#### The Hudson River Telephone Co. Resp’t, *v.*The Watervliet Turnpike and Railroad Co., App’lt.1

*(Supreme Court, General Term, Third Department,*

*Filed February 24, 1890.)*

1. Street Railroads—Laws 1862, chapter 233.

The terms and intent of chapter 233, Laws 1862, which authorized defendant to operate a street railroad, embrace electricity as a motive power.

2. Same—Telephone companies—Use of ground current.

Neither the plaintiff nor the defendant has any exclusive privilege to use the earth circuit.

3. Same — Injunction — Will not be granted where plaintiff can PROTECT ITSELF.

As plaintiff can protect itself against the injurious effects of the electricity employed by defendant, no necessity exists for denying the use of electricity to defendant.

4. Same.

Defendant may lawfully enter upon the street, but the condition may *695be implied that it shall indemnify others already rightfully there against the additional expense which its entry subjects them to. The proportion of the expense of plaintiff's change of plan which defendant should pay should be settled on the trial of the action.

Appeal from an order of the Albany special term, granting an injunction *pendente lite*restraining the defendant from operating its railroad in the city of Albany by what is known as the single trolley system of electricity.

*L. Q.*Hun, *M. Hale*and *John S.*Wise, for app’lt; *D. C. Her*rick,, for resp’t.

1

 See *ante,*22.

Landón, J.

It appears that the plaintiff is lawfully incorporated as a telephone company, and is lawfully in possession of its lines, poles, stations and apparatus, and that it lawfully operates the same.

The defendant was incorporated in 1828 as a turnpike company, and by chapter 238, Laws of 1862, it was authorized to operate a street railroad. The plaintiff challenges the right of the defendant to use electricity as its motive power. The act in question authorized the defendant to use “ the power of horses, animals, or any mechanical or other power, or the combination of them, which such company might choose to employ, except the force of steam.” The plaintiff bases its challenge upon the fact that in 1862 electricity as a propeller of railway cars was unknown, and hence not within the intention of the legislature. But the legislators of that day were not ignorant of the inventive and experimental activity of the age, and had they intended to grant to the defendant the right to use any power except steam, which subsequent invention or experiment might demonstrate to be most beneficial to the company and to the public, the language employed would have been apt for the purpose. We, therefore, think the terms and intent of the act embrace electricity as a motive power. By the grant of the state the plaintiff lawfully uses electricity for telephonic purposes and the defendant lawfully uses it for railway propulsion, and each company has its respective rights and privileges along the same streets and highways. As the public grant vests in each company franchises and privileges for unlike occupations, the grant to one is not necessarily repugnant to the grant to the other, nor in derogation of it unless it is impossible for the one to co-exist upon the same streets and highways with the other. The grant of public franchises and privileges by the state is strictly construed, and hence as between claimants under different grants, unless more is expressly granted, no more passes than is reasonably necessary for the beneficial enjoyment of the grant. *People ex rel. Third Avenue Railroad Co.*v. Newton, 112 N. Y., 396; 21 N. Y. State Rep., 8. The claim of exclusive privileges will not be allowed when not expressly conferred. *Syracuse Water Co.*v. *City of Syrucuse,*26 N. Y. State Rep., 364. The grant of franchises and privileges is unlike a grant of land. The grantee of land is vested with exclusive dominion, and whoever, without permission, injuriously invades it, whether by personal entry, by polluted waters or noxious vapors, infringes upon the *696owners’ rights. To the extent that there is here a grant of the use of land as space on the surface, or above or beneath it, having measurable dimensions, the grant to the telephone company may be likened to a grant of land, and the defendant may not exclude it from that space, though it might be competent for the court to readjust the occupancy so as to afford mutual accommodation. Thus one may, by municipal permission, lay his gas, water or sewer pipes beneath the surface of the street. A railway company may subsequently be granted the privilege to lay its tracks upon the same street, subject to the proper readjustment of the gas, water and sewer pipes, and the owner of the latter has no vested right to prevent such readjustment. No complaint is here made as to any visible invasion of the plaintiff’s defined or enclosed field of space. The plaintiff alleges an invasion of its electrical field, or rather that the defendant extends its electrical field so as to include or co-occupy that of the plaintiff. Unlike fields of land, these electrical fields are not definitely measurable.

They extend into the regions above and below the surface of the earth, but to what extent or how constant or variable, the president of the plaintiff, in his affidavit, declares that he “is entirely unable to state.”

It is obvious that rules applicable to a definite acreage of land may not be applicable here. The grant to each company is to employ upon the same street the invisible energies of nature, and since it is in vain to define the fields that confine them we are perforce constrained to seek for methods which will neutralize or reduce to a minimum the injurious effects of their contact or interference with each other.

That method, it seems to be conceded, exists in the device for a metallic circuit for the return current of the electricity. The earth completes with the outgoing wires a natural return circuit for the electricity sent forth upon the wires from the generating stations, but since the earth is common to both companies, and both cannot use it, but one company may safely use it, if the other will use an serial metallic circuit, the problem seems to be which company, under the circumstances, ought to use the metallic circuit, and if the plaintiff ought to use it, ought the defendant to pay the expense thereof wholly or in part.

The method which each party should employ for the return circuit for its current of electricity is not defined in the grant of its franchises, and therefore, is not expressly, much less exclusively bestowed. Neither company, therefore, has any exclusive privilege to use what is called the grounded or earth circuit. Both companies are granted privileges upon certain streets. The public motive inducing the respective grants was to promote the public welfare and to enlarge the public benefits to be derived from the streets. It is plain that if these grants can be so construed as to permit both companies to occupy the same streets beneficially to themselves and to the public such construction should be adopted. To accomplish this each company should adopt upon equitable terms such reasonable methods and safeguards as shall most prevent interference with the other or injury to *697itself. Bach grant, therefore, as against the necessary requirements of the other, has no greater extent than is reasonably necessary for its beneficial enjoyment. What is reasonably necessary must depend in some degree upon what is known to be the most approved available appliances both to avoid inflicting injury or receiving it, between each other. The same rule which binds them to care to avoid injury to third persons binds them as to each other.

