People New York Electric Lines v. Squire

• Decision Date: 02 May 1892
• Citation: 36 L.Ed. 666,145 U.S. 175,12 S.Ct. 880
• Parties: PEOPLE ex rel. NEW YORK ELECTRIC LINES Co. v. SQUIRE, Commissioner of Public Works
• Court: U.S. Supreme Court

145 U.S. 175

12 S.Ct. 880

36 L.Ed. 666

PEOPLE ex rel. NEW YORK ELECTRIC LINES Co. v. SQUIRE, Commissioner of Public Works.

May 2, 1892.

This was an application for a writ of mandamus on behalf of the New York Electric Lines Company, a New York corporation, to compel the commissioner of public works of New York city to give it written permission to make excavations and open up the streets and pavements of the city for the purpose of laying its wires and other conductors of electricity underground, and of making its underground electrical connections, in accordance, it was claimed, with its franchise for such purposes, theretofore obtained from the city

The application was presented to the court of common pleas for the city and county of New York, at a special term, and was denied, on the ground that the relator had not obtained the approval of the commissioners of electrical subways for that city and county of the plans and specifications proposed by it for the construction of its underground electrical system. Upon appeal to the court in general term the order denying the application was affirmed, (14 Daly, 154, 166,) and the relator thereupon appealed to the court of appeals of the state, which affirmed the judgment below, (107 N. Y. 593, 14 N. E. Rep. 820.) The record having been remitted to the court of common pleas, and the judgment of the court of appeals having been there entered as its judgment, this writ of error was sued out.

The case as presented by the petition for mandamus and its accompanying exhibits is substantially this. The relator was incorporated on the 14th of October, 1882, under the general telegraph law of April 12, 1848, (chapter 265, Laws 1848,) and the various acts amendatory thereof and supplementary thereto, 'for the purpose,' as stated in its certificate of incorporation, 'of owning, constructing, using, maintaining, and leasing lines of telegraph wires or other electric conductors for telegraphic and telephonic communication and for electric illumination, to be placed under the pavements of the streets, avenues, and public highways of the cities of New York and Brooklyn, in the state of New York, and under the sidewalks of the streets and avenues of the said cities, and upon, over, or under private lands in the said cities, within blocks of buildings erected or to be erected therein, and for the purpose of owning franchises for laying and operating the said lines of electric conductors, and the purchasing, owning, and disposing of such real estate within the said cities, and such personal property as may from time to time be necessary and convenient to the building, using, maintaining, and leasing the said lines of electric conductors.'

By section 5 of the original act of 1848 telegraph companies were authorized to construct their lines 'along and upon any of the public roads and highways, or across any of the waters within the limits of the state,' 'provided the same shall not be so constructed as to incommode the public use of said roads or highways, or injuriously interrupt the navigation of said waters.'

By section 2 of the amendatory act of June 29, 1853, (chapter 471,) the privilege was extended to such companies of erecting or constructing their lines 'upon, over, or under any of the public roads, streets, and highways, and through, across, or under any of the waters' of the state, subject to the same restrictions contained in the act of 1848.

By section 1 of the act of June 10, 1881, (chapter 483,) amendatory of the preceding acts on this subject, it was provided as follows: '(1) Any company or companies organized and incorporated under the laws of this state for the purpose of owning, constructing, using, and maintaining a line or lines of electric telegraph within this state, or partly within and partly beyond the limits of this state, are hereby authorized, from time to time, to construct and lay lines of electrical conductors underground in any city, village, or town within the limits of this state, subject to all the provisions of law in reference to such companies not inconsistent with this act: provided, that such company shall, before laying any such line in any city, village, or town of this state, first obtain from the common council of cities, the trustees of villages, or the commissioners of highways of towns permission to use the streets within such city, village, or town for the purposes herein set forth.'

The foregoing embraces the material parts of the statute law of New York relating to telegraph companies, in force when the relator was organized.

