ness; but it does provide that, whenever the | was entitled, so far as the consent of the consent of the owner is obtained, no state railroad company was concerned, to mainlegislation shall prevent the occupation of tain its lines on the railroad right of way. post roads for telegraph purposes by such Upon the above-quoted words the contencorporations as are willing to avail them- tion is based that the court intended to deselves of its privileges." What was meant cide that no railroad right of way could, by the words, "but it [the act] does provide in virtue of the act of 1866 be occupied by that, whenever the consent of the owner is any telegraph company without the consent obtained," I cannot understand. The act of of the railroad company first obtained. I 1866 does not contain any such provision, cannot believe that any such question was nor anything like it. Not a single word is intended to be decided. As already shown, to be found in it that refers to the consent the court expressly said that the only quesof the owner of the property to be taken. tion to be decided was whether Congress The court proceeds: "It is insisted, however, had power to prevent a state from obstructthat the statute extends only to such mili- ing interstate telegraphic communications, tary and post roads as are upon the public by granting exclusive privileges to a pardomain; but this, we think, is not so. The ticular telegraph company of its own crealanguage is, 'through and over any portion tion. It is a mistake to say that the court of the public domain of the United States, declared that the sole purpose of the act of over and along any of the military or post 1866 was to prevent state monopolies, or roads of the United States, which have been that the act was merely an exercise of naor may hereafter be declared such by act of tional power to forbid state interference Congress, and over, under, or across the with telegraphic communications. It did navigable streams or waters of the United say that the case then before the court would States.' There is nothing to indicate an in- be satisfied if the question as to state intertention of limiting the effect of the words ference was decided, that is, that the case employed, and they are, therefore, to be involved no other question. Besides, the given their natural and ordinary significa- whole context of the opinion in the Pensation. Read in this way, the grant evidently cola Case shows that the court did not inextends to the public domain, the military clude railroad property employed in comand post roads, and the navigable waters of merce when it used the above-quoted words. the United States. These are all within the It was argued in that case that the act of dominion of the national government to the 1866 had reference only to the "public doextent of the national powers, and are, main," that is, to the public lands owned therefore, subject to legitimate congres- by the United States. This view was dissional regulation. No question arises as to tinctly rejected, and post roads were placed the authority of Congress to provide for the by the court, so far as the privileges grantappropriation of private property to the ed by the act were concerned, on the same uses of the telegraph, for no such attempt plane as the public domain, so that not even has been made. The use of public property a state could interfere with the national alone is granted. If private property is re- privilege granted by Congress, if the telequired, it must, so far as the present legis- graph company accepted the terms of the lation is concerned, be obtained by private act. The court said that any telegraphic arrangement with its owner. No compul- company accepting the provisions of the act sory proceedings are authorized. State sov- could put its lines on any post road, if ereignty under the Constitution is not in- ordinary travel thereon was not interfered terfered with. Only national privileges are with, and that not even the state could stand granted." in the way. It then added, as if out of This language, it seems to me, has not abundant caution, and to show that Conbeen correctly interpreted. Undue stress gress had no purpose to interfere with the has been laid upon the words "private prop- rights of private owners, that no attempt erty without the consent of the owner," and was made by Congress to provide for the the words "private property ob- appropriation of private property, and that tained by private arrangement with its own- "the use of public property alone is granter." They have been so interpreted as to ed." That meant that the act had not grantmake the court decide a question not be- ed any right to telegraph companies to ocfore it, not necessary to the decision, not cupy private property with telegraph lines. involved in the issues made, and never sug- Having said that the act granted the use of gested by counsel. The briefs of counsel in post roads for telegraphic purposes, that it that case show that no such question was embraced the use of such roads equally with in their minds; for they as well as the court the public domain, and that "the use of knew, from the record before them, and as public property alone is granted," it is inwe may know from an examination of that conceivable that the court employed in the record, that the Western Union Company same connection the words "private prop

erty" as embracing post roads, or the use of such roads. To relieve the minds of those who apprehended danger arising from the act of 1866 to state sovereignty and to rights that were strictly private, the court took care to say that neither state sovereignty nor private rights were interfered with; that only national privileges were granted; but that, in respect of the use of the public domain and military and post roads, Congress had power to pass the act of 1866, and in dealing with the use of post roads by telegraph companies it dealt with public property.