Both companies can maintain and operate their respective plants upon the same streets, and each should do what is reasonably necessary to avoid interference with the other and to protect itself. The railroad company does not threaten to come into contact with the poles of the telephone company, nor with its wires, except as the greater volume of electricity employed by defendant may, by induction above ground and conduction under ground, disturb the proper and more delicate operation of the smaller volume of electricity employed by the plaintiff. If there were no reasonable and practicable method to obviate this interference, the defendant must needs desist from the use of electricity as a railway motive power upon the streets preoccupied by the plaintiff. This, for the reason that the privilege to operate the telephone beneficially gives the real value to the established lines and is valuable property. It cannot be presumed that the state intended to destroy or diminish this property in the absence of an express revocation of chartered privileges. But as the plaintiff can be protected or can protect itself against the injurious effects of the electricity employed by the defendant, no necessity exists for denying the use of electricity to the defendant. Clearly, if there are two methods open to the plaintiff, one exclusive of the defendant and the other not, and both equally serviceable and practicable, the latter should be adopted. It remains to consider whether the railway company ought to do more or otherwise than it has done to prevent electrical interference with the telephone company, and whether the telephone company can reasonably be required to adopt other and approved methods to protect itself from such electrical interference. Upon the evidence before us it seems to be true that the single trolley system adopted by the railway company is the best now known, regard being had to mechanical, electrical and financial considerations, but without regard to electrical interference with the telephone, which uses the grounded or earth circuit instead of a metallic circuit. The plaintiff does not use the metallic circuit. It is much cheaper to construct the metallic circuit for the telephone than for the railway. It appears to be shown by the evidence that the metallic circuit, if employed by the telephone company, would obviate the electrical interference of which plaintiff complains.

We should certainly in the interest of the public, as well as that of the railway company, permit the latter to construct its road upon the most approved system. Other methods for the protection of the telephone are suggested. But it does not appear that any other is equally effective to prevent disturbances. To con *698struct the metallic circuit for the telephone would be expensive, but how expensive does not appear. Assuming, then, that the adoption of a metallic circuit for the telephone is the most reasonable method of obviating the injury from electrical interference, the question will arise whether the telephone or railway company ought to bear the expense. This is an equity action-in which, upon the trial, the court will have jurisdiction to administer all the relief which the nature of the case and the facts demand, and to frame its judgment in such terms as shall compel obedience by both parties. Whoever seeks equity must do it, and hence the court, in its equitable mandate against the defendant, can impose equitable conditions upon the plaintiff. In one sense the injury complained of is neither irreparable nor necessarily continuous, since it can be removed by incurring the necessary' expense. But if the plaintiff shall incur all the expense without compulsion or legal duress, it might be regarded as voluntarily incurring it, and hence could not recover it from defendant, and would suffer, to that extent, irreparable loss. The present methods of the plaintiff are "all it requires if the defendant should not interpose its destructive agency. It may be that the defendants ought to bear the expense of a change of plan. That expense would be less and the advantages to the defendant" greater than if it were compelled to adopt the double trolley system. It may be that plaintiff’s obligation to maintain a metallic circuit after it shall have been established will be the proper measure of its share of the burden. It may also be that priority in time gives the better equity. The defendant may lawfully enter upon the street, but the condition may be implied that it shall also indemnify others already rightfully there against the additional expense which its entry subjects them to, as in the case of the gas, water and sewer pipes already referred to. But we cannot now well decide who will ultimately be liable for this expense, or whether equity requires its apportionment. This matter was less fully considered upon the argument than the electrical and other important features of this somewhat novel case.

We cannot place the burden of this expense in the first instance upon the defendant, since the plaintiff ought not to yield control of its lines to the defendant. The necessities of the case compel us to require the plaintiff to assume it, in order to protect itself against the defendant.

Ordered, that the injunction be continued as follows for thirty days, and until the defendant shall stipulate:

> 1. That the court may determine, on the trial, what has been or what will be the necessary expense to the plaintiff of preventing, by metallic circuit or otherwise, the injury to, and interference with, the operation of their telephone, complained of in the complaint:

> 2. And that the court may further determine on the trial wliat damage, if any, plaintiff has sustained to its business or will sustain by reason of the matter set forth in the complaint before the same can be with reasonable care prevented as aforesaid;

> 3. And that in this action the court may adjudge to the plaintiff against the defendant such recovery for said expense and for *699said damages as may be just and equitable on the proof established at the trial.

B. And further, until the defendant shall have given to the plaintiff a bond in the penal sum of -dollars, with two sufficient sureties, duly acknowledged; said sureties to justify in the usual manner; conditioned that the defendant will pay to the plaintiff any sum or sums which maybe adjudged against defendant in this action.

C. Upon the giving of said stipulation and bond the defendant may apply on two days notice to any judge of the general term for a certificate that said bond and stipulation have been duly given. On filing said certificate the injunction shall be raised.

D. Should the injunction be vacated as above provided, the plaintiff may within twenty days thereafter (or such further time as may be granted by any justice) serve a supplementary complaint so as to seek the recovery of such expense and damage, or other or further relief as it may be advised.

No costs of this appeal. Order to be settled.

Learned, P. J., concurs.