Consolidated Elec. Light Co. v. People's Elec. Light & Gas Co.

• Decision Date: 14 January 1892
• Citation: 94 Ala. 372,10 So. 440
• Court: Alabama Supreme Court
• Parties: CONSOLIDATED ELECTRIC LIGHT CO. v. PEOPLE'S ELECTRIC LIGHT & GAS CO.

10 So. 440

94 Ala. 372

CONSOLIDATED ELECTRIC LIGHT CO. v. PEOPLE'S ELECTRIC LIGHT & GAS CO.

Supreme Court of Alabama

January 14, 1892

Appeal from chancery court, Jefferson county; THOMAS COBLES Chancellor.

Bill by the Consolidated Electric Light Company against the People's Electric Light & Gas Company to enjoin it from erecting wires along the route of complainant's wires. Decree dissolving the temporary injunction. Complainant appeals. Reversed, and injunction reinstated.

R H. Pearson and Jas. H. Little, for appellant.

Bulger & Heflin, for appellee.

STONE C.J.

This case brings before us a subject which, in some of its bearings, is comparatively new in jurisprudence. It is the utilization of electricity, alike as a mechanical force and as an illuminator. This use being relatively new, and probably not perfected in its adaptations, it behooves us to take our steps cautiously,-very cautiously,-lest our rulings may sanction or encourage conduct which would lead to great destruction of property, if not of life itself; and, while we confess ourselves ignorant of the scientific principles on which this new discovery and use are based, it is common knowledge, in which we must be supposed to share, that very great skill and circumspection must be employed in directing and controlling its application. The world has learned that the electric current, when heavily charged, is so instantaneously destructive of life that it has, in some places, displaced the guillotine and the halter in the execution of criminals. All men know that when it is sufficiently intensified to subserve the purpose of illumination, or the propulsion of machinery, to come in touch with its charged apparatus is inevitable destruction. The authorization and supervision of the apparatus necessary to each of the enterprises brought to view in the record before us are certainly matters which pertain to the municipal government of the city of Birmingham. The privilege or franchise of each company to construct its plant and works within the city must have been first obtained, for no prudent company or corporation would enter upon so expensive an enterprise without such authority; and the authority of the city government in the premises would not terminate with the grant of the franchise. It doubtless could and would assert its power to prevent any and all abuse of the privilege. Vested rights, properly so called, are respected in judicial administration; but no one, under ordinary circumstances, can assert and maintain a vested right to the exclusive enjoyment of a public street. Monopolies are not favorites of the law and if a street have sufficient width and capacity to admit of more than one public enterprise, without unduly obstructing it as a public highway, an exclusive right should not be granted to one company; and if granted, except under peculiar circumstances, it may and should be revoked. In the case before us it is averred, and not denied, that the Consolidated Electric Light Company-complainant below and appellant here-first established its plant, and first occupied certain streets with its poles and wires. The attempt of the defendant company to establish its service along the same streets gave rise to this suit. It is certainly true that the company which, with authority, first occupies a reasonably sufficient space for its works along a street border thereby acquires the right not to be molested in its possession. It cannot, however, claim more space than is reasonably sufficient for the safe and successful operation of its works. Nebraska Tel. Co. v. York Gas & Electric Light Co., (Neb.) 43 N.W. 126; Grand Rapids, E. L. & P. Co. v. Grand Rapids, E. E. L. & F. G. Co., 33 F. 659. It is averred in the bill that the defendant company "is now erecting poles along the streets and alleys named in paragraph fourth, [those in which complainant was maintaining poles and wires,] which extend into the space occupied by orator's wires and conductors, and between said wires and conductors; and that it is now preparing to place, and will immediately place, its wires and conductors, unless restrained therefrom by your honor, which are to be used in a business...