Statement of the Case.

195 U. S.

WESTERN UNION TELEGRAPH COMPANY v. PENNSYLVANIA RAILROAD COMPANY et al.

APPEAL FROM AND ON WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

Nos. 89, 199. Argued October 19, 20, 1904.-Decided December 12, 1904.

The act of Congress of July 24, 1866, 14 Stat. 221, Rev. Stat. §§ 5263 et seq., giving telegraph companies the right to construct and operate their lines through, along and over the public domain, military or post roads and navigable waters of the United States, was a legitimate regulation of commercial intercourse by telegraph among the States and appropriate legislation to carry into execution the power of Congress over the postal service; it was merely an exercise of National power to withdraw such intercourse from state control and interference.

This court has already held in Pensacola Telegraph Co. v. Western Union Tel. Co., 96 U. S. 1, and Western Union Tel. Co. v. Ann Arbor Railroad Co., 178 U. S. 239, and now follows those decisions that the act of July 24, 1866, does not confer upon telegraph companies, the right to enter upon private property without the consent of the owner or grant them the right of eminent domain.

A railroad's right of way is property devoted to a public use and has often been called a highway, and as such is subject, to a certain extent, to state and Federal control but it is so far private property as to be entitled to the protection of the Constitution so that it can only be taken under the power of eminent domain; and a condition precedent to the exercise of the power of eminent domain is that the statute conferring it make provision for compensating the owner.

No statute of New Jersey makes railroad property subject to occupation by telegraph companies under the act of Congress of 1866.

THIS is a bill in equity filed in the Circuit Court of the District of New Jersey by the appellant against the appellee, the Pennsylvania Railroad Company, to prevent the latter from removing from various railroad companies' rights of way the telegraph lines of the appellant. The bill was filed in aid of a petition on the law side of the court, praying the court to issue its process or take such modes of procedure as might be

agreeable to the principles and usages of law, to determine the amount of compensation to be paid by appellant to appellee for the use of the right of way of the appellee, and its branches and connecting lines, to construct, maintain and operate a line of telegraph over and along such railways, subject to the conditions and provisions named in the act of Congress of July 24, 1866. 14 Stat. 221, c. 230; Rev. Stat. §§ 5263 et seq.

The construction of this act of Congress is the main question in the case.

The appellant, which we shall designate the Telegraph Company, contends that under certain acts of Congress the roads of the Railroad Company and all other railroads in the United States are made post roads, and that by the act of July 24, 1866, the Telegraph Company has the right to construct, maintain and operate lines of telegraph along said roads upon the payment of compensation to the Railroad Company. In other words, the contention is that by the act of 1866 the Telegraph Company is given the power of eminent domain to acquire the right to occupy with its telegraph lines the rights of way of the Railroad Company.

A summary of the bill is as follows: The Telegraph Company is a New York corporation; the Railroad Company is a Pennsylvania corporation. The New Jersey Railroad and Canal Company was incorporated under the laws of New Jersey and is the owner of a railroad extending from Jersey City in the State of New Jersey to the Delaware River at the city of Trenton in said State, with certain branches, which the bill describes. The Railroad Company is the owner of a line of railroad extending from the city of Philadelphia to the city of Pittsburgh in the State of Pennsylvania, and in possession and control of the railroads of the New Jersey Railroad and Canal Company in New Jersey, under a lease or leases for a period of nine hundred and ninety-nine years from the first of July, 1871. By the laws of New Jersey the said railroads were created, and made and are now, public highways, and hence are subject to occupation and use of telegraph companies

under the provisions and conditions of the act of Congress of July 24, 1866.

The Telegraph Company was organized in 1851, and began then to construct and has constructed and acquired a continuous system of telegraph lines, which extends through all of the States and Territories of the United States and connects with telegraph lines in the Dominion of Canada, and with lines also in the Republic of Mexico and South American Republics, and with and by submarine cables with the systems of all telegraph lines of foreign countries.

