Evening star. [volume] (Washington, D.C.) 1854-1972, 1885-06-13

=, lSS6-DOUBLE SH
TELEGRAPH POLES To 60.
Judge Haxner Condemns what he Calls
u WOrn-Out System.
INTERESTING EXTRACTS FROM his DECISION
COURTS MUST KEEP UP WITH THE TINES
HIS VIEWS ABOUT THE OCCUPATION OF
STREETS.
Judge Hagncr in granting the injunction
against the Western Union telegraph company
and the District of Columbia, at the suit OF prop.
| erty-owners along 7th street, forbidding the
erection Of telegraph poles on that street, dis
cussed at great length the laws and authorities
relating to the occupation of streets by corpora
tions. He went further also and discussed the
question from the standpoint of citizen.
"These poles," said Judge Hagner, occupy
streets where they are most Objectionable.
They are on our principal streets and have a
dishguring appearance. They have increased
in size The citizens are in danger Of their rot
ting and falling. There is acase now pend
death of q citizen by one of these poles rotting
on the street. Then there is an interference
with with iocomotion; They are to be found Al
Is danger from the wires breaking in the wind:
noise Of wires in the wind; danger from fire In
their attracting lightning, aud then they inn
pede access to fires and escape from houses in
case Of fire. All these things are within the
knowledge OF the people and they are not an
unreasonable statement of what might occur.
Now I say. at this stage Of the case these aver
ments stand as practically admitted, and if 1t
to iniict all this injury without legal authority.
think q sufficient case Is presented by the bill
Of o. special and peculiar injury sustained in
tneSe respects by the compainants differing in
kind and degree from those sustained by the
body OF the public. 1t is clear that it would
be extremely difficult to estimate in dollars and
cents the extent OF the injury sustained by the
complainants from these alleged grievances,
as In the case of the incessant ringing
OF bell at unusual hours, or from
a foul smell. And yet all will admit that such
nuisance may be uncomfortable. 1t is equally
clear that recovery at law by each lot owner
would only comprehend his individual injury
up to the time OF the suit, and that an endless
multiplicity of suits WOULD result as long as the
nuisance continued. Such grievances as must
be considered as established to exist here
would certainly impair the just enjoyment of
the property in future in the language of
Judge Story. Not that the houses would be de-
stroyed OF totally ruined by the erection of the
poles, but If the charges are true, these acts
certainly go to destroy their value in the char
acter In which they are enjoyed"
LEGISLATION VERSUS THE RIGHTS OF crrI-
zENs.
Judge Hagner could not admit that the effect
OF the legislation from which the company
claimed to derive its power was so extensive
as to deny to a citizen injured by the exercise
OF the franchise all redress in the courts. see
no reason" he said, "why these citizens should
be obliged to submit in silence to the injury to
their property from the erection before 1t of
these enormous poles, which have tripled in
size and height since they were first introduced
looking like great gibbets or the remnants of a
burnt forest; to the danger from their falling and
the breaking of the wires from wind or ice: to
the injury to shade trees before ones door, the
glory Of this great city; to the frequent appari-
the wires, causing the passers-by to leave their
usual walk to avoid the danger; to the increased
dangers from fire arising from the presence of
these wires and the other sources of annoyance,
when they might almost entirely he avoided by
the adoption by the company, as it is alleged
wires under ground. Upiess the teesrapI, come ,ne
pany can Justify its claim to erect these poles
under legislative grant direct, its acts of in
with the poles lying along the curbstones, the
dtsplacins the paving and digging holes in the
bed OF the streets or in the paw ements, the
planting OF the poles and stringing overhead
wires upon them, would each,and all be an
illegal intrusion upon the public which would
constitute the company trespasser and its
The streets ofa city are dedicated to the gen.
erai use OF the public, which is entitled to the
actual use OF some other passenger. Hence. il
is no valid justification for such intrusion that
a sufficient way has been left for the public to
see ut to erect. Nor is it any defense that the
public Inconvenience would be more than over
balanced by the public benefit that may be
realized from the structure. The citizens are
entitled to all the space on the sides OF the
and no one can withdraw any portion of il from
public use with immunity. These are familiar
principles, and the cases are very numerous
where they have been upheld from the most
"The alleged vastness and utility of the work
in which the defendant company is engaged"
,tac:
from the operation of these principles 1t is an
aggregation of private citizens who have as
sumed a corporate name for their own personal
advantage, and who are prosecuting their great
work FOR the purposes OF private gain, as a
legitimate commercial adventure. So long as
they ind 1t profitable they will pursue it, and
no longer. They will do as other companies
have done, discontinue the enterprise when ii
ceases to pay, and turn its energies into new
channels. The James River canal was sold to q
private company by the state after untold
millions had been expended upon it. The pur-
chasers drained the canal and constructed a
railroad in its bed and along its path. II there
were conviction in the minds of the present
company that it would be profitable to re-
doubts that it would be done. If the company
found 1t, in the nature of things, to their ad-
vantage to use their plant for the telephone
system, 1t would do that"
THE POWERS OF THE DISTRICT COMMISSIONERS
In discussing the question whether the per-
mission granted by the District Commissioners
afforded sufficient Justification for the proposed
action OF the company, Judge Hagner said:
"The powers Of the Commissioners of the Dis
trict are much less extensive than those pos
sessed by municipalities in general. By the
Constitution, to Congress was committed the
power to exercise exclusive legislation in all
cases whatsoever over this District, and the
ownership of the streets was fully vested in the
United States by grant from the proprietors.
This city,, says the Supreme Court, in the
case of Smith vs. the Corporation OF Washing
ton, 20 Howard, LAT, has been laid out and
the streets dedicated to the public as in all
other cities or towns. The legal title in the pub
lie streets Is vested in the sovereign as trustee
gress upon this subject has proceeded upon this
concession. The authority granted to the old
corporation over the streets was to open them
and keep them in repair 'agreeably to the plan
Of the city, and he powers subsequently trans
ferred to the District government by the act of
legislation devoived upon the successive
boards Of Commissioners were no more ex-
tensive In this particular The language of
section a OF the revised statutes of the Dis
trict of Columbia is thus construed by the
Supreme Court in the Barnes case, 81 u. s.,
This board (of public works. says Judge
Hunt, 'fs invested with the entire control and
regulation of the repairs of streets and al.eys'
&C. Which shows the opinion of that court
that the words entire control Of are to be
taken to refer only to the keeping in repair of
the streets. Section 222 OF the revised statutes
Ofthe District of Columbia contains some linn
tied grants to the authorities of the District to
encroach upon the streets by parking and in
some other ways and particular authority TO
encrOachments and an inhibition upon their
occupation without the authority of Congress
Section three OF the act OF June 20, 1874 which
constituted the first board of Commissioners