
    The City of Rochester, Respondent, v. The Bell Telephone Company of Buffalo, Appellant.
    
      A telephone company’s rights in tho streets of a city m'e subject to the city’s police power—it may be compelled to construct its own conduits or to use the conduits oj another company — a question of fact not determined on affidavits.
    
    The right conferred upon a telephone company by the Legislature (Laws of 1848, chap. 265; Laws of 1853, chap. 471; Laws of 1890, chap. 566, § 102), to maintain its wires and appliances in the public streets and highways of a city, is subject to the reasonable control, supervision and regulation of the city authorities, under, and as a part of, the general police power.
    The city may require the telephone company to place the wires so maintained by it, unless it would be impossible or impracticable for the telephone company to obey the requirement, in a conduit, beneath the street, constructed pursuant to a contract between the city and another corporation, under which the latter has agreed to rent the use of the conduit to the city and to other companies.
    Whether it is feasible for the telephone company to obey such requirement will not be determined on affidavits used on a motion to vacate an injunction pendente lite, made in an action brought by the city to restrain the telephone company from constructing an additional conduit in the street in question.
    Appeal by the defendant, The Bell Telephone Company of Buffalo, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 31st day of January, 1900, denying its motion to vacate an injunction pendente lite.
    
    
      John A. Barhite, for the appellant.
    
      P. M. French, Corporation Counsel, for the respondent.
   McLennan, J.:

The action was begun on the 24th day of November, 1899, to obtain a judgment perpetually enjoining the defendant from constructing a conduit or subway in Oxford street in the city of Rochester, N. Y., in which to place its telephone wires, and from in any manner interfering with §aid street for that purpose.

The complaint alleges in substance that the defendant is a domestic telephone corporation, engaged in the telephone business in the city of Rochester since the year 1880, under and in pursuance of the general laws of the State, and of a franchise or permission granted to it by said plaintiff; that on the 10th day of Hay, 1888, defendant and plaintiff entered into an agreement which provided, among other things, that the defendant, within a certain time, should place and maintain its wires, cables and conduits under ground m the streets of the city, in the places and in the manner designated by the executive board or common council of said city, and under its supervision, and that no conduit should be laid in any street unless determined upon by said executive board, and under its supervision and to its satisfaction. Said agreement also provided that its terms might be altered, amended, modified or- revoked by the common council of said city at any time.

That by chapter 28 of the Laws of 1894 (Amdg. chap. 14 of the Laws of 1880, the revised charter of the city of Rochester) the common council was empowered to regulate and control the construction of all subways and conduits laid in the public streets. Thereafter, and on the 5th day of September, 1892, the plaintiff entered into an agreement with the Rochester Gas and Electric 'Company, a domestic corporation, by which it granted to it the right to construct and maintain subways and conduits in the streets of said city upon condition that it would lay sufficient ducts to .accommodate the plaintiff and any and all other domestic corporations having the right to carry electric conductors under said streets, .and that it would rent the use of the same to such other companies upon proper terms; that the said Rochester Gas and Electric Company laid and constructed a subway in Oxford street under said .agreement, adequate to conveniently accommodate the wires of the defendant therein, and the defendant has the right to rent space in said subway for its purposes.

That thereafter, and on the 12th day of September, 1899, the .common council of the plaintiff adopted a resolution requiring all persons and corporations having wires in Oxford street to place, the .same in the conduits constructed by the Rochester Gas and Electric Company. That the defendant refused to comply with the terms of such resolution, and entered upon and commenced excavating Oxford street for the purpose of constructing a subway therein solely for its own use.

The foregoing allegations of the complaint were supported by the ■affidavit of the then corporation counsel. Upon the summons, complaint and such affidavit an injunction, order was granted ex ])art& by the county judge of Monroe county restraining the defendant from excavating in Oxford street or laying a conduit therein, and from in any manner interfering with said street for that purpose-until the further order of the court.

Thereafter a motion was made by the defendant, at a Special! Term of the Supreme Court, to vacate- the injunction upon said, complaint and affidavit, and upon a large number of other affidavits read in support of said motion, which affidavits stated. and alleged, among other things, that it would be impracticable for the-defendant to comply with the requirements of the resolution adopted-by the common council for the reason, among others, that the conduit which said resolution required it to occupy with its wires contained wires charged with a powerful current of electricity, which, would practically destroy the use of defendant’s wires for its purpose..

