
    The Hudson River Telephone Co., Resp’t, v. The Watervliet Turnpike & R. R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 11, 1892.)
    
    1. Highways—Respective bights oe telephone companies and electric RAILWAYS.
    The primary and dominant purpose of a street is for public passage, and any appropriation of it by legislative sanction to other objects must be-deemed to be in subordination to this use, unless a contrary intent is clearly expressed, and a telephone his no easement in the public streets and is not entitled to relief because an electric road deranges the electric currents-upon its lines of wire by means of induction or conduction.
    3. Same.
    Plaintiff had accorded to the public by the manner in which it has-elected to use its franchise the unrestricted right of passage, and it cannot question the form in which such right shall be enjoyed, so long as it is of lawful origin and is utilized with proper care and skill.
    3. Same.
    Under chap. 333,‘Laws 1863, and the ordinances of the common council of the city of Albany defendant was invested with authority to adopt the trolley system of electric propulsion, and was not limited to such methods of operating street surface railways in cities as had then been invented and were then in actual use.
    4. Same.
    Defendant was not subject to the provisions of § 13, of chap. 353, of the Laws of 1884, as amended, requiring the approval of the railroad commissioners and the consent of the owners of one-half in value of the property abutting upon the streets.
    5. Costs—Extea allowance—Injunction.
    The court denied a motion for an extra allowance of costs upon the ground of a want of power and assigned as a reason “that the action being to restrain the defendant from employing a particular system only and over a part only of the road, the franchise was not involved and there is, therefore, no basis on which an allowance can be estimated.” Held, error; whether there shall be any allowance at all, or what the amount of it shall be, and how far the hardships of the plaintiff's situation shall affect the allowance, if at all, are questions primarily to be considered by the special term.
    Appeal from judgment of the supreme court, general term, third department, reversing judgment entered upon report of referee, and granting a new trial, and also from order of same court, affirming order denying motion for an extra allowance of costs.
    
      John S. Wise and Marcus T. Hun, for app’lt; E. Countryman and John A. Delehanty, for resp’t.
    
      
       Reversing 39 St. Rep., 953, 966.
    
   Maynard, J.

All the injuries of which the plaintiff complains are due to the adoption by the defendant of the single trolley system of electric propulsion. It becomes, therefore,' of the first importance to determine whether this change of motive power was authorized by law. The plaintiff makes a vigorous attack upon the right'of the railway company to the enjoyment of such a franchise, and urges many grounds in support of its position. We cannot assent to the argument of the learned counsel for the defendant, that the determination of this question is immaterial, because the state alone, by its attorney-gen eral, can bring suit for a usurpation of corporate powers, or because, ordinarily, the local authorities must prosecute for an unlawful obstruction of the streets, not involving the appropriation of private property. In the case.of a corporation, exercising a delegated authority for the public benefit, the áctionable. quality of a private injury resulting therefrom may depend upon the legislative will, and the aggrieved party may be without remedy, if the damage sustained is the result of the proper exercise of a power or privilege conferred by law, and a right of action is not given by express enactment This immunity from liability does not, however, extend to acts which •are ultra vires, or which are equivalent to a confiscation or condemnation of the property rights of the citizen, unless provision is made for due compensation. If the sovereign power lias never granted to the defendant the right to make use of electricity in the traction of its cars in the streets of Albany, it must respond to the plaintiff, and to all others whose lawful pursuits are invaded by its illegal procedure.

But, we think it is clear that under the act of 1862 (chap. 233), and the ordinances of the common council of the city, the defendant was invested with the authority to adopt this method of transportation, and to place in the streets in question the apparatus and fixtures necessary for its practical and efficient use. The choice of a motive power is not expressly limited, in the statute, except by the exclusion of the force of steam. It is not impliedly limited except that the power selected must not be of such a kind, or require such a mode of application, as will make it a public nuisance, or render the passage of the streets unsafe or dangerous for travelers availing themselves of the ordinary means of locomotion.

