Mutual Union Tel. Co. v. City of Chicago

• Decision Date: 01 March 1883
• Citation: 16 F. 309
• Parties: MUTUAL UNION TEL. CO. v. CITY OF CHICAGO and another
• Court: U.S. District Court — Northern District of Illinois

16 F. 309

MUTUAL UNION TEL. CO. v. CITY OF CHICAGO and another

United States Circuit Court, N.D. Illinois.

March, 1883

Lyman Trumbull, for plaintiff.

Julius Grinnell, for defendant.

DRUMMOND J.

The plaintiff is a corporation of the state of New York, and being desirous of establishing a telegraph line in Chicago made application to the city council for permission to establish such line, and on December 29, 1881, an ordinance was passed for that purpose, giving the company the right to erect poles and to place wires upon them for telegraph purposes in the manner therein described. But the sixth section of the ordinance declared 'that the line of telegraph poles erected, and the wires strung under the provisions of this ordinance, shall be of a temporary character only, and for the purpose of enabling the said Mutual Union Telegraph Company to do business while it is perfecting a system of underground telegraphs; and due diligence shall be used to perfect and put in operation said system on or before the first day of March, A.D. 1883, and all the rights and privileges granted under this ordinance shall terminate on the first day of March, 1883, and constructions thereunder be removed at the expense and costs of said company, its successors or assigns. ' The ordinance further provided that before the company should have the right to 'erect the said temporary line of poles and string wires,' it should execute to the city a bond with proper sureties to be approved by the mayor, in the penal sum of $25,000, the condition of which bond was prescribed by the ordinance; and accordingly a bond with sufficient sureties was in January, 1882, executed to the city with the condition prescribed. The condition required 'that the company should pay all the damages caused to the city, or to any person or property by the erection of the line or the removal thereof, and that the company should at all times save and keep the city harmless from all damages, loss, or expense caused by the erection of the poles and the placing of the wires thereon, by the maintenance of the same and the removal thereof, and that the company should take down and remove the poles and wires at the time designated in the ordinance, or sooner if ordered and directed by the mayor, and should pay or cause to be paid all expense, cost, or damage that the city might be put to or sustain in removing or taking down the poles or wires in case the company should fail or neglect to remove them at the time designated, or upon the order and direction of the mayor. A further condition was that the company should at all times comply with the ordinance and with the provisions thereof, and with the direction or orders of the mayor or commissioner of public works in regard to the erection, maintenance, or removal of the same. The defendant Harrison who is the mayor of the city, assuming that he had the right under the ordinance after the first day of March to cut and remove the wires from the telegraph poles used by the plaintiff, directed it to be done, and they were accordingly severed and the company prevented from using them for telegraphic purposes. After this had been done, the company on the fifth of March filed a bill in this court alleging the destruction of the wires by the defendant, and declaring that it had, in good faith, made experiments to perfect a system of underground telegraphing before the first day of March and expended large sums for that purpose, which had not been successfully accomplished, and that it could not, therefore transmit telegraphic dispatches otherwise than upon the wires placed upon the poles before that time used by the company. The bill prays that the defendants may be restrained from further cutting, interrupting, or removing any of the wires or poles of the plaintiff, and from interfering with the plaintiff in reconnecting, maintaining, repairing, and operating the same; or that the defendants may be restrained from doing any of the acts complained of until such time as by the exercise of due diligence a practical method of underground telegraphy could be devised and put in operation.

It appears that the defendants have not done anything to the poles or wires of the plaintiff since the bill was filed, of which any complaint is now made. No notice was given to the plaintiff, before the acts done by the defendant, which requested the removal of the poles or wires, nor was any notice given of the intentions of the mayor. He seems to have acted of his own motion, and without any express direction from the city council. It should also be stated that there is an allegation in the bill that in June, 1881, the plaintiff, by an arrangement with the Chicago & Milwaukee Telegraph Company, obtained the right to string and maintain upon the poles of that company telegraphic wires, but there is no statement in the bill of the authority under which that company had erected poles or placed telegraphic wires upon them. There is a statement that the plaintiff has accepted the provisions of the act of congress of July 24, 1866, but the date of the acceptance is not mentioned. When the motion for an injunction was argued, a day or two since, the court intimated that the mayor had not the right to cut and remove the wires in the manner stated, and without notice to the plaintiff, and also expressed a doubt whether the acts complained of being past, it could, under the facts of the case, by way of injunction, enable the plaintiff to replace the wires for the purpose of resuming telegraphic operations in the city. The counsel of the parties, since the argument, have furnished briefs and also cited authorities upon these two points, the principal one being whether the plaintiff can be permitted to put itself in the position it was before the acts complained of were performed by the mayor. What may be said by the court must be understood as limited to the rights of the parties under the ordinance already referred to and their acts connected therewith. If the plaintiff has other rights by contract with other telegraphic companies, they must stand upon the authority of those companies to confer such rights.

On further consideration, I am not disposed to change the opinion heretofore expressed as to the right of the mayor to cut and remove the telegraph wires. The right existed either by virtue of his authority as executive officer of the city or by virtue of the ordinance. The rights of the plaintiff exist only under the ordinance, but it is thought that the mayor derived authority in some way from the bond executed by the plaintiff. The terms of the ordinance as to the plaintiff's rights and those of the condition of the bond are not in entire harmony, and, although in the latter, power is apparently given to the mayor to terminate the contract before the first of March, yet there can be no doubt that on a non-compliance with that condition the only effect of it would be the right, perhaps, to bring a suit upon the bond. It did not clothe the mayor with authority of his own motion to destroy the property of the plaintiff. Because a contract of lease is terminated by efflux of time the lessor has no right to dispossess the lessee by violence and destroy his property. If, by the terms of the ordinance authority had been expressly given to the city to remove the poles and wires of the plaintiff after the first of March, that might have operated by way of estoppel upon the telegraph company. But no such power is contained in the ordinance, nor is it fairly to be inferred from the condition of the bond, nor did the power exist by virtue of the...