may be raised by a claimant after such PPEAL from the United States Circuit

A final action by the Land Department under A Court of Appeals for the Third Circuit that act, we adjudge that such dismissal to review a decree which reversed an order must be without prejudice to any suit that of the Circuit Court for the District of New may, according to established principles, be Jersey granting a preliminary injunction in rightfully instituted by a claimant after the same suit. Affirmed. the jurisdiction of the Department in re- See same case below on appeal from orspect of any particular lands has ceased. der granting preliminary injunction, 59 C. Thus modified, the decree of the Circuit C. A. 113, 123 Fed. 33. Court must be affirmed. It is so ordered.

Statement by Mr. Justice McKenna:

This is a bill in equity filed in the circuit Mr. Justice Brewer took no part in the court of the District of New Jersey by the decision of this case.

appellant against the appellee, the Pennsylvania Railroad Company, to prevent the lat

ter from removing from various railroad .(195 U. S. 540)

companies' rights of way the telegraph lines WESTERN UNION TELEGRAPH COM- of the appellant. The bill was filed in aid PANY, Appt. and Petitioner,

of a petition on the law side of the court,

praying the court to issue its process or take PENNSYLVANIA RAILROAD COMPANY such modes of procedure as might be agree

and United New Jersey Railroad & Canal able to the principles and usages of law, to Company.

determine the amount of compensation to be

paid by appellant to appellee for the use of Eminent domain-rights of telegraph com- the right of way of the appellee, and its panies on railway rights of way. branches and connecting lines, to construct,

maintain, and operate a line of telegraph 1. Telegraph companies were not granted, the over and along such railways, subject to the

right of eminent domain, or any right to enter upon and occupy the rights of way of conditions and provisions named in the act railway companies without the latters' con- of Congress of July 24, 1866. 14 Stat. at sent, by the act of July 24, 1866 (14 Stat. at L. 221, chap. 230, Rev. Stat. $$ 5263 et seq. L. 221, chap. 230; Rev. Stat. $8 5263 et seq. U. S. Comp. Stat. 1901, p. 3579. U. S. Comp. Stat. 1901, p. 3579), giving tele

The construction of this act of Congress is graph companies the right to construct, maintain, and operate telegraph lines through and the main question in the case. over the public domain, and “over and along The appellant, which we shall designate any of the military or post roads of the United the telegraph company, contends that under States,” since such statute must be deemed certain acts of Congress the roads of the but an exercise by Congress of its power to railroad company and all other railroads in withdraw from state interference interstate the United States are made post roads, and

commerce by telegraph. 2. Railway rights of way are not made public that by the act of July 24, 1866, the tele

property by charter provisions declaring the graph company has the right to construct, railways "public highways,” so as to subject maintain, and operate lines of telegraph such rights of way to occupation by telegraph along said roads upon the payment of comcompanies without the consent of the railway pensation to the railroad company. In other company, under the act of July 24, 1866, giving telegraph companies the right to con- words, the contention is that by the act of struct, maintain, and operate telegraph lines 1866 the telegraph company is given the through and over the public domain, and power of eminent domain to acquire the “over and along any of the military or post right to occupy with its telegraph lines the roads of the United States."

rights of way of the railroad company. [Nos. 89, 199.]

A summary of the bill is as follows: The

telegraph company is a New York corporaArgued October 19, 20, 1904. Decided De- tion; the railroad company is a Pennsylcember 12, 1904.

vania corporation. The New Jersey Rail

road & Canal Company was incorporated ON N WRIT OF CERTIORARI to the under the laws of New Jersey, and is the