The report of the referee removes all doubt with reference to the safety and practical usefulness of the system adopted by the defendant. He finds, in substance, that it is the most efficient and economical and the best thus far devised, and less liable to accidents, through the displacement of machinery, than any other trolley system; that it subserves the public interests and satisfies the public wants with respect to transportation; that it is not prejudicial to the public health, or dangerous to human life; and that no other system of electric propulsion of cars has thus far been demonstrated to be as practicable, effective and advantageous, both to the public and to private interests, as the overhead, single trolley system.

As the evidence is not contained in the record, these findings must be deemed to have been supported by competent proofs, and they leave no room for the contention that the use of this system is unsafe or dangerous, or in any degree a public nuisance.

The act of 1862 cannot properly be limited to such methods of operating street surface railways in cities as had then been invented, and were then in actual use. The words of the statute are to be interpreted according to their natural and obvious meaning, and as the terms employed are not ambiguous, extrinsic facts are not available to restrict the authority which it plainly confers. The language, literally construed, includes undiscovered as well as existing modes of operation, Electricity, as a natural and applied force, was then well known, and it is reasonable to infer that its adaptation as a propelling power was even then anticipated. It would be an unj ust reflection upon the wisdom and intelligence of the law-making body to assume that they intended to confine the scop'e of their legislation to the present, and to exclude all consideration for the developments of the future.

If any presumption is to be indulged in, it is that general legislative enactments are mindful of the growth and increasing needs of society, and they should be construed to encourage, rather than to embarrass, the inventive and progressive tendency of the people. The application by the defendant for this new grant of power must have reminded the legislature that in thirty years its original franchise of a turnpike way had proved inadequate for the wants of a thickly populous community, and it could not have failed to perceive that in a like period of time the operation of street cars by horse power might become obsolete, or undesirable. It, therefore, wisely provided for the occurrence of such an emergency. It is not to be denied that it is a sound rule of statutory construction which permits nothing to be taken in a grant of corporate powers that is not plainly expressed, or unequivocally given, or not demanded by necessary implication. The defendant claims nothing more; but the plaintiff endeavors to cut down the franchise bestowed by eliminating from the statute the general words of the grant As, in 1862, these railways were run exclusively by animal power, the provision in § 4 of the act, which authorizes the defendant to adopt any mechanical or other power, or the combination of them, which it might choose to employ, except steam, was superfluous, if its range of selection is to be confined to the motive forces which had then been discovered and employed. The history of plaintiff’s franchise is instructive upon this point. It is an intruder in the public streets, and not possessed of any property rights which a court of equity can be invoked to protect, if the canon of construction which it insists upon applying to the grant of the defendant’s franchises shall be •allowed to prevail. It is incorporated under the act of 1848, •chap. 265, providing for the formation of telegraph companies. At that time, and for twenty years afterwards, the art of telegraphy, as known and practiced, did not include the transmission •of human speech by means of the telephone over wires strung upon poles. But it has. been held in other states and countries, and, as we think, rightly, that this form of transmitting messages through the medium of an electric current passing over extended ■wires is authorized by a statute for the incorporation of telegraph •companies; although when the act was passed such form of communication was unknown. Wisconsin Telephone Co. v. Oshkosh, 62 Wis., 32; The Cumberland Telephone & Tel. Co. v. The United Electric Railway Co., 42 Fed. Rep., 273 ; Attorney General v. Edison Telephone Co., L. R., 6 Q. B. D., 244.

It would also be a narrow and illiberal construction of the statute to hold that the defendant was irrevocably bound by the choice of a motive power made in 1862. It then selected the only practicable one; but the authority to employ others was not thereby exhausted. It was a continuing privilege and was intended to be potential whenever and as often as the means of public travel might be improved or facilitated by its exercise. Equally flexible was the power given to the common council of the city to impose such reasonable conditions upon the enjoyment by the defendant of the franchises of a street railway company as, in their judgment, the interests of the public seemed to require. Their authority in this respect was coincident in extent with the company’s right of selection. They could limit the municipal assent to a railroad operated in a specified way, as they did by the ordinance of 1862/ and while that remained unmodified no other method could -be lawfully used, and they could by a subsequent ordinance, as in 1889, authorize the necessary changes to foe made in the equipment of the streets for the introduction of electricity as a propelling force. This power is fairly infer able for the original act, and may also, perhaps, be deduced from the provisions of the city .charter, which authorize them to regulate the use of the streets by railways.

