731.
injury to customer from defective transformer, 725.
injury to servant, 844.

INTERSTATE COMMERCE
corporation engaged in, necessity of franchise, 295.
operation of telegraph as, 265.
taxation of business of telegraph or telephone companies, 153, 170.

INTERVENING AGENCY
proximate cause of injuries, 660.
act of God, 661.
fastening of wire to defendant’s wire, 661.
intervening act of third person, 662.
guy wire cut, 663.
fallen tree, 663.
Inpex. 983

(References are to pages.)
INTERVENING AGENCY — continued
proximate cause of injuries — continued
third person caring for wire in street, 664.
interference with poles, 666.
frightened horses, 667.
after time to remedy conditions, 669.

INVITEES
injuries to, 688.

ISSUANCE
stocks and bonds of electric companies, of, regulated by public utility
commissions, 478.

JOINT LIABILITY (See Jornt Tort-FEASORS.)

JOINT TORT-FEASORS

liability for electrical injuries, 645.
separate trials, 646n.
one judgment, 646n.
contribution or indemnity, 647.
release of one, 650.
covenant not to sue one, 651.
partial release, 650n.

wires in proximity, 744, 749.

JOULE
defined, 37.

JUDGMENT
joint tort-feasors, against, 646n.

JUDICIAL NOTICE
electrical matters, of, 892.

properties of electricity, 893.
setting of fires, 893.
does not explode, 893.

danger of electricity, 894.

generation and transmission of electricity, 895.

electric lights, 896.

lightning, 896.

poles, 898.

electric companies, 898.

telephone and telegraph, 899.

street railways, 900.

JURY

function of, proximate cause, 671.
expert evidence taking question from, 923.
insulation of wires, question for, 771.
984 InpDEx.

(References are to pages.)

L.
LAMPS (See also, APPLIANCES.)

discount to consumer purchasing, as unlawful discrimination, 68.
real or personal property, 29.
requiring electric company to furnish, as unreasonable regulation, 475.
street, in, defects in, 727.

location, 727.

fallen lamp, 728.

shock from, 729.

LANDLORD AND TENANT
liability of landlord for current furnished to tenant, 254.

LARCENY
electricity, of, 7.
telephone service, of, 7.

LESSEES
public service corporations, of, eminent domain by, 112.

LEXICOLOGY
electric companies as manufacturers, 12.

LIABILITY
for damages, as condition for franchise grant, 341.

LICENSE
construction of line along highway, by abutting owner, 444.
electric lines, for, 467.
revocation, 467.
franchise, as wu, 292.
procurement of, for excavation for pole, 485.

LICENSEES
injuries to, 685.
injury to person on premises of third party, 686, 688.
wilful or wanton injury, 687.
implied licensees, 688.
invitees, 688.
extent of license, 689.
premises of electric company, 690.
power house, 690.
railroad shed, 690.
wires, 691.
firemen, 691.
peace officers, 692.
children, 692.
doctrine of attractive nuisances, 693.
third rail, 694.
poles, 694.
wires, 695.
guy wires, 696.
lightning, 683.
InpeEx. 985

(References are to pages.)
LICENSE FEES
electric company, upon poles and wires of, 146, 485.
as rental of streets, 147.
as exercise of police power, 148.
amount of fee, 149.
collection of fees, 150.
telegraph companies, imposition on poles and wires of, 160.
as rental of streets, 161.
police regulation, 162.
acceptance of municipal ordinance requiring, 163.
reasonableness of charge, 163.
evidence pertaining to charge, 165n, 166n.
amount of, 168.
collection of, by enjoining operation of line, 169.
telephone companies, levied against, for use of streets and highways, 170.

LIENS (See MeEcHANICc’s LIEN.)
appliances subject to, 30.

LIGHTING
street railway cars and streets, by street railway company, 44.
streets, of, as a public use, 91.
track of street railway, of, matter of regulation, 490.

LIGHTNING
increased danger of, as special damage to abutting owner from line in
street, 426.

insulation of wires against, 770.

judicial knowledge as to, 896.

liability for injuries from, 679.
conduction into building, 679.
installation of lightning arrestors, 680.
failure to remove dead wires, 681.
burning of building in proximity to line, 682.
injury to person passing near wire, 683.
licensees, 683.
warning not to use telephone during storm, 684.

LIGHTNING ARRESTORS
installation of, 680.

LIGHTS
presumption of negligence from injury from street, 909.

LIMITATION
indebtedness, of, effect on public lighting contract, 209.
indebtedness, of, municipal electric plant, 248.
time of indebtedness, 249.
evasion of limit, 249.
indebtedness, of, power of municipal ownership implied from, 233.
986 InpDEx.

(References are to pages.)
LINEMEN (See also, Master anD SERVANT.)
number requiring for stringing wires, subject of expert testimony, 921.
defined, 37.

LINES (See APPLIANCES; PoLes; WIRES.)

LOCATION

appliances, of, designation by municipality, 367.

guy wires, of, 755.

lines of electric company, regulation by municipality, 479.

municipal designation of, of appliances, franchise granted by state, 367.
revocation of designation, 370.
public lighting, 370.
streets or appliances, 370.
court designation on failure of municipality to act, 371.
location pursuant to designation is proper location, 372.
imposition of conditions on designation, 372.

poles and wires, of, regulation by state statutes, 476.

poles, of, as condition for franchise grant, 341.

poles of electric company, of, regulation by municipality, 479, 484.
change of location, 479, 484.

poles of, injuries from, 715.

street lamp, of, 727.

telephone and telegraph poles, of, regulation of, 493.

telephone or telegraph wires, of, regulation of, 493.

wires, of, matter of regulation, 486.

LOWEST BIDDER
award of public lighting contract to, 207.

M.
MACHINERY
height of wire for passage of, 734.
municipal lighting plant, of, purchase of, 256.

MALICIOUS MISCHIEF
injury to lines, 539.
MANAGEMENT
electric system, of, subject of expert evidence, 924.

MANAGER
electric company, of, authority to fix rates, 50n.
municipal lighting plant, of, 255.

MANDAMUS
remedy to enforce street lighting contract, 219.
MANDATORY INJUNCTION (See INJUNCTION.)

MANHOLES
injuries to, 611.

MANNER
erection of telephone and telegraph poles, of, reguletion of, 493.
InpDEx. 987

(Réferences are to pages.)
MANUFACTURE
electric appliances, of, by electric companies, 47.

MANUFACTURERS

electric companies as, 9.
lexicology, 12.
Bankruptcy Act, within meaning of, 14.
tax exemption statutes, 14.
remedial statutes, 16.
mechanic’s lien, 16.
employer’s liability acts, 17.
condemnation statutes, 17.
corporate consolidation, 18.
corporate reorganization, 18.’
contracts, 18.
building covenant, 18.

MANUFACTURING COMPANIES (See MANUFACTURERS.)

MASTER AND SERVANT
assumption of risk by servant, 862.
pole, 865.
of other companies, 868.
cross-arms, 869.
shock from master’s appliances, 869.
shock from appliances of other companies, 872.
street railway employee, 874.
collision with posts, 874.
contributory negligence of servant imputed to master, 825.
contributory negligence of servant, 875.
burden of proof on, 876.
failure to use rubber gloves, 877.
use of safety belt, 878.
contact with appliance known to be dangerous, 878.
contact with appliance not known to be dangerous, 879.
touching wire while grounded, 881.
failure to discover defect in pole, 881.
disobedience of master’s orders, 883.
street railway employees, 884.
acts in emergencies, 885.
degree of care to avoid injury to servant, 829.
master not an insurer, 829.
commensurate care, 830.
reasonable, 831.
ordinary, 831.
high, 831.
very high, 831.
highest, 831.
greatest, 831.
utmost, 831.
988 InpEx.

(References are to pages.)
MASTER AND SERVANT — continued
employment of competent workmen, 861.
fellow servants, 886.
furnishing suitable tools and appliances, 847.
transformers, 847.
telephone switchboard, 847n.
automatic circuit breaker, 847n.
steps on poles, 847n.
tools, 849.
independent contractors, 889.
injury to railroad employee from lines across or near railroad, 458.
inspection, 850.
poles and cross-arms, 853.
appliances of other companies, 854.
promulgation of rules, 860.
repairs, 855.
safe place to work, 831.
power plant, 834.
poles, 836.
cross-arms, 838.
wires, 839.
falling, 839.
insulation, 839.
height, 840.
proximity to other wires, 840.
guard wires, 841.
turning current on or off, 841.
appliances of other companies, 842.
interior wiring, 844.
street railways, 845.
trolley posts, 846.
defective transformer, injury to servant of customer, 726.
strike of employees no current furnished during, 182.
warning of employees, 856.

MATURITY
contract price for current, 182.

MAYOR
approval of ordinance granting franchise, 390.
city, of, veto of contract for public lighting, 204.

MEASUREMENT
electricity, of, 7.

MECHANIC’S LIEN
appliances subject to, 30.
electric companies as manufacturers within meaning of, 16.
Inpex. 989

(References are to pages.)
MENTAL STATE
hearsay evidence to show, 918.
res inter alios acta to show, 927.