United States Circuit Court of Appeals owner of a railroad extending from Jersey for the Third Circuit to review a case pend-City, in the state of New Jersey, to the Deling in that court on an appeal from a final aware river at the city of Trenton, in said decree of the Circuit Court for the District state, with certain branches, which the bill of New Jersey dismissing a bill to enjoin describes. The railroad company is the ownany interference with the use by the West- er of a line of railroad extending from the ern Union Telegraph Company of railway city of Philadelphia to the city of Pittsrights of way for telegraph purposes. burg, in the state of Pennsylvania, and in Affirmed. Also

possession and control of the railroads of the New Jersey Railroad & Canal Company | also agreed to transmit the messages of the in New Jersey, under a lease or leases for a railroad company at a compensation which period of 999 years from the 1st of July, was stated. 1871. By the laws of New Jersey the said The provisions for the termination of the railroads were created and made and are agreement and in the event of its terminanow public highways, and hence are subject tion are as follows: to occupation and use of telegraph com- "Thirteenth. This agreement is to continpanies under the provisions and conditions ue in force for and during the term of twenof the act of Congress of July 24, 1866. ty years from its date, and shall be binding

The telegraph company was organized in upon the respective companies, their succes1851, and began then to construct and has sors and assigns, and neither party shall constructed and acquired a continuous sys- have the right to assign the whole, or any tem of telegraph lines, which extends part hereof, without the consent of the through all of the states and territories of other, given in writing. the United States, and connects with telegraph lines in the Dominion of Canada, and “Fifteenth. If any monthly payment here.. with lines also in the Republic of Mexico in provided for be not made within sixty and South American Republics, and with days after it shall have become due, and and by submarine cables with the systems of shall have been demanded by written notice, all telegraph lines of foreign countries. delivered to the treasurer, or an executive

The system operated directly by the tele- officer of the party in default, or if any graph company consists of over 192,000 other covenant herein made shall not, after miles of poles and cables, and over 900,000. sixty days' written notice of default and demiles of wire; and an important part of mand made by either party in the manner the system and connected with its main of- herein provided, be fulfilled by the other fice in New York city, and with other lines party, the contract may, at the option of the leading to the important cities of the West, party demanding such fulfilment, be reis the lines of telegraph over and along the scinded, and such rescission shall not relieve lines of railway operated by the railroad the party in default from liability for any company, connecting Jersey City with Phil- amount due, or for damages for nonfulfiladelphia, and connecting with other lines of ment of such covenant or of any other covthe system.

enant. The lines of telegraph along the railways “Sixteenth. If no new agreement be made in New Jersey were originally constructed by the parties hereto, the telegraph company by the American Telegraph Company, a cor- shall, at the termination of this contract, or poration of the state of New Jersey, with at any time hereafter, upon receiving writthe consent of, or under contracts and ar- ten notice from the railroad company, rerangement with the railway company then move, within six months from the receipt of owning the said lines of railway, and were said notice, all of its poles and wires, and constructed more than forty years ago; and leave the property of the railroad company since the 20th of September, 1881, the tele- in good condition and free from the encum. graph lines over the right of way of said brance thereof to the satisfaction of the genrailroads have been maintained and operated eral manager or other proper officer of the and compensation paid therefor under the railroad company, and if not so removed the provisions of a contract between the tele- railroad company may remove them at the graph company and the railroad company. expense of the telegraph company: ProThe contract granted to the telegraph com- vided, however, That the payment agreed to pany the right to place, maintain, and use be made by the telegraph company to the upon the line of the right of way of the rail. railroad company in the sixth clause hereof, road company, and of the railroads owned, and by the railroad company in the eighth operated, or leased by it, a single line of tel. clause, shall not apply to the said six egraph poles (in certain cases two were au- months, the companies respectively hereby thorized), with the privilege of erecting and expressly agreeing to waive the same.” maintaining thereon such number of wires The agreement contains the following proas the telegraph company might from time vision: to time elect, said lines to be located and “Any easement or right of way heretofore placed under the direction of an officer of acquired by the telegraph company upon any the railroad company.

of the roads embraced in this agreement, The telegraph company agreed to pay an- either directly by contract or by assignment nually for the privileges granted the sum of of contracts or agreements made by other $75,000, in monthly instalments of $6,250, companies with the railroad company, or and to deliver to the railroad company cer- with any of the companies whose roads or tain poles and wire, which were then on cer- property are embraced in the schedule heretain of their roads. The telegraph company 'to attached, is hereby relinquished and aban.

doned, and the rights and easements of the Company," and that the contract between telegraph company upon the right of way of the companies had terminated under its said railroad company shall be such only as terms on the 20th of September, 1901, and are granted by this agreement, and shall the notice to the telegraph company to recease with its termination."

