I.—la

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the telephone service improved, to support in every possible way the Electrical Traction Association before the Joint Committee. E. E. Ceompton. E. Gaecke. Sydney Moese.

APPENDIX E.

Electbic Bailway v. Telephone—Decisions in the Supreme Gouet of Ohio. January Term, 1891: The Cincinnati Inclined Plane Eailway Company, Plaintiff in error, against The City and Suburban Telegraph Association, Defendant in error. Electric Street Bailways — Single-Trolly Overhead System — Bights of Telephone Companies. Syllabus.—l. The dominant purpose for which streets in a municipality are dedicated and opened is to facilitate public travel and transportation, and, in that view, new and improved modes of conveyance by street railways are by law authorised to be constructed, and a franchise granted to a telephone company of constructing and operating its lines along and upon such streets is subordinate to the rights of the public in the streets for the purpose of travel and transportation. 2. The fact-that a telephone company acquired and entered upon the exercise of a franchise to erect and maintain its telephone poles and wires upon the streets of a city, prior to the operation of an electric railway thereon, will not give the telephone company, in the use of the streets, a right paramount to the easement of the public to adopt and use the best and most approved mode of travel thereon : and if the operation of the street railway by electricity as the motive power tends to disturb the working of the telephone system, the remedy of the telephone company will be to readjust its methods to meet the condition created by the introduction of electro-motive power upon the street railway. 3. Where a telephone company, under authority derived from the statute, places its poles and wires in the streets of a municipality, and, in order to make a complete electric circuit for the transmission of telephonic messages, uses the earth, or what is known as the " ground circuit," for a return current of electricity, and where an electric street railway afterwards constructed on the same streets is operated with the " single-trolly overhead system "•—so called—of which the groundcircuit is a constituent part, if the use of the ground-circuit in the operation of the street railway interferes with telephone communication, the telephone company, as against the street railway, will not have a vested interest and exclusive right in and to the use of the ground-circuit as a part of the telephone system. (Decided Tuesday, June 2nd, 1891.) But it is urged that the franchise of the telegraph association to construct lines of telephone is greatly impaired by reason of the single-trolly railway using a grounded circuit, whereby a large part of the electric current flows off from the rails to the surrounding earth, and to and upon all telephone wires which may be connected with the earth in proximity to the railway. The action is described as conduction, causing more or less of electric current to be poured into the earth and into all electric conductors connected with the earth, thereby reaching telephone wires in a grounded circuit, and creating loud and continuous noises upon the wires, which disturb telephonic communication. This disturbance, however, results not solely from the earth circuit of the railway company, but also from the fact that the defendant in error likewise relies upon the earth for its return circuit, by connecting with the earth the end of its wire furthest from its electric batteries. It is claimed that, in addition to this conduction or leakage disturbance, the single-trolly electric railway introduces serious disturbances on telephone lines by induction, for the reason that such electric railways employ large wires to convey the current used for the propulsion of their cars, and this current is constantly and rapidly changing its strength ; that these rapidly changing currents in the electric railway wires induce disturbing currents in parallel telephone wires near which the electric railways have been built, and thus prevent a successful transmission of telephonic messages. This interferences with the telephone service may be obviated, it is stated, by the Eailway Company giving up the single-trolly system' with the ground circuit, and substituting a double-trolly system with its two trolly-wires, two trolly-wheels, and electric current passing from one wire through one trolly, through the motor, back through the other trolly to the other wire, and so back to the generator without escaping to the earth. The grounded circuit, it is insisted, should be abandoned, and surrendered to the sole use and service of the defendant in errror. But it is admitted that other remedies of the telephone disturbances may be easily obtained by constructing the telephone with a complete metallic current, or by resort to what is known as the McClure device, consisting of a single return-wire, to which a number of telephone wires are attached. Conceding that the mode adopted by the Eailway Company of propelling its cars by electricity is an interruption to the telephone service of the defendant in error, and calculated to impair its franchise in the manner contended, the inquiry is suggested whether the Eailway Company must yield up a useful franchise that the same may be exclusively enjoyed by the Telegraph Association, or whether the Association shall adapt its system to existing conditions; whether the Company shall change from the single to the double-trolly system, from the grounded to the metallic circuit; or whether the Association shall either use a complete metallic circuit or resort to the McClure device. It is immaterial on which party the expense of the change may fall the mere heavily. It is a question of legal right. When the Telegraph Association erected its poles and lines in 1881 and 1882, with the design of conducting the business of the Telephone Company, it found the Eailway Company operating its street railway, with authority under the statute to use other motive power than animals; to wit,