Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1890-04-06

Tho opinion then comments upon the
authorities cited 10y counsel and the ma
iority of the court to the effect that 1t IS
not competent for the Legislature to
authorize telegraph company to construct
!, line over the right of,cdy Of drdtlrodd cont
l.sy without making lust compensation
therefor" These authorities, says the
opinion, are utterly iuappllcable to the case
at bar, for here nothing has been granted
but the right to use a public easement, -
while the road-bcd and right Of way OF a
railroad company. 40 least IN this state, Is as
much its property ~ is its rolling stock, or
the money in its treasury, and the one can
no more be lawfully taken without just
compensation than the other"
But three cases III all seem TO nave
been cited in which the precise ques-
ton under discussion was adjudicated,
in tco of which-namely, Pierce U.s. Drew,
1856 Mass, 70, and he Julia Building
Association Is. The Bell Telephone Com
pany, - Mo, 25S, says Judge Lewis, II
was distinctly held that an additional
servitude is not imposed by the erection
on public highway OF q telegraph or tcle-
phone line under statute OF the state,
and that such statute IS not unconsttu-
tional because it makes no provision for
additional compensation 10 the owners OF
the fee IN the highway.
In the aforementioned case the Court, IN
an able and learned opinion by Dir. Justice
Devens, said The discovery OF the tele-
graph developed new and valuable mode
of communicating intelligence. Its use IS
certainly similar TO. II not identical with.
the public use of transmitting information
for which the highway was originally taken,
even if the means adopted are quite dill
feront from the post-boy or the mell-pOuch.
Ii is a newly-GlscOyered method of exer-
cising the old public easement, and all ap-
propriate methods must have been deem
ed to have been paid for when the road
was laid out
In the telephone case it was said: If a
thousand messages were daily transmitted
by means OF telephone poles. wires, and
other appliances used III telephonlng
the street through these means would
serve the same purpose which would other
wise require its use either by footmen,
horsemen, or carriages to ehectuate the
same purpose. In this view of 1t the
erection of telephone poles and wires Tor
transmission of oral messages 50 lar from
imposing a new and additional servtude
would TO the extent of each message trans
mitted relieve the street of soryltude or
use by footman, horseman, or car
rage
In opposition to these views, the case OF
! Board of Trade Telegraph Company as.
DdfnetI, lOf Ill, Oot, itio ptth 49, Ai"'
case was disapproved of 10y both the Mas
sachusetts and Missouri courts, and,
think, with good reason. The case decides
that there is no difference in principle be-
| tween telegraph and steam-railway III
a country highway, 50 far as the abstract
question Of servitude IS concerned, and
that as the railway is an additional seryi-
tude so also is the telegraph. This reason
ing, to my mind, is fallacious., In the
nature of things. the use of a highway, for
! operating steam-railway more or less
! excludes the ordinary methods of travel
and is attended with other Inconvenience
besides. But can this be said OF the tele-
graph? In what way does O telegraph
erected on the side Of highway IN the
country interfere with tho rights Of the
abutting owner or with its use as a public
! thoroughfare? Does II exclude or obstruct
| trayelY On the contrary IL is obviously
E:uch less of al obstruction than travellers
/ on horseback OF in vehicles over the road
! usually are to one another.
THE TREES.
| Az to the COMPLAINT TINT the plaintiff's