METER (See also, APPLIANCES; METER Rater.)
contract and meter classes of patrons as discrimination, 67.
meter rate, 175.
contract for electric service by, 175.
real or personal property, 29.
tampering with, as crime, 539.

METER BOOKS
evidence of, 176n.

METER RATE
contract for electrical service by, 175.
ascertainment of amount of service, 176.
inaccuracy of meter, 176.
meter books as evidence, 176n.

MILLRACE
exercise of eminent domain, 120n.

MINIMUM CHARGE (See also, RatEs.)
electric service, 178.

MINING
electricity as a supply for, 7.

MINING COMPANY
as manufacturer, 8.
authority of public utilities commission over, 478.

MISCHIEFS (See Maticious MISCHIEF.)

MODIFICATION
franchise, of, 321.
rate of service to patrons, 321.

MONOPOLIES (See also, COMPETITION.)
contracts for electric service, 175. /
forbidding customer to take current of another company, 175
rule prohibiting use of other lights, 71.

MORTGAGE
property of electric company, of, 56.
trust mortgage to secure bonds, 56.
after-acquired property, 56.
consent of stockholders, 57.
foreclosure sale without right of redemption, 57.
preferential claims, 57.
990 InpEx.

(References are to pages.)
MOTIVE POWER
street railway, of, matter of regulation, 490.

MOVING
building through streets, injuries to wires, 541 et seq.

MUNICIPAL ASSEMBLY
grant of franchise by, 387.

MUNICIPAL BOUNDARIES
municipal plant outside of, 242.

MUNICIPAL CORPORATIONS (See also, FRANCHISES; ORDINANCES; Ruc-
ULATIONS. )
condemnation of property beyond limits, 84.
conduits, compelling company to place wires in, 497.
franchise to construct, 505.
municipal ownership of, 502. ‘i
contracts for electrical service, 173 et seq.
contracts for lighting of streets and public places, 191 et seq.
discretion as to lighting streets, 192.
contract an exercise of proprietary powers, 194.
power of municipality to make, 195.
additional contracts, 196.
intention to operate municipal plant, 196.
effect of exclusive grant to gas company, 196.
contract with individual, 197.
alternative right to operate municipal plant, 197.
contract involving a franchise, 197.
provision relative to erection of poles and wires, 198.
validity of contract, 199.
exclusive franchise to gas company, 199.
offer by another company to furnish cheaper iets 199.
capacity. of parties, 200.
subject matter and consideration, 200.
assent of parties, 201.
formalities prescribed by law, 202.
who may make contract on behalf of municipality, 203.
submission to vote of inhabitants, 206.
award of contract to lowest bidder, 207.
debt limit, 209.
duration of contract, 210.
absence of statutory restriction, 210.
contract giving franchise to company, 210.
statutory limitation on period, 212.
effect of provisions relative to levy of taxes, 213.
totally void, if in excess of limitation, 214.
beyond term of officers executing contract, 214.
exclusiveness of contract, 215.
implied contracts for street lighting, 215.
InDEx. 991

(References are to pages.)
MUNICIPAL CORPORATIONS — continued
contracts for lighting of streets and public places — continued
special assessments for street lighting, 217.
remedy of company, 218.
recovery of contract price, 218.
damages, 218.
specific performance, 219.
mandamus, 219.
injunction, 219.
defenses of municipality, 219.
non-performance by company, 219.
contract and franchise combined, 220.
ultra vires, 221.
remedy of taxpayers, 222.
delegated power to grant franchises, 354.
effect of Post Roads Act on rights of, 272.
eminent domain, power of, relative to electrical matters, 105.
franchise, as prerequisite, 113.
free service to, as condition annexed to franchise grant, 340.
granting of franchises by (See FRANCHISES.)
injury to waterworks, from electrolysis, 553.
inspection of appliances by, 700.
liability of, for, negligence, 628.
grant of power to board of municipality, 631.
pole and fire department wires, 631.
municipality having no power to operate plant, 632.
care of highways, 633.
appliances of companies, 634.
lighting of streets of, as a public use, 91.
maintenance of lines without permission of, as a nuisance, 642.
motive force of railway, determining, 556, 560.
operation of electric plant, 223 et seq.
plant owned by federal government, 224.
constitutional questions, 224.
statutory authority for municipal ownership, 227.
conditions precedent to be performed, 227.
express authority, 228.
express power includes private lighting, 228.
express authority includes furnishing of power, 229.
authority to erect and maintain, 229.
authority to purchase or construct, 229.
implied authority, 230.
public lighting, 230.
private lighting, 233.
from provisions relative to limitation of indebtedness, 233.
inherent authority, 234.
municipal ownership of conduits, 236.
sale of surplus power, 236.
franchise of electric company as bar to municipal ownership, 238.
992 Inpex.

(References are to pages.)

MUNICIPAL CORPORATIONS — continued
operation of electric plant — continued
purchase of plant owned by electric company, 240.
duty of municipality to, 241.
constitutionality of statutes relative to, 241.
location of plant, 242.
outside of municipal boundaries, 242.
center of street, 242.
combined water and electric plant, 242.
furnishing current for operation of street railway, 243.
right to make profit, 243.
territory served, 244.
non-residents, 244.
vote of inhabitants, 245.
as a necessary expense, 245.
proposition to be voted on, 247.
combined waterworks and electric plant, 247.
debt limit, 248.
time of indebtedness, 249.
evasion of limit, 249.
contracts for construction or equipment of plant, 250.
advertisement for bids, 250.
award to lowest bidder, 250.
vote of taxpayers, 250.
submission of expenditures to board of estimate, 251.
payment for plant, 251.
current funds, 252.
out of revenues from plant, 252.
bonds, 252.
unlawful use of plant as defense to bonds, 253.
special assessments, 253.
recovery for current, 254.
of landlord, for current furnished to tenant, 254.
statutes constitutional, 254..
employees running plant, 255.
engineers, 255.
electricians, 255.
manager, 255.
purchase of machinery or supplies, 256.
grant to others of right to use municipal poles, 256.
duty to furnish current without discrimination, 59, 61.
contract by municipality having no power to operate plant, 174.
power of municipality, 41.
bar to contract with company for street lighting, 196, 197.
as impairment of franchise granted to electric company, 309.
taxation of plant, 144.
regulation of electric companies, prohibition of minimum charge, 52.
regulation of excavations in street for conduits, 507.
Invex. 993

(References are to pages.)
MUNICIPAL CORPORATIONS — continued

regulation of moving building through streets, 546.
regulations of, interference of lines, 530.
remedy as to franchises, 351.

attack on franchise, 352.

injunction, 352.

summary proceedings, 353.
repairs to appliances, 710.
taxation of electric companies, 146.

license fees, 146.

telegraph companies, 162.

MUNICIPAL FRANCHISES (See FRANCHISES.)
MUNICIPAL OWNERSHIP (See MunicrpaL CoRPORATIONS.)

N.

NATURE
electricity, of, 2.

NAVIGABLE WATERS
exercise of eminent domain, interference with, 120.
lines over or under, 278.
Post Roads Act, 278.
injuries to vessels, 279.
loss of anchor, 282.
while proceeding in navigable mud, 281.
contributory negligence of owners, 283.
injuries to lines, 283.
over rivers, 285.
oceanic cables, 286.
nuisance, as a, 642.

NECESSARY EXPENSE

operation of municipal electric plant as, 245.
public lighting as a, 207.

NECESSITY
franchise, of, 294-300.
taking lands by condemnation, of, 116.

NEGLIGENCE
act of God, injuries occasioned by, 673.

storms, 673.

anticipation of act of God, 675.

negligence concurring with act of God, 676.

timely repairs to be made, 678.

lightning, 679.
conduction into building, 679.
installation of lightning arrestors, 680.

68
994 InpeEx.

(References are to pages.)
NEGLIGENCE — continued
act of God, injuries occasioned by — continued
lightning — continued
failure to remove dead wires, 681.
burning of building in proximity to line, 682.
‘injury to person passing near wire, 683.
licensees, 683.
warning not to use telephone during storm, 684.
appliances, injuries from, in general, 698.
inspection, 699.
notice of defects, 702.
repairs, 703.
duty upon discontinuance of service, 711.
duty to shut off or turn on current, 712.
poles, 715.
location, 715.
streets and highways, 716.
proximity to house, 720.
soundness, 720.
abandoned poles, 722.
cross-arms, 723.
metal brace, 724.
electric shock from, 724.
transformers, 725.
street lights, 727.
interior wiring, 729.
building mover, of, 546.
contractual relation not essential for liability of electric company, 605.
contributory negligence, 791 et seq.
children, duty of electric company as to, 611.
customers, duty of electric company as to, 606.
excessive voltage in building, 606.
injury to property, 609.
persons on customer’s premises, 610.
members of family, 610.
employees, 610.
degree of care to be exercised by electric company, 591.
ordinary care, 595.
high care, 597.
very high, 598.
great, 599.
very great, 599.
extraordinary care, 600.
highest, 600.
very highest, 603.
greatest, 603.
utmost, 604.
electric company not an insurer, 583.
rule in Kentucky, 587.
InpEx. 995

