Railway Co. v. Telegraph Co.

ways, and to use electricity as a motive power for its cars. Clothed with such authority, we have, upon weighing the allegations in the original petition, and applying to them the well settled principles governing the legal rights of the public in the highways, reached the conclusion, that the facts set forth in the petition are not sufficient to constitute a cause of action. We are of the opinion that there has been no invasion of the rights of the telegraph association by the plaintiff in error, and that the telegraph association is not entitled to the relief prayed for in its petition. The judgment, therefore, of the Superior Court at General and Special Term must be reversed, and the original petition dismissed.

Judgment accordingly.

NOTE. The foregoing ten opinions, with three in previous volumes, discuss in various aspects the respective rights of different users of the elec trical current in respect to the occupation of public streets for its transmission. In two cases the plaintiff was a telegraph company; in all the others, telephone companies. The defendants in two cases were electric light companies; in all the others, electric street railway companies. The burden of the complaint in each case was that the powerful currents of electricity required by the defendant threatened injury to the plaintiffs chiefly by conduction, induction, injury to and destruction of delicate apparatus; also personal injury to employees, &c. The remedy in each case was sought by injunction; and in most of the cases it was denied, or if granted, it was with such modification as to cause the defendant little annoyance. Thus, in W. U. Tel. Co. v. Champlain Elec. Lt. Co., 1 Am. Elec. Cas. 822, the injunction was granted only to the extent of forbidding the defendant's wires to be placed nearer the telephone wires than the defendant alleged by its answer that it intended to place them.

The grounds of denying the relief sought have been various: In East Tenn. Teleph. Co. v. Chattanooga St. Ry. Co., 2 Am. Elec. Cas. 323, and in Rocky Mt. Bell Teleph. Co. v. Salt Lake City Ry. Co. (first decision), ante, p. 350, the only ground stated was insufficient proof of irreparable injury. In Cent. Un. Teleph. Co. v. Sprague Elec. Ry. &c. Co., 2 Am. Elec. Cas. 307; Rocky Mt. Bell Teleph. Co. v. Salt Lake City, &c. Co. (second decision), ante, p. 356: Wisconsin Teleph. Co. v. Eau Claire St. Ry. Co., ante, p. 383; and Cumberland Teleph. & Tel. Co. v. United Elec. Ry. Co., ante, p. 408, the decision was put upon the ground that the more efficient remedy was in the hands of the plaintiff, who should therefore apply it. In the first General Term decision of Hudson River Teleph. Co. v. Watervliet, &c. Co., ante, p. 387, the same fact was found, but a temporary restain

Railway Co. v. Telegraph Co.

ing order granted until some stipulation should be made about the expense of adopting the remedy. In the Cumberland Teleph. Co. case, it was held that the telephone company should pay such expense.

In the following cases stress was laid, more or less forcibly, upon the proposition that the electric railway is, while the telephone is not, a proper street use. Rocky Mt. Bell Teleph. Co. case (second decision); Wisconsin Teleph. Co. case; East Tenn. Teleph. Co. case; Cincinnati Inclined Plane Ry. Co. v. City & Suburban Teleph. Assn., ante, p. 443.

In several cases it has been held that the fact that one company was first and properly in the occupation of a street or of a particular side of it, does not entitle it to an exclusive right or privilege. Such are Bell Teleph. Co. v. Bellville Elec. Lt. Co., 2 Am. Elec. Cas. 330, note; Cent. Un. Teleph, Co. v. Sprague Elec. Ry., &c. Co.; Rocky Mt. Bell Teleph. Co. case (second decision); W. U. Tel. Co. v. Guernsey & Scudder Elec. Lt. Co., ante, p.425; Cincinnati Inclined Plane Ry. Co. case; East Tenn. Teleph. Co. case. In Nebraska Teleph. Co. v. York Gas, &c. Co., ante, p. 364, the fact that the defendant was first in the field was one of the reasons for which an injunction was refused.

On the other hand, the rule that one must so use his own property or rights as to injure another as little as possible, has been often expressly or forcibly recognized as applicable to this class of actions. Thus in the Bellville Elec. Light Co. case, the danger complained of appearing to be imminent, the defendant was restrained by injunction from using the same side of the road with the plaintiff. See also the Guernsey & Scudder Elec. Light Co. case.

See note, vol. 2, p. 210.

Chaffee v. Telephone and Telegraph Construction Co.

AMOS CHAFFEE V. THE TELEPHONE & TELEGRAPH CONSTRUCTION COMPANY.

