Page:Harvard Law Review Volume 9.djvu/527

499 CONFLICTING RIGHTS OF TELEPHONE LINES. 499 the same conclusion in 1893. Since that time only one case has been decided on this point in the United* States.^ Such is the outline of the history of the subject. Now let us examine the various arguments brought forward by the parties to support their claims. These arguments may be divided into two classes, first, those which assume that both companies have equal legal rights in the highways, and seek to find some equity which will turn the scale in favor of the party adducing the argument, and second, those which seek to show some paramount legal right in one company or the other. One of the earliest points which attracted the attention of coun- sel and courts was the comparative expense of making such change in either the trolley line or telephone line as would remedy the difTficulty. Would it cost more to put an all-metallic circuit on the telephone, or a double trolley line on the railway? The answer to this question of fact evidently depends upon the circumstances of each case. The referee in Hudson River Telephone Co. v. Water- vliet Turnpike & Railway Co., found that in that case it would be less expensive to put in the double trolley system. In other cases the change to an all-metallic circuit for the telephone has been considered cheaper than to change a single trolley railway to a double trolley .2 The court in the case cited in the note treated the parties as having equal rights in the use of the streets for their lines, and said that, as the cheaper mode of obviating the difficulty was for the telephone to put in a return circuit, it would have to adopt that course. The variable test of expense, however, was felt to be a very imperfect means of solving the problem. In one case it was well said, ** It is immaterial on which party the expense of the change may fall more heavily. It is a question of legal right." 3 Another attempt to adjust the difficulty was based on priority of occupation of the streets. This claim the telephone companies asserted with great vigor.^ It of course assumes that both parties 1 Cumberland Telegraph & Telephone Co. v. United Electric Railway Co., 29 S. W. Rep. 104. 2 Cumberland Telephone & Telegraph Co. v. United Electric Railway Co., 42 Fed. Rep. 273. Opinion sub fine. 8 Cincinnati Inclined Plane Railway Co. v. City & Suburban Telephone Association, 48 Oh. St. 390. phone Co. V. Watervliet Turnpike & Railway Co., 135 N. Y. 393: "The plaintiff being first in possession is first in law and equity."
 * See brief of Edwin A. Countryman and John A. Delehanty, in Hudson River Tele-