Page:Harvard Law Review Volume 9.djvu/529

CONFLICTING RIGHTS OF TELEPHONE LINES. 501 utere ttio ut aliemwt non Icedas is invoked by the telephone com- panies as decisive of the case. Its argument is that it is legally and peaceably in the possession and operation of its plant in the highway under grants from the proper authorities, when the rail- vi^ay company establishes its lines in the streets and discharges its electric current into the earth in such quantities and of such volt- age as to create a nuisance to the operation of the telephone line. This argument was considered in the English case above referred to^ at some length. The court (Kekewich, J.) says: — " I cannot see ray way to hold that a man who has created, or, if that be inaccurate, has called into special existence an electric current for his own purposes, and who discharges it into the earth beyond his control, is not as responsible for damages which that current does to his neighbor as he would have been if instead he had discharged a stream of water. The electric current may be more erratic than water, and it may be more difficult to calculate or to control its direction or force, but when it is once established that the particular current is the creation of or owes its special existence to the defendant, and is discharged by him, I hold that if it finds its way on to a neighbor's land and there damages the neighbor, the latter has a cause of action.'* The court then proceeds to consider what may be said in avoid- ance of the legal liability above stated, and says : — " First, they say that the plaintiff [telephone company] might, by an alteration of their system, that is, by the adoption of what is known as the metallic return, prevent the disturbance complained of. . . . The first an- swer is, to my mind, without foundation. The man who complains of his land being thrown out of cultivation by the incursion of water escaping from his neighbor's reservoir must not be told that he has no right of action because if he had interposed a wall, or otherwise taken care to pro- tect himself, the water would not have reached his land. He is using the land in a natural way, and is not bound to take extraordinary precautions, and is entitled to rely on his neighbor also using his land in a natural way, or, if he uses it otherwise, taking extraordinary precautions to pre- vent damage to others therefrom. There is no doubt a body of evidence to show that a system different from that adopted by the plaintiff has been adopted elsewhere with advantage, and may probably prove to be the most convenient, though more expensive for them, but the evidence also proves that their present system has been largely adopted and is approved by many competent to form an opinion. It has also the merits of economy. They are carrying on their business lawfully, and in the 1 National Telephone Co. v. Baker, L. R. 1S93, 2 Ch. i85. 66