Now, the present bill has been framed so that the court can protect the right given to the telegraph company by the act of 1866 to have its wires and poles on the company's right of way, upon its being ascertained that such use will not interfere with the ordinary travel on the railroad, just compensation being made for that use, and the amount of compensation to be ascertained by the court in some appropriate way.

In my judgment, nothing involved or in judgment in the Pensacola and Ann Arbor Cases requires the affirmance of the decree of the circuit court.

When the court held in the Pensacola The affirmance of that decree of the cirCase that telegraphic communications be- cuit court will mean that the efforts of Contween the states could be regulated by Con- gress, by the act of 1866, to obtain for the gress under its power to regulate commerce, people of the country the advantages accruand that the statute of Florida which as- ing from competition between corporations sumed to give to a Florida telegraph com- of the different states in the matter of telepany an exclusive right in respect of tele- graphic communications, and also to prographic communications over certain terri- mote and secure the interests of the governtory in that state was inconsistent with the ment as involved in the conduct of its postal act of 1866, that was an end of that case, and military business, will prove of but litand nothing remained to be done except to tle value. Indeed, as construed, it might dismiss the suit. The court itself so de- have been better for the country if the act clared. Nothing more was in issue between of 1866 had not been passed, and the states the parties. The case involved, I confidently left free to establish such regulations in refinsist, no question as to the previous assent erence to telegraphic communications, withof the railroad company being a condition in and over its territory, as would be approof the exercise by the Western Union Tele-priate and valid in the absence of congresgraph Company of the rights given by the sional legislation on the subject. As the act of 1866.

matter now stands, the whole subject is practically committed to the railroad companies. The court says that the act of 1866 is an efficient enactment for the purpose of preventing state interference with interstate telegraphic communications. As now con

tying the hands of the state, and leaving railroad companies operating post roads, so far as existing legislation is concerned, absolute masters of interstate communication by telegraph.

Nor is the case of Western Union Teleg. Co. v. Ann Arbor R. Co. 178 U. S. 239, 243, 244, 44 L. ed. 1052, 1054, 20 Sup. Ct. Rep. 867, 869, an authority for the action of the circuit court. That was a case in which the only relief sought was the specific perform-strued, it would seem to be most efficient in ance of a contract under which a telegraph company claimed the right to remain in the occupancy of the right of way of a railroad company. The court pertinently observed in that case that it was not claimed that "the telegraph company had any right under the In the Pensacola Case it was decided, and statute, and independently of the contract, I think rightly, that in respect at least of to maintain and operate this telegraph line interstate telegraphic communications, a over the railroad company's property." It state could not give exclusive privileges to was, however, claimed that, as the telegraph a particular telegraph company. But, as company was in the discharge of public just stated, by the necessary operation of duties, the circuit court "should have so the judgment now rendered a railroad comframed its decree as to preserve the occu-pany operating a post road can, in effect or pancy of the telegraph company, subject to practically, confer exclusive privileges upon making compensation to the railroad com- a particular telegraph company, in respect of pany, the value of the alleged easement to its right of way, by simply withholding its be ascertained by the court." But that view consent for a second telegraph company to was rejected because the bill "was not occupy any part of such right of way with framed in that aspect" and so as to protect its wires and poles. If the government the occupancy of the telegraph company sub- should be of opinion that the public busiject to the condition of its making compen- ness imperatively required another telesation; and the court also said that the re-graph line upon the post road now occupied lief asked could not be given under the prayer for general relief, because not "agreeable to the case made by the bill."