This case is clearly distinguishable from that of the Third Avenue Railroad, 112 N. Y., 396 ; 21 St Rep., 8, cited at length by plaintiff’s counsel. There the railroad company had no express grant of legislative authority, and the consent of the municipality was refused. It attempted to override the local authorities and compel them by mandamus to give their approval to the opening and excavation of the streets for the purpose of substituting^ a sub-surface mode of operation, when the granting of the permission plainly involved the exercise of judgment and discretion. It was held that under such circumstances the department of public works could not be coerced to act favorably upon the company’s application. But the case is not authority for the broad proposition for which the plaintiff contends, that where the right to select a motive power is expressly given and is not limited either as to time or kind, and a selection has been made with the approval of the city authorities, the company cannot subsequently adopt a new and better system of propulsion upon obtaining the municipal consent thereto.

The defendant was not subject to the provisions of § 12 of the street surface railroad act of 1884, chapter 252, as amended by chapter 531 of the Laws of 1889, requiring the approval of the railroad commissioners and the consent of the owners of one-half in value of the property abutting upon the streets. It had the right to make the change under the act of 1862, upon obtaining the consent of the common council, and hence it is embraced within the saving clause contained in § 18, which declares that the act of 1884 shall not interfere with, repeal, or invalidate any rights theretofore acquired under the laws of the state by any horse railroad company ; or affect, or repeal any right of an existing street surface railroad company to construct, extend, operate and maintain its road in accordance with the terms and provisions of its charter and the acts amendatory thereof. Inchoate as well as perfected rights are saved by such a provision. N. Y. Cable R. Co. v. Mayor, 104 N. Y., 1; 4 St. Rep., 308.

The defendant’s authority to use electric motors in the propulsion of its cars in the streets of Albany, and to operate them by the single trolley system, cannot, therefore, be successfully questioned, and, unless some actionable damage has resulted, or will result, to the plaintiff therefrom, its complaint was properly dismissed by the trial court

There is no question of prior equities involved. It is a matter of strict legal right. Neither priority of grant, or priority of occupation can avail either party. The plaintiff has a franchise, 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 condition that it shall not obstruct or interfere with the enjoyment by the defendant of its franchises. The plaintiff is not using the streets for one of the purposes to which they have been dedicated as public highways, while the defendant is occupying them in such a manner as to expedite public travel and promote the public use to which they were originally devoted. The condition contained in the plaintiff’s grant would have been imp'ied had it not been expressly named.

The primary and dominant purpose of a street is for public passage, and any appropriation of it by legislative sanction to other objects must be deemed to be in subordination to this use, unless a contrary intent is clearly expressed. The inconvenience or loss which others may suffer from the adoption of a mode of locomotion authorized by law which is carefully and skillfully employed, and which does not destroy or impair the usefulness of a street as a public way, is not sufficient cause for a recovery, unless there is' some statute which makes it actionable. A different rule prevails if there has been an encroachment upon private rights to the extent of an appropriation of private property, and it was upon this ground that the decision in the elevated railroad cases was placed. Story v. N. Y. E. R. R. Co., 90 N. Y., 122; Lahr v. Met. E. R. Co., 104 id., 268; 4 St. Rep., 340. It was there held that an abutting owner has an easement of light, air and access in the street in front of his premises, of which he cannot he lawfully deprived without compensation by the erection and use of an elevated railway structure. But the plaintiff has no easement in the public streets. It is there by virtue of a legislative grant,' revocable at the pleasure of the power which made it, constituting, while it continues, a valuable franchise, which is recognized as property in the fullest sense of the term. People v. O'Brien, 111 N. Y., 1; 19 St. Rep., 173. The plaintiff’s title to-this property is, however, encumbered by a condition which-diminishes its value, and it cannot rightfully complain of the burden which it has voluntarily assumed. It is a part of its compact with the state that the maintenance of its lines of communication shall not prevent the adoption by the public of any safe, convenient and expeditious mode of transit, such as the defendant's system has been shown to be. It is not deprived of any property right, but is simply compelled to yield the subservience which it is bound to render under the charter which gave it existence.

