PACIFIC POSTAL
CABJ.E CO.
WESTERN UNION TEL. CO.
4:93
bill ofreview, and for further proceedings upon tht:l basis of the finality of the decrees of September S and October 14, 1887, in conformity to this opinion. ' .
PACIFIC POSTAL TELEGRAPH CABLE CO. SAME
v.
SEATTLE,
L.
S.
& E. Ry. Co. April 4, 1892.)
(Circuit Court, D. Washington, N. D.
1.
TELEGRAPH COMPANIES-GRANT BY RAILROAD-CONSTRUCTION.
A contract whereby a railroad company grants to a telegraph company a rlght of way along its road for a telegraph line, and agrees that it will.not grant such right for the construction or: any other telegraph line, does not vest ill the telegraph company such an exclusive interest in the railroad's right of way for telegraph purposes as would entitle it to an injunction against the construction of another telegraph line thereon. ·
2.
SAME-EXCLUSIVE RIGHT OJ!' WAy-ULTRA VIRES.
A contract by which a railroad company underta¥es to grant the exclusive right to construct and maintain a telegraph line along its road to a single company is uUra vire8 and void.
In Equity. Bill for an injunction to prevent the Western Union Telegraph Company from constructing and operating a telegraph line on the right of way of the Seattle, Lake Shore & Eastern Railway Companybetween certain stations. The court having a restraining order pendente lite, the defendants moved to vacate said order. Motion granted. Struve McMicken and H1lghes, Hastings Stedman, for plaintiff. Turner McCutcheon, for defendants. HANF6'RD, District Judge. The only ground for the restraining order, which, at the time it was made, seemed to me to justify it, is that the complainant daims to be the owner of an interest in the strip of land known as the right of way of the defendant the Seattle, Lake Shore & Eastern Railway Company, upon which the defendant the Western Union Telegraph Company proposes to enter, and construct and operate a telegraph line, without the consent of the plaintiff, and without compensation to for such appropriation and use of property to which it claims title·. Upon the present hearing this appears to me to be the only ground of complaint, worthy of cOllsideration, against .either of the I would regard it as sufficient if the claim of title appeared to be valid. The. defendants, however, deny that plaintiff has anr title· to the. premises, or any interest therein other than an easement; that is to' say. a right of way for its own telegraph line. The only basis for the plaintitf's claim of title is found in the
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foll. .Wfl g,C}st,.. l,1l,1. ses Of,. ,0. .. i . .,
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"'the railway company hereby grants right of way for said Ime of telegraph along the route of its road, and upon its grounds, and agrees to furnish labor for loading the poles upon the cars, and for distributing and setLing the same, under the direction of,· the telegraph company's foreman, together with their free transportation. The railroad company agrees to furnish office room in its railway stations, and an operator wherever reb\lSilieSs, wbo .shall also transa.ct the business of the telegrap'h' company, at such the rules a'rrd l'egulatiolls of the telegraph company. it being understood that all receipts for commercial telegraph business shlllll belong.tOthe.telegraphcompllny.*,- - '.rhe telegraph company shall have free transportation for men and material necessary lor the maintenance of its tell'graph lines. and t}le l'ilil way company hereby agrees that· it will not grant' right of waYliltlng 'its road for the construction of the line of any other telegraph company, and that it will not transpo.rt tIl:e.n or material tor,anyothl'rtl'legrilph company, except at the regular and for delivel'y at its regular stations. ,"'., III This contract shall continue for twenty-five years from the date bereof.." avers that the Seattle, Lake Shore & Eastern Railway Compnn:r acquired the right of way for that portion of its road between W oodepville 6r SIidpomish Junction and the town of Sedro, by a gra.nt from said Seattle &; West COllst Railway Company, subject to said contract. The argument is that the contract is a conveyance, and that it vests in the complainant the exclusive the strip pf land ·for telegrpph purposesjduring .theterm specified, which right amounte to an illterest in the htnd, and isa legal estate. Against the contention of the it is, first, to be observed that the only therein appear to be limited in their application to the right of way for a single telegraph line.. There is no il1<Ucatiop,in the cQntract of\ the idea that the plaintiff should have control over the right of w(l}' for any purpose other than the conduct of its own telegraph business. If correct in the position assumed QY: it in this case, the complainant would have the,xight to sell to other telegrllphcompllniei:l, or sublKtto them t&cqnstructandtpnintain telegrapblines upon' ;the 'premises. "The proyisions of the contract itself in the clauses above qnotE(d are antagonistic to tpis pretense. The railway corppany the lJromised that, it would not perof other lines upon its right of way, nor affqrd other ielcgrl1Rh com'panies for transportation of materials, specified;, This a mere personal obligation. It did. not !itie tQ pt6perty, On the contrary , it amounts tq.tlpassertio ll by .the railway, companyofboth"lln oLligation and a right'tocoQirolthe future use 9ftheground acquired by it forits,.rail" . .. , road. ' .,' ,If in explicit such an. interest in the as.plllintiif ,lshouidh l1 v;e to hold it to be ultm mrea and void, fQr the reason that '0" 'pi the territory of Washington, " ... , '" .", ....
