
    Railroad Company v. Telegraph Company.
    1. A railroad company, having a line of telegraph poles and wire, granted to a telegraph company, the privilege of placing another wire on the poles “for general telegraphic correspondence,” and of establishing telegraph stations at points along the line as it might think proper, but reserving to the grantor all local telegraph business, “ it being understood and agreed between the parties,” that the telegraph company ••should be entitled only to the business of sending such messages as might be received at any of its stations destined for stations on other ■telegraph lines connected at points where it had stations, or such mes.sages as might be received from other lines connected at points where it had stations destined for its stations, or other lines connected at points where it had stations, with a further agreement for prorating as to business re-telographed between the parties :
    
      lMd,í. The right acquired by the telegraph company in the business of .the line, '.other than local business, was not exclusive. 2. The railroad company was not precluded from placing another wire upon its poles either forits.own use or the use of another party.
    2. Equity will not compel specific performance, where the benefits of the contract cannot .be realized in accordance with its terms. Hence, where a .railroad .company, having a line of telegraph, grants the use of its poles to a.telegraph company on certain conditions and stipulations in favor .of the .grantor, which are ultra vires, an injunction will not be granted whereby tbe grantor will be required to perform other stipulations made in 'consideration of such void stipulations.
    Error to tbe District Court of Hamilton County.
    
      The original action was brought by the "Western Union Telegraph Company against the Marietta & Cincinnati Railroad Company, as re-organized, plaintiff in error, and the Atlantic and Pacific Telegraph Company, and the Baltimore & Ohio Railroad Company, to enjoin the defendants from placing an additional wire on the line of telegraph poles located along the line of the Marietta & Cincinnati Railroad, and from using the same for the purpose of general telegraph business.
    The following statement will suffice to show the nature of the claim of the plaintiff in the, original action. Previous to the 10th of November, 1857, a telegraph line consisting of poles and a single wire had been constructed along the line of said road 'by the owner, the Marietta & Cincinnati Railroad Company. On that day a contract was entered into by and between said railroad company and Jacob Cassneau and others, constituting the Marietta & Cincinnati Telegraph Company, wherein it was stipulated, among other things, as follows :
    “ 1. That the party of the first part grant to the party of the second part the privilege of putting up and maintaining a telegraph wire ‘ for general telegraph correspondence’ on the line of telegraph posts now erected, or occupied by said party of the first part, along their railroad from Marietta to Cincinnati, subject to the terms and conditions hereinafter mentioned.
    “ 2. The party of the second part, while putting up their wire as aforesaid, shall furnish and put up new posts, wherever the present posts are insufficient to sustain two wires with entire security; and if the privilege of putting up another wire upon the line of posts from Cincinnati to Loveland cannot be obtained, then the party of the second part shall put up a new line of posts on said route for the common benefit of themselves and said railroad company.
    
      “ 3. When the wire of the party of the first part is not in working order the railroad messages shall be sent as far as practicable free of charge by the party of the second part, and in like manner, when the wire of the party of the second part is out of order, their messages shall, as far as practicable, be sent by the party of the first part.
    “4. The party of the second part shall be at liberty to establish and maintain telegraph stations at Cincinnati and Marietta and such other points along said line as they may think proper, but all local telegraph business on said line, and the charges therefor shall belong exclusively to the party of the first part, it being hereby understood and agreed that the party of the second part shall be entitled only to the business of sending such messages as may be received at any of their stations on said line destined for stations on any lateral or other telegraph line connecting with the said Marietta & Cincinnati line at points where said party of the second part may have stations; or such messages as may be received from any lateral or telegraph-line connecting with said Marietta & Cincinnati line at points where said party of the second part' may have stations, destined for any of the stations of said party of the second part on their said line, or on any lateral or other line connecting with said Marietta & Cincinnati line at points where said party of the second part have stations. For all messages that may be received by the party of the first part at their stations to be re-telegraphed at stations of the party of the second part to stations on any lateral or other line connecting as aforesaid, and for all messages that may be received at any of their stations by said party of the second part, from stations on lateral or other lines connecting as aforesaid, destined for and that may be re-telegraphed by the party of the second part to points on said line where the party of the second part have no stations, the party of the second part shall be entitled to their proportion of the charge for such messages corresponding to the distance such messages may pass upon their line.
    “ f>. The party of the second part guarantee to the party of the first part the free transmission of messages for or from the officers and employes of the party of the first part, exclusively on railroad business, or telegraph business over the lines of the Western Telegraph Company extending or to extend from Marietta to Baltimore by way of the Northwestern Yirginia Railroad, and from Marietta by way of said railroad to Wheeling, between any stations on said Western Telegraph Company’s lines, and any stations on said Marietta & Cincinnati line.
    
