Town of Essex v. New England Telegraph Company of Massachusetts

• Decision Date: 06 December 1915
• Docket Number: No. 56,56
• Parties: TOWN OF ESSEX, Appt., v. NEW ENGLAND TELEGRAPH COMPANY OF MASSACHUSETTS
• Court: U.S. Supreme Court

239 U.S. 313

36 S.Ct. 102

60 L.Ed. 301

TOWN OF ESSEX, Appt.,

v NEW ENGLAND TELEGRAPH COMPANY OF MASSACHUSETTS.

No. 56.

Argued and submitted November 5, 1915.

Decided December 6, 1915.

Messrs. Romney Spring, George E. Mears, and William G. Thompson for appellant.

[Argument of Counsel from pages 314-315 intentionally omitted] Mr. G. Philip Wardner for appellee.

Mr. Justice McReynolds delivered the opinion of the court:

Appellant was enjoined by the decree below from interfering with the operation of lines owned by the appellee company. The controversy arose under the act of Congress approved July 24, 1866 (14 Stat. at L. 221, chap. 230, Rev. Stat. §§ 5263 et seq. Comp. Stat. 1913, § 10,072), which declares that companies accepting its provisions 'shall have the right to construct, maintain, and operate lines of telegraph . . . over and along any of the military or post roads of the United States,' provided they do not interfere with ordinary travel. Appellant insists that, as construed and applied below, the statute transcends the powers granted to Congress by the Constitution; and there is sufficient substance in the claim to give us jurisdiction.

The appellee was incorporated under the laws of Massachusetts, April 7, 1884. Immediately thereafter it filed with the Postmaster General a written acceptance of the restrictions and obligations prescribed by the act of July 24, 1866, and constructed lines of wires strung upon poles across the commonwealth of Massachusetts and particularly along certain streets and roads in the town of Essex. These have been continuously operated in connection, on the east, with cables reaching foreign countries, and, on the west, with wires leading to all parts of the Union; for a long time they have constituted an important part of the Postal Telegraph & Cable system; and over them pass great numbers of interstate and foreign messages, many being transmitted for the United States under official regulations.

The especially pertinent provisions of the Massachusetts laws relating to companies incorporated for transmitting intelligence by electricity, in force during 1884 and long thereafter, appear in Public Statutes, chapter 109, §§ 2, 3, 15, and chapter 27, § 49, and are as follows:

'Each company may under the provisions of the following section construct lines of electric telegraph upon and along the highways and public roads, and across any waters within the commonwealth, by the erection of the posts, piers, abutments, and other fixtures (except bridges) necessary to sustain the wires of its lines; but shall not incommode the public use of highways or public roads, nor endanger or interrupt the navigation of any waters.'

'The mayor and aldermen or selectmen of a place through which the lines of a company are to pass shall give the company a writing specifying where the posts may be located, the kind of posts, and the height at which, and the places where, the wires may run. After the erection of the lines, having first given the company or its agents opportunity to be heard, they may direct any alteration in the location or erection of the posts, piers, or abutments, and in the height of the wires. Such specifications and decisions shall be recorded in the records of the city or town.'

'No enjoyment by a person or corporation for any length of time of the privilege of having or maintaining telegraph posts, wires, or apparatus in, upon, over or attached to any building or land of other persons, shall give a legal right to the continued enjoyment of such easement or raise any presumption of a grant thereof.'

'The selectmen of a town may empower citizens of Massachusetts to establish and maintain, in such town, posts, wires and other apparatus for telegraphic and tele- phonic communication, in conformity with the provisions of chapter 109.'

In Pierce v. Drew, 136 Mass. 75, 76, 77, 49 Am. Rep. 7 (1883), the supreme court said of chapter 109:

'That it was the intent of the statute to grant to those corporations, formed under the general incorporation laws, for the purpose of transmitting intelligence by electricity, the right to construct lines of telegraph upon and along highways and public roads upon the locations assigned to them by the officers of the municipality wherein such ways are situate, cannot be doubted. . . .

'No right is given these companies to use the highways at their own pleasure, or to compel in all cases, as the plaintiff suggests, locations therein to be given them by the municipal authorities. The second section of the statute is to be construed with the third section, and shows an intention that a legally constituted board shall determine not only where, but whether, there can be a location which shall not incommode the ordinary public ways, with full power to revise its own doings, and to correct any errors which the practical working of the arrangements may reveal.'

The evidence warrants the conclusion that in 1884 appellee made written application to the Essex selectmen for a right of way, but their records disclose nothing concerning the matter. Directly thereafter, without opposition, the existing lines were constructed along 4 miles of the town's highways. During many succeeding years no objection appears to have been made to their operation, and, until a short time before this suit was begun, their presence was acquiesced in. Certainly no sort of affirmative action was taken to interfere with them; and there is evidence indicating that half the poles were relocated under direction of a selectman, about 1895, when the electric railway was laid down.

In 1902, repairs being needed, the selectmen were peti- tioned to locate the poles and license their future maintenance. This request was not granted. In 1905, repairs having become imperative, another petition for a location was presented. This was refused; officers of the town then denied appellee's right to use the highways, and threatened to prevent repairs, by force if necessary, and to take action against future operation of the lines within its limits. Thereupon, July 31, 1905 (twenty-one years after original construction), the telegraph company, relying on the act of 1866, commenced this proceeding in the district court, seeking an injunction against threatened interference. By a temporary order granted September 5, 1905, the town, its officers, agents, and employees, were 'enjoined and restrained, until the further order of this court, from interfering in any manner whatsoever with the complainant's line of telegraph in said defendant town, or with the location or relocation by the complainant on the roads and highways now occupied by its said line of telegraph in said defendant town, or with the resetting of the poles of said line in said town by the complainant, or with the complainant's making such repairs and changes as are necessary to put said line in a condition...