Page:Harvard Law Review Volume 4.djvu/281

265 POLES AND WIRES FOR ELECTRIC RAILWAY: 265 In the Rock Mountain Bell Telephone Co. v. The Salt Lake City Railway Co., in the District Court for the Third Judicial District of Utah, July 23, 1889, an injunction against a street railway company was denied by Zane, J., on the ground that it did not appear clearly from the affidavits that the electricity used by the railway company would injure the telephone company if the wires of both were properly insulated so as to prevent leakage, and that it could not be determined on the affidavits whether it was practicable for one or both to insulate them. The same case came before the same judge in the December term, 1889, on final hearing, and he denied the injunction on the ground that the telephone company could protect itself by the use of the McCluer system of return wires for the telephone circuit, whigh, although very expensive, appeared to furnish a more perfect service. He said the court would not enjoin the use of the earth by the defendant for a return current so long as the plaintiff continued to use it, especially as it did not appear to be established that it was practicable for the defendant to give it up. In Wisconsin Tele- phone Co. V. Eau Claire Electric Street Railway Co. et al. in the Circuit Court of Eau Claire County, Wisconsin, January 29, 1890, an injunction was denied for similar reasons. In East Tennessee Telephone Co. v. The Knoxville Street Railway Co., in the Chan- cery Court of Knox County, Tennessee, an eloquent opinion in favor of the electric railway was delivered by Chancellor Gibson, April 21, 1890. His decision was based chiefly upon the principle that the people of Knoxville, who authorized the operation of the railway, had rights superior to any telephone monopoly of the earth and the air for electrical purposes. On the other hand, in The City and Suburban Telegraph Asso- ciation V, The Cincinnati Inclined Plane Railway Co., in the Superior Court of Cincinnati, February 12, 1890, an injunction was granted against the railroad company, on the ground that the telephone company had acquired a right to use the streets, and had invested money on the faith of the enjoyment of the present mode of operating their franchise, and that the defendants had no right to disturb them, unless they could show that there was no other way in which they could enjoy their franchise to run an electric railway. If by using the double trolley, no matter how expensive it might be, the injury could be avoided, the defendant had no right to ask the plaintiffs to employ a new device.