      “ 6. Said party of the first part hereby agree to permit the agents of the said party of the second part, and also the agent ■ of the said Western Telegraph Company, when traveling on the business of their respective companies, to travel on the cars of said party of the first part free of charge, but at their own risk of personal injury, the agent so traveling producing evidence thereof from some of the principal officers or agents of the telegraph company for which they are so traveling, and said party of the first part agree to transport in their own cars to stations on their line, free of charge, all wire and other material necessary in putting up and working the line of telegraph of said party of the second part.”
    It was also stipulated in article Y of the contract, that the party of the first part, for $300 per annum, should keep the wires of the second party in good working order ; but Ike costs of renewals of both wires, insulators and posts should be equally divided. It was also provided that the.first party, within three years, might purchase “ the wire and insulators ” of the second party, together with its interest in certain contracts with the Marietta Telegraph Company and the Western Telegraph Company, upon terms specified.
    “ 9. But should the party of the first part not make the purchase and take upon themselves the obligations of the party of the second part as aforesaid, then the agreement shall remain in force for thirty years, and thereafter until one party shall have given one year’s notice of a desire to terminate the same, whereupon at the end of said year it shall cease and determine.”
    Afterwards, on August 3, 1859, said contract was altered and amended, among other things, as follows :
    “ So much of the said contract as provides that the party of the first part shall keep the wire of the second party in good working order for a compensation of three hundred dollars per annum, and so much as reserves to the party of the first part the right to purchase the interest of the party of the second part in their line of telegraph shall be and they are hereby annulled.
    
      “ In lieu of said provisions and in modification of certain other provisions of said contract the following articles are mutually agreed upon and adopted, viz.:
    “ 1. The party of the second part shall hereafter keep their own wire and also the wire of the party of the first part in good working order, with the same conditions and qualifications as have been heretofore applicable to the party of the first part under the 7th article of the said contract, except that the said party of the second part shall receive no compensation therefor, except the benefits which may be received from the rescinding or alterations of other provisions of said contract.”
    Subsequently, but prior to the commencement of the original action in June, 1878, the' plaintiff in error succeeded to all the rights of property and franchises of the Marietta and Cincinnati Railroad Company, and the Western Union Telegraph Company succeeded to all the rights of the Marietta and Cincinnati Telegraph Company under said contract.
    In the year 1871, the plaintiff below, with the consent of the railroad company, placed a third wire upon said line of posts for the common benefit of the parties.
    The claim of the plaintiff below is, that the addition of a. fourth wire on this line of poles to be used by another for general telegraph business, is in violation of its rights under said contract.
    
      Hoadley, Johnson <& Golston and MoGlmüoJc <& Smith, for the plaintiff in error.
    
      John W. Herron and Wager Swayne, for defendant in error.
   MoIlvaine, J.

It is essential to the right of the Western Union Telegraph Company to the relief granted in the court below, that it acquired under the contract an exclusive right to the-business of general telegraph correspondence on the line of poles described in the contract, except as therein expressly reserved to the railroad company, to wit: the local business. We assume that the parties to this action have sueceeded to the rights and obligations of the original parties to the contract. "What, then, is the true construction of the contract ? "What rights were granted by the railroad company to the telegraph company % By the terms of the contract, the answer is, “ The privilege of putting up and maintaining a telegraph wire ‘for general telegraphic correspondence’ on the line of telegraph posts” along the line of the railroad; and “ liberty to establish and maintain telegraph stations at Cincinnati and Marietta, and at such other points along said line as they may think proper, but all local telegraph business on said line and the charges therefor shall belong exclusively to the party of the first part, it being hereby understood and agreed that the party .of the second part shall be entitled only to the business of sending such messages as ma/y he recei/oed at any of their stations on said line, destined for stations on any lateral or other telegraph line connecting with the said Marietta and Cincinnati line at points where said pa/rty of the second part may ham stations ; or such messages as may be received from any lateral or other telegraph line connecting with said Marietta and Cincinnati line at points where said party of the second pa/rt may ham stations, destined for any of the stations of said party of the second part on their said line or on any lateral or other line connecting with said Marietta and Cincinnati line at points where said party of the second part have stations.” The contract also contains a provision for prorating, as follows:

