Usually, municipal corporations have full power over their streets, and also the police power to their boundaries.1 In most states, too, the statutes require municipal consent for any telephone company to erect its poles or string its wires along the street. 52 This consent it may refuse, or give freely or upon such terms or conditions as it may see fit to impose.53 And after the construction of the line it may pass such reasonable ordinances for its maintenance and regulation as are necessary for the safety and convenience of its citizens.54 It may appoint the lines or limits for setting poles; 55 forbid the stringing of wires over houses; 56 and even require them to be placed under ground.57 But it does not have the power to prescribe

51 Ante, §§ 117, 129.

52 Croswell, Electricity, § 144.

In Kentucky this is a constitutional provision. Const. Ky. § 163. See, also, East Tennessee Telephone Co. v. Telephone Co., 24 Ky. Law Rep. 2358, 74 S. W. 218.

A Nebraska statute giving telegraph and telephone companies a right of way along public roads of the state was held not to apply to streets and alleys of a city, and the unauthorized use of such thoroughfares for such purpose a public nuisance. Nebraska Telephone Co. v. Telephone Co. (Neb.) 95 N. W. 18.

53 Western Union Telegraph Co. v. Wakefield (Neb.) 95 N. W. 659; Mahan v. Telephone Co. (Mich.) 93 N. W. 629; Michigan Telephone Co. v. Charlotte City (C. C.) 93' Fed. 11.

54 Commonwealth v. Warwick, 185 Pa. 623, 40 Atl. 93; Nebraska Telephone Co. v. Light Co., 27 Neb. 284, 43 N. W. 126.

But a telephone franchise granted by a city, which is to run under state law for a definite period, may not be nullified during that term by the city, in the absence of any provision therein reserving such right. Old Colony Trust Co. v. Wichita (C. C.) 123 Fed. 762.

55 Hutchinson v. Belmar, 61 N. J. Law, 443, 39 Atl. 643.

56 Electric Imp. Co. v. San Francisco (C. C.) 45 Fed. 593, 13 L. R. A. 131.

57 City of Geneva v. Telephone Co., 30 Misc. Rep. 236, 62 N. Y. Supp. 172; Western Union Telegraph Co. v. New York (C. C.) 38 Fed. 552, 3 L. R. A. 449; Commonwealth v. Warwick, 185 Pa. 623, 40 Atl. 93; People v. Squire, 145 U. S. 175, 12 Sup. Ct. 880, 36 L. Ed. 666; State ex rel. National Subway Co. v. St. Louis, 145 Mo. 551, 46 S. W. 981, 42 L. R. A. 113. See Chamberlain v. Telephone Co., 119 Iowa, 619, 93 N. W. 596.

59

rates by ordinance, though it may fix them in licenses granted for entering the city.58 A subsequent ordinance of regulation must not impair the contract right of the company, unless required by the public safety or welfare; 60 but the police power has been held to extend not only to the supervision of the maintenance and operation of the line, but also to requiring the removal of poles from one street to another.61

CONSTRUCTION AND OPERATION.

205. Telegraph and telephone lines are always to be constructed, maintained, and operated with reference to their federal and state franchises and municipal licenses, and the primary and dominant use of public passage on the highway.

Public passage is the primary and dominant use of the highway, whether for travel or transportation, on foot or horseback, by vehicle or by rail.62 To this supreme use of the highway all other public uses are subordinate, even telegraphs and telephones. Priority of right or occupation of a street or

58 City of St. Louis v. Telephone Co., 96 Mo. 623, 10 S. W. 197, 2 L. R. A. 278, 9 Am. St. Rep. 370. But see State v. Telephone Co., 14 Ohio Cir. Ct. R. 273, 7 O. C. D. 536.

59 Louisville Trust Co. v. Cincinnati, 76 Fed. 296, 22 C. C. A. 334; Levis v. Newton, 75 Fed. 884; Horner v. Eaton Rapids, 122 Mich. 117, 80 N. W. 1012.

60 Commonwealth v. Warwick, 185 Pa. 623, 40 Atl. 93; Stone v. Mississippi, 101 U. S. 817, 25 L. Ed. 1079.

61 Michigan Telephone Co. v. Charlotte, 93 Fed. 11.

62 St. Louis & S. F. R. Co. v. Telegraph Co., 121 Fed. 276, 58 C. C. A. 198; Cleveland, C., C. & St. L. Ry. Co. v. Cable Co., 68 Ohio St. 306, 67 N. E. 890, 62 L. R. A. 941; Cumberland Telephone & Telegraph Co. v. Railroad Co., 42 Fed. 273, 12 L. R. A. 544; HUDSON RIVER TEL. CO. v. RAILWAY CO., 135 N. Y. 393, 32 N. E. 148, 17 L. R. A. 674, 31 Am. St. Rep. 838; Cincinnati Inclined Plane Ry. Co. v. Association, 48 Ohio St. 390, 27 N. E. 890, 12 L. R. A. 534, 29 Am. St. Rep. 559.

68 Cumberland Telegraph & Telephone Co. v. Railway Co., 93 Tenn. 492, 29 S. W. 104, 27 L. R. A. 236; Donovan v. Allert, 11 N. D. 289,

64

road by them will not give them superiority. No electric company for any purpose can claim a monopoly in the public highway, which is for all proper public uses. Electric companies may not, therefore, exercise their powers ruthlessly, but must act reasonably with due regard to the inferior rights of other companies; 5 and all of them in the construction, maintenance, and operation of their lines are subject to the police power of the sovereign to be exercised for the public welfare or safety.

66

Complex Character.