Within a few months after the relator was incorporated, to wit, April 10, 1883, the board of aldermen of the city of New York adopted resolutions giving to the relator permission to lay its wires underground through the city, in accordance with certain restrictions, and upon conditions particularly specified. The material portions of these resolutions were as follows:

'Resolved, that permission be and hereby is granted to the New York Electric Lines Company to law wires or other conductors of electricity in and through the streets, avenues, and highways of New York city, and to make connections of such wires or conductors underground by means of the necessary vaults, test boxes, and distributing conduits, and thence above ground, with points of electric illumination or of telegraphic or telephonic signal, in accordance with the provisions of an 'ordinance to regulate the laying of subterranean telegraph wires and electric conductors in the streets of the city,' passed by the common council and approved by the mayor, December 14, 1878: provided, however, and it is hereby ordained and.

'Resolved, that whenever the said New York Electric Lines Company, in the progress of laying its lines of electric conductors, shall be prevented or obstructed from placing its wires in the spaces which may have been generally selected under the ordinance, passed and approved as aforesaid, by manholes of sewer. gas, steam, or water mains, or other underground or pavement impediments, now and heretofore existing, then, and in such cases, the said company may, under the privileges hereby granted, vary the space selected by adopting, appropriating, and using equivalent and nearest practicable spaces as said, by manholes of sewer, gas, steam, further, and it is hereby further.

'Resolved and ordained, that the connection vaults or test boxes aforementioned may be extended underground not more than four feet in depth or two feet in any lateral direction beyond the limited spaces contemplated for the lines of wires, in the ordinance passed and approved as aforesaid, and may be fitted with covers, or other means of access, at the level of the pavements of the several streets and avenues.'

Then follow several paragraphs of the ordinance relating to the compensation to be paid by the relator for the franchise thus given to it.

The ordinance of December 14, 1878, referred to in the first paragraph of that of 1883, as regulating the conditions and limitations upon which the franchise was granted, was as follows:

'No telegraph line or electric conductor shall be laid under the streets of this city at such depth from the surface that the necessary excavation incident to laying or repairing the same shall expose or endanger any water or gas pipes, sewers, or drains, or any parts thereof.

'Such wires or conductors shall in no case be placed at a greater distance from the curbstone separating sidewalks from carriage way than four feet, except in crossing streets running transverse to the direction of said lines, when such crossings shall be made in the shortest straight line, or in making necessary connections with buildings and stations.

'The method employed in laying said conductors shall be such that it will at no time be necessary to remove so much of the pavement, or to make such excavation, as to materially impede traffic or passage upon sidewalks or streets during operation of laying or repairing said conductors, except when in crossing streets transversely, where it shall be permitted to remove the paving stone for a width not exceeding two feet, and in the nearest straight line from corner to corner. In no case during the general hours of passage and traffic shall passage be interrupted thereby for a longer period than one bour.

'The work of removal and replacement of the pavements in any and all of the streets, avenues, highways, and public places in and through which the wires of any telegraph company shall be laid shall be subject to the control and supervision of the commissioner of public works. Excavations in any and all of the unopened streets, avenues, highways, or public places shall also be subject to like control and supervision.

'The space selected for placing said wires, in every case being limited as to direction and general position by the foregoing provisions, shall not exceed two feet in width by two feet in depth.

'Grantees under this ordinance shall be required, within six months after such permission shall be granted, to file with the county clerk maps, diagrams, and tabular statements, including the amount and position of the spaces proposed to be occupied by them, and their rights and privileges under this ordinance shall be confined to the spaces, positions, and localities as indicated by said maps, diagrams, and statements.'

On the 16th of April, 1883, the relator accepted the franchises granted to it by the resolutions of the 10th of that month, and on the 18th of May of the same year it filed in the office of the clerk of the county of New York a map, diagram, and tabular statement, indicating the amount and position and localities of the spaces it proposed to occupy in and under the streets and other land in the city and county of New York. The petition avers that the relator immediately thereafter proceeded to make ready its material and plant for the construction of its electrical...