Page:Federal Reporter, 1st Series, Volume 3.djvu/433

 426 IfEDEBAL BBPOBTEB. �Unes in controversy which a court of equitj should protect, independently of the contract of October 1, 1866. It was not" a trespasser upon the right of way of the railway Company. tVithout a contract it had a right to go there and construct itslines; and, having expended itsmeans with the consent of the railway company in constructing the existing Une, the defendants must not take possession of it by force, and with- out making compensation. It is not material to determine whether the right of way along the railway, and over its right of way, was also granted by the act of July 24, 1866, for if so no additional rights were oonferred. As to a part of the Une, the right of the plainti'ff outside of the contract is, accord- ing to the allegations of the amended bill, very clear. It is averred that prior to 1865 the United States Telegraph Com- pany, with the assent of the railway company, entered upon the right of way of the last-named company west of Lawrence, as it had a right to do under the act of Congress of July 2, 1864, and that in the year 1865, under said right to enter upon said right of way, and construct and operate such Une of telegraph, it had constructed a Une of telegraph from Law- rence to Fort Eiley, a distance of 97 miles, and had also entered into a contract for the construction and delivery to it of a Une of telegraph from Lea-venworth to Lawrence, and for the residue of the Une between Fort Eiley and Den- ver ; such Unes to be constructed and ready for operation as fast as said railroad should be constructed. It is further averred that said United States Telegraph Company proceeded in the construction of said Une of telegraph, until 1866, with- out objection on the part of the railway company, and was, in 1866, in possession of a Une of telegraph from Lawrence to Fort Eiley, and was engaged in operating the same, and was engaged in constructing the residue of its Une between the mouth of the Kansas river and Denver, and between Law- rence and Leavenworth, and had collected a considerable amount of material therefor. The rights and property here described existed in the United States Company, and were assigned to the plaintiff prior to the execution of the contract of October 1, 1866, and they were, in my view, vested in the ����