(References are to pages.)
NEGLIGENCE — continued
electric company not an insurer — continued
rule of Rylands v. Fletcher, 589.
analogy between electric company and keeper of ferocious animal,
590.
electrolysis, causing, 551.
injuries from conduits, 511.
explosions of gas in, 511.
injuries to conduits, 509.
injuries to manholes, 511.
insulation of wires, 765 et seq.
interference of electric currents, 528, 535.
joint tort-feasors, 645.
separate trials, 646n.
one judgment, 646n.
contribution or indemnity, 647.
release of one, 650.
covenant not to sue one, 651.
partial release, 650n.
liability dependent on ownership of appliance, 616.
defective appliances of customers, 618.
inspection of, 618.
insulation of, 618.
interior wiring, 619.
wiring maintained by company, 620.
successors, 622.
transfer of electric system, 622.
wires permitted on same pole, 623.
municipality, liability of, 628.
grant of power to board of municipality, 631.
police and fire department wires, 631.
municipality having no power to operate plant, 632.
care of highways, 633.
appliances of companies, 634.
ordinance, violation of, 624.
ordinance does not lessen duty, 626.
proximate cause, 626.
advisability of ordinance not an issue, 627.
violatiqgn of ordinance by person injured, 628.
proximate cause of injuries, 652.
concurring negligence, 654.
injury not anticipated, 655.
anticipation of particular injury not required, 658.
unlawful acts of others, 659.
distance unimportant, 659.
intervening agency, 660.
acts of God, 661.
fastening of wire to defendant’s wire, 661.
996 INDEX.

(References are to pages.)
NEGLIGENCE — continued
proximate cause of the injuries — continued
intervening agency — continued
intervening act of third person, 662.
guy wire cut, 663.
cutting tree, 663.
third person caring for wire in street, 664.
interference with poles, 666.
frightened horses, 667.
after time to remedy conditions, 669.
primary cause an accident, 669.
negligence charged not a cause, 670.
contributory negligence, 671.
function of court and jury, 671.
release of company from liability for, 180.
telephone and telegraph companies, 612.
dangerous currents of other companies, 612.
customers, as to, 614.
travelers, as to, 614.
persons on private property, as to, 615.
wires, injuries from, 733.
height, 733.
proximity to other wires, 744.
proximity to other objects, 751.
soundness, 752.
erection of wires, 754.
guy wires, 755.
span wires, 759.
guard wires, 760.
dead or abandoned wires, 763.

NOISE
power plant, of, as a nuisance, 638.

NON-PERFORMANCE

contract by electric company, of, 182.

street lighting contract, of, by company, defense to municipality, 219.
NON-RESIDENTS

municipality, of, supplied from municipal plant, 244.

NON-USER
franchise, of, as ground for forfeiture, 318.

NOTE
operation of municipal electric plant, 245.
as a necessary expense, 245.
proposition to be voted on, 247.
combined waterworks and electric plant, 247.
NOTICE
defective appliances, of, 702.
Invex. 997

(References are to pages.)
NUISANCES
attractive, doctrine of, 693.
third rail, 694.
poles, 694,
wires, 695.
guy wires, 696.
structures and appliances of companies, 637.
power plant, 638.
smoke, 638.
noise, 638.
vibration, 638.
soot, 639.
dirt, 639.
dust, 639.
cinders, 639.
steam, 639.
ashes, 639.
bad odors, 639.
dam for creation of power, 640.
stagnant water, 640.
appliances, 641.
poles, 641.
wires, 641.
without permission of authorities, 642.
wire across navigable stream, 642.
electrically charged wire in front of window, 642.
relief, 643.
abatement, 643.
injunction, 643.
damages, 644.
NUMBER
linemen, of, required for stringing lines, 921.
telephone and telegraph poles, of, regulation of, 493.

OBSTRUCTION
ingress and egress, to, as special damage to abutting owner from line in
street, 426, 427.

OCCUPATION
telegraph company, of, taxation of, 158.

OCEANIC CABLES
maintenance of, 286.
street railway interfering with, 532.

ODORS
power plant, from, as a nuisance, 639.
998 InDEx.

(References are to pages.)

OFFICERS
municipality, of, contract for conduits by, 504.
municipality, of, waiver of forfeiture of franchise by, 319.
wounicipal lighting plant, of, 255.
peace, injury to, from defective wires, 692.

OHM
defined, 37.

OPERATION
railroad, of, as a public use authorizing condemnation, 92.
ORDINANCES (See also, MunictpaL CORPORATIONS. )
acceptance of, as requiring payment of license charge on poles and wires,
163.
granting franchise. (See FRANCHISE.)
violation of, as ground of negligence, 624.
ordinance does not lessen duty, 626.
proximate cause, 626.
advisability of ordinance not an issue, 627.
violation of ordinance by person injured, 628.

ORDINARY CARE
exercise of, by electric company, 591.
safety of servant, 831.

OVER-PAYMENT
recovery of, by customer against electric company, 185.

OWNERSHIP
appliances, of, liability dependent on, 616.
defective appliances of customers, 618.
successors, 622.
electricity as subject of, 7.
street car, of, as determining liability of company, 578.

P,
PAINTING
poles, of, as condition for franchise grant, 342.
telephone and telegraph poles, of, regulation of, 493.

PANIC
passengers, of, from electrical explosion, 564.

PARENT AND CHILD
contributory negligence of parent imputed to child, 824.

PARKS
franchise in, 387.

PAROL EVIDENCE
construction of easement for lines, 466.
Inpex. | 999

(References are to pages.)
PARTY LINES
conditions annexed to franchise relative to, 343.

PASSENGER
negligence of driver imputed to, 825.
street railway, of, injuries to, 563.
street railway not an insurer, 563.
exercise of high care, 563.
electrical explosion, 564.
defective controller, 564.
panic of passengers, 564.
burning out of fuse, 567.
contributory negligence of passenger, 568.
proximate damages, 569.
electrical shock, 570.
metal plate, 570.
metal covering of sand box, 571,
railing, 571.
hand-holds, 571.
guard rail on platform, 571.
controller box, 571.
brass rod across window, 571.
charged wire, 571.
contributory negligence, 571.
collision with post in proximity to track, 573.
contributory negligence of passenger riding on platform or run-
ning board, 574.
projection of body beyond side of car, 575.
pole of another company, 576.
trolley pole, 577.
ownership of car, 578.

PATENT RIGHTS (See Patents.)

PATENTS
electric companies, of, taxation of, 145.

Y

PATRON (See CoNnSUMERS.)

PAYMENT
discontinuance of current for failure to make, 71.
municipal electric plant, for, 251.

PEACE OFFICERS
injury to, from defective appliances, 692.

PEDESTRIANS (See TRAVELERS.)

PENALTY
cutting shade trees along highway, 436.
failure of company to furnish current, 77.
statutes independent of actual damages. 77
1000 InpDEx.

(References are to pages.)
PENALTY — continued
failure of company to furnish current — continued
distance of building from supply wires, 77.
written application to company, 78.
prepayment of sums due company, 79.
penalties accruing after commencement of action, 79.
reinstatement, on, of consumer failing to pay for current, 71.

PERCENTAGE
proceeds, of, as condition for franchise grant, 343.

PERIOD
public lighting contract, of, 210-214.

PERMITS
use of streets and highways, for, as a franchise, 292.

PERSONAL INJURIES (See NEGLIGENCE.)

PERSONAL PROPERTY
conduits are, 496.

PETITION
condemnation proceedings, in, 130.

PHOTOGRAPHS
admissibility of, 917.

PHYSICIAN
expert, as an, 922.

PIPES
water, injury to, from electrolysis, 550.

PLATE
street car, of, shock to passenger from, 571.

PLATFORM
street car, of, shock to passenger on, 571.

POLES (See also, APPLIANCES.)

abutting owners, rights of. (See ABUTTING OWNERS.)
abutting owner, in front of, as special damage, 425.
act of God, injuries occasioned by, 673.
admissibility of, as real evidence, 916.
assumption of risks of defects in, 865.

poles of other companies than master, 868.
attractive nuisance, as a, 694.
collision with, contributory negligence of person injured, 801.
conditions in franchise relative to, 341.

location, 341.

painting, 342.

use of, by municipality, 342.
Inpex, 1001

(References are to pages.)
POLES — continued
grant by municipality of right to use, 256.
injury to servant on, 836.
injuries from, 715.
location, 715.
streets and highways, 716.
proximity to house, 720.
soundness, 720.
abandoned poles, 722.
eross-arms, 723.
metal brace, 724.
injuries to, 537 et seq.
inspection of, 699.
master, by, 850.
insulation of wires at, 781.
judicial knowledge as to, 898.
liability of municipality for, 633.
line across or along railroad right of way, 447.
grant by railroad, 449.
personal injuries from poles, 457.
liability of railroad, 458.
injuries to others than employees of company, 460.
injury not to be anticipated, 461.
assumption of risk, 461.
liability of owner of wire, 462.
contributory negligence, 463.
nuisance, as a, 641.
place to set, subject of expert evidence, 921.
presumption of negligence from injury from, 909.
private property, over, 465.
proper method of erecting, subject of expert evidence, 921.
proximate cause of injury from, 652.
realty or personalty, 28-32.
regulation by municipality of franchise granted by state, 366.
regulation of, 476.
electric companies, 476.
state statutes, 476.
location of poles, 476.
municipal ordinances, 479.
location of poles, 479.
change of, 479.
location of, 476, 479, 484.
change of, 479, 484.
procurement of license before excavation for, 485.
license fee for, 485.
telegraph and telephone companies, 491.
location, 493.
size, 493.
shape, 493.
1002 InpEx.