The motion to vacate the injunction coming on to be heard, the-plaintiff presented a large number of affidavits which controverted the principal facts stated in the moving affidavits, and alleged,, among other things, that it was entirely feasible for the defendant to occupy with its wires the conduit or subway of the Rochester Gas and Electric Company in Oxford street, and that to construct, and maintain another and independent conduit in said street wouldi unnecessarily injure the property of abutting owners; and would, seriously inconvenience the public.

There was also a conflict in ihe affidavits as to several other material facts relating to or bearing upon the rights of the respective-parties. Upon all the facts the learned trial court at Special Term made an order denying the defendant’s motion, and from such order-this appeal is taken.

It does not appear, and it is nowhere alleged, that a-speedy trial of the case may not be' had, by which the disputed facts may be passed, upon and determined in the ordinary way. "Whether or not the-temporary injunction should be vacated was, to some extent at least,, addressed to the sound discretion of the court at Special Term, and,, unless it is clear that such discretion was improperly exercised, it; ought not to be interfered with by this court.

The defendant was incorporated pursuant to chapter 265 of the Laws of 1848? and the laws amendatory thereof and supplementary-thereto. That act authorized a company so incorporated to construct lines of telegraph along and upon any of the public roads and highways within the State. By an amendment enacted by chapter 471 of the Laws of 1853 such a company was authorized to erect and construct the necessary fixtures for its telegraph lines over of wnder any of the public roads, streets and highways. The law was again amended by chapter 566 of the Laws of 1890 (The Transportation Corporations Law). Section 102 of that act provides that-a telegraph or telephone company may erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways.

Under such legislative enactments the defendant had the right,independent of any permission granted by the plaintiff, to occupy Oxford street with the wires and appliances reasonably necessary for the proper conduct of its business. (Barhite v. Home Telephone Co., 50 App. Div. 25.)

It was held in the case of People v. Metropolitan Telephone Co. (31 Hun, 596) that, as authority was given to the defendant by the Legislature to construct and maintain such appliances as were necessary in the streets of the municipality for the proper conduct of its business, such occupation could not be held to be a nuisance or an unlawful obstruction of the streets.

Any obstruction of the highways which is authorized by the Legislature cannot be held to be a nuisance; and the Legislature may authorize an obstruction, where no private interest is involved, even to the extent of compelling the discontinuance of the use of a highway. (Delaware, L. & W. R. R. Co. v. City of Buffalo, 65 Hun, 464.)

While it is settled by authority that a telephone company, incorporated as was the defendant, has the right to use the public streets and highways of a city for its reasonable purposes, it is equally well settled that such use is subject to reasonable control, supervision and regulation by the authorities of the municipality in which such streets and highways are located, by virtue of and as a part of the general police power. (People ex rel. N. Y. Elec. Lines v. Squire, 107 N. Y. 593.)

In that case the court says: “ The primary and fundamental ■object of all public highways is to furnish a passageway for travelers in vehicles or on foot through the country. (Bouvier’s Institutes, § 442.) They were originally designed for the use of travelers alone. But in the course of time, and in the interest of the general prosperity and comfort of the public, they have been put, especially in large cities, to numerous other uses; but such uses have always been held to be subordinate to the original design and use. * * * The due and orderly arrangement of the various and conflicting claims to privileges in the streets of large cities would seem imperatively to require the creation of a neutral board, with controlling authority to form a comprehensive plan by which these various enterprises may be harmonized and carried on without detriment to ■each other, and with due regard to the rights of the public. Such power is pre-eminently a police power, and it is within the legitimate authority of a legislature to delegate its exercise to municipal corporations.”

It was further held in that ease that such police power and authority cannot be nullified or overridden by any chartered rights or franchises granted by municipalities.

In Am. Rapid Tel. Co. v. Hess (125 N. Y. 641) the plaintiff had erected its poles and strung its wires in certain streets in the city of New York. Pursuant to the provisions of the Subway Laws (so called) the plaintiff was given notice requiring it to remove its poles and place its wires in subways which had been constructed for that purpose. The plaintiff refused to comply with the request upon the ground that it had acquired vested rights under its contract with the municipality, which did not impose such burden upon it. The city authorities thereupon caused the poles of the plaintiff to be cut down and the wires to be removed. It was held that the action of” the city in cutting down the poles and removing the wires of the plaintiff from the streets was justifiable, and an injunction restraining such action on its part was denied. In that case the court says: “ The right of the plaintiff to maintain and operate its wires in the streets could certainly be no greater than the right of railroads, which by public authority occupy the streets and highways of the state. The state, in the exercise of its police power and the regulating. control which it has over corporations created by its authority, may exercise a general supervision over such corporations. It may prescribe the location of the tracks, the size and character of the rails, the precautions which shall be taken for the protection of the public, and the character and style of highway crossings; and nó one has ever questioned that it may do whatever is necessary and proper for the public welfare in the control and regulation of the franchises which such corporations have obtained by statutory authority.”

