Postal Telegraph Cable Co. v. City of Chicopee
| Decision Date | 04 January 1911 |
| Citation | 93 N.E. 927,207 Mass. 341 |
| Parties | POSTAL TELEGRAPH CABLE CO. OF MASSACHUSETTS v. CITY OF CHICOPEE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Carver Wardner & Goodwin, G. Philip Wardner, and Clifford H. Walker for complainant.
Luther White, City Sol., for respondent.
This is a bill to enjoin the defendant from maintaining certain electric wires upon the plaintiff's telegraph poles. In 1891 the Postal Telegraph Cable Company of New York erected a telegraph line in the city of Chicopee from the line of the city of Springfield on the south, by a somewhat circuitous route, through Chicopee Center to Chicopee Falls, and thence northwesterly to the line of the city of Holyoke, this being a part of a telegraphic system extending into and through other states, which was used in part in interstate commerce. By a series of conveyances through different corporations this line has passed into the ownership of the plaintiff, which holds it, with all the rights, and subject to all the liabilities, of the original owner. It runs through public highways which are post roads. The plaintiff's predecessor in title had a right to construct and maintain such a line, and the plaintiff has a right to maintain it along public highways, under Rev. St U.S. § 5263 (U. S. Comp. St. 1901, p. 3579). This right also is reaffirmed and extended to other classes of corporations by Rev. Laws, c. 122, § 1. But it is subject to the right of cities and towns, by ordinance or by-law, to make any reasonable local regulations in regard to the exercise of it. Rev. Laws, c. 25, § 54; Id. c. 26, § 6. These regulations, under the Constitution of the United States, must be such as do not interfere with or regulate directly interstate commerce. These propositions are all well established by decisions of the Supreme Court of the United States.
On June 15, 1891, the plaintiff's predecessor in title, acting in accordance with Rev. Laws, c. 122, §§ 1, 2, applied to the mayor and aldermen for authority in writing, fixing the location of its line and establishing its rights. In July, 1891, the city of Chicopee passed an ordinance, which is chapter 17 of the Ordinances of that year, and which provided that the mayor and aldermen should have the exclusive power to license the erection and maintenance of telegraph and telephone and other lines of electric wires within the city, and that any license granted pursuant to the ordinance should be subject to the right of the city, free of charge, to place its fire alarm telegraph or other electric wires upon the poles or through the conduit, so licensed to be maintained, and to the right of the city to license the location of lines by any other person or corporation upon said poles and through said conduit, upon payment being made of a reasonable compensation, to be determined by the parties, or, if they fail to agree, to be determined by the mayor. There was also a requirement that all parties licensed to erect poles and fixtures and to maintain electric wires should give to the city an agreement in writing to save it harmless from all claims for damages, costs, expenses, charges or compensation, for or on account of the erection, maintenance or use of such poles, fixtures or wires. It also provided for the appointment and term of office of an inspector of wires, and for many other things, with a view to the proper regulation of the business of maintaining and using electric wires within the city.
The committee on highways, to whom was referred the application of the Postal Telegraph Cable Company for a permit, reported on July 6, 1891, recommending the granting of the petition, with certain modifications, and that the company must agree to comply with the city ordinance entitled 'Electric Wires.' The ordinance was ordained at or about the same time. On the day when the report was filed it was accepted, and the clerk was instructed to notify the petitioner that the petition would be granted upon compliance with the restrictions and agreements therein enumerated. On September 7th, two months later, an order was passed by the mayor and aldermen that permission be given the petitioner to erect its lines in the specified streets, 'upon the following express conditions, a violation of any of which shall, at the election of the board of aldermen, operate as a forfeiture of the permission and rights herein granted, to wit:
'Fourth, that the officers and members of the fire department may, in the event of a fire, and whenever in connection therewith they deem it proper, cut the wires of said company, and that, if so cut, they shall be repaired at the expense of said company.
'Fifth, that said company shall, before any work or construction in said streets or highways is done, execute, under seal, a contract in the words following, all blanks being properly filled, and deliver the same to the city.'
Then followed an agreement to indemnify the city from loss, cost or damage suffered by reason of the erection or maintenance of the poles or wires. This contract was signed by one of the officers of the company, but was never returned to the defendant. By a clerical error the chapter of the ordinance was referred to in this order as 22, instead of 17, the number intended. Chapter 22 is an ordinance relative to public parks, and it makes no reference to locations, poles or wires. Nearly all of the line was built shortly after this location was granted, although about half a mile of it was constructed before the license was granted.
This was the first location granted in the city of Chicopee for the erection and maintenance of electric wires. Since then the city has granted four locations to the Holyoke Street Railway Company, one location to the United Electric Light Company of Springfield, two locations to the J. Stevens Arms & Tool Company, thirty-one locations to the New England Telephone & Telegraph Company, and one location to the Postal Telegraph Cable Company of New York. There are now 10 miles of trolley lines in Chicopee, not including span wires, and feed wires, about 6 miles of municipal fire alarm lines averaging 2 wires, and about 30 miles of poles of the New England Telephone & Telegraph Company, carrying, on the average, a large number of wires.
Beginning more than 10 years ago and ending prior to April, 1908, the city put municipal electric light wires upon 87 of the plaintiff's poles, making 223 hitches in all, and put 80 hitches in all of municipal fire alarm wires on the poles of the plaintiff. Up to the end of that time, all this was done without objection of the plaintiff or its predecessors in title, and without any requirement or tender of payment for the benefit. During this time the general officers of the plaintiff and its predecessors had no knowledge of this use of the poles, although the company's district foreman, whose duty it was to report anything going on along the lines, of interest to the company, knew it and reported it to the circuit manager at Boston. The master's report gives us the ordinance in full, together with an elaborate statement of conditions as to the different lines of wires in different places, and other important facts, much in detail.
It is obvious that in framing the ordinance the city council attempted to make careful provision for the protection of the public, in view of the probability of a great increase in the number of applications for authority to transmit electricity for various purposes through the streets. It is certain that careful regulation of the erection and maintenance of poles and wires in the streets of a city is necessary, in the public interest. As cities grow compact, and the need of using many wires for the transmission of electricity for many different purposes, on closely built streets, becomes more urgent, relief from inconvenience and danger can only be had by the removal of overhead wires from the streets and by placing them in conduits underground. Legislation for this purpose, applicable especially to great cities, has become common in different parts of the country. By the running of lines of wire upon different sets of poles in a crowded city the difficulty of extinguishing fire and preventing a conflagration is often greatly increased, as well as the danger and inconvenience in using the streets in the ordinary way, and the unsightliness of numerous poles and wires. It was therefore reasonable and proper that the ordinance should forbid the unnecessary duplication of lines and of poles in public places. This was done in the requirement that licenses might be granted by the mayor and aldermen to other companies to use the same poles by making reasonable compensation therefor. This was nothing more than a regulation that, if two or more companies desired to run two lines of wires through a street,...
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