by the Pennsylvania Railroad, that company need only object to other telegraph lines being placed upon its right of way, and that

any interpretation of the act of 1866 from which such a result can follow. No such result is, in my opinion, consistent either with the words of the act or with the objects which Congress, as this court has said, intended to accomplish by its passage. The act, reasonably interpreted, was, I think, intended to give a telegraph company accepting its provisions the absolute right to put its wires and poles upon any post road,

will be the end of the matter, so far as the | eral welfare-are recognized as now having act of 1866, as now construed, is concerned. more power than a state. I cannot assent to If the government and a telegraph company fully equipped should jointly represent to the railroad company that an additional company can be admitted to its right of way without obstructing the ordinary travel on that road, the company need only reply that no other telegraph company than the one now there can occupy its right of way, and that will be the end of the matter, so far as the act of 1866, as now construed, is concerned. And all this is now made possi-a public highway established primarily for ble, notwithstanding the decision of this court in United States v. Union P. R. Co. above cited. In that case we propounded this question: "Can it be said that after the passage of the act of 1866, and while it was in force, a railway company operating a post road of the United States could, by any form of agreement, exclude from its roadway a telegraph company which had accepted the provisions of that act?" We said that this question could be answered only in one way, "namely, that every railroad company operating a post road of the United

the public convenience,-if the ordinary travel on such road was not thereby interfered with.

For these reasons, I am constrained to dissent from the opinion and judgment of the court.

Brewer, J., concurring:

I concur in the judgments in these cases, but do so distinctly on the ground that the If the matter was res integra, the views exquestions have been settled in prior cases. pressed by Mr. Justice Harlan would be very persuasive. Pensacola Teleg. Co. v. WestStates, over which commerce among the states is carried on, was inhibited, after the and Western U. Teleg. Co. v. Ann Arbor R. ern U. Teleg. Co. 96 U. S. 1, 24 L. ed. 708, act of July 24th, 1866, took effect, from Co. 178 U. S. 239, 44 L. ed. 1052, 20 Sup. making any agreement inconsistent with its Ct. Rep. 867, seem to me controlling. In provisions or that tended to defeat its oper- the first of these cases the scope of the ation." The court added that it was very power and authority granted by the act of far from the intention of Congress by any 1866 was distinctly presented. It was withlegislation to so exert its power as to en- in the proper limits of inquiry, and the opinable one telegraph corporation, Federal or ion of the court shows that it was fully constate, to acquire exclusive rights over any sidered. The declarations in that opinion post road. But now a railroad corporation are clear and precise, and cannot be considoperating a post road, and wishing its right ered in any just sense obiter dicta. The deof way occupied only by a single company cision was announced in 1877, and was rewith which it may have a special business affirmed in 1890 in the Ann Arbor Case. If arrangement for its own purposes, need not the court erred in its construction of the make even a secret agreement granting exact, Congress has had twenty-seven years in clusive privileges to that company. It need only keep silence and withhold its assent to the occupancy of its right of way by an other company, and in that way give exclusive privileges to the company with which it has a special arrangement; it may be to one organized wholly in the interest of the one organized wholly in the interest of the railroad company. In the Pensacola Case it was said that one of the objects of the act of 1866 was to prevent state monopolies in telegraphic communication, and that the privilege granted by that act was a national privilege. Now, although state monopolies cannot exist, railroad monopolies in telegraphic communications may exist; and the national privilege granted by the act of 1866 is left at the mercy of railroad companies operating the post roads of the United States.

which to correct the mistake. Its omission to take any action must be considered as an acquiescence on its part in that constructhis court has construed a statute of Contion. And I am of the opinion that when gress, and that construction has remained for more than a quarter of a century, neiaside by any congressional legislation, it ther changed by any judicial decisions nor set ought not to be disturbed except for the

th

most cogent reasons.

บ.

(195 U. S. 594) WESTERN UNION TELEGRAPH COMPANY, Piff. in Err., PENNSYLVANIA RAILROAD COMPANY. Eminent domain-rights of telegraph companies on railway rights of way-exercise of eminent domain by lessees.

Practically, the railroad corporations operating post roads-looking to their own interests and perhaps caring little for the gen-1.

Railways are not "highways" within the

meaning of a provision in the charter of a telegraph company giving it the right to occupy with its telegraph lines any of the roads, highways, streets, and waters within

the state.

2. The lessee of a telegraph company cannot, as such lessee, exercise the right of eminent domain possessed by its lessor.