In that case it was further held that the fact that a compliance with the requirements of the city authorities would be attended with considerable expense, was no answer to the right of the public in pursuance of law to require the plaintiff to comply with the prescribed regulations.

In the case of Barhite v. Home Telephone Co. (supra) the court says : “ When a corporation of this kind (telephone company) is to avail itself of the legislative grant, the manner of its exercise, the location of its poles, the stringing of its wires, etc., are within the control and regulation of the local legislative body. That is one of the police functions committed to the municipality.”

The city of Rochester has no right to deny to the defendant the privilege of occupying Oxford street with its wires, but it has the authority to require that such privilege, however acquired, shall be exercised with due regard to the claims of others, and in such manner as to inconvenience and in jure the general public as little as possible. (People ex rel. N. Y. Elec. Lines Co. v. Squire, supra ; Barhite v. Home Telephone Co., supra.)

In order to determine the rights of the parties to this action, it will be necessary to decide the conflicting questions of fact raised by their respective affidavits. If it should be found upon the trial of the action that it is impossible or impracticable for the defendant to occupy the conduit now in Oxford street because of the fact that it contains wires charged with powerful currents of electricity, or for any other reason, the plaintiff would have no right or authority to require the defendant to use such conduit, because such requirement would be a substantial denial of the right to exercise the privilege acquired by it under the legislative authority of the State. On the other hand, if it should be found, as claimed by the plaintiff, that the conduit of the Rochester Gas and Electric Company now in Oxford street is adequate and convenient, and in all respects proper for the use of the defendant, and that to permit it to construct and maintain another and independent conduit in said street would greatly and unnecessarily inconvenience the public, under its police.power the-municipality would hare the right to insist upon compliance with its request, and prevent the defendant from constructing an additional conduit in said street.

This question of fact and othérs almost equally important, which are the subject of dispute between the parties, should not be determined upon this motion or upon affidavits.

“The sole object of an interlocutory injunction is to preserve the-subject in controversy in its then condition, and, without determining any questions of right, merely to prevent the further perpetration of wrong, or the doing of any act whereby the right in controversy may be materially injured or endangered.” (High Inj. § 4.)

At section 5 the same author says: “ It is to be constantly borne-in mind that in granting temporary relief by interlocutory injunction, courts of equity in no manner anticipate the ultimate determination of the questions of right involved. They merely recognizé.that a sufficient case has been made out to warrant the preservation of the property or rights in issue in' statu quo until a hearing-upon the merits, without expressing, and indeed without having the-means of forming an opinion as to such rights. And in order to-sustain an injunction for the protection of property pendente lite,. it is not necessary to decide in favor of complainant upon the-merits, nor is it necessary that he should present such a case as will certainly entitle him to a decree upon the final hearing, since he may be entitled to an interlocutory injunction, although his right to the relief prayed may ultimately fail. Nor is the decision of the court in granting or refusing a preliminary injunction conclusive upon either the court or parties on the subsequent disposition of the cause by final decree.”

In the case at bar the defendant conceded its intention, in case the injunction is vacated, to immediately enter upon, excavate the street in question and construct a conduit therein, all of which it is the sole purpose of this action to prevent; and it is apparent that if the defendant is now permitted to accomplish such purpose, the plaintiff would practically be without redress, irrespective of the final result of the action. To vacate the injunction would in effect permit the defendant to accomplish its purpose, wholly irrespective of whether or not it is entitled to exercise the rights which it claims in Oxford street, upon the facts as they may be found upon the trial •of this action, and so the rights of the parties would be practically .settled by such a decision.

Without passing upon or determining any of the questions of fact raised by the affidavits of the respective parties, or indicating what rules of law may be applicable to the facts which may be found ■upon the trial, we are of the opinion that, under all the circumstances, •the injunction should be retained until the decision of the action, ■and that the order appealed from should be affirmed.

All eoncm’red, except Adams, P. J., not voting.

Order affirmed, with ten dollars costs and disbursements.  