For all messages that may be received by the party of the first part at their stations to be re-telegraphed at stations of the party of the second part to stations on ¿any lateral or other line connecting as aforesaid, and for all messages that may be received at any of their stations by said party of the second part, from stations on lateral or other lines connecting as aforesaid, destined for and that may be re-telegraphed by the party of the second part to points on said line where the party of the second part have no stations, the party of the first part shall be entitled to their proportion of the charge for such messages corresponding to the distance such message may pass upon their line.”

The plain import of these stipulations is not modified by any other provision in the contract; and it appears to us, that no exclusive light to the telegraphic business over this line, even outside of the local business and such as was agreed to be prorated, was granted to the telegraph company.

By “ telegraph stations” which the telegraph company has the liberty to establish and maintain at points” along the line of the road, we understand is meant ordinary offices for the business of telegraphy at cities or villages along the line of the road; but the grant of this liberty did not exclude the right of the railroad company, either directly or indirectly, to establish and maintain like offices in the same cities and villages. It will be observed, that the telegraph company was not bound to establish stations at all points; nor are we advised as to their action under the privilege thus granted.

Now, it must be further observed, that as to the business of sending messages, other than local business, the telegraph company is limited to “ such messages as may be received at any of their stations,” so' that the railroad company, or any other person authorized by it, may compete for messages, at any city or village, to be transmitted on this line of poles, and on any wire other than those put up by the telegraph company, without interfering with the privilege granted to it. And again, messages received at an office of the railroad company, though the telegraph company may have an office at the place, to be forwarded over other lines of telegraph from points where the telegraph company has no office, are wholly unprovided for by the agreement; and in such business, the telegraph company certainly cannot claim any interest.

As to the “ local business,” the whole of which was reserved by the railroad company, and its interest in the class of business to be re-telegraphed as between the parties, and for which the compensation was to be divided ratably between the parties, as well as the business left open to competition, and that which was not provided for in the contract, we can find no objection in the contract against the right of the railroad company to transfer the same to a third person, or to its right to place an additional wire upon its line of poles, or to authorize another to do so, for the purpose of transmitting such messages. It is reasonable to assume that such a right was within the contemplation of the parties; and it is quite sure that no stipulation was made to prevent its exercise.

Inasmuch, therefore, as the right of the plaintiff below, to the injunction prayed for, rests on the ground that it had ae-1 quired the right to the sole use of the wires upon this line of poles for -transmission of public or general telegraph correspondence, except local business, and as that claim cannot be maintained by a just construction of the contract, it follows, that the judgment below must be reversed.

Another view of the case leads to the same result. Neither the Marietta and Cincinnati Railroad Company, nor the plaintiff in error, ever had, or have the capacity to engage in the telegraph business for the public generally, whether local or general in its character. The only extent to w'hich either of them could engage in the business of telegraphy was such as. might be necessary or convenient to the management of the railroad and” its business. For this purpose only can a railroad company in this state erect and maintain a line of telegraph poles and wires. True, having constructed such line for such use, it is competent for the railroad company to grant to another, having capacity to engage in the business, the right to use such poles and wires for the purpose of general telegraphy, and the right so transferable may be exclusive or partial as the parties may agree.

But when the right transferred is partial only, as in the case before us, and the consideration is so mixed and modified by rights and privileges reserved by the grantor that it would be unreasonable to suppose that the grant would have been made without the reservations, while in fact and in law, the rights and privileges so reserved cannot be exercised or en joyed by the railroad company for want of capacity to exercise or enjoy them, a court of equity will not by injunction or otherwise enforce the specific performance of the contract. In such case, where the benefit of the contract cannot be realized according to its terms and the expectations of the parties, equity will remit a party who seeks redress for a breach of the contract to such remedies as may be asserted in courts of law.

Judgment reversed and petition dismissed.

White, J., concurred in the judgment on the ground stated in the second proposition of the syllabus.  