Telephone Co. v. Railway Co. telephone company, will not be likely to produce injury to any great extent. Of course, if the injury is produced by the negligence of either, the one guilty of negligence must bear the loss. If injury is produced to the telephone company by the negligence of the street car company, then of course the telephone company could recover damages. The court will not grant an injunction except it be to prevent irreparable injury, or to prevent the multiplicity of suits, and it must be established by a preponderance of the evidence that the injury would be likely to occur before the injunction is granted. In view of all the evidence in this case, I am disposed to hold that the injunction ought not to issue. If at some future time it is found that the effects of the operation of this street railroad, and the use of electricity as it is proposed to be used on its wires, produces different effects from what appears probable now, from the evidence, then an application can be made and the matter can be heard and decided in the light of better evidence than the court now has. The motion is denied. NOTE. This case is cited in Louisville Bagging Mfg. Co. v. Cent. Pass. Ry. Co., ante, p. 226. See note to Cincinnati Inc. Pl. Ry. Co. v. City, &c. Asn., post; also, note to next case. Telephone Co. v. Railway Co. THE ROCKY MOUNTAIN BELL TELEPHONE COMPANY V. THE SALT LAKE CITY RAILROAD COMPANY. District Court of Utah Territory, Third Judicial District, December, 1889. WIRES IN STREETS. (From private print.) INTERFERENCE OF USES.- INJUNCTION. An application by a telephone company, for an injunction restraining an electric railway company, a later licensee, from so maintaining its wires in the streets of a city as to interfere by induction and conduction with plaintiff's telephone service, was denied, although the telephone com. pany had the earlier license to maintain its line in the streets and it appeared that the use of the double trolley system would tend, though imperfectly, to remove the trouble; it appearing that it was in the power of the plaintiff to adopt an effective remedy, to wit, the metallic circuit. which it had not tried. Importance was also attached to the fact that the defendant's use was and the plaintiff's was not within the purposes of street dedication. ZANE, Judge: This is an application to the court by the Rocky Mountain Bell Telephone Company for an injunction restraining the Salt Lake City Railroad Company from use of an electric current, by the devices it now employs, as a motive power to propel its cars on the streets mentioned in the complaint. In 1880 A. J. Patterson & Co. placed their telephone poles and wires in the streets, under an express license from the city, and in 1883 that company transferred all its rights with respect to the telephone so far as it legally could to the plaintiff, and the latter has occupied the streets with its poles and wires ever since. And in 1887 the plaintiff moved its line of poles on First South street from the side to the center of the street by the permission of the city; and in May, 1889, it removed its line on South Temple from the side to the centre of that street by a simi Telephone Co. v. Railway Co. lar permission, and as changed has continued to use both lines. The defendant insists that such continued occupation of the streets by the plaintiff is unlawful, because it never obtained a license from the city to do so. In view of the fact that the city has the control of the streets, subject to the right of the public to use them as a highway, and of the fact that the plaintiff has continued to occupy them since the transfer, without objection by the city; and in view of the further facts that on two occasions since the plaintiff became the owner of the telephone, the city gave its consent to the removal of the poles and wires from the sides of two of the streets to their centres, its consent will be presumed until an objection is heard from it. The defendant was incorporated in 1872, under an act authorizing the incorporation of railroad companies; and the purpose of the incorporation mentioned in its articles was to construct, own, maintain and operate a street railroad for carrying passengers within the corporate limits of Salt Lake City; and inasmuch as electricity for the propulsion of cars was not then in use, the plaintiff insists that the defendant was not authorized to employ it as a motive power in the operation of its railroad. The authority to operate the road, without mentioning any particular power to be used in so doing, authorized the employment of any safe and appropriate force then in use, or that might be brought under human control by new inventions, and employed for such a purpose. The plaintiff is using the electric current to transmit speech on wires strung on poles set in the same street in which the defendant is using a more potent current, upon wires strung on other poles for the propulsion of street cars. The trolley wire of the street car is seventeen feet from the ground and the feed wires fourteen inches higher. An ordinance of the city requires the telephone wires to be as much as thirty feet high. In places they are that high, but in other places they are not, and for the distance of Telephone Co. v. Railway Co. almost forty rods they are but three feet and six inches above the feed wire of the defendant. The plaintiff uses the ground circuit and the defendant uses the rails with connections at their joints to complete its circuit; but they are so connected with the ground that an earth distribution occurs. With the speech conveyed by the plaintiff's current enough of the noise made by the defendant in its operations often reaches the ears of the plaintiff's subscribers to impede and confuse the understanding, and in some instances to prevent communication. It also appears from the evidence that the annunciators often fall and the bells give false calls; and on one or two occasions telephone instruments at the central office were burned out, causing considerable damage. The co-operation of the human tongue, the electric current and the human ear in communicating thought from mind to mind, is one of the latest and most difficult achievements of human ingenuity. In this communication the electric current becomes a most sensitive and delicate agent, and to perform perfect work it must be free from all disturbance-all other currents must be excluded. Not so for the electric current employed for the propulsion of cars or the current used for the production of light. It appears from the evidence that the effect upon the telephone instruments and the interference with communication is from two causes, induction and conduction, and that a variable electrical current on one wire induces another current in a neighboring wire more or less parallel to it (this action is termed induction); and that conduction is communication between two conductors when they are in contact. It appears from the evidence that the telephone instru ments were burned out in consequence of the telephone wire coming in contact with the trolley wire or wheel; that the dropping of the annunciators was from the same cause or from eath distribution, and that the noise at the telephone was from both induction and conduction. It also appears that the extent of the disturbance from earth distribution Telephone Co. v. Railway Co. depends upon the distance between the groundings of the two currents. In view of the distance the wires of the respective parties in this case parallel each other, the probabilities are that telephoning would not be seriously interfered with from induction if they were placed fifteen feet apart, and that it would be slight in comparison with what it now is if they were separated twelve feet; for the rule is that induction exerted between parallel lines is inversely proportioned to the square of the distance between them and directly proportioned to the distance of exposure. The plaintiff says that the evidence shows that the defendant could prevent the interference by adopting the double trolley system, and that that system can be successfully used in propelling defendant's cars. By that system the current returns from the motor under the car by means of a second trolley arm, and other devices similar to these upon which it goes out from the dynamo to the motor. A preponderance of the evidence shows that this system would substantially prevent the effects of induction on the telephone wires, and also earth distributions, and that its adoption by the defendant upon the roads now in use, and those projected and in process of construction, would cost a large sum. While this system may be practicable when employed on a straight read with a double track, the probabilities are that its use cn a single track, with turnouts, switches and curves, would be attended with great difficulty, and that it would not be a mechanical or commercial success. As the subtile force the parties are using, of which so little was known until a comparatively recent period, may be brought under more complete control by the use of better devices, or new inventions, or greater skill, these difficulties may disappear, but the court can consider this case only in the light of the known. There is evidence tending to show that street cars may be operated by means of the electric battery system; but the weight of the evidence goes to prove that the system has not as yet been successful; experience has not yet demon |