Page:Federal Reporter, 1st Series, Volume 4.djvu/302

 288 FEDEBAIi BBPOSTEB. �graph lines in ail parts of the country; and it îs plain enougb that, in construeting the line in controversy, it proceeded in the exercise of such power, real or assumed, and not in virtue of authority derived from the railway company. It is trae that, in construeting the line in dispute, the parties intended that it should be accepted by the government in lieu of that ■which the railway company was required to build. That cir- cumstance may affect the relations of the government to this property, but it does not prove that the telegraph company Bought or attempted to appropriate to its own use the railway company 's franchise. Acting in its own right, and assuming to have authority in that respect, the telegraph company en- tered into a contract with the railway company for building a telegraph on the right of way of the railway company; and the latter company, by making such contract, recognized the right and authority which the former company then assumed to have. As between the parties, the contract thus made may be and should be considered without reference to the power conferred on the railway company in respect to a tele- graph. Independently of that authority, the railway company could -contract with any telegraph company in respect to the iiaes of the latter on its right of way. For convenience in construeting and maintaining these, as well as to seeure a direct course, the telegraph lines of a country are usuàlly buUt along the lines of railway ; and the railway companiea have no necessary relation to them except as common car- riers; that is to say, they carry the material for building and repairing them, and the men who do the work. In some in- stances the railway company owns and operates the telegraph, and in others it has an interest in the line, by which the use of it is secured. But these circumstances are entirely con- ventional, and no reason is perceived for denying to a railway company the right to contract for a dozen lines of telegraph on its right of way with as many different telegraph corn- panies; and the circumstance that the railway company has power inherent to construet a telegraph for itself, is not at ail controlling on this point. It may have its own telegraph, and contract with other companies for additional lines to any ����