Page:Harvard Law Review Volume 9.djvu/533

505 CONFLICTING RIGHTS OF TELEPHONE LINES. 505 overhead wires, provided they are so constructed as not to inter- fere with the operation of the steam railroad, and it may do this without the permission of the steam railroad and against its wish, because it does so as an authorized form of travel upon the highways.^ As the right of public travel is thus paramount upon the high- ways, it follows that the telephone and telegraph lines take their permission from the legislature or municipal authorities subject to this right of travel. This condition will be implied if it is not expressed,^ but it is generally expressed in the statutes which give the telephone and telegraph companies the right to use the streets for their lines.^ This being the case, the whole problem of the relation of the telephone lines to the electric railway on the highways is solved at once. To use the language of the court in the final decision on the merits of Hudson River Telephone Co. v. Watervliet Turn- pike %i Railway Co.,* — "There is no question of prior equities involved. It is a matter of strict legal right. Neither priority of grant nor priority of occupation can avail either party. The plaintiff [the telephone company] has a fran- chise which is entitled to protection, but the prime difficulty it encounters grows out of its subordinate character. It has been given and accepted upon the express conditipn that it shall not obstruct or interfere with the enjoyment by the defendant of its franchises." * The telephone companies seem to have acquiesced in the subor- dinate position on the highways assigned to them by the courts in the foregoing decisions, and have very generally protected their instruments by all-metallic circuits in places where there was likely to be interference with the current of electric railways. This change in construction of the telephone plant has resulted in improved service to the telephone customers so that the introduc- tion of the electric railway may be said to be indirectly a benefit to the users of telephones as well as a direct benefit to the passengers on the railways. 1 West Jersey Railroad Co. v. Camden, G. & W. Railway Co., 29 Atl. Rep. 423. 2 Hudson River Telephone Co. v. Watervliet Turnpike & Railway Co., supra. fi To the same effect is Cincinnati Inclined Plane Railway Co. v. City & Suburban Telegraph Association, 48 Oh. St. 390.
 * See statutes collected in § 61 of Croswell on Electricity.
 * 135 N. Y. 393.