These conditions necessarily dispose of one of the grounds upon which the plaintiff claims to be entitled to relief from the special injury sustained by the acts of the defendant, namely, the derangement of the electric currents upon its lines of wire by means of induction, as it is called in electrical dynamics.

It seems to be indispensable to the successful prosecution of-the plaintiff’s business that it should make use of an exceedingly weak and sensitive current of electricity. By a law of electric force, not clearly defined or understood, the transmission of a powerful current, such as the defendant must use to supply motion to its cars, along a line of wire parallel with and in close proximity to the plaintiff’s wires, induces upon the latter an additional current, which renders the operation of the plaintiff’s telephones at all times difficult, and sometimes impracticable. It is found that this disturbance cannot be avoided by the defendant without a complete change of the system adopted, and the use of motors which are more expensive, more dangerous and less useful and efficient. It is obvious that to require such change to be made would be to grant to the plaintiff, by a decree of the court, that which the legislature has expressly and intentionally withheld. But the plaintiff is exposed to another danger which deserves consideration. Its system of communication is only partially established m the public streets. Its telephones are located upon the premises of its subscribers and patrons, and at a central exchange, which is upon private property. Its instruments are connected by branch wires with the main wires suspended upon the poles in the streets. To render their respective plants available, both parties must have a return electric current, and both use the earth for that purpose. The plaintiff grounds its wires upon private property and, in many cases, connects them with the gas and water pipes and in this way establishes and completes its required circuit. It is immaterial whether its wires are grounded upon its own property, or that of others who permit the plaintiff to so use their premises. Its possession as a licensee would be lawful while the license continues.

The defendant allows the electric current used for the movement of its cars to escape, or to discharge, at least in part, directly from the rails into the ground, from whence it spreads or flows by reason of the conductivity of the earth upon plaintiff’s grounded wires, and the most serious loss which the plaintiff sustains results from this cause, which is scientifically known as conduction. The defendant insists that it has an equal right with plaintiff to make use of this property, or law of nature, in the conduct of its business, just as all are entitled to the common use of the air and the light of the heavens, which, in a certain sense, is undoubtedly true. But the defendant does something more. It does not leave the natural forces of matter free to act, unaffected by any interference on its part. It generates and accumulates electricity in large and turbulent quantities, and then allows it to»escape upon •the premises occupied by the plaintiff, to its damage.

We are not prepared to hold that a person, even in the prosecution of a lawful trade or business upon his own land, can gather there by artificial means a natural element like electricity, and discharge it in such a volume that, owing to the conductive properties of the earth, it will be conveyed upon the grounds of his neighbor with such force, and to such an extent as to break tip his business, or impair the value of his property, and not be held responsible for the resulting injury. The possibilities of the manifold industrial and commercial uses to which electricity may eventually be adapted, and which are even now foreshadowed by the achievements of science, are so great as to lead us to hesitate before declaring an exemption from liability in such a case. It is difficult to see how responsibility is diminished or avoided because the actor is aided in the accomplishment of the result by a natural law. It is not the operation of the law to which the plaintiff •objects, but the projection upon its premises, by unnatural and .artificial causes, of an electric current in such a manner and with such intensity as to materially injure its property. It cannot be questioned that one has the right to accumulate water upon his ■own real property and use it for a motive power, but he cannot discharge it there in such quantities that, by the action of physical forces, it will inundate his neighbor’s lands and destroy his property, and shield himself from liability by the plea that it was not his act, but an inexorable law of nature that caused the damage^ Except where the franchise'is to be exercised for the benefit of the public, the corporate character of the aggressor can make no-difference. '

The legislative authority is required to enable it to do business-in its corporate form; but such authority carries with it no lawful right to do an act which would be a trespass if done by a private-person conducting a like business. If either collects for pleasure- or profit the subtle and imperceptible electric fluid, there would seem to be no great hardship in imposing upon it, or him, the same duty which is exacted of the owner of the accumulated water power; that of providing an artificial conduit for the artificial product, if necessary to prevent injury to others.