Electric companies are subject to many conditions, political and contractual, in the exercise of their rights, and dependent upon many public sources for their franchises and privileges. The state creates them and gives them the power of eminent domain. The federal government confers upon telegraph companies the franchise of the Post Roads. The municipality determines the conditions upon which telephone companies especially may construct, maintain, and operate their lines; and, after providing for all these things by contract, still possesses power to change these terms and conditions when demanded by the public welfare or safety."7

Illustrations.

Conflict between these companies and the public and with other companies has been prolific of litigation, and the many

91 N. W. 441, 58 L. R. A. 775, 95 Am. St. Rep. 720; Cincinnati Inclined Plane Ry. Co. v. Association, supra.

64 East Tennessee Telephone Co. v. Railroad Co. (Tenn.) 3 Am. El. Cas. 400.

65 Western Union Telegraph Co. v. Electric Co., 76 Fed. 178; Cumberland Telegraph & Telephone Co. v. Railway Co., 93 Tenn. 492, 29 S. W. 104, 27 L. R. A. 236; HUDSON RIVER TELEPHONE CO. v. RAILWAY CO., 135 N. Y. 393, 32 N. E. 148, 17 L. R. A. 674, 31 Am. St. Rep. 838.

66 People v. Squire, 145 U. S. 175, 12 Sup. Ct. 880, 36 L. Ed. 666; Western Union Telegraph Co. v. Pendleton, 122 U. S. 347, 7 Sup. Ct. 1126, 30 L. Ed. 1187.

67 Ante, note 54.

decisions rendered have been for the most part in conformity with the doctrines above stated. Among other things, it has been ruled that an electric company is a trespasser against an abutting owner when it constructs a line on a street not designated; 68 when it enters private property, and cuts or trims trees thereon; 69 that a municipality may grant to one company the right to use the poles of another company; 70 that the license granted by a municipality is always with an implied reservation of power to require such changes by the company as will render the streets safer and more convenient for the public; that a company may be confined to one side of the street; 72 and that they may cut or trim trees on or over the street so much as may be necessary for the proper construction and operation of their line."

71

68 Canastota Knife Co. v. Tramway Co., 69 Conn. 146, 36 Atl. 1107. 69 Southwestern Telegraph & Telephone Co. v. Branham (Tex.) 74 S. W. 949; Erie Telegraph & Telephone Co. v. Kennedy, 80 Tex. 71, 15 S. W. 704; Van Siclen v. Electric Light Co., 168 N. Y. 650, 61 N. E. 1135; Metropolitan Trust Co. v. Power Co., 35 Misc. Rep. 467, 71 N. Y. Supp. 1055; Memphis Bell Telephone Co. v. Hunt, 16 Lea (Tenn.) 456, 1 S. W. 159, 57 Am. Rep. 237.

70 Bergin v. Telephone Co., 70 Conn. 54, 38 Atl. 888, 39 L. R. A. 192; Citizens' Electric Light & Power Co. v. Sands, 95 Mich. 551, 55 N. W. 452, 20 L. R. A. 411.

71 Commonwealth v. Warwick, 185 Pa. 623, 40 Atl. 93.

72 Consolidated Electric Light Co. v. Gas Co., 94 Ala. 372, 10

South. 440.

73 Daily v. State, 51 Ohio St. 348, 37 N. E. 710, 24 L. R. A. 724, 46 Am. St. Rep. 578; Clay v. Cable Co., 70 Miss. 406, 11 South. 658; Bradley v. Telephone Co., 66 Conn. 559, 34 Atl. 499, 32 L. R. A. 280; Southern Bell Telephone & Telegraph Co. v. Constantine, 61 Fed. 61, 9 C. C. A. 359. But see Bronson v. Tel. Co. (Neb.) 93 N. W. 201, 60 L. R. A. 426.

ELECTRIC LIGHT COMPANIES.

206. Companies chartered to supply electric light and power to urban communities are quasi public corporations, subject to public regulation, as employing dangerous energy in furnishing public utilities, and enjoying the power of eminent domain.

76

The lighting of streets of a city has been held to be a proper municipal duty; and the lighting of suburban highways has been declared to be a public function.75 So, also, the furnishing of light to the citizens of an urban community. But all these things are public uses; and electric corporations organized for the purpose of supplying light to a municipality, its citizens, or suburbs, are quasi public corporations, and subject to public regulation. On the contrary, a municipal corporation which maintains and operates an electric plant to supply light for its streets and citizens is a quasi private corporation.

78

The use as well as the purpose of electric light companies is similar to that of gaslight companies, and in most particulars the same rules of law are applicable.

New Servitude.

Whether the erection of poles and the stringing of wires by electric light companies constitutes an additional burden upon abutting owners is not agreed upon by the courts. The tendency of the cases is, however, towards the doctrine that

74 Levis v. Newton, 75 Fed. 884; Halsey v. Railway Co., 47 N. J. Eq. 380, 20 Atl. 859; Harlem Gaslight Co. v. New York, 33 N. Y.

327.

75 Palmer v. Electric Co., 158 N. Y. 231, 52 N. E. 1092, 43 L. R. A. 672.

76 Levis v. Newton, 75 Fed. 884.

77 State ex rel. St. Louis Underground Service Co. v. Murphy, 134 Mo. 548, 34 S. W. 51, 34 L. R. A. 369, 56 Am. St. Rep. 515; Levis v. Newton, supra.

78 BAILEY v. NEW YORK, 3 Hill (N. Y.) 531, 38 Am. Dec. 669; Bullmaster v. St. Joseph, 70 Mo. App. 60; Merrimack River Sav. Bank v. Lowell, 152 Mass. 556, 26 N. E. 97, 10 L. R. A. 122.