Florian Friedman and Adel Friedman v. The Gold and Stock Telegraph Co.

the purpose of transmitting, and its object is to transmit over its lines "and through its stock-reporting instruments and general news-reporting instruments, to all persons who hold and to all persons who desire to hold its said stock and news-reporting instruments, certain quotations, news and information, which quotations, news and information are owned and contributed by it for the purpose of being so transmitted." Telegraph companies are public; have the right to take land under the laws providing that lands may be taken for a public use. The act requires them to transmit dispatches "with impartiality and good faith."

For the purpose of applying to a profitable use certain instruments owned by it, the defendant has applied its lines to these instruments whenever required by persons who desire to use the instruments, and has entered upon the business of collecting a certain class of news and transmitting it over its wires to the individuals using the instruments. The defendant still remains a public corporation owing the duty impartially to grant the right to all who comply with its rules to have the privileges furnished. That there is no objection appears from the complaint. The plaintiffs have the instruments and pay, and are willing to pay, the price agreed upon which shall be established. The defendant has no right arbitrarily to take away the instruments by force without default. The case of Breese v. The United States Telegraph Company, 48 N. Y. 132, does not touch a case like this. It is there decided that a by-law requiring important messages to be returned and verified at half-rates was not an unreasonable by-law. This case seems to be an entirely new one in the courts of this State. Upon principles of justice a public corporation should make no distinction in respect to persons who wish to partake of the privileges which it was created to furnish.

The corporation can either be deemed to have assumed to forward to the plaintiffs every message transmitted over its wires, or to be a public corporation to do the acts it under

Western Union Telegraph Co. v. Baltimore & Ohio Telegraph Co. et al.

takes to do in the way provided by it by means of the line erected for public use.

The judgment should be reversed, and demurrer overruled, with leave to defendant to answer in twenty days on payment of costs.

PRATT, J., concurred.

Present-BARNARD, P. J., DYKMAN and PRATT, JJ.

Judgment sustaining demurrer to plaintiff's complaint reversed, and demurrer overruled, with leave to defendant to answer in twenty days on payment of costs.

See INDEX, title "Discrimination."

See, also, notes to A. & P. Tel. Co. v. W. U. Tel. Co., ante, p. 81; State of Ohio ex rel. Am. Un. Tel. Co. v. Bell Teleph. Co., ante, p. 299.

WESTERN UNION TELEGRAPH Co. v. BALTIMORE & OHIO TELEGRAPH Co. ET AL.

U. S. Circuit Court, Southern District of New York, March 28, 1884.

In Equity.

(19 Fed. R. 660.)

CONTRACT OBNOXIOUS TO POST-ROADS ACT.- EXCLUSIVE PRIVILEGE.

▲ railroad is a post-road, within the meaning of the act of Congress of July 24, 1866; and any agreement giving one company an exclusive privi lege to operate telegraph lines along a given railroad, is void.

MOTION for injunction. Facts appear in the opinion.

Wager Shoayne and Burton N. Harrison, for Western Union Tel. Co.

Western Union Telegraph Co. v. Baltimore & Ohio Telegraph Co. et al.

Dorsheimer, Bacon & Steele, for Baltimore & O. Tel. Co. and Nat. Tel. Co.

P. B. McClellan, for N. Y., W. S. & B. Ry.

WALLACE, J.: The complainant moves for a preliminary injunction to restrain the two telegraph companies defendants from erecting and operating the telegraph line upon the land of the defendant railway company, and to enjoin the railway company from permitting either of the defendant telegraph companies to use its right of way for such purpose, and from violating any of the provisions of an agreement entered into between the complainants and the Jersey City & Albany Railway Company on the seventh day of January, 1880.

The facts are these: On the seventh day of January, 1880, the complainant entered into a written agreement with the Jersey City & Albany Railway Company, which, among other things, contained the following clause:

"The railway company, so far as it legally may, hereby grants and agrees to assure to the telegraph company an exclusive right of way on and along the line and lands of the railway company, and on any extension or branches thereof, for the construction and use of lines of poles and wires for commercial or public uses or business, with the right to put up from time to time, such additional wires, or lines of poles and wires, as the telegraph company may deem expedient; and the said railway further agrees that it will not furnish for any competing line any facilities or assistance that it may lawfully withhold."

