The herald., 1894-10-20
The Postal Cable Telegraph
Company Petition Granted.
Receivers of the Atlantic and Pacific
to Furnish Facilities.
Judge E. NJ. Ross Files an Elaborate
and Important Opinion In the
United States Circuit
Court.


Railway company for constructing it's
telegraph line along that road, favor>
ably to the petitioners.
In deciding the matter Judge Rose
fled quite an elaborate opinion, in
which he holds that the contract Of the
Western Union Telegraph company with
the railroad for exclusive privileges, is
not valid.
The ruling OF the court upon the ques-
tions raised is regarded as one OF more
than usual Importance. Attorneys cay
that ne has covered the points more
fully than has occurred in any previous
decision.
1t will be remembered that the petit
ton was one of Intervention by the
Postal company, put in before Judge
Ross in the case of the Mercantile Trust
company We. Atlantic and Pacific Rail-
road company, the road being in the
hands of receivers appointed by the
United States court.
The ruling upon the demurrer to the
intervening petition OF the Postal Tees
graph.Cable company adjudged the
right OF that company to erect its line OF
telegraph upon and along the right Of
way of the Atlantic and Pacific Railroad
company between the Needles and Mo-
jave, in this judicial district. if such
could be done without interference with
the use OF the right of way by the rail-
road company for ordinary travel. The
reaeons for that determination were
stated in the opinion filed by the court
at the time. Thereafter. counsel for the
Western Union Telegraph company, who,
by the consent and authority of the re-
csivers of the Atlantic and Pacific Rail-
road company, had filed, in their name,
the demurrer, obtained from the court
leave to file, and did file, an answer
thereto In the name OF the Western
Union Telegraph company, and upon
the issues thus joined evidence was
taken which showed, among other
things, an acceptance by the Postal
Telegraph company of the conditions
imposed by the act of congress of July
"a, 1866, and that the erection of q line
of telegraph by that company upon and
along the right of way of the Atlantic
and Pacific Railroad company from the
Needles to Moiave would not in any
manner interfere with the use OF the
right of way by the railroad company for
| ordinary travel.
"If, therefore," says Judge Ross. in
his opinion, ''the court was right
in its ruling upon the demurrer,
it follows that by congressional grant
the Postal TelegraphCab company
has the right to erect it's line OF tele-
graph upon and along the right of way
I in question. 1t is, however, urged in
behalf of the Western Union Telegraph
company that the ruling of this court
upon the demurrer is inconsistent with
the decision of the supreme court in the
case OF the Missouri, Kansas and Texas
Railway company VS.. Roberts, 152 u.
s. ia; that the rnling of the supreme
court in that case, applied to the grant
of the Atlantic and Pacific Railroad
company, shows that that grant cons
veyed to the Atlantic and Pacific COM
pany the fee of it's right OF way, free
| from the operation of the act OF July
"a, 1866. and from any rights thereby
conferred upon telegraph companies
| complying with its conditions"
| After careful analysis of the case
mentioned Judge Ross says:
''I do not think. therefore, that the
case of the Missouri, Kansas and Texas
Railway company vs.. Roberts should be
| held to be an adjudication by the su-
| preme court that a grant of the right oil
way over the public domain is not the
| grant of an easement therein, but neces-
| EARLY carries the fee thereof, or that the
court 80 intended it, especially where, as
| in the case at bar, the act OF congress-
grants to the railroad company various
| sections OF the public lands, for which it
| is provided patents shall be issued by
the officers OF the government. and also
grants the right of way over lands of the
government for which no provision ie
made for the issuance of any evidence of
title. OF course this distinction in the
grant between the lands granted in aid
of the construction of the road and the
right of way therefor is not conclusive.
for the fee of land may be granted by
direct act OF congress. But, in my opinion,
| it strongly indicates that congress- did
not intend that the grant OF the right OF
way to the Atlantic and Pacific Railroad
company should cover the lee OF the
lands included only within the right OF
way, but only such an easement therein
as, under the settled rules of law, is
usually covered by such grants.
/ Judge Ross then holds that the ninth
| or exclusive clause of the contract be-
tween the road and the Western Union
Telegraph company was and is inetfect-
ual as against the congressional grant to
the railroad company. He then con-
| tinues:
"The contention OF the Western Union
Telegraph company is that the Atlantic
and Pacific Railroad company can law
fully withhold all OF the facilities asked
for by the Postal Telegraph-Uable COM
pany, and it ia upon that construction
OF the contract that the receivers deny
to the Postal company the facilities in
question.
81 am of the opinion that it did not
lie in the power OF the Atlantic and
Pacific Railroad company to contract
that it would not furnish to any other
person or corporation than the Western
Union Telegraph company facilities, aid
or assistance in constructing or main
tanning line or lines of telegraph which
might compete with the Western Union
Telegraph company. The Atlantic an d
Pacific Railroad company was not in
corporated for any such purpose"
The remaining point raised is thus
discussed by the court:
1T was stated by counsel for the re-
ceivefs in open court that but for the
provisions of the contract of June J.,
1872, to which reference has been made.
they would afford the facilities asked
for by the Postal Telegraph-Ca Cable COM
pany, namely. the distribution OF the
necessary material between ths regular
stations, and the furnishing of water to
the force engaged in the construction OF
that line. The evidence shows, what ia
also judicially known to the court, that
the right of way of the Atlantic and Pa
| cif,c oonopouu hafuaap tha Naadi iaa and