But the record before us does not require a determination of the question in this form. The use which the plaintiff is making of its grounded wires is part of its system of telephonic communication through the public streets and a necessary component of the service it maintains there under the permission of the state, and is subject to the condition that it shall not incommode the use of the streets by the public. ■ It is one indivisible franchise, and is in its entirety subservient to the lawful uses which may be made of these thoroughfares for public travel. In this respect no distinction can be made between the injuries resulting from induction and conduction.

In the disposition of this appeal there has been no occasion to make any application of the rule that where a public use authorized by law takes no property of the individual, but merely infects" him by proximity, the necessary interference in his business- or in the enjoyment of his property occasioned by such use furnishes no basis for damages. Radcliff’s Exr v. Mayor, 4 N. Y., 195 ; Bellinger v. N. Y. C. R. R., 23 id., 42 ; Moyer v. N. Y C. & H. R. R. R., 88 id., 351; Uline v. N. Y. C. & H. R. R. R., 101 id, 98;. Am. Bk Note Co. v. N. Y. E. R. R. Co., 129 id., 252 ; 41 St. Rep., 531. Under such a rule it would be a grave question whether the injuries to which the plaintiff is subjected, would not if made permanent, constitute a servitude upon its property which could not be imposed without compensation, provided the parties were occupying the streets upon an equal footing. As was said by Judge Andrews in Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y., 14.; 3 St. Rep., 56: “ It is, in many cases, difficult to draw the line and to determine whether a particular use is consistent with the duties and burdens arising from vicinage, or whether it inflicts an, injury for which the law affords a remedy.”

We are spared the task of discrimination in this case, by reason of the legal attitude which the plaintiff has assumed in its-occupation of the streets. It has accorded to the public, by the manner in which it has elected to use its franchise, the unrestricted right of passage, and it cannot question the form inwhich such right shall be enjoyed, so long as it is of lawful origin, and is utilized with proper care and skill. The defendant’s mode of conveyance of passengers is of this character, and the plaintiff can no more justly complain of its loss from this source than it could if, by the jarring of loaded vehicles passing up and down Broadway, its delicate and sensitive instruments were displaced, and their beneficial nse impaired or destroyed.

There is also an appeal by the defendant from an order denying a motion for an extra allowance of costs. The decision of the •court below was placed upon the ground of a want of power, and the special reason assigned was “ that the action being to restrain the defendant from employing a particular system only, and over a part only of the road, the franchise was not involved, and there is, therefore, no basis on which an allowance can be estimated.” In denying the motion for this sole cause, we think the supreme court erred. The subject matter of the controversy litigated was the right of the defendant to use the single trolley system in the operation of its road upon Broadway and South Ferry street, and the prayer for relief in the complaint is that an injunction issue “ restraining the defendant from operating its said railroad through the city of Albany by the electric system herein described.” If the right, thus sought to be perpetually enjoined, has a money value, and there was any evidence in the moving papers tending to establish such value, the court had jurisdiction to entertain the motion, and it was its duty to exercise its discretion and dispose of the application upon its merits. We have examined the record sufficiently to satisfy us that there was some proof of this character. One witness testifies that the right of the defendant to run its cars by electric motors upon the single trolley system in the •city of Albany is worth to the company the sum of at least $300,000, and as against the double trolley system, or any other known system, at least $76,000.

We are not permitted to say how much this and other similar evidence may be worth. We are dealing exclusively with a question of power. Whether there shall be any allowance at all, or what the amount of it shall be, and how far the hardships of the plaintiff’s situation shall affect the allowance, if at all, are questions primarily to be considered by the special term and can be safely entrusted to its determination. The authorities cited in the •opinion of the general term were all cases where no evidence was presented as to the commercial value of the right, or franchise •question, and the decision was, that in the absence of such evidence it could not be presumed to have a particular value. The just inference from them is, that if such proofs had been submitted, the court might have considered them as the basis of an allowance. The People v. The Genesee Valley Can. R. R. Co., 95 N. Y., 666 ; Conaughty v. Saratoga Co. Bk., 92 id., 401; Heilman v. Lazarus, 12 Abb. N. C., 19.

The order of the general term, granting a new trial, must be reversed and the judgment entered upon the report of the referee affirmed, with costs in all courts.

The order denying the motion for an additional allowance must be reversed, with costs, and the motion remitted to the supreme •court to be there heard upon its merits.

All concur.  