The Western Union Tel. Co. v. the Chicago

• Decision Date: 30 September 1877
• Citation: 1877 WL 9705,29 Am.Rep. 28,86 Ill. 246
• Parties: THE WESTERN UNION TELEGRAPH COMPANYv.THE CHICAGO AND PADUCAH RAILROAD COMPANY et al.
• Court: Illinois Supreme Court

86 Ill. 246

1877 WL 9705 (Ill.)

29 Am.Rep. 28

THE WESTERN UNION TELEGRAPH COMPANY

v.THE CHICAGO AND PADUCAH RAILROAD COMPANY et al.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of LaSalle County; the Hon. E. S. LELAND, Judge, presiding.

This was a bill in equity brought by the Western Union Telegraph Company against the Chicago and Paducah Railroad Company and the Atlantic and Pacific Telegraph Company, for an injunction to restrain the last-named telegraph company from the use, for the line of its wire, of the telegraph poles along the road of the railroad company.

The facts appearing are, that in the winter and spring of 1874, the Chicago and Paducah Railroad Company was constructing and had about completed its railroad from Streator to Altamont. It had commenced the construction of a line of telegraph by the erection of a line of poles for a portion of the distance, when negotiations were opened with the Western Union Telegraph Company looking to the adoption of the telegraph line by that company. These negotiations were carried on mainly by Ralph Plumb, the vice-president and general manager of the railroad company, on one side, and Anson Stager, the general superintendent of the telegraph company, on the other. They resulted in the drawing up of a contract in writing, the formal execution of it by the proper officers of the telegraph company, and the submission of a copy of it to the railroad company. The contract provides as follows: that the railroad company shall furnish and distribute for the telegraph company, along the line of the road, cedar poles, and furnish all labor to erect the poles, and to place wires and insulators thereon, and also to furnish the labor to keep the telegraph line in repair; the telegraph company agreeing to furnish wire, insulators, batteries, instruments, and all other material except poles, necessary to the construction of the line, and to furnish all material, including poles, necessary to keep the line in repair. The telegraph company agrees to give the free use of new telegraphic patents, discoveries, or inventions which may be required during the continuance of the contract.

The railroad company grants and agrees to assure to the telegraph company, so far as it legally may, an exclusive right of way along the railroad line and lands for commercial or public telegraph purposes, and to discourage competition by withholding facilities and assistance, performing toward competing lines its legal duty and no more.

The messages of the officers and agents of the railroad company are to be transmitted over the line free of charge, and the telegraph company agrees, in addition, to transmit such messages over its lines throughout the United States, free of charge to the amount, at regular rates, of $100 per month, and for such messages in excess of that amount at one-half the regular rates.

The telegraph company agrees to furnish machinery and batteries for all offices which the railroad company may deem it necessary to open; and the railroad company agrees to receive at its offices, and transmit, all commercial messages which may be offered, at the tariff rates of the telegraph company, rendering monthly accounts of receipts, and paying the same to the telegraph company, and in all such business conforming to the rules and regulations of the telegraph company.

The telegraph company's operator shall perform telegraph duty for both companies, unless the business of both companies is too large for one operator, in which case each pays its own operator.

It was agreed that the telegraph line or wires covered by the contract should form part of the general telegraph system of the telegraph company, and as such, in the department of commercial or public business, should be controlled and regulated by it, the telegraph company fixing and determining all tariffs for the transmission of messages, and all connections with other lines.

The contract to be in force for twenty-five years from the first day of _______, A. D. 1874.

Immediately upon the submission of the draft or copy of the contract to the railroad company, Stager received the following letter from Plumb, the vice-president and general manager of the railroad company:

“ Chicago and Paducah Railroad Company,

Streator, March 5th, 1874.

ANSON STAGER, ESQ., Gen'l Supt. W. U. Tel. Co.:

DEAR SIR,--Yours, with draft of contract proposed for telegraph on the line of Chicago and Paducah Railroad, is received, and has been examined. It is proper to state that so far as we have already erected poles they are cedar, have insulators now on them, and are 200 feet apart. For the remaining distance we will put them up at the rate of 30 to the mile; while you can furnish the balance of the insulators and allow us cost for those put up by us. With this exception, we accept the terms named in the draft of the contract furnished, and ask your company to do the same. If this is done we shall require about 1,000 additional poles to build as far as the track is now ready, 143 miles. What about the four-inch poles referred to being on hand in Chicago? We are very anxious to get the 143 miles up at as early a day as possible, and the remaining thirteen miles as soon as the track is laid in May next.

If you require the contract signed and returned now, we are ready to do it.

Yours truly,

RALPH PLUMB, V. P. and G. M.”

The telegraph company immediately notified the railroad company of its acceptance of the contract, as requested, fixing the date left blank at January...