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'WESrtim UNION TEL. 00. 496
made,dld fi%lBfer land hcqtlii'ed' f6'1' railroad pJrposes;by lease, so as to divest itself of its duties and obligations to the public astd'the use of such property. By the plaintiff's own showing it appears that the Seattle & West Coast Railway Compa.n¥-..was incorporated to do a general transportation business by rail, and to be a competitor for interstate and international commerce. Its franchise from the state, therefore, made it to a cert!Ull e;xtent a public agent .endowed with part of the sovereign power of the commonwealth; and a railroad constructed in this state by a corporati99 iu,nder the lawsofthe state, or its predecessor, the territory, mnst necessarily be a highway for public use, in and to which the public have rights limited and regulated by law. :;rhere is, no statute authorizing such a transfer of property in the right of way and control thereof as the plaintiff now' claims made.· to it authority conferred by a statute,. no transfer of such' property, or the right to cont,rbl the same, could! be made, whereby the rights ofthe public, or a third party, e. g., the WesterrfUnio,n Cbmpany,' could be in any manr,er abridged. Lakin v. Railroad Co., (Qr.) 11 Pac· .JWp.: 68; Brealin v. Car 00., (Mass.) 13 N. E. Rep. 65; Palmer v. Railway Co., (Idaho,) 16 Pac. Rep, 553; Railroad q;.'V. J;1r01J{n, i7Wall, 445; Railroad Co.v. Orane, 113 U. S. 433,434, '5 Sup. Ct.:Rep. 578; Oregon R. N. 00. v'. Oregonian Co., 130 U. S.1,9',Snp.et. Rep. 409; Van Dresser v. Navigation 00., 48. Fed. 50 Fed. Rep. 28'. Rep: 202; U. $.; V. WeaternUnion fd. Telegl'aphlines lue to serve the public, and wherever they are connected with a railroad as incidental to the railway business, the rights oUhe public respectiog.thesanW,.}Aust be governed by the principles to other branches of the $ervice; and the public policy which underliEl$ the the courts, of this country, denying the, right of a railway cOl'porathm to divest;, itself of responsibility the and invest aMther ,with itsp\>,wers arid functjons, touches in -this case as to the right of one corporation to transfer to anbther, an . for telegraph purposes to the occupancy and control of'prbpertyacquired; as a necessary means of serving the public. A contract made by Ii railwaycolllpany, whereby it attempts to create a monopoly in the use of its property for the transmission of news and is just as .invalid as a contract '!Vould be whereby a railway corporation should attempt to confer upon one individual or corporation an exclusive rightt6"have any particular commodity transpO,rted as freight over its raqw$Y. contract be regarded as ali intended conveyance of an interest in the property, bl" as It covenant affecting the title to the right of way, or asa contract creating simply a personitlliability,it is not such a contract as a court of equity can uphold or decree to be specifically performed; and, at least. as against -the defeudant theWl;lstern Union Telegraph Company, it is void, except ill so far as it conters upon the plaintiff the right w maIntain unmolested its telegraph line,andconduct its business without
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vol.. 50. which right is in no manner menaced by the proposed action of the defendants. The motion to vacate the restraining order i8 t!l.efore "
NEW YOllK, JJ.'E1;& W. Rv. CO'fI. 'BENNETT (Ott'cuU oaWrc1Qf AppeaZt, Sfzth CirCldt· JutJ:e No'.ll. L OUBIJJlS Oll
el
w:.
6, 1892.)
, '" ticket provides that "no agent or employe ha& PowertO'moafiy thisllOntrlilit in any pat'tioulal', .. neither the ticket agent nor bag, .gal1C1 the holder Is, required to ohal1g&c&rs authority' to. lD!ltruct sVQb Ra,ssenger to take a lii:nlted express trmn, upon which only 1irsto1ass'tickete are·S<!ciepted. . . ,' I. Buni. ' ' . 4s b,stweeR sl1ch a t.rain and the passenger the tioket i.. COnclusiV:1l evl<lence as to ,the latter's'right of and the conductor hall no authority to accept it for p&llse.ge on that train." ., " 8. BAllE: . J' , , who "P.P,.lie4 for I'Ildpnrchaeed a second-class ticket, and hall used suoh. I.s\bound br its terina, whether. he has read them or nOt.; , ., tickets .. BAlIB. '." , , ': The failure" of a· train oarrying second-c1aBs passengers to with the pi'oper train of ,nother road, .the two roads forming a through linl\ does not impos& UPOIl the second road an' obUgation to transport passengers holaing second-cla. through ticket&'upon the ne1t ,train,_ limited express,-upon which suoh tickets ., are n4jlt valid. I. BuurEJEOTHBNOf OJ' P A woman two iDfailtchildren, traveling on a seoond-olass tioket, boarded a limited train. upon Which firat-olass tickets only are valid. The oonduowr refused bar ticket,and at ,the next station she was put oft. .It was in the evening, andsherema{ned at the dt\pot fOr a time,'till at he1'request she was sent to an hotel, ,., and the .neltt ,day money wali .collected' With )Vbichshe retut'lled bome. where she had,B./l atta9l!:<of nervous prolltration. She testified, tbe language of ·the conductor in refusinit her ticket: "It was very rough ;so mucb 80 that is what lIO&l'ed memos\. ,If lie bad spoken,pleasant to me, it would 1l.ave been so much better. He spQ\w llP in such a.cofflxq,and,ing way. ", She furtb\ll' said that at the depot the conductOr" IImd something abotit. sending her to a hospital in a patrol wagon. HeUi, that the llY'idently imperative manner and', form of speeoh of the conduotor are not actional:!le in the absence of violence, or other willful misoonduct, and a. verdict for 'defendant should have been directed. ,
LINES.
In :ij:rrQl' tp fAe Circuit. .of the United States, for the Southern, Division of DiE;!trict of Tennessee. Action by ills. Hattie her husband, John R. Benagainst the :New York, Latre Erie & Western Company for .V plaintiff. Defendant brings error. A," motion to dismiss the writ of error was .heretofore denied, (49 Fed. Rep_ 598.) SJta,tewent by SWAN. D\st*tJudge: .' . Thjs is an' action onth,ecmse,coIXlmenced by att!tchment in the circuitcourt of Hamilton coun'ty,. TeilD.· for the ejection of Mrs. J. R. Bennett"
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