Cumberland Tel. & Tel. Co. v. United Elec. Ry. Co.

• Decision Date: 10 March 1894
• Citation: 29 S.W. 104,93 Tenn. 492
• Parties: CUMBERLAND TELEGRAPH & TELEPHONE CO. v. UNITED ELECTRIC RY. CO.
• Court: Tennessee Supreme Court

29 S.W. 104

93 Tenn. 492

CUMBERLAND TELEGRAPH & TELEPHONE CO. v. UNITED ELECTRIC RY. CO.

Supreme Court of Tennessee.

March 10, 1894

Appeal from circuit court, Davidson county; W. K. McAlister, Judge.

Suit by the Cumberland Telegraph & Telephone Company against the United Electric Railway Company. From a judgment for defendant, plaintiff appeals. Reversed in part.

Vertrees & Vertrees, for appellant.

East & Fogg and J. C. Bradford, for appellee.

PICKLE Special Judge.

This is a suit by a telephone company against an electric street-railway company to recover damages inflicted upon the telephone plant by the contiguous railway plant. The plaintiff has appealed from an adverse judgment, and assigned errors. The facts are practically undisputed, and, so far as they are material or pertinent to the questions to be determined, are as follows:

The plaintiff, a Kentucky corporation, had, prior to 1889 established in the city of Nashville a telephone plant upon the "single-wire" plan or system. The earth, under this system, is used as the return conductor to complete the electrical circuit, and the overhead single wire must have earth connections at both ends, at the exchange, and at the subscribers'. These earth connections of plaintiff's wire were effected upon private property at both ends, upon the company's property at the exchange, and upon the subscriber's property, by his consent, at the other end. The poles upon which plaintiff's wires were stretched were planted in the public streets by permission of the city council, and by authority of a general statute of this state which empowers telephone and other like companies, both foreign and domestic, to construct, operate, and maintain upon consideration of certain benefits conceded to the state and general government their lines along and over the public highways and streets of the cities and towns of this state, provided that the ordinary use of such public highways, streets, etc., be not thereby obstructed. Acts 1885, c. 66. In telegraphy, of which telephony is but another form, it has been universal practice for half a century to use the earth as the return circuit. The plaintiff plant was constructed in accordance with an approved system, and the one chiefly used in all the large cities of the United States. The electric currents required and used in the operation of plaintiff's plant cause no hurtful disturbance anywhere of natural electric conditions. The plaintiff's plant, thus constructed, was in perfect condition and successful operation, rendering satisfactory service to its patrons, when, in 1889, the defendant, a domestic corporation, having obtained control of the street railways of Nashville, which had, with one unimportant exception, been operated by horse power, constructed and put into operation thereon a single-trolley overhead electric railway system. Defendant's action in this particular was authorized by general public statutes of the state, which provided that street-railway companies that had hitherto used animal power for the operation of their cars might, with the consent of the city authorities, adopt electricity as a motive power. Acts 1887,c. 65; Acts 1889, c. 40. The required consent of the city authorities was obtained by defendant. While there are two systems of electric railways, the single-trolley system and the double-trolley system, the former is the more approved and satisfactory, and the one in general use. It is better adapted than the double-trolley system to single-track railways like defendant's. It is likewise cheaper. The defendant's plant was properly constructed and equipped according to the single-trolley system. The earth is used as a return circuit in the operation of street railways constructed upon the single-trolley plan, but not for those operated upon the double-trolley plan. The defendant, in the operation of its plant, generates or collects electricity in such unusual quantities, and applies and uses it in such violent, turbulent, and varying currents, as to produce a nonnatural and disturbed condition electrically, not only within the streets, but for the distance of half a mile on either side. The plaintiff's entire plant was for a time paralyzed, and its utility destroyed, by the construction and operation of defendant's plant or system. The injuries, so fatal to plaintiff's franchise and plant, resulted by several methods that it is important to describe.