The system operated directly by the Telegraph Company consists of over 192,000 miles of poles and cables, and over 900,000 miles of wire, and that an important part of the system and connected with its main office in New York City, and with other lines leading to the important cities of the West, is the lines of telegraph over and along the lines of railway operated by the Railroad Company, connecting Jersey City with Philadelphia, and connecting with other lines of the system.

The lines of telegraph along the railways in New Jersey were originally constructed by the American Telegraph Company, a corporation of the State of New Jersey, with the consent of or under contracts and arrangement with the railway company, then owning the said lines of railway, and were constructed more than forty years ago, and since the twentieth of September, 1881, the telegraph lines over the right of way of said railroads have been maintained and operated and compensation paid therefor under the provisions of a contract between the Telegraph Company and the Railroad Company. The contract granted to the Telegraph Company the right to place, maintain and use upon the line of the right of way of the Railroad Company, and of the railroads owned, operated or leased by it, a single line of telegraph poles (in certain cases two were authorized), with the privilege of erecting and maintaining thereon such number of wires as the Telegraph Company might from time to time elect, said lines

to be located and placed under the direction of an officer of the Railroad Company.

The Telegraph Company agreed to pay annually for the privileges granted the sum of $75,000, in monthly installments of $6,250, and to deliver to the Railroad Company certain poles and wire, which were then on certain of their roads. The Telegraph Company also agreed to transmit the messages of the Railroad Company at a compensation which was stated.

The provisions for the termination of the agreement and in the event of its termination are as follows:

"Thirteenth. This agreement is to continue in force for and during the term of twenty years from its date, and shall be binding upon the respective companies, their sucessors and assigns, and neither party shall have the right to assign the whole, or any part hereof, without the consent of the other, given in writing.

"Fifteenth. If any monthly payment herein provided for be not made within sixty days after it shall have become due, and shall have been demanded by written notice, delivered to the treasurer, or an executive officer of the party in default, or if any other covenant herein made. shall not, after sixty days' written notice of default and demand made by either party in the manner herein provided, be fulfilled by the other party, the contract may, at the option of the party demanding such fulfilment, be rescinded, and such rescission shall not relieve the party in default from liability for any amount due, or for damages for non-fulfillment of such covenant or of any other covenant.

"Sixteenth. If no new agreement be made by the parties hereto, the Telegraph Company shall, at the termination of this contract, or at any time hereafter, upon receiving written notice from the Railroad Company, remove within six months from the receipt of said notice all of its poles and wires and leave the property of the Railroad Company in good condi

tion and free from the encumbrance thereof to the satisfaction of the general manager, or other proper officer of the Railroad Company, and if not so removed the Railroad Company may remove them at the expense of the Telegraph Company: Provided, however, That the payment agreed to be made by the Telegraph Company to the Railroad Company in the sixth clause hereof, and by the Railroad Company in the eighth clause, shall not apply to the said six months, the companies respectively hereby expressly agreeing to waive the same." The agreement contains the following provision:

'Any easement or right of way heretofore acquired by the Telegraph Company upon any of the roads embraced in this agreement, either directly by contract or by assignment of contracts or agreements made by other companies with the Railroad Company, or with any of the companies whose roads or property are embraced in the schedule hereto attached, is hereby relinquished and abandoned, and the rights and easements of the Telegraph Company upon the right of way of said Railroad Company shall be such only as are granted by this agreement, and shall cease with its termination."

The agreement was carried out and the payments made as provided, the last being made on the twentieth of June, 1902.

On the fourteenth of May, 1902, the Railroad Company notified the Telegraph Company in writing to remove its poles, wires and other property from the right of way and property of the Railroad Company and of the other companies mentioned in the agreement, within six months from the first day of June, 1902. The notice stated that in default of compliance the Railroad Company would itself cause such poles, wires and other property of the Telegraph Company to be removed from the right of way at the expense of the latter company.

It is alleged in the bill that, by reason of the facts set forth, and by reason of the receipt of payments after the twentyfirst of September, 1901, and after the notice of removal, the agreement was continued in force, and that the Railroad Company had no right, notwithstanding the notice of May 14,