[No. 90.]

dinary travel of such roads, and that the right can be asserted by proceedings in eminent domain. It is conceded that there is no general law of Pennsylvania giving that right to the telegraph company. The contention that such right is given by the act of 1866 we considered in Nos. 89 and 199, and decided against the contention. But there are other elements in this case. The telegraph company is the lessee of the

Argued October 19, 20, 1904. Decided De- Atlantic & Ohio Telegraph Company (the

IN

cember 12, 1904.

N ERROR to the United States Circuit Court of Appeals for the Third Circuit to review a judgment which affirmed an order of the Circuit Court for the Western District of Pennsylvania dismissing a petition by which the Western Union Telegraph Company sought to acquire by condemnation the use of certain railway rights of way for telegraph purposes. Affirmed.

See same case below, 59 C. C. A. 113, 123 Fed. 33.

The facts are stated in the opinion. Messrs. H. D. Estabrook, Rush Taggart, and John F. Dillon for the Western Union Telegraph Company.

lease is terminable at the option of either party by giving six months' notice), and claims eminent domain as successor of that company. The claim rests upon the statute of Pennsylvania incorporating the Atlantic & Ohio Telegraph Company. That statute was passed in 1849, and provided, in § 5, that it should be lawful for the company "to erect and construct works, edifices, fixtures, and structures along and across any of the roads, highways, streets, and waters within this state; the said works to be so placed as not to interfere with the common use of such roads, highways, streets, and waters." The company was authorized to enter into and occupy any land for the purposes of locating and constructing its

Mr. John G. Johnson for the railroad lines, upon securing or tendering such comcompany.

pensation as might be agreed on between it and the owners of the land, or in the

Mr. Justice McKenna delivered the manner mentioned in the statute. The ciropinion of the court:

This is a petition on the law side of the circuit court for the western district of Pennsylvania to condemn part of the defendant's right of way and appropriate it to telegraph purposes. There was also a bill on the equity side praying for an injunction to restrain defendant in error from dispossessing plaintiff in error during the pending of the condemnation proceedings.

The circuit court refused to approve the bond tendered with the petition for condemnation, and ordered the petition dismissed. 120 Fed. 362. The circuit court of appeals affirmed that action. 59 C. C. A. 113, 123 Fed. 33.

The bill in equity, though not before us technically, has been freely referred to in argument, and, besides, many of the allegations of the petition are the same as those in the bill and appeal passed on in Nos. 89 and 199. The same rights are asserted under the act of July 24, 1866 (14 Stat. at L. 221, chap. 230), as there considered. The contention here, as there, is that the telegraph company has the right to maintain its lines of telegraph over and along the railroads of the railroad company upon making compensation to the railroad company for the use so appropriated, so long as the maintenance of its telegraph lines does not materially interfere with the or

2. See Eminent Domain, vol. 18, Cent. Dig. § 38.

cuit court and the circuit court of appeals rejected the claim of the telegraph company based on that act. The decision was rested on two grounds: (1) That railroads were not highways within the meaning of the statute; (2) as expressed in the opinion of the circuit court of appeals:

"No authority to enter upon the right of way of railroads was plainly and distinctly granted, and it is well settled that the right of eminent domain may be exercised by a corporation, in any case, only when granted in express terms or by necessary implication; and that property held and applied by one corporation for a public use cannot be appropriated by another for its use without authority clearly expressed, or which may be implied from the fact (which in this case does not exist) that the use claimed is absolutely necessary to the accomplishment of the purpose for which the claimant corporation was created. Pennsylvania R. Co's Appeal, 93 Pa. 150; Pittsburgh Junction R. Co's Appeal, 122 Pa. 511, 9 Am. St. Rep. 128, 6 Atl. 564; Sharon R. Co.'s Appeal, 122 Pa. 533, 9 Am. St. Rep. 133, 17 Atl. 234; Groff's Appeal, 128 Pa. 621, 5 L. R. A. 661, 18 Atl. 431; Perry County R. Extension Co. v. Newport & S. Valley R. Co. 150 Pa. 193, 24 Atl. 709; Phillips v. Dunkirk, W. & P. R. Co. 78 Pa. 177; Glover v. Boston, 14 Gray, 282."