(References are to pages.)
POLES — continued
regulation of — continued
‘telegraph and telephone companies — continued
number, 493.
manner of erection, 493.
painting, 493.
street railway, of, injury to passenger from, 575.
title to, effect of forfeiture of franchise, 319.
trespassers and licensees on, 685.
unsightly, as special damage to abutting owner, 427.

POLICEMAN
injury to, from defective wires, 692.

POLICE POWER
license fees as exercise of, 148.
electric companies, 148.
telegraph companies, 162. _
municipality cannot deprive itself of, 481.

POLICE WIRES
injuries from, liability of municipality, 631.

POSSESSION
electricity, of, 7.

POSTING
proposed ordinance granting franchise, of, 289.

POSTMASTER GENERAL
acceptance by telegraph company of Post Roads Act to be filed with, 277.

POST ROADS ACT
statutes, 264.
application to District of Columbia, 265.
construction of, a federal question, 265.
constitutionality of, 265.
purpose of, 267.
what are post roads, 268.
effect of statute, 270.
impairment of right, 270.
state statute giving exclusive right to one company, 271.
rights of private persons or corporations, 272.
rights of municipalities, 272.
rights along railroad, 273.
taxation of telegraph companies, 153, 154, 274.
gives no power of eminent domain, 275.
no application to telephone or electric companies, 25, 275.
use of materials from public lands, 276.
rights not transferable, 276.
priority of government messages, 276.
Inpex. 1003

(References are to pages.)

POST ROADS ACT — continued
purchase of lines) by government, 277.
acceptance of obligation to be filed, 277.

POWER
furnishing, as a public use, 90.
supplied by street railway company, 302.
supply of, by electric company, 42.
supply of, by municipality, 229.

POWER HOUSE (See Power PLant.)

POWER PLANT

advance for, as preferential claim, 57n.
basement room of, insulation of wires in, 790.
condemnation for, location of, 121. ;
conditions relative to, annexed to franchise, 344.
construction of line from streets to, right given by franchise, 301.
damages for taking, in condemnation proceedings, 132.
electric company, of, as prerequisite to exercise of eminent domain, 113.
exemption from taxation, 144.

municipal plant, 144.
injury to servant in, 834.
municipality, of, location of, 242.

outside municipal boundaries, 242.

center of street, 242.

combined water and electric plant, 242.
nuisance, as a, 637.

smoke, 638.

noise, 638.

vibration, 638.

soot, 639.

dirt, 639.

dust, 639.

einders, 639.

steam, 639.

ashes, 639.

bad odors, 639.

dam for creation of power, 640.

stagnant water, 640.

operated by municipality, 223 et seq.
owned by federal government, 224.
prohibition of use of soft coal at, by statutes, 477.
street railway company, of, 109.

eminent domain for site, 109, 110.
trespassers, injuries to, 690.
use of water power to generate electricity, 48.

POWERS
electric company, 40-58.
1004 Invex.

(References are to pages.)

PRECAUTION
subsequent, admissibility in evidence, 931.

PREFERENTIAL CLAIMS
mortgage by electric company, to, 57.
advance for power house, 57n.

PREREQUISITES
exercise of eminent domain, to, 113.

PRESCRIPTION
right to maintain line along highway, acquisition of, 445.

PRESUMPTION
negligence, of (See Evipence; Res Ipsa Loquitvr.)

PRIMARY FRANCHISE (See also, INCORPORATION ;. FRANCHISES. )
nature of, 289.

PRINCIPAL AND AGENT
evidence of admissions by agent, 920.

PRIORITY
governmental telegraph messages, under Post Roads Act, 276.
rights in streets and highways secured by, 515 et seq.

PRIVATE NUISANCE (See Nuisance.)

PRIVATE PROPERTY
lines over, 465.
construction by cotenant, 465.
grant of right of way, 465.
by agent, 466.
husband and wife, 466.
construction of grant, 466.
admissibility of parol evidence,. 466.
license, 467.
revocation of, 467.
Statute of Frauds, 467.
easements, 466, 467.
free service as consideration of, 468.
proper use of easement granted, 468.
additional wires, 469.
destruction of spring, 469.
line along water main easement, 469.
rights of purchaser subsequent to erection of line, 470.
remedies of owner, 470.
removal of line, 470.
ejectment, 470.
injunction, 470.
damages, 471.
punitive damages, 472.
Inpex. 1005

(References are to pages.)
PROCEEDS (See REcEIPTS.)

PROCUREMENT

license for excavation for poles, 485.
PROFIT

right of municipality to make, out of electric plant, 243.
PROHIBITION

minimum charge, of, by electric companies, 52.
PROMOTERS

electric company, of, contract for street lighting with, 198.
PROMULGATION

rules by master, of, 860.
PROPERTIES

electricity, of, judicially known, 893.
PROPERTY

electricity as subject of, 6, 7.

PROTECTION
wires, of, regulated by municipal ordinance, 479.

PROXIMATE CAUSE
injury from wire crossing railroad track, 461.
injuries, of, 652.
concurring negligence, 654.
injury not anticipated, 655.
anticipation of particular injury not required, 658.
unlawful acts of others, 659.
distance unimportant, 659.
intervening agency, 660.
act of God, 661.
fastening of wire to defendant’s wire, 661.
intervening act of third person, 662.
guy wire cut, 663.
cutting tree, 663.
third person caring for wire in street, 664.
interference with poles, 666.
frightened horses, 667.
after time to remedy conditions, 669.
primary cause an accident, 669.
negligence charged not a cause, 670.
contributory negligence, 671.
function of court and jury, 671.
ordinance, injuries from violation of, 626.

PROXIMITY
guy wire, of, to charged wire, 756.
1006 InpEx.

(References are to pages.)
PROXIMITY — continued.
wire, of, to other wires, 744.
joint liability, 749.
priority does not excuse, 749.
wires, of, to objects, 751.
buildings, 751.
trees, 751.
fire escape, 751.
pole, 752.
wires, of, to other wires, injury to servant, 840.

PUBLICATION
proposed ordinance granting franchise, 389.

PUBLIC DOMAIN
electric lines through, 259.
use of materials from, for construction of telegraph line, 276.

PUBLIC HIGHWAYS (See Streets anp HicHways.)
PUBLIC NUISANCE (See NuISsANCce.)
PUBLIC OFFICERS (See Orricers.)

PUBLIC POLICY. ,
grant of exclusive right to maintain telegraph line along railroad, as
against, 447.

PUBLIC USE
furnishing electricity as a, 86.
conservation of water power by state, 88.
power of eminent domain lost by vagueness, 88.
view as to power, 90.
lighting municipal streets, 91.
operation of railroad, 92.
lands for power plant, 92n.
delivery of current to other electrical companies, 93.
not necessary that every inhabitant be benefited, 94.
service to inhabitants of another state, 95.
railroad operating in two states, 95.
combination of public and private uses, 96.

PUBLIC UTILITIES COMMISSION
franchises, duties relative to granting of, 356.
motive force of railway, may prescribe, 556, 562.
regulation of electric companies by, 477.
rates, 478.
issuance of stocks and bonds, 478.
mining corporation, 478.

PUNITIVE DAMAGES
construction of line over private property, 472.
cutting of shade trees along highway, 435.
injury to lines, for, 537.
Invex. 1007

(References are to pages.)
PURCHASE
electric plant of company, of, by municipality, 240.
duty of municipality, 241.
constitutionality of statutes relative to, 241.
supplies for municipal lighting plant, of, 256.
telegraph lines of federal government, of, 277.

Q.

QUASI-CONTRACTS
public lighting, for, 215.

QUASI-PUBLIC CORPORATIONS (See Corrorations; ELEcTRIC COMPANIES. )

QUO WARRANTO
franchises, remedy by state relative to, 351.

RAIL ;
street railway, of, shock from, 579.
presumption of negligence, 916.

RAILING
street car, of, shock from, 571.

RAILROAD COMMISSION (See Pustic UTILITIES ComMISsION.)

RAILROADS (See also, STREET RArLWways.)
condemnation of right of way, 123.
telegraph line, for, 136.
amount of damages, 140.
electricity as motive force of, 562.
line of wires along or across, 447.
exclusive right granted to one telegraph company, 447.
as a contract in restraint of trade, 447.
grant by railroad of right of way, 449.
additional servitude on owner of servient estate, 450.
telephone wires, 453.
electric wires, 453.
railroad entitled to consideration, 453.
expiration of grant, 454.
title to appliances, 455.
maintenance of line by railroad, 456.
personal injuries from lines, 457.
liability of railroad, 458.
injuries to others than employees of company, 460.
injury not to be anticipated, 461.
assumption of risk, 461.
liability of owner of wire, 462.
contributory negligence, 463.
1008 Inpex.

