New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1904-12-13
WESTERN UNION LOSES.
-DFCTSIONf FOR p. r. IL.
Telegraph Co. Must Remo0e Poles
fFOm Railroads Right of Way.


Washington. Dee. :2-The Supreme Court OF the
Tr.cd states today decided the case % -,
Western Union TELEGRAPH Company against Wy
PENNSYLVANIA Railroad Company. inNo'Ni"o -,
right OF the railroad company TO remove ' =,
graph con.paay's poles from It's rlsh' ., - ,os
favor OF the railroad company nv "f o,-t held
handed down by Justice McfNenna- Inc -,
tba. ,be act OF Congress OF July "A, 4Soo ""
controlled the case. does not grant eh'i'HI ~. =.
main to telegraph companies over XIX
property OF railroad COMPANIES ,. NJ.
Tho case originated ~ Ncw-Jefsey- 1us'
yxan,,, said the telegraph company contends thar
the necessary implication from the provisions "
the act Of 1856 permitting Telegraph CON
use post roads is that telegraph companies may a
f,foprfate for their poles and lines part Oh '''e
rights OF way Of railroads on paying JUST I'm
ponsatfon IN other words. the act lhNeS'S
erarh companies with the right OF eminent u0 ,
The railroad company. he said. asserted 'ha' "
ac, ..ives The consert Of the government to tee-
eraph companies construct lines throush ~
,,,rff. domain and over and along its military ana
rost roads which are not the property oi pa
corporations. and across naFlgaoe 81 -
waters hut gives no right 10 appropriate
property and is an exercise by congress O ee
national power over interstate colliii''io 80
telegraph companies from hostile S'a'e rs
lion or contracts vioauye OF an ailoU1 80"
rolicy" The railroad company nous no %
the act Of $50 was passed II p'N" - -,
for the States 10y any legislation 10 eAcllIue wv
CRAM, cor,Daqies from the post roads / iie So"-
tentions Of the parties are opposed 'heIt ~
said only rs to the degree OF right coilAeIieu =!
the act both admitting that Congress can s'aI'
the power OF eminent domain to ccrpots''I'iis VI
ganized for national purposes.
RIGHT or EMINENT DOMAIN LIMITED
Discussing Incidentally the right Of eminent
a,,air Tho oninon says: 1T is indeed. lnsepaIa-
fle from sovereignty. but il is accompanied ana
restrained ,- noxora bic limitations. The property
take, must be for a public and there must
r47slf7a a
whether il he regarded part Of the power or
Limitation upon the power. is so far essential that
The absence OF provision for it has been regarde"
as important in determining the intention OF the
legislature when 4 grant Of such power is claimed
Hence he regarded il significant thaS in the act Of
ssly 1856 there is not word which provides for
eaodennarion compensation. The power OF emf
4eft domain is against common right II subVerts
the usual attributes OF the ownership of property
II therefore be given in express terms or ny
necessary Implication.
Responding 10 contentious the part of coun-
SCI TOR the telegraph company that railroads are
not essentially different from other highways,
Justice Mchenna said:
This argument would seem to make railroad
Iigill Of way public property. To that extreme We
cannot go The right Of Way Of railroad is prop
erty devoted puDllc use and has often been
called a highway, and as such is subject 10
has always been recognized that a railroad right
.; way Is 50 lar PE4te P50Pgf @ w 70 fors
its taking except under the power OF eminent 90
Ii follows from these views that the act Of 1866
does not grant the right 10 telegraph companies
railroad Companies except the consent of the
EfstIta Of SeW-Jer-ev maxi those rights of way
public property as 10 subject them TO such oe-
cupati0n under the provisions Of the act Of 1856 II
IS admitted that the OF NewJersey do not
confer the right q eminent domain upon, telers
graph companies. It happens TO be the pohcy OF
NeW-Jerseg not TO grant eminent domain 10 tele-
5s in fhaf State the same immunity from com
lllsory proceedings as other private property en-
nor does it make that act, as construed by Us. a
iaer3iei intercourse by Telegraph than the States
Interstate commerce by the telegraph has
marched 10 i splendid development, although in the
acquisition OF the means fpr us exercise IL mas Ior
main granted by the States. We cannot but feel,
Therefore that there is something inadequate in
the argument when is pesed on the apprenensloh
that ne st Of July = 1856 construed as we con
ranies. Il gives no power 10 those companies, but
that which apQertains 70 the ownership OF their
c-vPerLy.
IN & dissenting opinion Justice Harlan expressed
the opinion that 1t intended by the act of
1866 n the interest Of the postal service and Of
interstate commerce. to throw open all the post
roads OF the country the Of telegraph COM
panies accepting its provisions. subject always 10
the condition that the use should interfere with
ordinary travel on the road occupied"
Summing VI, Justice Harlan said:
Practically The railroad corporations operating
caring little for the general welfare. may give ex-
graph communcajions While the states are pro
hltiJed from 50 doing. Thus Ii railroad corpora
non ls recognized as having more power a
r St+tA j cannot assent to an Interpretation of
e. he act of 1876 that will such a result No
sueh result is. in my opinion, consistent either with
the words OF the act with the object which Con
gross intended 10 accomplish by its massage That
act. reasonably Interpreted. was. think Intended
visions the absolute put its wires and roles
upnn any post Toad-a public highway estaL1ieled
primarily for the public conyenjence-f the or,Ii-
nary travel On such road not thereby inter
fered with i''e'
The court also decided the case involving the
right Of the Western Union company TO condemn
part OF the Pennsylvania Railroads right of WA,
. in Western Pennsylvania and appropriate II for
Its I.nes, in opposition the telegraph conpanv,s
contentious. This case also was decided against
The telegraph company
The contention Of the telegraph company in this
case. as IN that involving the right Of the rail-
Fosd 10 remove the poles, was that il had the
right 10 maintain its wires over and along the lines
Or the railroad company. making cou5nensation
50 long As the maintenance OF its telegram lines
cld NOT materially interfere with ordinary
fh" roads and that the right could he ted
was ceiisi- There was also additional element
caused by the claim OF the telegraph company
me lessee or the Atlantic and Ohio Telegraph
Company, Incorporated by the State i'm ls&g
MIXTURES and structures along and across any Of
the roads highways. streets and waters within
ms state. The said works to be placed as not 10
interfere with the such roads bfob
ways. streets and waters" This point was deoida7
ADVERSELY 10 the Western Union on the froInd
t.isi eminent domain cannot he delegated :" and
taat '.essees cannot exercise it