Page:Harvard Law Review Volume 9.djvu/528

500 HARVARD LAW REVIEW, have equal legal rights in the streets, and the argument is, in effect, that if the telephone, having a legal right to use the streets, does so, and later the railway, having also a legal right, attempts to use the streets, the prior occupation by the telephone company is a suffi- cient equity to compel the railway to adopt some system that does not interfere with the telephone. This is a strong argument on the equitable principle qui prior est tempore, potior est jure ^ and un- doubtedly would have been decisive in the matter, as it has been held in cases between electric light lines and telephone lines, and between various electric light lines,^ had it not been for the decisive principle which we shall consider later. This ground of priority was relied upon somewhat by the court in Hudson River Telephone Co. v. Watervliet Turnpike & Ry. Co., when the case came before the General Term of the Supreme Court on its merits.^ The court says, " Again it is worthy of con- sideration that the plaintiff established its plant and prosecuted its business for some years before the use of electricity was known as a motive power for railroads," and cites Pomeroy on Equitable Jurisprudence, § 114, that as between parties having only equitable interests, if their equities are in all respects exactly equal, priority of time will give the better equity. The Court of Appeals, how- ever, did not agree with this reasoning. Another argument which the telephone companies have brought against the electric railway is the danger of accidents caused by it, and its tendency to frighten horses. This argument belongs more accurately to the question whether the electric railway is a proper mode of using the streets for public travel. It is enough to say here that the argument lacks a sufficient foundation in fact to give it much weight^ The last of the arguments in favor of the telephone line, based on an equality of rights of both parties in the streets, is that the railway company is bound so to use its property that its neighbor, the telephone, shall not be injured by the use. The maxim Sic 1 Western Union Telegraph Co. v. Guernsey & Scudder Electric Light Co., 46 Mo. App. 120; Nebraska Telephone Co. v. York Gas & Electric Light Co., 27 Neb. 284; Paris Electric Light & Railway Co. v. Southwestern Telegraph & Telephone Co., 27 S. W. Rep. 902; Bell Telephone Co. v. Belleville Electric Light Co., 12 Ont. Rep. 571 ; Rutland Electric Light Co. v. Marble City Electric Light Co., 65 Vt. 337 ; Croswell on Electricity, §§ 223-225. 2 61 Hun, 157. 3 Hudson River Telephone Co. v. Watervliet Turnpike & Railway Co., 135 N. Y. 403; Louisville Bagging Mfg. Co. v. Central Passenger Railway Co., 23. S.W. Rep. 592.