Page:Harvard Law Review Volume 4.djvu/282

266 266 HARVARD LAW REVIEW. The disturbance consisted, the court said, in a buzzing noise which had been so loud and continuous that communication over the telephone lines had become impossible. Telephones several miles from the city had been affected by it, and altogether more than two hundred lines had suffered from it to a greater or less degree. The cause of the trouble was described as twofold, — first, the escape of the electric fluid from the rails, which is called earth distribution or leakage, and affects the earth connection of the telephone wire ; and, secondly, induction between the parallel wires of the telephone and the railway, by which the variations in the current in the latter cause variations in the current in the former. The court said it seemed from the evidence that about one half of the disturbance in the present case was due to one cause, and one half to the other, and that the result in either case was a great disturbance and a serious loss. Conceding that the injury from either cause might be wholly obviated if the telephone company should use a complete metallic circuit, so as not to use the earth and to neutralize the induction, the court held that the company was not obliged to go to the great expense which this would in- volve, nor even to adopt the McCluer device of using a large return wire instead of the earth in the disturbed district, unless it was shown to be impractical for the railroad company itself to use a return wire and a double trolley ; and this, the judge said, was not shown, but, on the contrary, there appeared to be no serious objection to it except the expense. The defendant was using electricity in such a way as to inflict an injury upon the plaintiff in the lawful use of its telephone system, and was subject to an in- junction against the nuisance. This decision was affirmed by the General Term of the Superior Court in December, 1890,^ Hunt, J., dissenting. The court said; — We take the rule to be that where a specific power is granted to do a certain thing, and that there is but one way to do it, then under the 10 Ohio St. case it cannot be considered a nuisance; but when it can be done in two ways, — one causing no injury, and the other causing injury, — then, under the 23 Ohio St. case, it would be considered a nuisance if done in the way which would cause the injury. 1 24 Weekly Law Bulletin & Ohio L. J., 471. The dissenting opinion was printed in the Cincinnati Commercial Gazette, Dec. 25, IcSqo.