9 N.Y.S. 177 | N.Y. Sup. Ct. | 1890
It appears that the plaintiff is lawfully incorporated as a telephone company, and is lawfully in possession of its lines, poles, stations, and apparatus, and that it lawfully operates the same. The defendant was incorporated in 1828 as a turnpike company, and by chapter 233, Laws 1862, it was authorized to operate a street railroad. The plaintiff challenges the right of the. defendant to use electricity as its motive power. The act in question authorized the defendant to use “the power of horses, animals, or any mechanical or other power, or the combination of them, which the said company may choose to employ, except the force of steam.” The plaintiff bases its challenge upon the fact that in 1862 electricity as a propeller of railway ears was unknown, and hence not within the intention of the legislature. But the legislators of that day were not ignorant of the inventive and experimental activity of the age, and had they intended to grant the defendant any right to
It is obvious that the rules applicable to a definite acreage of land may not be applicable here. The grant to each company is to employ upon the same street the invisible energies of nature, and, since it is in vain to define the fields that confine them, we are perforce constrained to seek for methods which will neutralize or reduce to a minimum the injurious effects of their contact or interference with each other. That method, it seems to be conceded, exists in a device for a metallic circuit for the return current of the electricity. The earth completes with the outgoing wires a natural return circuit for the electricity sent forth upon the wires from the generating stations, but since the earth is common to both companies, and both cannot use it, but one company may safely use it, if the other will use an aerial metallic circuit, the problem seems to be which company, under the circumstances, ought to use the metallic circuit; and, if the plaintiff ought to use it, ought the defendant to pay the expense thereof wholly or in part?
The method which either party should employ for the return circuit for its current of electricity is not defined in the grant of its franchises, and therefore is not expressly, much less exclusively, bestowed. ITeither company, therefore, has any exclusive privilege to use what is called the “grounded or earth circuit. ” Both companies are granted privileges upon certain streets.
It remains to consider whether the railway company ought to do more or otherwise than it has done to prevent electrical interference with the telephone company, and whether the telephone company can reasonably be required to adopt other and improved methods to protect itself from such electrical interference. Upon the evidence before us, it seems to be true that the single trolley system adopted by the railway company is the best now known, regard being had to mechanical, electrical, and financial considerations, but without regard to electrical interference with the telephone, which uses the grounded or earth circuit instead of a metallic circuit. The plaintiff does not use the metallic circuit. It is much cheaper to construct the metallic circuit for the telephone than for the railway. It appears to be shown by the evidence that the metallic circuit, if employed by the telephone company, would obviate the electrical interference of which plaintiff complains. We should certainly in the interest of the public, as well as that of the railway company, permit the latter to construct its road upon the most approved system. Other methods for the protection of the telephone are suggested. But it does not appear that any other is equally effective to prevent disturbances. To construct the metallic circuit for the telephone would be expensive, but how expensive does not appear. Assuming then, that the adoption of a metallic circuit for the telephone is the most reasonable method of obviating the injury from electrical interference, the question will arise whether the telephone or railway company ought to bear the expense. This is an equity action in which, upon the trial, the court will have jurisdiction to administer all the relief which the nature of the case and the facts demand, and to frame its judgment in such terms as shall compel obedience by both parties. Whoever seeks equity must do it,
Ordered that the injunction be continued as follows for 30 days, and until the defendant shall stipulate: (1) That the court may determine on the trial what has been or what will be the necessary expense to the plaintiff of preventing, by metallic circuit or otherwise, the injury to, and interference with, the operation of their telephone complained of in the complaint. (2) And that the court may further determine on the trial what damage, if any, plaintiff has sustained to his business, or will sustain, by reason of the matter set forth in the complaint, before the same can be with reasonable care prevented as aforesaid. (3) And that in this action the court may adjudge to the plaintiff against the defendant such recovery for said expense and for said damages as may be just and equitable on the proof established at the trial. (36) And, further, until the defendant shall have given to the plaintiff a bond in the penal sum of-1 dollars, with two sufficient sureties duly acknowledged, said sureties to justify in the usual manner, conditioned that the defendant will pay to the plaintiff any sum or sums which may be adjudged against defendant in this action. (3c) Upon the giving of said stipulation and bond the defendant may apply, on two days’ notice, to any judge of the general term for a certificate that said bond and stipulation have been duly given. On filing said certificate, the injunction shall be raised. (3d) Should the injunction be vacated as above provided, the plaintiff may, within 20 days thereafter, (or such further time as may be granted by any justice,) serve a supplementary complaint so as to seek the recovery of such expense and damage, or other or further relief, as it may be advised. Costs of this appeal order to be settled.