Page:Federal Reporter, 1st Series, Volume 3.djvu/731

 72e ' FEDESAL feEPOBTEe. �côntrotersy extenas from'Kansas Cïty, in Missouri, to Deri- ver City, in Colorado ; and cOnsists of three wires, the requi- site pôles, batteries, and other xaachinery necessary to the successful working of those wires, erected along the line and on the right of way of the Kansas branch of the Pacific Eail- way Company. That branch bas become Consolidated with the Union Pacific Eailroad Company, and tbey are both worked and held as one corporation, under the style of the Union Pacific Eailway Company. The contract was made in the year 1866, between the Kansas Pacific Eailway Company on the one part, and the Western Union Telegraph Company on the other, under which this telegraph line bas been mainly erected and operated sinoe it was erected. By that contract, about the construction of which the parties diiïer somewhat, there is no disagreement as to the following matters : Pôles were to be erected on ground embraced within the right of way of the railroad company.' That company was either to farnish the pôles or pay the price of them if furnished by the Western Union Telegraph Compàby, and to furnish one wire or pay the cost of that wire. The telegraph company was to furnish the batteries, and to furnish any other wire beyond that one, as it should' become necessary, at their own^ cost. The erection .of the pôles, the attachment of the wires to them, and the expense of placing the batteries in position, conneieting them with the wires, was to be borne jointly and equally by the parties. The lines of these wire.3 were both to be operated by operators appointed by the railroad company, and paid for jointly. The railroad company was to have the exclusive control and use of the first wire put up. The tele- graph company was to have the exclusive use of the other wires until, in the opinion of the railroad company, the first wire should be insufiacient for the demands of the business of the road; in which event, by a proper compensation, the rail- road company was to have the use of another one of the wires put up by the telegraph company. It was one of the pro- visions of this contract that the railroad company should not send over its wire any commercial messages or any paid messages, or messages for any other person than for its owû ����