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

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

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.

[57 N.W. 971]

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...