At the time this agreement was entered into, the Jersey City & Albany Railway Company was constructing a line of railroad from a point on or near the Hudson river, in the county of Hudson, in the State of New Jersey, and thence northerly to a point at or near Fort Montgomery, on the Hudson river, those points being the termini of its route, as provided in its articles of association. It appears by the affidavits that the complainant constructed a telegraph line of about 26 miles in length, along the right of way of the railroad company, between Richfield Junction, New Jersey,

Western Union Telegraph Co. v. Baltimore & Ohio Telegraph Co. et al.

In

and Haverstraw, New York, which was carried into and connected with the several stations of the railway; which line was operated by the complainant under its contract with the Jersey City & Albany Railway Company. March, 1880, the North River Railway was incorporated and organized, and in May, 1881, the Jersey City & Albany Railway Company consolidated with this corporation. In February, 1880, the defendant, the New York, West Shore & Buffalo Railway Company was incorporated and organized, and in June following consolidated with the North River Railway Company, and by the agreement of consolidation succeeded to and assumed all the obligations of the Jersey City & Albany Railway Company to the complainant. The bill alleges that the defendant railway company is now seeking to disaffirm and violate the obligations of the contract of January 7, 1880, and is allowing and assisting the defendant telegraph companies to construct and operate, over its right of way, a line of telegraph to be operated in competition with any line which may be constructed by the complainant, and that the defendant telegraph companies are proceeding to construct and erect their competing line upon the lands of the railway company without the consent of the complainant, and without acquiring any right of way by condemnation and compensation to the complainants therefor.

It is claimed on the part of the complainant that along certain portions of the lands of the railway company, owing to the physical characteristics of the route, there is not sufficient room for more telegraph lines than are or may be necessary for the convenient operations of the complainant's business. The proofs do not sustain this contention.

Without considering the question whether the railway of the New York, West Shore & Buffalo Company is an extension of the Jersey City & Albany Railway Company, the case may be disposed of upon other grounds. If it was the purpose of the agreement to enable the complainant to exclude all other telegraph companies from acquiring a right of way for constructing and operating their lines over VOL. I-39.

Western Union Telegraph Co. v. Baltimore & Ohio Telegraph Co. et al.

the lands of the railway company, the agreement was void as against public policy and in contravention of the act of Congress of July 24, 1866. That act authorized any telegraph company then organized, or thereafter to be organized under the laws of any State of the Union, to construct, maintain, and operate lines of telegraph over and along any post-road of the United States.

The railroad here, and all railroads in the United States, are such post-roads; the act of Congress applies to them, and its provisions are operative and supreme as a legitimate regulation of commercial intercourse among the States. This was decided by the Supreme Court in Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1. It was not held in that case that a telegraph company could acquire a right of way over a railroad without the consent of the owner of the railroad, or even that the act gave to telegraph companies the power to acquire such a right of way by compulsory proceedings, upon due compensation to the owner; and the contrary was plainly intimated. But the act was considered and expounded as intended, and effectual, to deny to any one telegraph company the power to acquire any such easement in the lands of a railroad for telegraphic facilities as would exclude other companies from obtaining like privileges, and as a declaration by Congress of a policy in the interests of the public and of the government which was reasonable and lawful. Since that decision, it has been adjudged in two cases in the Circuit Courts of the United States that a railroad company cannot grant to a telegraph company the exclusive right to establish a line over its right of way. Western Union Tel. Co. v. American Union Tel. Co., 9 Biss. 72; Western Union Tel. Co. v. Burlington & S. Ry. Co., 11 Fed. Rep. 1. See, also, Western Union Tel. Co. v. American Union Tel. Co., 65 Ga. 160. Whether an agreement of this kind would not be void as intended to strangle competition, and, therefore, as being in restraint of trade and obnoxious to public policy, irrespective of the act of Congress, is a question which it is not