(References are to pages.)

RAILROADS — continued. \
operation of, by electricity, as public use, 92.
Post Roads Act, effect of, 273.
removal of wire crossing, 539.
telegraph line along, as real or personal property, 31.
telegraph line on, interfered with by street railway, 533.
trespassers on property of, 690.

RAISING
wires, of, injuries from, 754.

RATES (See also, METER RATES; MINIMUM CHARGE.)
absence of regulation, 49.
authority of manager to fix, 50n.
conditions in franchise relative to, 344.
contract with consumer, 50.
duty to furnish current without discrimination, 59, 61.
difference in rate, as discrimination, 65.
electrical contracts, for, 175.
meter rate, 175.
minimum charge, 178.
free service to municipality, as condition of franchise, 340.
minimum charge, 51.
reasons for, 51.
prohibition of, 52.
condition in franchise forbidding, 53.
modification, franchise condition as to, 321.
reasonableness, 50.
recovery by company of, 181.
recovery of, in case of over-payment by customer, 185.
regulations as to, 477.
electric companies, 477.
state statutes, 477.
public utility commissions, 478.
municipal ordinances, 481.
telephone companies, 494.
street lighting contract, recovery of, by company, 218.

RATIFICATION
transfer of franchise, of, 315.

REAL EVIDENCE
admission of, 916.
poles, 916.
wires, 916.
clothing worn by deceased, 917.
cross-arm, 917.
photographs, 917.

REASONABLENESS
electric rates, of, 50.
Inpex. 1009

(References are to pages.)
RECEIPTS
electric companies, of, taxation of, 150.
as a franchise tax, 146.
percentage of, as condition for franchise grant, 343.

RECORDS
common council, of, to prove franchise, 396.

REDEMPTION (See also, Morteace.)
foreclosure sale of electric company’s property without right of, 57.

REFUSE DESTRUCTOR
erection of, by electric company, 42.

REGULATION
conditions annexed to franchise contrasted with, 332.
electric companies, of, 474.
reasonableness of regulations, 475.
constitutional provisions prohibit unreasonable, 475.
free incandescent lamps, 475.
state statutes, 476.
location of poles and wires, 476.
manner of construction of lines, 476.
insulation of wires, 476.
use of soft coal at power plant, 477.
rates, 477.
public utility commissions, 477.
rates, 478.
issuance of stocks and bonds, 478.
mining corporation, 478.
municipal ordinances, 479.
location of poles, 479.
insulation and protection of wires, 479.
location of lines, 479.
change of, 479.
conduits, 480.
regulations must be reasonable, 480.
municipality cannot deprive itself of police power, 481.
form of regulation, 481.
rates, 481.
matters which may be regulated, 483.
poles, 484.
location, 484.
change of, 484.
procurement of license before excavation for, 485.
license fee for, 485.
wires, 485.
location of, 486.
conduits, 486.
height, 486.

64
1010 Inpex.

(References are to pages.)
REGULATION — continued
electric companies — continued
matters which may be regulated — continued
wires — continued.
over and upon roofs of buildings prohibited, 486.
security of fastenings, 486.
insulation, 486.
guard wires, 486.
rates, 486.
minimum, 52, 487.
electricians, 489.
license of, 489.
requiring wires to be placed under ground, 497.
when requirement is unreasonable, 500.
municipality providing for single conduit, 500.
electric wires distinguished from telephone or telegraph wires,
501..
burdensome ordinances no excuse for discontinuance of business, 63.
as impairment of franchise, 306.
excavations in streets for conduits, 507.
interference of lines, to avoid, 530.
moving buildings through streets, of, 546.
municipality, by, of franchise granted by state, 364.
regulation of poles and wires, 366.
designation of location, 367.
revocation of designation, 370.
public lighting, 370.
streets or appliances, 370.
court designation on failure of municipality to act, 371.
location pursuant to designation is proper location, 372.
imposition of conditions on designation, 372.
prerequisite to exercise of eminent domain, 115.
rate for service in absence of, 49.
street railway companies, 490.
use of guard wires, 490.
motive power, 490.
lighting of track, 490.
raising of wires for moving of building, 490.
telegraph and telephone companies, 491.
reasonableness, 492.
poles, 493.
location, 493.
size, 493.
shape, 493.
number, 493.
manner of erection, 493.
painting, 493.
Inpex. 1011

(References are to pages.)
REGULATION — continued
telegraph and telephone companies — continued.
wires, 493.
height, 493.
location, 493.
size, 493.
guarding, 493.
on poles of other companies, 494.
telephone rates, 494.

RELEASE
electric company from liability for negligence, 180.
joint tort-feasors, of one of, 650.
covenant not to sue, 651.
partial release, 650n.

RELEVANCY
expert evidence, of, 922.

REMEDIAL STATUTES
electric companies as manufacturers within meaning of, 16.

REMEDIES (See also, Damaces; INJUNCTION; MANDAMUS; SPECIFIC PER-
FORMANCE. )
abutting owners, of, 437.
ejectment, 437.
injunction, 439.
damages, 441.
electrical contracts, 183.
damages, 183.
over-payment, 185.
specific performance, 186.
injunction, 187.
electrolysis, 553.
franchises, relative to, 347.
franchise holder, 347.
state, 351.
municipality, 351.
taxpayers, 353.
interference with electric currents, 519, 531, 536.
nuisances, 643.
owner of land over which wires are strung, 470.
removal of line, 470.
ejectment, 470.
injunction, 470.
damages, 471.
punitive damages, 472.
street lighting contracts, 218-222.
unlawful moving of building through street, 543.
1012 INDEX.

(References are to pages.)
REMOVAL
wires, of, after discontinuance of service, 711.

RENEWAL
electric contracts, of, 174.
franchise, of, 324.

RENTAL
license fees for use of streets, as charge in nature of, 147, 161.

REORGANIZATION
corporations, of, electric companies as manufacturers, 18.

REPAIRS
appliances, to, 703.
constructive knowledge of defects, 706.
after creation of conditions for which company is not responsible,
708.
act of God, 708.
wrongful act of third person, 708.
negligence in making repairs, 710.
municipality, 710.
failure to make, after storm, 678.
failure to make, proximate cause of injury, 669.
master, by, 855.
subsequent, admissibility in evidence, 931.
wires, of, expert evidence as to, 923.

RES GESTAE
admissibility of, 920.

RES INTER ALIOS ACTA
admissibility of, 926.
mental state, to show, 927.
cause of accident, to show, 928.
condition of same appliance at different time, 929.
subsequent repairs or precautions, 931.

RES IPSA LOQUITUR
presumption of negligence, 900.

effect of allegation of specific negligence, 903.
relation of parties, 904.
wires, 905.

falling, 905.

sagging, 905.

defective insulation, 908.
poles, 909.

shock from, 909.
street lamps, 909.

falling of, 909.

shock from, 910.
Inpex. 1013

(References are to pages.)
RES IPSA LOQUITUR — continued
presumption of negligence — continued
interior appliances, 910.
shock from, 910.
telephones, 912.
shock from, 912.
street railway operation, 913.
electrical explosion, 914.
shock from metal part of car, 915.
fall of trolley pole, 915.
shock from rail, 916.
RESOLUTION
granting franchise by, 390.

RESTRAINT OF TRADE
giant of exclusive right to maintain telegraph line along railroad, 447.

RESTRICTION
of competition between electric companies, 53-55.

REVOCATION :
designation by municipality of location of appliances, of, 370.
franchise, of, as condition of grant, 345.
franchise, of, reservation of right to, not an impairment of franchise, 312.
franchise to construct conduits, of, 506.
license for construction of lines, of, 467.

RIGHT OF WAY
lines of poles and wires, 258 et seq.

RIPARIAN RIGHTS
condemnation of, 120.

RISK (See ASSUMPTION OF RISK.)

RIVERS (See also, NAVIGABLE WATERS.)
lines across navigable, 285.

ROADS (See STREETS AnD HicHWways.)

ROOFS
electric wires on, matter of regulation, 486.
building, of, height of wires over, 735.
buildings, of, insulation of wires near, 776.

RUBBER GLOVES
failure to use, as contributory negligence, 818.
servant, 877.

RULES
fire underwriters, of, admission of, 917.

promulgation of, by master, 860.
violation of company’s as excuse for not furnishing current, 70.
1014 INDEX.

(References are to pages.)
RUNNING BOARD
passenger riding on, contributory negligence, 574.

Ss.

SAGGING
wires, of, 742.
presumption of negligence, 905.
SALE
electric system, of, liability of successors, 622.
electricity as subject of, 7.
franchise, of, to highest bidder, 393.
surplus power from municipal plant, of, 236.

SAND BOX
metal covering of, shock from, 571.

SATISFACTION (See Accorp AND SATISFACTION.)

SECONDARY FRANCHISES (See also, FRANCHISES.)
nature of, 289.

‘SECURITY
fastening of wires, of, matter of regulation, 486.

SERVICE
duty of company on discontinuance of, 711.