Michigan Supreme Court, Nov. 15, 1889.

(77 Mich. 625.)

ELECTRIC WIRES INTERFERING WITH FIREMEN.- NUISANCE.

Though a person may at any moment move to abate a nuisance maintained upon his premises by an intruder, still if he acquiesce in and derive benefit from it, he cannot recover damages because of its maintenance. So held, that the plaintiff who had erected a building beside electric poles and wires maintained upon his land by the defendant, and allowed the poles and wires to remain there without protest or demur for years, and permitted a tenant to use one of the wires for business purposes in his building, could not, when a fire arose, and the poles and wires were found to hinder the firemen in their work of extinguishing it, hold the defendant liable for the loss occasioned by the fire.

ERROR to Wayne county. Appeal by plaintiff below. Facts stated in opinion.

Otto Kirchner, for appellant.

William H. Wells (Ashley Pond, of counsel), for defendant.

MORSE, J.: Plaintiff was the owner of lot 73, in section 2 of the governor and judges' plan in the city of Detroit, and of a valuable brick building thereon that yielded a monthly rent of $250. It was situated on the south side of Larned street west, in the block bounded by Larned street and Jefferson avenue on the north and south, and by Griswold and Shelby streets on the east and west, respectively.

The block was intersected by an alley 20 feet wide running between Jefferson avenue and Larned street, from Griswold street westerly to Shelby street. The defendant put up and

Chaffee v. Telephone and Telegraph Construction Co.

maintained 60 wires, stretched on cross-arms, each 6 feet long, attached to poles planted in the ground (8 to each pole), through said alley, in the rear of plaintiff's building. There were also 12 telegraph wires stretched through said alley by another company.

On March 2, 1888, a fire broke out in the building, and everything burned, except the walls. Some of the brick walls were not damaged so as to require them to be taken down, but a part of them were. It is claimed that these wires prevented the fire department from extinguishing the fire. Mr. Tryon, the secretary of the fire department, testified, as did Mr. Elliot, the assistant chief engineer, that on account of these wires it was impossible for the firemen to raise the ladders, which were on trucks. Mr. Tryon, some time before the fire, notified Mr. Phillips, the manager of the defendant company, that these wires in the alley would prevent the fire department from raising its ladders in the event of a fire. Mr. Phillips replied that this was undoubtedly correct, but that the defendant company were preparing to get their wires underground, and that they would strip that alley as soon as possible - probably the first thing they did. When the firemen first reached the premises the fire was in the third story. Evidence was given on behalf of the plaintiff tending to show that if it had not been for these wires the first and second stories of the building could have been saved intact, except the damage from the water thrown on the fire.

The plaintiff sues in trespass on the case, claiming damages, and contends:

1. That the alley was a private way appurtenant to his lot and building.

2. That the erection of the wires by defendant in the alley was a trespass, and their maintenance a nuisance, every continuance of which was a new nuisance.

3. That, in contemplation of law, defendant, by its wires, was at the fire, and by force and arms prevented its extinction, and in so doing was the direct and immediate cause of the destruction of plaintiff's building.

Chaffee v. Telephone and Telegraph Construction Co.

The defendant claims:

1. That the defendant was not unlawfully maintaining the wires in the alley.

2. The act complained of was not the proximate cause of the loss.

3. The damages sought to be shown by the plaintiff's testimony are vague and speculative.

The first contention of the defendant is based upon the long acquiescence of the plaintiff in the maintenance of the wires in the alley.

The circuit judge before whom the case was tried, Hon. CORNELIUS J. REILLY, of the Wayne Circuit Court, at the close of the testimony directed a verdict for the defendant.

In the view that I take of the case, it is not necessary to discuss much of the evidence, or any point in the case save the first plea of the defendant. The evidence is uncontradicted that the building was erected five years before the trial of the suit. Before the erection of the l urned building the lot was occupied by a dwelling-house, which had been there a great many years.

The plaintiff testified that the wires were placed there "a good while ago, and were there when the brick building, which was burned, was erected."

He knew the poles were there, and what the wires were used for.

"I asked no questions about it. From the time I first knew the wires were there, I understood what they were for."

He never asked the defendant to remove them, nor protested against their maintenance in the alley, nor in any way manifested any dissent to the action of the defendant in keeping and using them there. He testifies that one of his tenants used a telephone in his building, and says:

"I never objected, or found fault with the defendant company for maintaining their wires in the alley."

I can see no legal or equitable reason why the plaintiff, tacitly assenting to the maintenance of the wires in this alley, by allowing his tenant to use a telephone connected