Page:Harvard Law Review Volume 9.djvu/531

CONFLICTING RIGHTS OF TELEPHONE LINES. 503 panics that they have received from the municipal authorities grants of the right to set their poles and string their wires in the high- ways, and that this franchise cannot be impaired by a later grant to the electric railway company. This claim, which seems strong at first glance, in reality contains the principle which has subverted the whole telephone case. The claim was strongly asserted by the telephone company in the case of City & Suburban Telegraph Association v. Cincinnati Inclined Plane Railway Co., and the case was in fact decided by the Superior Court in favor of the telephone company on this ground. The court says: — "To this the plaintiff replies that by virtue of its grant, it acquired, before the defendant had a right to use electricity as a motive power, a vested interest in the telephone system as it now operates it, with a grounded circuit, and that not even the Legislature of the State could take away from it or injure this franchise on the faith of which it has expended so much labor and capital." ^ And the Superior Court adopted this claim, with the modification that the Legislature might take away the telephone company's franchise, but would not be presumed to intend to do so, and that, as its grant to the electric railway of a right to use electricity as a motive power would be satisfied if the double trolley system were used, which would not interfere with the telephones, this mode of use must be presumed to be intended by the Legislature. This view, however, was not upheld by the Supreme Court of that State on appeal in the same case.^ This brings us at last to the important principle upon which two courts of last resort in two most influential States, New York and Ohio, have rested their decisions in favor of the electric railway, and which is in reality decisive in the United States against the claims of the telephone company, viz. that the primary use of the highways is for public travel, and that any other use must be subordinate to this, and consequently a person or company using the highways for such subordinate use cannot complain if some novel mode of public travel interferes with his or its user of the highways. This important principle is followed by the corollary that the telegraph and telephone, not being forms of public travel, if they make use of the highways for their lines, must do so in 1 Pamphlet Opinion of Hon. W. H. Taft, Feb. 12. 1890. 2 Cincinnati Inclined Plane Railway Co. v. City & Suburban Telegraph Association, 48 Oh. St. 390.