SHADE TREES (See also, TREES.)
injury to, by construction of line along highway, 430.
extent and mode of cutting, 432.
damages, 433.
amount of, 435.
punitive damages, 435.
penalties, 436.
SHAPE
telephone and telegraph poles, of, regulation of, 493.

‘SHIPPING (See VESSELS.)
SHOCK (See ELEcrRicity.)

SIDEWALK
insulation of wires under, 790.

SIZE
telegraph and telephone wires, of, regulation of, 493.
poles, 493,

SMELL
power plant, from, as a nuisance, 639.

SMOKE
power plant, of, as a nuisance, 638.
' INDEX, 1015

(References are to pages.)
SOFT COAL
prohibition of use of, at power plants, 477.

SOOT
power plant, of, as a nuisance, 639.

SOUNDNESS
poles, of, injuries, 720.
wires, of, 752.

SPAN WIRES
maintenance of, 759.
circuit breakers, 759.

SPECIAL ASSESSMENTS
payment of municipal electric plant by, 253.
street lighting, for, 217.
taxed against electric companies, 151.

SPECIAL DAMAGES (See Damacgs.)

SPECIFIC PERFORMANCE
enforcement of electrical contract by, 186.
public lighting contract, 219.

SPRING
destruction of, in construction of lines, 469.

STATE
franchise granted by, conditions annexed to, by municipality, 333.
motive power of railway, may prescribe, 556.
regulation of building moving, 546.
remedies by, as to franchises, 351.
quo warranto, 351.
statutes regulating electric companies, 476.

STATE BOARD
granting of franchises, function relative to, 356.

STATUTE OF FRAUDS
assignment of franchise, 316.
grant by abutting owner of right to construct line along highway, 443.
grant of easement for lines, 467.

STEAM
power plant, of, as a nuisance, 639.

STEPS
street car, of, contributory negligence of passenger riding on, 574.

STOCK
electric companies, of, regulated by public utilities commissions, 478.
electric company, of, taxation of, 145.
rival company, of, purchase of, by electric company, 55.
telegraph company, of, taxation of, 157.
1016 INDEX.

(References are to pages.)
STOCKHOLDERS (See also, Stock.)
company’s franchise not invested, im, 289.
consent of, to mortgage of electric company’s property, 57.
electric company, of, member of body making public lighting contract, 205.

STORM
inspection of appliances after, 702.
liability for injuries occasioned by, 673.

STREAMS (See NAVIGABLE WATERS.)

STREET AND WATER COMMISSIONERS
grant of franchise by, 288.

STREET LAMPS
presumption of negligence from injury from, 909.
falling of, 909.
shock from, 910.

STREET LIGHTS (See Lamps.)

STREET RAILWAY COMPANIES
defined, 19.
electricity as motive power of, 556.
state may prescribe motive force, 556.
delegation of power to municipality, 556, 560.
delegation of power to commission, 556, 562.
when right to use, is granted, 557.
change of motive power, 559, 562.
permission to use, granted by municipality, 556, 559.
charter power of company to use, 561.
state commission, power to prescribe, 562.
distinction between railroad and street railway, 562.
electricity for, furnished by municipality, 243.
electrolysis, liability for causing, 550.
eminent domain by, 108.
power site, 109, 110.
water power, 109.
transmission line, 109.
car barn, I10.
employees of, injuries to, 874.
assumption of risk, 874.
contributory negligence, 884.
safe place to work, 845.
expert evidence as to, 925,
injury to: lines of, 537.
moving building through street, 541.
constitutional protection of franchise, 542.
restraint by injunction, 543.
interference of electric currents, 524.
induction, 524.
Inpex. 1017

(References are to pages.)
STREET RAILWAY COMPANIES — continued
interference of electric currents — continued
conduction, 525.
street railway superior in some states, 526.
different views, 527.
negligence of street railway company, 528.
contact of lines, 530.
effect of municipal regulations, 530.
remedy by injunction, 531.
telephone or telegraph line not along highway, 532.
submarine cable, 532.
on line of railroad, 533.
judicial knowledge as to, 900.
lines of, as additional servitude, 410.
not electric companies, 8, 19.
operation of street railway, by electric company, 47.
passengers.
injuries to, 563.
street railway not an insurer, 563.
exercise of high care, 563.
electric explosion, 564.
defective controller, 564.
panic of passengers, 564.
burning out of fuse, 567.
contributory negligence of passengers, 568.
proximate damages, 569.
electrical shock, 570.
metal plate, 571.
metal covering of sand box, 571.
railing, 571.
hand-holds, 571.
guard rail on platform, 571.
controller box, 571.
brass rod across window, 471.
charged wire, 571.
contributory negligence, 571.
collision with post in proximity to track, 573.
contributory negligence of passenger riding on running
board or steps, 574.
projection of body beyond side of car, 575.
pole of another company, 576.
trolley pole, 577.
ownership of car, 578.
power to furnish electricity, 43.
lighting of cars and streets, 44.
presumption of negligence from injury from, 913.
electrical explosion, 914.
shock from metal part of car, 915.
1018 INpDEx.

CReferences are to pages.)

STREET RAILWAY COMPANIES — continued
presumption of negligence from injury from — continued
fall of trolley pole, 915.
shock from rail, 916.
regulation of, 490.
’ use of guard wires, 490.
motive power, 490.
lighting of track, 490.
raising of wires for moving of building, 490.
supply of power by, 302.
taxation of, 152.
travelers, injuries to, 578.
frightening horses, 578.
shock from rail, 579.
third rail, 579.
cable slot, 581.

STREETS AND HIGHWAYS

abutting owners, rights of (See ABUTTING OWNERS.)
appliances in, injuries from, 715.
condemnation for line along, damages, 134.

amount of damages, 135.
condemnation of rights of abutting owners, 128.
construction of line from, to power house, rights given by franchise, 301.
designation of location of appliances by municipalities, 367.
discontinuance of, as impairment of franchise, 307.
excavations in, for construction and repair of conduits, 507.
franchises to use, for lines (See FRANCHISES.)
injuries to lines in, 537 et seq.
interference of electric currents in, 513 et seq.
liability of municipality for defects in, 633.

appliances of electric companies, 634.
license fees for poles and wires in, 146, 160, 170

electric companies, 146.

telegraph companies, 160.

telephone companies, 170.
lighting and communication, may be used for, 290.
lighting of, by electricity, 191 et seq.

public use, as a, 91.

street railway company, 44.
lines in, as a nuisance, 641.
moving buildings through, 541 et seq.

impairment of franchise, as, 309.
municipal electric plant in center of, 242.
necessity of franchise for use of, 294.

line of individual along rural highway, 297.
statutes giving right to place poles and wires along, 358-373.
travelers along, injuries from street railway line, 578.
wires, injuries from, 733.

proximate cause, 652.
Invex. 1019

(References are to pages.)
STRIKE
employees, of, no current furnished during, 182.

STRINGING
wires, of, expert evidence as to, 921.

STRUCTURES (See BUILDINGS.) \

SUBJECT MATTER
contract for street lighting, of, 200.

SUBMARINE CABLE (See OcEANIC CABLES.)

SUBSEQUENT REPAIRS
admissibility in evidence, 931.

SUCCESSORS
electric company, of, liability of, 622.

SUFFICIENCY
evidence, of, 932.
inspection of appliances, of, 700.
SUMMARY PROCEEDINGS
remedy by municipality, as to appliances in streets, 353.

SUPERINTENDENT OF PARKS.
grant of franchise by, 387.

SUPPLIES
municipal lighting plant, of, purchase of, 256.

SUPPLY
electricity as an, 7.

SURRENDER
franchises, of, 321.

SWITCHBOARD
injury to servant from 847n.
real or personal property, 29.

T.

TAMPERING
meter, with, 539.

TAPPING
wire, of, as crime, 538n.

TAXATION
appliances as real or personal property for purposes of, 28, 29.

telegraph lines, 28.
poles, 28.

' wires, 28.
dynamos, 29.
switch boards, 29.
electric lamps, 29.
1020 InpEx.

(References are to pages.)
TAXATION — continued
appliances as real or personal property for purposes of — continued
telephone conduits, 29.
conduits, 29.
meters, 29.
capital stock of electric companies, 145.
electric companies as manufacturers, 14.
exemption of lighting plants from, 144.
municipal lighting plant, 144.
franchises of electric companies, 145.
percentage of profits, 146.
impairment of franchise, as, 308.
license fees for poles, 146.
as rental of streets, 147.
as exercise of police power, 348,
amount of fee, 149.
collection of fees, 150.
patent rights of electric companies, 145,
receipts of electric company, 150.
as a franchise tax, 146.
special assessments, 151.
street lighting, 217.
municipal plant, to pay for, 253.
street, railway companies, 152.
telegraph companies, 152 et seq.
analogy to taxation of electric companies, 152.
tangible property taxed by state, 153.
Post Roads Act, effect of, 153, 154.
franchise, 155.
capital stock, 157.
business or occupation of company, 158.
charges or license fees on poles and wires, 160.
as a rental of streets, 161.
police regulation, 162.
acceptance of municipal ordinance requiring, 163.
reasonableness of charge, 163.
evidence pertaining to charges, 165n, 166n.
amount of, 168.
collection by enjoining operation of line, 169.
telephone companies, 169.
interstate commerce business of, 170.
license fees, 170.
under statutes relative to telegraph companies, 25.

