Daily Kennebec journal., 1904-11-05
Conserve Co.
Indianapolis, Ind.

l'''Nc "a " l'iilhS' uilu'r SAID petition
before your Honorable Beard, or anv
part thereof"
No argument was presented by the
attorney Ter said railway company in
relation to IT," several objections con-
tanned IN said answer. and we are left
entirely to difference in relation TO
them.
! .is - the first objection. Section "a
of Chapter - Of the r. :. under which
! the plaintiff cl;-ims its right was en-
acted in 1N>1. chapter 37S. and at that
time no telephone corporation could be
organized under the general laws of
! the State.
! The authority was given by the
, Legislature gen Years later by Public
Laws. 1875. Chapter I"2. The Moose
head Telephone f"mpany was organ
! izcd un'ier this general law passed in
! 1895. on the IA day of December. A
H. 1nno
Whether the statute authorizing the
J organic alton Of telephone companies
under tlI'' general law is broad enough
tn give them the ;lutharity contained in
Public Laws of lShI, Chapter 27S. may
be doubted: but rs We find these laws
all Incorporated into chapter 50 of Tie
present Revised Statutes we shall rule
PRO forlnA that III" act of 1883, Chapter
:iS. does give the right therein con-
tanned, to telephone companies organ
iZed under the general law. Without
any other preferred or specific power
conferred upon them by the Legisla-
lures of the state.
/ In the fourth tom Of the answer it is
Il i,I h.,+ h
way F"inuany has unrcasomaJly re-
fused its consent to the construction,
maintenance and operation of said
, telephone line upSn and along the
right OF way Of said Canadian Pacific
Railway Company. But as the said
railway company, in the first item of
its answer, denies this right or any
right Whatever we must necessarily
decide that it has unreasonably re-
fused it's consent to such construction.
BY the sixth item in the railway com
pany's answer it is claimed that under
, the laws of the State of Maine said rail
way company is entitled to the exclusive
possession of it: right of way so acquired
by it. and denies the right of any tclt-
phone company organized under the pro
visions Of the general law to invade it,
right Of WAY to take any part thereof
or TO interfere with said railway company
in the exclusive possession Of its right of
way.
Il is a general rule that land taken by
One corporation for public purpose lIn-
der authority of the legislature can not
b" taken by any other public service cor
roration. unless the grant is given by
the legislature in express words or by
inecessary implication.
The statute of 1855, if it applies to tclo
phone corporations organized after the
general law took effect. certainly gives
this right by express words of the
Statute.
BY the seventh item of the defendants
answer 1t is claimed that the statute OF
1HNJ, Chapter 21H which is now IL part of
the Revised Statutes, is unconstitutional
because there is no provision in such law
tor deter mining or awarding any Compcn-
SHtion for entering upon OF taking any
part ot the right of way OF any railroad
or railway company.
OF course the Railroad Commissioners
OF tn" safe Of Maine are not expected by
the said Railway Company to decide
whether or not a statute is constitutional
| This matter must be left for the Supreme
Judicial Court.
As to the Sth item in the railway com.
panES answer we are satisfied that a
telephone lire may he built along the
Railway Company. as prayed for. in such
| Il manner as not ia interfere with or on
| danger the ILL.," of poles or wircs of the
telegraph company OF said railway. and
! $" not - h" a source of daEgc1 to the
tiftr"iihs public along said lin" "f rIil-
Way. or to the employees of said railway
company in the operation and manage
ncnt of it, trains
| In item nine Of the railway conpany's
answer il is denied that they are under
| any obi "a ion or liability to pay the cX-
| ntnStS IlnItI said I.Cfifinn-
| 'fh" statute "f I>HI authorizing ,h Rail
road Commissioners to decide how the eX-
! prn~e OF t'iS hearing should be paid. ii
S''''nnS should not have lc"n revised into
: ction = of the Revised Statutes. so far
"a expenses are concerned, that statute is
now obsolete. At the time the statute
WAS enacted the Railroad Commissioners
were paid per diem. In 1879 they were put
upon a salary, and consequently there are
J NJ expenses to this hearing
1 W.. therefore drCi.,t that the NoCSnhead
Telephone Company may construct. main
| tain and operate its line Of telephone
| upon the right Of WAY Of the said Cana
dan Pacific Railway. between Gr."nyille
| junction in the county of PiSCataqui%. ard
Folcn Station. so called, in the county Of
! Somerset.
| The wire of said Telephone Company
| shall b,. put upon poles high enough 10
/ prevent the same from interfering in any
| way with the operation of the trains of
! said railway. or of the telegraph wires of
said company. Said telephone wires shall
! not cross the track OF said railway COM
pany. except at and upon highways cross
! ing said railway track. And wherever
! such crossing OF said railway truck is
| made at said highways the wire shall he
nut upon poles high enough 50 that the
| wire shall rot he less than y feet above
+, the track Of said railway company
| The wire Of said telephone company
, shall be strung in such way as not to in
tcrferc in any way with the telegraph
noles and wires of the said railroad com
many and the line shall be put. as nearly
a. may be upon the extreme outer edge
! of the right of way of said company.
, The wires OF said telephone company
ShaI in no case cross the telegraph wireS
nj said railway company. eXceHt where
| anid telephone lire is CONSTRUCTED across
sid track upon highways as atortSaLd
IN The construction of said telephone
rina care shall be taken not to intcrf ere
IN anv way with the operation Of the said
raiIwav or the telegraph line of said rall'
80 and the whole work shall ne done
to the satisfaction of the Railroad Com
miSSionerS. ., l., Sc >-o,-o,,,
oei' "a JOSEPH p. PEAKS.
FEM. F. CHADBOtl RNE,
PARKER SPOFFORD.
Railroad Commissioners OF Name
!, A true copy.
l