move its poles had been given in accordance The agreement was carried out and the with the provisions of the contract. A willpayments made as provided, the last being ingness to discuss any temporary arrangemade on the 20th of June, 1902.

ment which might be necessary during the On the 14th of May, 1902, the railroad time allowed for the removal of the poles of company notified the telegraph company in the telegraph company was expressed. A writing to remove its poles, wires, and other somewhat lengthy reply was made, in which property from the right of way and prop- the telegraph company claimed that since erty of the railroad company and of the some of the contracts referred to by the other companies mentioned in the agree- railroad company were perpetual in their ment, within six months from the 1st day of terms, or ran during the life of the parties, June, 1902. The notice stated that in de- they could not be terminated by one party fault of compliance the railroad company without the consent of the other; asserted a would itself cause such poles, wires, and right, under the laws of Congress and the other property of the telegraph company to laws and Constitution of the state of Pennbe removed from the right of way at the ex- sylvania, to maintain and operate its lines pense of the latter company.

of telegraph on the railroad company's It is alleged in the bill that, by reason of roads, subject only, at most, to make a fair the facts set forth, and by reason of the re- and reasonable compensation for such right, ceipt of payments after the 21st of Septem- which it offered to pay, and requested, if the ber, 1901, and after the notice of removal, railroad company declined to contract the agreement was continued in force, and further with it, a meeting for the purpose that the railroad company had no right, not- of agreeing upon the amount of such comwithstanding the notice of May 14, 1902, to pensation, or to submit the matter to arbi. remove or cause to be removed from the line tration. The railroad company replied that of its railways the poles, wires, and tele- the meeting requested would be useless, as graph property of the telegraph company at the telegraph company asserted rights upon the end of six months from the 1st day of the lines of the railroad company which June, 1902.

could not be conceded. It was stated in the It is also alleged that the lines of tele- reply that the railroad company had agreed graph have been maintained and operated and contracted with the Postal Telegraph over the lines of railway without interfer- Cable Company covering the railroads in. ing with the ordinary use and operation cluded in the contract with the telegraph thereof, or the ordinary travel thereon, and, company, and that the Postal Telegraph as now located, maintained, and operated, Cable Company would immediately comcan be continued so as not to interfere with mence transacting a commercial telegraph the future operation and maintenance of the business at the stations of the railroad comsaid railways, or the ordinary travel upon pany. The railroad company offered to perthem, subject only to such slight changes of mit the telegraph company to do business some of the poles of said lines as may be in- at the railroad stations until September 30 cident to the construction of additional next ensuing (1902); and for the purpose tracks upon said right of way, or shifting of avoiding unnecessary loss to the telegraph the tracks already existing on said railways. company, incident to the removal of its

May 20, 1902, the president and general poles, the railroad company expressed a manager of the telegraph company, in a let- willingness to purchase, at a fair valuation, ter addressed to the president of the rails such of the lines as it could make use of. road company, acknowledged receipt of the It is alleged in the bill that the notice notice of removal of May 14, and stated that given to the telegraph company to remove its he understood that negotiations had been in poles from the railroads, and the refusal of progress between the officers of the respec- the railroad company to negotiate further tive companies for a renewal of the contract with the telegraph company, were not inof September 20, 1881, and declared that he duced from any compulsion or necessity to would be glad to take up the matter ac- use the space occupied by the telegraph tively either in New York or in Philadel- lines, but that the purpose of the railroad phia, at the convenience of the president of company is to place upon the lines of railthe railroad company. The following day way telegraph lines to be owned or used by the president of the railway company re- another telegraph company; and it is al. plied, stating that none of the companies leged that the lines of the telegraph comnamed "desires to renew or extend its con- pany will not interfere with the ordinary tract with the Western Union Telegraph 'travel and use of the railways.

