American Rapid Tel. Co. v. Hess

• Decision Date: 24 February 1891
• Parties: AMERICAN RAPID TEL. CO. v. HESS et al.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 641

26 N.E. 919

AMERICAN RAPID TEL. CO.

v.HESS et al.

Court of Appeals of New York.

Feb. 24, 1891.

Appeal from supreme court, general term, first department.

Wm. G. Wilson, for appellant.

D. J. Dean, for respondents.

EARL, J.

Prior to 1883, the plaintiff was incorporated under Act 265 of the Laws of 1848, the general act for the incorporation and regulation of telegraph companies, and the acts amendatory thereof; and prior to that year it had erected its lines of telegraph poles and wires in the streets of the city of New York, described in the complaint. It also had extensive connecting lines in other states, and throughout this state, which constituted a system of telegraphy then in active use and operation. Section 5 of the act of 1848 provides as follows: ‘Such association is authorized to construct lines of telegraph along and upon any of the public roads and highways, or across any of the waters within the limits of this state, by the erection of the necessary fixtures, including posts, piers, or abutments, for sustaining the cords or wires of such lines: provided, the same shall not be so constructed as to incommode the public use of said road or highways, or injuriously interrupt the navigation of said waters; nor shall this act be so construed as to authorize the construction of any bridge across any of the waters of this state.’ The act (chapter 471, Laws 1853) amends the act of 1848, and section 2 thereof provides as follows: ‘Such association is authorized to erect and construct, from time to time, the necessary fixtures for such lines of telegraph, upon, over, or under any of the public roads, streets, and highways, and through, across, or under any of the waters within the limits of this state, subject to the restrictions in the said recited act contained.’ The plaintiff constructed its telegraph lines in the streets of the city of New York under the acts referred to, without any special grant or authority from the city.

The claim of the plaintiff is that these acts operated as a grant to it of a franchise to use the streets for its poles and wires, and that, therefore, and inviolable contract was created which is under the protection of the federal constitution, and hence that neither the state nor the city, under its authority, could cause its poles and wires to be removed from the streets, except upon compensation to it ascertained in the manner prescribed by the constitution and laws for cases where private property is condemned for public use. We think the act of 1848, as amended in 1853, can in no proper sense be said to have granted any interests to the plaintiff in the streets of the city. There certainly was no formal grant, and the statutes contain no terms or phraseology appropriate to a grant. They at most confer upon the plaintiff an authority or license to enter upon the streets for its purposes, and subject to certain conditions. The people of the state do not own the streets, and the only authority the legislature has over them is to deal with them as streets, and to regulate their use as streets for public purposes; and by these acts it, in effect, determined that one of the purposes for which the streets could be used was the erection of poles and stringing of wires for the business of telegraphy, and that that was a public use, not inconsistent with the use of the streets for general street purposes. These were general public legislative acts, in the exercise of the police power of the state, and therefore they were not beyond the reach or touch of future legislation. The legislature did not intend to divest itself, and could not divest itself, of its control over the streets for the public welfare, and we must infer from the language used that it did not intend to bind itself by an irrevocable grant. If, therefore, these acts are to be construed as merely conferring a license which has been acted upon by the plaintiff, the legislature could revoke the license, or modify it in any way, or at any time, when the public interests might require it.

But in this case it is not necessary to hold that the plaintiff did not, by the acts referred to, obtain some sort of franchise in the streets of the city. We may, for the present purpose, construe these acts as constituting, in some sense, grants of interests in the streets to the companies organized under them, and contracts sub modo with such corporations, and yet the contention of the plaintiff in this case must fail. In the exercise of its rights under the assumed grant and contract, this corporation was subject to the regulation and control of the legislature. By giving the franchise, the state did not abdicate its power over the public streets, nor in any way curtail its police power to be exercised for the general welfare of the people; nor did the state absolve itself from its primary duty to maintain the streets and highways of the state in a safe and proper condition for public travel and other necessary street and highway purposes. The grant, if any, was made in reference to the streets, and their maintenance and regulation forever as streets. The state could at all times regulate the size and location of the poles, the height of the wires from the surface of the ground, and their location in the streets; and when the poles and wires became a serious obstruction and nuisance in the streets, from any cause, it could take such action, and make such provisions by law, as were needful to remove the nuisance, and restore the utility of the streets for public purposes. The right of the plaintiff to maintain and operate its wires in the streets could certainly be no greater than the right of railroads, which by public authority occupy the streets and highways of the state. The state, in the exercise of its police power, and the regulating control which it has over corporations created by its authority, may exercise a general supervision over such corporations. It may prescribe the location of the tracks, the size and character of the rails, the precautions which shall be taken for the protection of the public, and the character and style of highway crossings; and no one has ever questioned that it may do whatever is necessary and proper for the public welfare in the control and regulation of the franchises which such corporations have obtained by statutory authority.

Now, what has the legislature attempted to do in this case? By the act (chapter 534, Laws 1881) it was provided that all telegraph, telephonic, and electric light wires and cables, in all cities of the state having a population of 500,000...