This act, the petition alleged, gave to the telegraph company "all the corporate rights, powers, privileges, and franchises of said Atlantic & Ohio Telegraph Company, including the right to appropriate, on inability to agree with the owner, all lands necessary for the construction, maintenance, and operation of the said lines of telegraph from Philadelphia to Pittsburgh, with any and all such branches therefrom as it may think proper."

(1) In the opinion in Nos. 89 and 199 | graph Company, approved the 5th day of we marked a distinction between highways April, 1866." and railroads, against a contention which identified them in legal meaning and effect. We need not enlarge upon what we there said. Highways and railroads may be assimilated in legal contemplation to a certain extent, and considerations which apply to one within that extent apply to the other. To apply them beyond that extent would be to confound the distinctions of common speech and practice, and destroy property rights long recognized to exist. And we do not deem it necessary to follow and answer in detail the very able arguments of counsel. It is enough to say that they have carried the analogies between ordinary highways and railroads too far; indeed, have gone beyond analogy, and have contended for almost legal coincidence in attributes and effect.

(2) But there is another rule applicable to grants of eminent domain, which is also fatal to the contention of the telegraph company of the rights claimed by the telegraph company under the lease from the Atlantic & Ohio Telegraph Company. Eminent domain cannot be delegated. Lessees cannot exercise it. 1 Lewis, Em. Dom. § 243, and cases cited. It is to meet this prohibition, probably, that certain allegations of the petition are made. It is alleged that the Atlantic & Ohio Telegraph Company entered into a "contract to lease" with the telegraph company the 1st of April, 1864; that afterwards the former company made an agreement with the railroad company whereby the latter company granted to the said Atlantic & Ohio Telegraph Company permission to construct and maintain a line of telegraph wires "along and adjacent to the line of railroad" from Philadelphia to Pittsburg, "without limit as to term and duration," which contract was afterwards assigned to the telegraph company (plaintiff in error), and the assignment was ratified and affirmed by the act of the legislature of Pennsylvania, entitled "An Act Supplemental to an Act Entitled 'An Act

to Incorporate the Atlantic & Ohio Tele

The acts cited affirmed agreements or leases theretofore made. Subsequent agreements were provided for, if at all, by §§ 3 and 4 of the act incorporating the Eastern Telegraph Company, as follows:

"Sec. 3. That the said corporation shall have power to connect by contract with other persons or corporations having other telegraphic lines within or out of this state, for the purpose aforesaid; and it may also form a union with or lease to other corporations, associations, or individuals incorporated by this commonwealth or any other state, its own lines, with their fixtures and apparatus, or lease from any individuals, associations, or corporations incorporated by this commonwealth, or any other state, their lines, fixtures, and apparatus; and when such unions as aforesaid are formed the stock may form a common stock upon such terms and conditions as the said companies or associations respectively shall agree upon; and that as soon as such union shall be effected and a true copy of the agreement made for that purpose, duly certified under the corporate seal of the said companies, shall have been filed in the office of the secretary of the commonwealth, the stockholders of the said companies shall become one body, corporate and politic, under such name and style as they shall adopt and agree upon and embody in their certificate, with all the rights with all the rights, powers, and privileges and privileges incident to a corporation and which, by virtue of this act, are vested in the company hereby incorporated.

have power to purchase, make, use, and "Sec. 4. That the said corporation shall maintain any connecting or side lines."

graph Company, Approved March 24, 1849, and to Confirm Certain Agreements Executed by Said Company,' Approved May Under those sections the Atlantic & Ohio three, one thousand eight hundred and sev- Telegraph Company was authorized to lease enty-one, the same as if the said lease its lines to the telegraph company. A lease and contract had been made by virtue of had already been made, as we have seen. express authority of law-said act of as- Those sections also authorized authorized the comsembly also providing that said Atlantic panies to "form a union" and "become a & Ohio Telegraph Company should have body corporate and politic, under such and possess all the rights, powers, and name and style" as they should adopt. privileges conferred by the 3d and 4th sec- That was not done. The telegraph comtions of the act of the legislature of Penn- pany, therefore, is the simple lessee of the sylvania to incorporate the Eastern Tele- Atlantic & Ohio Company, and has only