The directors of the telegraph company ac-| telegraph company now organized, or which cepted the act of July 24, 1866, and filed an may hereafter be organized under the laws acceptance with the Postmaster General of of any state in this Union, shall have the the United States June 8, 1867.

right to construct, maintain, and operate The acts of Congress hereinafter men- lines of telegraph through and over any portioned and set out are referred to in the bill, tion of the public domain of the United and a full compliance therewith alleged, States, over and along any of the military whereby, it is further alleged, the telegraph or post roads of the United States which company became and is entitled to maintain have been or may hereafter be declared such its lines on the railroads of the railroad by act of Congress, and over, under, or company upon paying just compensation, the across the navigable streams or waters of payment of which was offered. The prayer the United States: Provided, That such lines is that the court order and decree the of telegraph shall be so constructed and amount of compensation to be paid by the maintained as not to obstruct the navigatelegraph company, or, if the court order tion of such streanis and waters, or interfere compensation to be ascertained at law, it with the ordinary travel on such military or then be decreed that upon payment of such post roads. And any of said companies compensation a perpetual injunction issue. shall have the right to take and use from

A preliminary injunction was ordered. such public lands the necessary stone, tim120 Fed. 98). It was reversed by the cir- ber, and other materials for its posts, piers, cuit court of appeals. 59 C. C. A. 113, 123 stations, and other needful uses in the conFed. 33.

struction, maintenance, and operation of A controversy ensued upon the form of said lines of telegraph, and may pre-empt the decree. The circuit court of appeals and use such portion of the unoccupied pubsimply reversed the order of the circuit lic lands subject to pre-emption, through court granting a preliminary injunction. which its said lines of telegraph may be The telegraph company moved that the de located, as may be necessary for its stations, cree be modified so as to direct the dismissal not exceeding forty acres for each station; of the bill. The motion was refused, and but such stations shall not be within fifteen the telegraph company took an appeal to miles of each other. this court. Subsequently the circuit court Sec. 2. And be it further enacted, That sua sponte entered an order dismissing the telegraphic communications between the sevbill, and the telegraph company appealed eral departments of the government of the therefrom to the circuit court of appeals. United States and their officers and agents The case was then removed to this court by shall, in their transmission over the lines of certiorari.

any of said companies, have priority over all

other business, and shall be sent at rates to Messrs. H. D. Estabrook, Rush Tag- be annually fixed by the Postmaster General. gart, John F. Dillon, and Richard Vliet “Sec. 3. And be it further enacted, That Lindabury for the Western Union Telegraph the rights and privileges hereby granted Company.

shall not be transferred by any company Mr. John G. Johnson for the railroad acting under this act, to any other corporacompany.

tion, association, or person: Provided, how

ever, That the United States may at any Mr. Justice McKenna, after stating the time after the expiration of five years from case as above, delivered the opinion of the the passage of this act, for postal, military, court:

or other purposes, purchase all the telegraph By an act of Congress approved July 7, lines, property, and effects of any or all of 1838 [5 Stat. at L. 271, chap. 172] and by said companies at an appraised value, to be subsequent acts (March 3, 1853, 10 Stat. at ascertained by five competent, disinterested L. 255, chap. 146; Rev. Stat. § 3964, U. S. persons, two of whom shall be selected by Comp. Stat. 1901, p. 2707; June 8, 1872 [17 the Postmaster General of the United States, Stat. at L. 283, chap. 335,]) railroads with two by the company interested, and one by in the limits of the United States were made the four so previously selected. post routes or roads.

“Sec. 4. And be it further enacted, That By act of March 1, 1884, it is provided before any telegraph company shall exercise “that all public roads and highways, while any of the powers or privileges conferred by kept up and maintained as such, are herehy this act, such company shall file their writdeclared to be post routes.” 23 Stat. at L. ten acceptance, with the Postmaster Gener3, chap. 9, U. S. Comp. Stat. 1901, p. 2708. al, of the restrictions and obligations reThe act of 1866 is as follows:

quired by this act.” “Be it enacted by the Senate and House of The construction of this act is the fundaRepresentatives of the United States of mental question in the case. The telegraph America in Congress assembled, That any company contends that the necessary impli

