The Saint Paul globe., 1901-01-03


J,ochren. J. (O-;llly): This is an impor-
tant case. invt&>:EE 4 large amt unit OF
property and valuable interests. | should
be glad. if had the time,to take the case
under adVisement, and eNamtEe the c9n-
tracts carefully and the eVldent ., aud
the cases which have been referred 10 nv
counsel, and those on their blie-s, which
for want OF time have not b en- .ef al u
TO IN the argument. Sut, The p eSsure Q
business upon me is such that ] cannlt
in Justice to other matters give to tAe
ease the time ] would be glad to give Go
it. l apprehend there is less necessity
for this. because ON account Of the larSe
interests involved, my deciSi~n will doubt
less be reviewed by Judges who viii have
the time TO give 1t more carefuI c-llSIu
I can say. howevc", that the case has
been carefully and fully argLed by coun-
sci, able counsel on both = ies. ard
am, perhaps, as well able 10 determine it
now, as ] shall be ii ! give u It fur>hsr
time
The question is as to which company !s
at the Orescct time tire owner OF the
telegraph system and appliances, includ-
ing the telegraph right-of-Way along " .
railway OF the complainant company In
the state Of Minnesota and westward TO
the Pacific coast Ard I'M; QepcuAS
mainly upon the contracts Whl-h nave
been produced in evidence. There Is con-
siderable testimony in the case, Judge,
from the printed books, which has NOT
been brought to my attention; very likely
because it is deemed immate.ial, or that
the facts which are proven by the eN1-
dencc have ceased TO be matters OF dI =
putC between counsel.
The cOmpiairantS rights relate back to
the rights derived from the land grant
act of congress of March 8, 1857, ana the
act of the legislature of the state OF Mill
neSota Incorporating the Minnesota y
Pacific Railroad company which gave II
Il part Of that land grant. The name Of
that railroad was subsequently changed
to the St Paul & Pacific Railroad COM
pany, and somewhere about the year
1864 the First division Of the st. Faul y.
Pacific company was formed and through
Il mortgage made by one of the last two
named companies, and its foreclosure, the
title = tiiv RAILROAD company and It's
franchises passed TO the present COM
plainant
These charter provisions gave the rail
way company not only tf". power r. r. I'll, III
and maintain a telegraph along the rail-
way line. The telegraph had become well
known to be an appliance as necessary
transaction of railroad business with
SAFETY TO passengers, and with safety as
regards the appliances and rolling stock
of the railroad itself, as any other con-
have no doubt that the authority to build
and operate railroad would
authorize the railroad company
to construct telegraph to
insure safety in its operation and do
any business which would be for the
convenience OF the public by the use
OF such telegraph and 1t might IrdGS-
init commercial messages or private mes
sagCs, and would not be confined simply
to railroad business, even if there were
no express authority given. The au-
thority TO construct and build a tele-
graph line expressly given as in this in
stance would include, the authority to
use it for all purposes that We're not Un-
lawful, and especially Tor all purposes
convenient to the public and to The trans
action of business generally. 1 have no
doubt either that under the authority
to build and maintain a telegraph, it
Tould have the right to contract with
another party or corporation authorized
TO construct telegraph lines, if it saw
fit to do so; and as far as defendants
duty to maintain such telegraph is
concerned, that could be performed by
and through another corporation au-
thorized to build and operate the tele-
graph
Now, Il appears, by the testimony, that
on Sept. u, 1855, and before any railroad
was built in the state, at any rate, any
railroad of the predecessor of this COM
Dany (apd l think the predecessor of this
complainant built the first railroad that
was built i'll the state), a contract was
snade between Smith & Simmons and the
st. Paul & Pacific Railroad company,
by which Smith & Simmons agreed to
build a telegraph line from st. Paul to
Watab, upon terms which are described
in that contract. There is no need of
referring to all of its provisions; it
amount per mile by the railroad COM
pany, and there was an agreement with
reference TO the free transportation of