Morning journal and courier., 1886-01-19
THE TELEGRAPH CASE.

An Interesting Legal Contest - The Case of Ex-Governor BIgeloVv ct al. vs. The United Lines Telegraph Conn pany-Judge H.emIng's Decision. Since Judge Studleys decision that the running of a steamboat on Sunday for an ex- curson Q work of necessity the City court has rendered no more notable decision | than that of Judge Deming given yesterday | in the case of ex-Governor Hobart B. Bigelow | ct al. vs. the United Lines Telegraph com pany, in which he holds that the Board of | Public Works have no power to permit the | erection of telegraph poles, and that this power belongs to the county commissioners As the Board of Public Works or Board of Road Commissioners they formerly called, have for years been in the | habit ofgranting permits to erect these poles and charging license fee for the permits, | the decision is one of considerable inpor- tahee. The general statutes provide that no telegraph poles shall be erected on the high way without the consent of the neighboring owners, and if that cannot be obtained, with out the approval in writing of n county com | missioner; and the commissioner shall not give his approval without notice to the ad- l Joining owner, so that he can be heard. Tine United Lines Telegraph company erected it's poles nd jaeeht to the land of the plaintiffs mission of the Board of Public works to do ao, the owners having no notice, | but they did not obtain the ap- pruval oe n county ebtRmissienef. The plaintiffs brought snlt for damages, The company defended on the ground thnt they had obtained permission from the Board uf Public Wufls the plaintiffs denuffed to this as being hti insufficient defense. The case waa very fully argued, not only orally, but afterwards on written briefs. D. P. IT. vine for plaintiff Judge Stoddafd for de- fehse. jhdge Denihg UYeftuled the defend ants demurrer and sustained the demurrer If the plaintiffs; Judge Dethltg'5 decision Iii full Is aA follows:
 This Is aH attl6h brought t6 recover dahia ges f6F placing telegraph poles Iii front 0f the pf6ptFty If the plaintiffs iii the city Of New Haven,
 The complaint alleges:
 g. 'tf'he defendant erected eR the HeFth side ef said chapel, eH ths heftheiiF side: walk II front and adjoining said lots, " seven telegraph poles, and put telegraph wires thereon"
 3, ''The defendant did net obtain the een= sent of any of the owners ef said lands te the erection of said poles, nor the approval thereof in writing pt any of the county com missioners of said New Haven county"
 The defendant demurs to the third count of the complaint US "the matters therein contained are inmaterial and constitute no ground of action" and for further defense says:
 '.Permission and authority to erect said poles in the streets of New Haven was ob- tained from the Court of Common Council of said city"
 To this second defense the plaintiff demurs, ''because the Court of Common Council has no power to authorize the e1ec- tion of telegraph poles on the highway in said city"
 Ioverrule the defendants demurrer, because I am satisfied that the matters contained in paragraph 3 of the plaintiffs complaint are material and constitute a cause of action.
 Upon the argument various questions were raised which are unnecessary for me to consider; the only question of importance in the case raised by the demurrer is: Has the Court of Common Council of the city of New Haven power of itself to authorize the cree tion of telegraph poles in the streets of the city of New Haven!
 In May, 1862 Private Acts, vol. 5,page 479,) the charter of New Haven was amended as follows: Sec. 3. "That the Court of Com mon Council of said city shall hereafter have sole and exclusive authority and control over all streets and highways, **s within the linn its of said city" The act repeated ill the same language in the charter amend ments of 1868 and 1869 and 1881.
 Did the legislature use the words "sole and exclusive" in their broad and absolute sense?
 The subsequent acts of the legislature will best explain their meaning.
 In 1S4S statute passed follows:
 ''Every telegraph company may maintain and construct lines of telegraph upon any highway x by the maintenance and cree tion of the necessary fixtures, including posts, piers or abutments for sustaining wires, etc"
 In 1949 this was added to as follows:
 "No telegraph company or association may place any piers, posts, or other a5utments in or upon any highway without the consent of the adjoining proprietors, or in such consent cannot be obtained, without the ap proval, in writing, of q county commissioner of the county where such land is situated, which shall be given only after hearing, upon due notice, to such proprietors."
 And again in 1860 the following was enacted:
 'The warden and burgesses of any borough, and the common council of any city, may, upon giving reasonable notice to any telegraph company, compel it to furnish | poles of such style and finish as they may determine, within their limits"
 The defendants claim that these acts were | repealed by the charter of New Haven, within the city limits, by the l amendment of May, 1869, he last l This entire act, however, was re-enacted by | the revision of 1866 and again in 1875 If l the claim of the defendant is correct we have | an act which recognizes the county commis- | sioners, adjoining proprietors aid the Court | of Common Council, which is law in 1860, | repealed by charter in 1862, reenacted in l 1866, repealed in 1869, re-enacteq in 1875 1 and again repealed in 1881 by the last char ter This vacillation cannot be possible, l for we find it in force and telegraph compa- l nies organized under it in 1864, 1865, 1867 1 and 1869.
 But we have other acts of the legislature | which show conclusively that the ''sole and l exclusive power" was not in the Court of | Common Council.
 The act amending the charter of New Ha- | ven was approved June 26, 1862. July of | the same year another act of the same legs l Iature was approved granting permission to | the Fair Haven &l Westville railroad company l to extend it's horse railroad 'whenever the | owners of majority in length of the real es- l tate fronting on Chapel street shall l consent in writing thereto.
 Public Acts, vol. ,, p. 49s9.
 Again in 1864 (Priv. Acts, vol ,, D 62O,) } the l request by vote of ths Common Council of l the city of New Haven, or by the Fair Haven | & Westville railroad company shall 'deter- | mine and fix upon and precisely designate | the particular lines, locations and places | upon and along which the said railroad com | pany shall hereafter lay its railroad track in | any street or streets of said city" The same | commissioners by the same act are given l power to order the removal and change of To- l cation of the tracks of said company.
 Again in 1870 Priv. Acts, vol. 6, p. 950,) i the same company, by amendment to it's l charter, Is granted pernlsslon to use 0uln- my engine on it's road between Westville and | Howe street and within the limits of the l city, s'with the consent first obtained of the 1 Selectmen of the town of New Haven and l the Mayor and Board of Aldermen of the city | of New Haven"
 Railroad commissioners have power in con | fict with the ''sole and exclusive" authority | claimed by the defendant. See
 Revised Statutes, 1875, page 324, sec 30
 Public Acts, 1816, page .o3
 Public Acts, tS77, page 152:
 Public Acts, 1888, pages a69, 27O, aS4, 294
 The streets of city ''are public highways | like any of the ordinary roads in the State, | and although by the city charter | they may be subject to certain regulations l respecting police, sidewalks, SSaining and | repairs, yet the city, as such, &e TO interest | in the soil this belongs to the adjoining pro- prietors' s'-Norwich Gas Light company vs.-l Norwich City Gas company 25, Connecticut l 31. And under the laws of this State the ad- 1 joining proprietors, the railroad commission CTS, the county commissioners and the Court l of Common Council, has each 6 limited right l