cation from the provisions of the act is that Louisville Railroad Company. On the 14th telegraph companies may enter and appro- of February, 1873, the legislature of Florida priate for their poles and lines a part of the passed an act, which was amended in 1874, rights of way of railroads in invitum upon authorizing the last-named company to conpaying just compensation. In other words, struct and maintain a telegraph line along thut the act invests telegraph companies its railroad, and to connect with lines in with the right of eminent domain. The rail- and out of the state. This was in the terroad company denies this construction, and ritory embraced by the exclusive grant to asserts that the act gives the consent of the the Pensacola Telegraph Company. government to telegraph companies to con- On the 24th of June, 1874, the Pensacola struct lines through its public domain and & Louisville Railroad Company granted to over and along its military and post roads, the Western Union Telegraph Company the which are not the property of private cor- right to erect a telegraph line upon its right porations, and across navigable streams and of way, and transferred to it all the rights waters. The act gives no right, the railroad and privileges conferred by the act of Februcompany contends, to appropriate private ary, 1873, and 1874. The Western Union property, but is an exercise by Congress of Company immediately commenced the erecthe national power over interstate commercetion of the line, but before its completion to secure telegraph companies from "hostile the Pensacola Telegraph Company filed a state legislation or contracts violative of an bill to enjoin the work, on account of the announced public policy.” In other words, alleged exclusive right of that company unthe contention of the railroad company is der its charter. Upon the hearing a decree that, after the act of 1866 was passed, it was passed dismissing the bill, and an ap"became impossible for the states, by any peal was taken to this court. The Western legislation, to exclude telegraph companies Union Telegraph Company had accepted the from the post roads." The contentions of act of 1866, and claimed to erect and mainthe parties are opposed, therefore, only as to tain a telegraph line under its agreement the degree of right conferred by the act. It with the Pensacola & Louisville Railroad is asserted by one party, and unqualifiedly Company, and under the provisions of that admitted by the other, that Congress has act. The case, therefore, presented an issue power to grant the power of eminent domain between rights asserted under a statute of to corporations organized for national pur- Florida and rights given and protected by poses, and the arguments of the parties are the act of 1866. The issue was important. addressed only to the considerations which The act of 1866 was presented for the first serve to determine the intention of Congress. time for interpretation, and upon it deBoth parties also claim authority for their pended not only the private rights of the respective contentions.

contending companies, but the more serious 1. The act of 1866 came before this court conflict of powers derived from the national for consideration over twenty-five years ago, and state governments. The questions, in Pensacola Teleg. Co. v. Western U. Teleg. therefore, which bore on these issues called Co. 96 U. S. 1, 24 L. ed. 708. The lan- for, and, it is evident from the opinion of guage of the court defining the rights con- the court, received, careful attention. ferred by the act has recently been repeated The first of these questions was whether and sanctioned in Western U. Teleg. Co. v. the act of 1866 was a grant to telegraph Ann Arbor R. Co. 178 U. S. 239, 44 L. ed. companies of portions of the public domain 1052, 20 Sup. Ct. Rep. 867. In both cases and of rights in the public domain, or a the judgment of the court was adverse to grant of rights having a broader field of the rights claimed under that act by the tel. exercise,-a grant of rights having operation egraph company in the case at bar. A re- and to be exercised throughout the whole of view of those cases, therefore, and a consid- the United States. There was a marked diferation of the arguments directed against ference in the rights contended for, and them and in support of them will constitute they depended upon different powers. In the the most appropriate discussion of the ques- public domain the government was proprietions now presented, and apply immediately tor as well as sovereign, elsewhere only sovto their solution the authority of this court. ereign, and on its powers as sovereign there

In Pensacola Teleg. Co. v. Western U. were limitations, arising not only from the Telcg. Co. 96 U. S. 1, 24 L. ed. 708, the leg- rights of the states, but arising from the islature of Florida in 1866 granted to the ownership of private property and the nePensacola Telegraph Company “the sole and cessity of a grant of eminent domain to apexclusive privilege and right” of maintain propriate it. These limitations were of coning and operating lines of telegraph through sequence in fixing exactly the rights concertain counties of the state. In 1872 the ferred by the act of 1866, and were regarded property of the Alabama & Florida Railroad by the court in its construction of that act. Company was transferred to the Pensacola & The court declared, through Chief Justice