Page:Harvard Law Review Volume 9.djvu/524

496 496 HARVARD LAW REVIEW. Common Pleas for Summit County, Ohio,^ and in June of that year a case in the Chancery Court of Chattanooga, Tenn.,^ brought up the same question. These cases, however, were merely skir- mishes. The first great action was begun at Albany, N. Y., in the fall of the same year, and was the case of Hudson River Tele- phone Co. V. Watervliet Turnpike & Railway Co. In November of this year, the telephone company succeeded in getting a tempo- rary injunction against the operation of the electric road until the case could be heard on its merits. The court (Mayham, J.), in granting this injunction, expressly declined to go into the merits further than to hold that it was a fitting case for a temporary injunction under the New York Code for reasons of only local importance. The court, however, in ordering the injunction, re- quired the telephone company to give bonds in the sum of $10,000 to protect the defendant in case it succeeded at the final hearing of the case. The care of the court to make clear that the granting of the temporary injunction was in no sense a determin- ing of even the^ prima facie merits of the case, is shown by its language : " In reaching a conclusion that a temporary injunction should be granted on this motion, I have intentionally avoided any discussion or determination of the somewhat new but very important questions involved in this action, which should have a careful trial upon their merits, and a speedy determination."^ This decision was followed by an appeal to the General Term of the same court by the railway company. The appeal was de- cided in the February term, 1890,^ and the merits of the case were considered, the court taking the view that both parties were law- fully in the streets, and that, as the telephone had a prior fran- chise from the authorities, this franchise should be protected; but as the difficulty might be obviated by a metallic circuit for the telephone, such a circuit must be built so that both parties could use the street, and the railway company must pay the cost of con- structing the metallic circuit because it made the metallic circuit necessary. In the Court of Appeals, to which this branch of the case was next taken, the temporary injunction was continued solely on the ground that the granting of it was in the discretion 1 Central Union Telephone Co. v. Sprague Electric Railway & Motor Co. et al., 2 Am. El. Cas. 307. 2 East Tennessee Telephone Co. v. Chattanooga Electric Street Railway Co., 2 Am. El. Cas. 323. 8 Pamphlet Opinion of Mayham, J, p. 8. * 56 Hun, 67.