First. Injury resulting from what is known as "conduction" or "leakage." Currents of electricity of great strength and force are generated and applied by defendant in the propulsion of its cars. These abnormal currents of the electrical fluid are poured out or permitted to escape into the streets. They overflow the streets and invade private property for half a mile on either side, and, finding the earth connections of the telephone wires at the exchange, and at the subscribers', pass up into those wires and the telephone instruments, and by reason of their great force and volume substantially destroy the utility of the telephone plant. This interference can be obviated in only one way, viz. by a metallic return circuit for one of the plants. The only metallic return circuit for a railway yet discovered is that known as the "double-trolley" system. The double-trolley system is more expensive than the single-trolley system, and inferior in other respects for the operation of single-tract railways. A recent invention, known as the "McLeuer Device," has been proved by experience to be an effective remedy for the disturbances caused by conduction. This McLeuer device consists of a large copper wire, supported on poles, with which the outgoing telephone wires are connected at both ends, and which serves as a return circuit instead of the earth. The McLeuer device is the most effective and least expensive remedy that has been discovered for the disturbances caused by conduction. The plaintiff was compelled, in order to reclaim its plant, to put in this McLeuer device at a cost of $3,660.58.

Second. Injury resulting from what is called "induction" or "parallelism." The wires of the telephone company and of the railway company are parallel upon some of the streets. It is a physical facts of much importance in electric mechanism that when two wires of two circuits are parallel to each other, and there is a current of varying intensity on one of them, this will produce in the other, in the opposite direction, a current of electricity of similar variation. The amount of induction depends upon variation in current, the distance of the wires from each other, and the length of the parallelism of the wires. The current upon the trolley wires and the feed wire of the railway is quite variable in quantity and intensity, owing to the drain upon the store of the electricity by the moving and stopping of the car. Nor is the electricity, as generated, exactly uniform in its flow from the dynamo. The result is, wherever the telephone wire is parallel with the trolley wire and feed wire, there is induced upon the telephone wire a current whose variation corresponds with the variations of the electrical current on the electric railway wires, thereby producing such disturbances as render the use of the telephone plant impracticable. But one practicable remedy has been discovered for the disturbances caused by induction; that is, to destroy the parallelism of the wires of the two circuits. This remedy is practicable for the telephone company alone. The expense incurred by plaintiff on this account was $856.30.

Third. The plaintiff expended $816 in putting up higher poles on Main street, in consequence of conflict produced by the erection of defendant's poles and wires. The plaintiff's poles occupied one side of Main street, and defendant's poles were put up on both sides of said street, and conflicted with plaintiff's poles and wires, so as to render it necessary for plaintiff to put in new and higher poles. The majority of the court think the defendant could have reasonably avoided this conflict by supporting its wires upon a single line of poles with arms, erected through the middle of the street, or upon the opposite side from the telephone poles and wires. Judge SNODGRASS and the writer of this opinion do not concur in this finding of fact. The contention of the parties will be stated and disposed of in order, and so much of the court's charge as may be deemed material will be stated in the proper connections. The fact that plaintiff sustained loss in consequence of the construction and operation of defendant's plant is admitted by defendant. The amount of that loss is accurately ascertained, and is not a matter of controversy. The sole question for determination is defendant's liability for that loss. The loss by conduction is distinct from that resulting from induction and from conflict of the poles and wires of the two systems. The two items last named-loss by induction and by conflict of poles and wires-may be conveniently considered together as involving the same or similar questions. But loss by conduction will be considered apart from other matters.

1. Is defendant liable for loss that plaintiff sustained from induction and from conflict of the poles and wires of the two systems? This loss, unlike that caused by conduction, occurs upon and within the streets, and is a direct and immediate result of plaintiff's occupation and use of the streets simultaneously with defendant, and would be obviated or remedied by the withdrawal of either party from the streets. It is important to ascertain the exact status and relative rights of these companies as regards their use and occupation of the public streets. Both are quasi public corporations of the same general character. Both serve...