Page:Harvard Law Review Volume 4.djvu/279

263 POLES AND WIRES FOR ELECTRIC RAILWAY. 263 to be placed in the middle of the street, the court said that this part of the street was especially subject to public control, and that the complainant had fewer privileges with respect to it than in the sidewalk, and that the poles were placed in a part of the street of which, so long as it was used as a street, the complainant, by virtue of his title to the fee, could not make any use whatever. I have quoted from this opinion at some length, but the force of the Vice-Chancellor's argument cannot be fully appreciated with- out reading the opinion itself. An application was made to the Supreme Court of New Jersey, before this decision was rendered, for a writ of certiorari to review the resolution of the Common Council of .Newark, giving permis- sion to the Rapid Transit Railway Co. and the Newark Passenger Railway Co. to set up poles and wires for the electric current ; and the whole question of the right to use the streets in this way was argued, and on the part of the defendants it was contended that a certiorari was not the proper remedy for the protection of the private rights of the abutting owner. The court allowed the writ without deciding the main question, only remarking that the reso- lution (which specified the use of poles) seemed to be broader than the statute (which only said electric motors). The writ will bring the whole case before the court at the next or a subsequent term. It is, of course, impossible to anticipate this decision, and I can- not say that there have not been decisions of which I do not know contrary to those I have cited, but the reasoning of these is. based upon well-settled legal principles, and some of them at least are those of courts of general jurisdiction and of judges whose opinions are entitled to the most respectful consideration ; and I think I may say that it seems probable that there will be a general agreement that the overhead electrical system may be used by legislative, even if not of municipal authority, in the operation of street railways, without giving compensation to the owners of abutting land. (3.) The remaining question suggested for discussion was whether the disturbance of the telephone currents was a sufificient ground for injunction against the use of the more powerful current in the streets for the propulsion of the cars. It is on this ground that the railroad companies have met with the most determined opposition, but I can only refer briefly to some of the cases in which the matter has been discussed.