The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1877-03-31
Important Decision in the TeIe,
graph Controversy.


Court Of Common Pleas OF Hamilton
comfy, Ohio, Judge Burnett yesterday
rendered decision In the case Of the
Western Union Telegraph Company VS.,
the Marietta and Cincinnati Railroad
Company and the Baltimore and Ohio
Railroad Company, granting . perpetual
injunction against the use OF wire
erected between Cincinnati and ParkerS-
burg by the defendants. The court, in
rendering the decislon, stated that lie
had held the case for some time in the
hope that he should be advised OF the
result Of the litigation in Baltimore,
which, it was supposed. would effect this
controversy. The petition contained
prayer to enjoin from putting up the wire,
but before the case come up for hearing
the wire had, in fact, been strung and
connected with the Office ot the Atlantic
and Pacific Telegraph Company in this
City,so that the prayer for the injunction
to prevent the defendants from the use Of
such wire is now all that Is present.
ed 10 the court. In 1857 the Marietta
and Cincinnati Railroad Company, as
originally organized, entered into
a contract with Amos Kendall
and others, partners, under the name Of
the Marietta & Cincinnati Telegraph
Company, for the putting up Of wire on
the poles as they already stood on the
line OF the Marietta & Cincinnati rail-
road from Marietta 10 Cincinnati, and
for the common enjoyment and use of
the telegraph line thus TO be erected and
OF the line that was already strung on |
these poles. Subsequent to the agree
ment with the Marietta & Cincinnati road |
Kendall and his associates assigned 10 |
the American Telegraph Company their
rights, and the contract OF the Western
Telegraph Company, which company
controlled line from Parkersburg to
Baltimore under u contract with the |
Baltimore & Ohio Railroad Company.
was also assigned to the American Tele.
graph Company. The original contract
between Kendall and his associates and
the Marietta & Cincinnati Railroad Com
pany provided substantially for the use
Of the line on the Marietta & Cincinnati
road for general through business Of
telegraphing to be secured to Kendall
and his associates, and all local busi-
ness was secured to the railroad
company, the latter having the right
to use for its own business the
line Of the Western Telegraph from
Wheeling to Baltimore, and to send its
messages on the lines connected with that
line. The telegraph company was to
have the right to use the wire on the line
Of the Marietta & Cincinnati railroad for
all through business, 20 that in fact il was
an agreement for joint or common use OF
this !ine Of telegraph on the right OF
way of the railway company for the time
specified III the contract to-wit, 80 years,
with provision for the extension OF the
contract after the expiration OF that time,
subject to the right Of either party to
terminate it at one years notice. The
American Telegraph Company having
purchased OF Amos Kendall and associ-
ates, as we'll as their interest in the IVES.
tern Telegraph Company rs assigned to
the plaintiff so that the plaintiff became
possessed OF all rights that subsisted under
the original contract with the capacity
Of performing all its obligations. Now
the railroad company has without the
consent Of the plaintiff, permitted and
united with the other plaintiffs in put.
ting fourth wire, and it is claimed by
the defendants that the contract original
ly entered into with the Cincinnati &
Marietta Railroad Company is not
binding on that company as reorganized;l
that the new company never affirmed by
the contract, nor by any positive agree
ment made itself party to it. The court
did not think that this position was at all
tenable. Since the reorganization of the
company which bought the road with the
line Of telegraph on it, they have acted
under the provisions Of the contract on
both sides, each party expending money
under it, and in all respects recognizing
its validity and continuance. Itwould
be inequitable to say that either party
was not bound by its provisions.
1t Is claimed, however, by the defend.
ants that the plaintiff is not now
in condition to fulfill its part Of the OBJ.
legation OF the contract, that one Of the
chief purposes for which the agreement
was originally made, was that the rail.
road company might have the use OF a
telegraph beyond the terminus of the
road at Marietta to Baltimore, and the
connections Of the Western Tele.
graph beyond that point. It's claimed
that the rights OF the Western Tel.
egraph Company, under its contract with
the Baltimore 4 Ohio Company has ceas.
ed, that the contract between them was to
subsist only as long as the Western
Telegraph Company existed as tel.
egraph company, and the company has
expired by the limitations Of It's charter,
and therefore the contract is at an end,
and that the Western Union Telegraph
Co., the. assignee OF the Western Teie.
graph Co., has no longer the rights over
the line Of that road, and cannot transmit
the messages Of the Cincinnati & Mariet-
to Company over that line, and therefore,
the plaintiff being unable to perform its
obligation under the contract, has no
right to call on the defendants to
perform their obligations and Is not en-.
titled TO an injunction. Here arises the
most difficult part Of the case. By the
terms Of the contract between the Mari.
eta & Cincinnati Railroad Company and
Kendall and his associates the former
was secured the use Of the wires for all
local business, and for their own business
the use Of the wires all the way to Balti-
more. On the other hand it secured the
use Of the wires to the telegraph company
for all through correspondence. Neither
party had the right 10 violate the con.
tract, or over that line to permit any local
or through business to be done inconsis,.
ent with the terms Of the contract. The
language OF the contract between the
Baltimore & Ohio Railroad Company
and the Western Telegraph Company
ia to the effect that the parties
Of the first part, the railroad com.
pany, in consideration Of the priv.
ileges granted by the party Of the
second part, grant to tho party Of tho sec.
ond part the right to maintain line Of
magnetic telegraph along and within the
limits OF said road SO long as said tele.
graph company existed. It's in evidence
that on the 4th Of February last the
charter Of the Western Telegraph Com.
pany expired by Limitation. In the
ninth clause Of the contract there is this
provision: In the event Of the dissolu.
tion Of said telegraph company or volun-
tary suspension on their part then the