State ex rel. Wis. Tel. Co. v. Janesville St. Ry. Co.

• Decision Date: 30 January 1894
• Citation: 87 Wis. 72,57 N.W. 970
• Parties: STATE EX REL. WISCONSIN TEL. CO. v. JANESVILLE ST. RY. CO.
• Court: Wisconsin Supreme Court

87 Wis. 72

57 N.W. 970

STATE EX REL. WISCONSIN TEL. CO.

v.JANESVILLE ST. RY. CO.

Supreme Court of Wisconsin.

Jan. 30, 1894.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Mandamus, on the relation of the Wisconsin Telephone Company, to the Janesville Street-Railway Company. Writ denied. Relator appeals. Reversed.Miller, Noyes & Miller and Fethers, Jeffris & Fifield, for appellant.

Jackson & Jackson, for respondent.

ORTON, C. J.

This is an appeal from an order of the circuit court sustaining the demurrer of the respondent to the relation of the appellant, and quashing the alternative writ of mandamus. The material facts set out in the relation are briefly as follows: The relator, the telephone company, obtained its right from the state to do business in the city of Janesville, and to erect and maintain poles, cross arms, and wires over and through the streets, ways, and alleys of said city, and operated telephone wires and erected poles in the streets, ways, and alleys, with the permission, consent, and approval of said city, from 1879 until the present time, at a great expense, and has now 151 telephones in said city and suburbs. The main trunk lines of the poles and wires have been and are now maintained upon East, Main, and Milwaukee streets. All the rights, right of way, and easements that it had previously enjoyed as a telephone company were confirmed by an ordinance of said city, dated October 10, 1892, a copy of which is attached hereto, and marked “Exhibit 1,” and the company has since exercised and enjoyed the same, and all the said lines and poles have been where they are now for years, with a few exceptions, and where they should be. The relator has complied with the statutes of the state, and paid its license fee, and has a license to do business as a telephone company. The defendant is a corporation by the laws of the state, and obtained its rights to operate a street railway in said city by horse power by ordinances of said city, dated October 8 and November 25, 1885, and operated the same on the same streets upon which the relator had its poles and wires, among others East, Main, and Milwaukee streets. By an ordinance of the city, dated December 15, 1891, the former ordinances were so amended as to give the defendant the right to use “electrical power” in operating its street railway, and on a single or double track, with all necessary curves, turnouts, switches, poles, brackets, and wires. The defendant has erected its poles, wires, and overhead wires over and above the streets already occupied by the relator in the manner aforesaid, and, among others, East, Main, and Milwaukee streets, in said city. The defendant company is compelled to use very strong conductors of electricity to run its cars, and it uses main and trolley wires, which are not insulated, while the wires of the relator are insulated, and, though good and sufficient, can only use feeble and delicate currents of electricity in telephoning. The currents used by the defendant are exceedingly dangerous to property and persons, by setting fires to buildings, and by injuring persons coming in contact therewith. The poles of the relator are liable to break, and the wires to break, and fall, by the force of storms, and cannot be prevented; and, when the wires do fall, they make direct crosses with the wires of the defendant, and the high-tension currents of electricity used by the defendant pass in the wires of the relator, and destroy its instruments and other property, and endanger the health of its employes and others, and are liable to set fires in the city. If the defendant had constructed its railway system properly, it would have placed “guard wires” at not less than four feet above its trolley wires, and in that manner prevented such serious consequences by restraining and carrying off the high-tension currents safely. Such guard wires, so placed and maintained, are the approved method of avoiding or preventing the threatened mischief. The defendant is required to apply such safeguards by an ordinance of the city, dated October 10, 1892. The relator has complied with said ordinance, and the defendant has failed to do so. This is the substance of the relation.

We are of the opinion that the facts set out in the relation are sufficient to entitle the relator company to the remedy asked for: (1) The telephone company occupied the streets of the city with its poles and wires, and was in the safe and successful prosecution of its business, under the authority of law, and “by the permission, consent, and approval” of the city of Janesville. (2) The defendant company afterwards sets its poles and extends its wires along the same streets, so that its lines frequently cross the lines of the relator, and in such near contact as to endanger the persons in its employment, and its property, and threaten the destruction of its business. Has the defendant the right to do this, if it is in its power to prevent the threatened mischief? By the common maxim that one person has no right to use his own to the injury of another, and by the common principles of elementary law, it would seem that it had not. The defendant has intruded upon the established business of the relator in such way as to endanger it and the persons engaged in it, when, by the adoption of such a simple safeguard, and the only practicable one, such danger can be avoided, and the business of both subsist together. Ought not the defendant to be compelled to adopt such safeguard? These facts are admitted by the demurrer. The learned counsel of the respondent insists that the relator had not such priority of its business, by any right. It is averred in the relation that it was established according to law, and prosecuted “by the permission, consent, and approval” of the city. That would clearly give the relator a right, and that right and its enjoyment were prior to any right of the defendant. The relator's wires are up in the streets, bearing sufficient electrical power to make telephonic communications, and the defendant crosses them in many places with its wires, bearing electrical power sufficient to propel the cars upon its street railway, and the first storm that comes may blow down the poles and wires of the relator, and its wires come in contact with the wires of the defendant, where they cross each other, and become charged with its dangerous currents of electricity, set fire to the buildings in which the telephone instruments are used, and injure other property, and the persons employed in the “Exchange” and other places, so as to endanger or destroy the business of the relator. Ought not the defendant to be compelled to adopt the above safeguards to prevent this threatened mischief, or to withdraw its lines from the vicinity of the relator's wires? The company that caused the mischief ought to repair it.

Section 7 of the ordinance of the city dated October 10, 1892, imposes this duty upon the company using this “electrical power system” in all cases, and requires it to apply such safeguards under a penalty. But much more is it the duty of such company when it is an intruder upon the already...