TAXPAYERS
remedies of, as to franchises, 353.
street lighting contract, remedy as to, 222.

TELEGRAMS (See also, TELEGRAPH COMPANIES.)
priority of governmental, 267.
Inpex. 1021

{References are to pages.)
TELEGRAPH LINES (See also, TetecrarH CoMPANIES.)
over navigable waters, 287.
Post Roads Act, 278.
injuries to vessels, 279.
loss of anchor, 282.
while proceeding in navigable mud, 281.
contributory negligence of owners, 283.
injuries to lines, 283.
over rivers, 285.
oceanic cables, 286.
right of way through Indian Reservations, 261.

TELEGRAPH COMPANIES
act of God, injuries occasioned by, 673.
common carriers, are, 20.
contrasted with telephone companies, 20.
contributory negligence of person injured, 791 et seq.
damages in condemnation proceedings, 134.
line along highway, 134.
line along railroad, 136.
eminent domain by, 110, 111.
employees of, injuries to, 828.
exclusive right to maintain line along railroad, 447.
as contract in restraint of trade, 447.
franchises (See FRANCHISES.)
franchises, not exclusive, 328.
grant by railroad of right of way, 449.
additional servitude on owner of servient estate, 450.
railroad entitled to consideration, 453.
expiration of grant, 454.
title to appliances upon, 455.
injuries from appliances, in general, 698.
interference of electric currents of, 524.
telegraph versus street railway, 524.
induction, 524.
conduction, 525.
street railways superior in some states, 526.
different views, 527.
negligence of street railway company, 528.
eontact of lines, 530.
effect of municipal regulations, 530.
remedy by injunction, 531.
telegraph line not along highway, 532.
submarine cable, 532.
on line of railroad, 533.
telegraph versus electric company, 534.
priority gives superior right, 534.
negligence, 535.
conduits, 535.
remedy by injunction, 536.
1022 INDEX.

(References are to pages.)

TELEGRAPH COMPANIES — continued
judicial knowledge as to, 899.
liability of, for injuries, 612.
dangerous currents of other companies, 612.
travelers, 614.
persons on private property, 615.
lines of, as additional servitudes, 410.
view that line is additional servitude, 415.
view that line is not additional servitude, 416.
telephone contrasted, 418.
lines of, as real or personal property, 28, 29, 31.
necessity of franchise, 295.
not electric companies, 8, 20.
nuisance, maintenance of, by, 637.
Post Roads Act, 264.
statute, 264.
application to District of Columbia, 265.
construction of, a federal question, 265.
constitutionality of statute, 265.
purpose of statute, 267.
what are post roads, 268.
effect of statute, 270.
impairment of right, 270.
state statute giving exclusive right to one company, 271.
rights of private persons or corporations, 272.
rights of municipalities, 272.
rights along railroad, 273.
taxation of telegraph companies, 274.
gives no power of eminent domain, 275.
no application to telephone or electric companies, 275.
use of materials from public lands, 276.
rights not transferable, 276.
priority of government messages, 276.
purchase of lines by government, 277.
acceptance of obligation to be filed, 277.
power to engage in electric lighting, 44.
proximate results of negligence of, 652.
railroad, along or across, personal injuries from line, 457.
liability of railroad, 458.
liability of owner of wire, 462.
contributory negligence, 463.
regulation of, 491. ‘
reasonableness, 492.
poles, 493.
location, 493.
size, 493.
shape, 493.
number, 493.
manner of erection, 493.
painting, 493.
Inpex. 1023

(References are to pages.)

TELEGRAPH COMPANIES — continued
regulation of — continued
wires, 493,
height, 493.
location, 493.
size, 493.
guarding, 493.
on poles of other companies, 494.
taxation of, 152 et seq.
analogy to taxation of electric companies, 152.
tangible property taxed by state, 153.
Post Roads Act, effect of, 153, 154.
franchise, 155.
capital stock, 157.
business or occupation of company, 158.
charges or license fees on poles and wires, 160.
as a rental of streets, 161.
police regulation, 162.
acceptance of municipal ordinance requiring, 163.
reasonableness of charge, 163.
evidence pertaining to charge, 165n, 166n.
amount of, 168.
collection by enjoining operation of line, 169.
telephone as, 23.
eminent domain statutes, 24, 26.
right to use public streets, 24, 26.
incorporation of company, 25..
taxation of company, 25.
discrimination by company, 25.
venue of actions against company, 25.
penal statutes, 25.
Post Roads Act, 25.
territory served, 46.
trespassers or licensees, injury to, 685.
wires, injuries from, 733.

TELEPHONE (See TELEPHONE COMPANIES.)
buzzing in, as special damage to abutting owner from construction of

line along highway, 4265.

TELEPHONE CENTRAL
necessity of franchise for operation of, 295.

TELEPHONE COMPANIES
act of God, injuries occasioned by, 673.
application of Post Roads Act to, 275.
as telegraph, 23.
eminent domain statutes, 24, 26.
right to use public streets, 24, 26.
incorporation of company, 25.
1024 Inpex.

(References are to pages.)
TELEPHONE COMPANIES — continued
as telegraph — continued
taxation of company, 25.
discrimination by company, 25.
venue of actions against company, 265.
penal statutes, 25.
Post Roads Act, 25.
common carriers, are, 20.
contrasted, 20.
contributory negligence of person injured, 792.
discontinuance of business by, 63.
eminent domain by, 111.
employees of, injuries to, 828.
franchises of. (See FRANCHISES.)
injuries from appliances, in general, 698.
injury to lines of, 537.
moving building through street, 545.
interfering electric currents of, 520.
telephone versus telephone company, 520.
priority gives superior rights, 522.
limitations on prior occupant’s right, 522.
telephone versus street railway, 524.
induction, 524.
conduction, 525.
street railways superior in some states, 526.
different views, 527.
negligence of street railway company, 528.
contact of lines, 530.
effect of municipal regulations, 530.
remedy by injunction, 531.
telephone line not along highway, 532.
telephone versus electric company, 534.
priority gives superior right, 534.
negligence, 535.
conduits, 535.
remedy by injunction, 536.
judicial knowledge as to, 899.
liability of, for injuries, 612.
dangerous currents of other companies, 612.
customers, as to, 614.
travelers, as to, 614.
persons on private property, 615.
lines on railroad easement as additional servitude on owner of servient
estate, 453.
lines of, as additional servitude, 410.
view that line is additional servitude, 415.
view that line is not additional servitude, 416.
telegraph line contrasted, 418.
InpEx. 1025

(References are to pages.)
TELEPHONE COMPANIES — continued
necessity of franchise, 295.
not electric companies, 8, 20.
nuisance, maintenance of, 637 et seq.
power to engage in electric lighting, 44.
presumption of negligence from receipt of shock from instrument, 912.
proximate results of negligence of, 652.
regulation of, 491.
reasonableness, 492.
poles, 493.
location, 493.
size, 493.
shape, 493.
number, 493.
manner of erection, 493.
painting, 493.
wires, 493.
height, 493.
location, 493.
size, 493.
guarding, 493.
on poles of other companies, 494.
rates, 494.
taxation of, 169.
interstate commerce business of, 170.
license fees, 170.
territory served, 46.
trespassers or licensees, injury to, 685.
wires, injuries from, 733.

TELEPHONE LINE
condemnation by electric company for, 103.
damages in condemnation proceedings, 134.
along highway, 134.
along railroad, 136.
rights of way through Indian Reservations, 261.

TELEPHONE SERVICE
larceny, subject of, 7.

TENANT (See LAnpLorD AND TENANT.)

TERRITORIAL LIMITS
served by electric company, 45.

consolidation with another company, 45.
contract with another company, 45.
“ adjoining towns,” 46.
action for abuse of power, 46.
telephone and telegraph companies, 46.
contracts for electric service, 173n.

65
1026 Tspex.

(References are to pages.)
TERRITORIAL LIMITS — continued
municipal electric plant, 244.
service to non-residents, 244.

TERRITORY
division of, between electric companies, 55.

THIRD RAIL (See also, Ram; Steger Rartway.)
attractive nuisance, as a, 693.
shock from, 579.

THRESHING OUTFITS
height of wires for passage of, 734.

TIME
duration of franchise, as condition of grant, 340.
public lighting contract, of, 210-214.

TITLE
ordinance, of, granting franchise, 389.

TOOLS
duty of master to furnish suitable, 847.

TORT-FEASORS (See Jornt Tort-FEasors.)
TOWN (See MuwnicrpaL CoRPoRATIONS.)

TOWN BOARD
power to make contract for public lighting, 203n.

TOWNS
officer making contract for public lighting, 203n.

TRANSFER (See also, ASSIGNMENT.)
electric system, liability of successors, 622.
franchises, of, 313.
conditions in franchise forbidding, 314.
statute forbidding, 314.
ratification, 315.
estoppel, 315.
assignment of part of franchise, 316.
mode of transfer, 316.
Statute of Frauds, 316.
rights of parties after transfer, 317.
invalid franchise, 317.
conditions annexed to franchise, 317.

TRANSFORMER
defined, 38. :
furnishing, as unlawful discrimination, 69.
injuries from defective, 725.
liability to customer, 725.
liability of customer, 726.
injury to servant, 847.
InpEx. 1027

(References are to pages.)

TRANSMISSION
electricity, of, judicial knowledge as to, 895.

TRANSMISSION LINE (See also, ALLIANCES; PoLES; WIRES.)
condemnation for, 121.
not along highway, 122.
street railway line, 109.
damages, 134.
construction of, as prerequisite to exercise of eminent domain, 113.

TRAVELERS (See also, Streets anp Hicuways.)
contributory negligence of, 791 et seq.
injuries from appliances in streets, 715.
injuries to, from telegraph or telephone appliances, 614.
shock from rail, presumption of negligence, 916.
street railway line, on, injuries to, 578.
frightening horses, 578.
shock from rail, 579.
third rail, 579.
cable slot, 581.

TREES (See also, SHADE TREES.)
cutting of, proximate cause of injury, 663.
insulation of wires near, 772.
proximity of wire to, 751.

SRESPASS
appliances in streets after expiration of franchise, 323.
injury to appliances, as remedy for, 32.
line of poles and wires across private property, 471.

TRESPASSERS
injuries to, 685.
injury to person on premises of third party, 686, 688.
wilful or wanton injury, 687.
implied licensees, 688.
invitees, 688.
extent of license, 689.
premises of electric company, 690.
power house, 690.
railroad shed, 690.
wires, 691.
firemen, 691.
peace officers, 692.
children, 692.
doctrine of attractive nuisances, 693.
third rail, 694.
poles, 694.
wires, 695.
guy wires, 696.
1028 INDEX.

(References are to pages.)
TROLLEY (See Sreeer Raitways.)

TROLLEY CAR (See also, Stremr RarLways.)
shock from, presumption of negligence, 915.

TROLLEY POLE (See also, STREET RaILways.)
fall of, presumption of negligence, 915.
injury to passenger from, 577.

TROLLEY POSTS (See also, Srreet Raitways.)
collision with, assumption of risk of, by servant, 874.

TROUBLE SHOOTER
defined, 38.

TRUST MORTGAGE
securing of bonds of electric company by, 56.

TURNPIKES ,
necessity of franchise for use of, 300.

TURNTABLE DOCTRINE
application of, to electric appliances, 693.

ULTRA VIRES
defense to street lighting contract, 221.

UNITED STATES
franchise protected from impairment by constitution of, 304.
grant of rights of way to companies, 259 et seq.
ownership of electrie plant by, 224.
right of, to purchase telegraph lines, 277.

UTMOST CARE
exercise of, by electric company, 604.
safety of servant, 831.

VALIDITY
contract for street lighting, of, 199 et seq.

VIBRATION
power plant, caused by, as a nuisance, 638.

VILLAGE (See MUNICIPAL CORPORATIONS.)

VIOLATION
company’s rules, of, as excuse for not furnishing current, 70.
ordinance, of, as ground for negligence, 624.

VOLT
defined, 38.
InpEx. 1029

(References are to pages.)
VOTE
approval of ordinance granting franchise, 392.
approval of public lighting contract, 206.
taxpayers, of, on contract for construction or equipment of muntelpal
electric plant, 250.

W.
WAIVER,
conditions annexed to franchise grant, of, 336.
excuse, of, for not furnishing current, 74.
forfeiture of franchise, of, 319.
by municipal officials, 319.

WARNING
servant of dangers, to, 856.
use of telephone during storm, as to, 684.

WATER POWER (See also, Powrr PLANT.)
condemnation of, 118.
of another company, 118n.
rights of flowage, 119.
riparian rights, 120.
ditch or flume, 120.
interference with navigable waters, 120.
millrace, 120n.
nuisance, as a, 640.
street railway company, of, eminent domain for, 109.
use of, to generate electricity, 48.

WATERS (See NAviGaABLE WATERS.)

WATERWORKS
electric plant, combined with, 242, 247.
injury to, from electrolysis, 550.

WATT
defined, 39.

WIRES See also, APPLIANCES; INTERIOR WIRING.)

abutting owners, rights of. (See ABUTTING OWNERS.)

admissibility of, as real evidence, 916.

assumption by servant of risks from shock, 869, 872.

attractive nuisance, as a, 695.

collision with, contributory negligence of person injured, 796.
failure to see wire, 797.
knowledge of presence of wire, 799.

conditions relative to, as condition of franchise, 347.
conduits, 347.
guard wires, 347.

contributory negligence of one touching dangerous, 801 et seq.
servant, 878.
1030 INDEX,

(References are to pages.)

WIRES — continued
dead or abandoned wires, 763.
defect in insulation of, time of existence, subject of expert testimony,
921.
designation of location by municipality, 367.
erection of, 754.
sudden raising of, 754.
falling of, 735.
fire department, liability of municipality for injuries from, 631.
guard wires, 760.
necessity of, 762.
guy wires, 755. (See also, Guy WIBEs.)
location, 755.
proximity to charged wire, 756.
circuit breakers, 757.
encasement, 758.
height, 733.
passage of high machinery, 734.
derricks, 734.
threshing outfits, 734.
hay stackers, 734.
over roof of building, 735.
injury to street car passenger from, 571.
injuries occasioned by act of God, 673.
injury from, to trespassers, 690, 691, 696.
attractive nuisances, 695.
injury to, 537.
liability for wrongful injury, 537.
punitive damages, 537.
criminal liability, 538.
tapping wire, 538n.
malicious mischief, 539.
removal of wire crossing railroad, 539.
moving building along street, 541.
an extraordinary use of street, 541.
injury to street railway line, 542.
injury to electric line, 544.
injury to telephone line, 545.
negligence of building mover, 546.
state or municipal regulation of building moving, 546.
injury from wires to person moving building, 548.
contract to move wires, 549.
impairment of franchise, 309.
injury to servant from, 839.
falling, 839.
insulation, 839.
height, 840.
proximity to other wires, 840.
InpDEx. 1031

(References are to pages.)
WIRES — continued
inspection of, 699.
insulation of, 765.
against lightning, 770.
injury to person not coming in contact with wire, 771.
question for jury, 771.
an alternative duty, 772.
insulation at particular places, 772.
trees, 772.
side of buildings, 773.
balcony, 775.
awnings, 775.
roofs of buildings, 776.
bridges, 778.
elevated railroad, 780.
poles, 781.
between poles, 785.
near other wires, 787.
over vacant lots, 788.
air shaft of clubhouse, 790.
booth, 790.
inside of building near window, 790.
under sidewalk, 790.
basement room of power house, 790.
interior appliances, 790.
interference with, proximate cause of injuries, 661.
liability of, to blow down, as special damage to abutting owner, 426.
line across or along railroad right of way, 447.
grant by railroad of right, 449. \
maintenance of, by railroad, 456.
personal injuries, 457.
liability of railroad, 458.
injuries to others than employees of company, 460.
injury not to be anticipated, 461.
assumption of risk, 461.
liability of owner of wire, 462.
contributory negligence, 463.
nuisance, as a, 641.
ownership of, as determining liability, 616.
defective appliances of customers, 618.
inspection of, 618.
insulation of, 618.
interior wiring, 619.
wiring maintained by company, 620.
successors, 622.
transfer of electric system, 622.
wires permitted on same pole, 623.
police, liability of municipality for injuries from, 631.
1032 Inpex.

(References are to pages.)
WIRES — continued
presumption of negligence from accident, 905.
falling of wire, 905.
sagging, 905.
defective insulation, 908.
private property, over, 465.
proximate cause of injuries from, 652.
proximity to other objects, 751.
buildings, 751.
trees, 751.
near fire escape, 751.
pole, 752.
proximity to other wires, 744.
joint liability, 749.
priority does not excuse, 749.
real or personal property, 28-32.
regulation of, 476. ,
state statutes, 476.
municipal ordinances, 479.
insulation of, 476, 479.
protection of, 479.
location of, 486.
conduits, 486.
height, 486.
over and upon roofs of buildings prohibited, 486.
security of fastenings, 486.
insulation, 486.
guard wires, 486.
telephone and telegraph wires, 493.
height, 493.
location, 493.
size, 493.
guarding, 493.
on poles of other companies. 494.
regulation by municipality of franchise granted by state, 366.
repair of, expert evidence as to, 923.
sagging of, 742.
soundness, 752.
span wires, 759.
circuit breakers, 759.
street railway, of, raising for moving buildings, 490.
stringing of, subject of expert evidence, 921.
tapping of, as crime, 538n.
telegraph or telephone companies, :of, injuries from, 612.
title to, effect of forfeiture of franchise, 319
underground (See Conduits.)

WIRING (See Inrmrion Wririne; W1RES.)
InpDeEx. 1033

(References are to pages.)
WITHDRAWAL.
powér of eminent domain from electric company, of, 104.
constitutional objections, 104.

WORDS AND PHRASES (See DEFINITIONS.)
WORKMEN (See Master AnD SERVANT.)
WORKEMEN’S COMPENSATION LAW (See MasTER AND SERVANT.)

[Whole number of pages, 1117.]