other cities; and, finally, for its own convenience, the Western Union Company has several miles of wire underground in New York city, which are also operated successfully. When to these undisputed facts we add that such a practical genius as Edison has declared that there is no reason whatever why all wires operating electrical apparatus should not be underground, except expense, which in the eye of the law is no excuse, there is sufficient demonstration of the practicability of the system for the purposes of this article. Unless such evidence can be rebutted, the companies are guilty of erecting, in the exercise of their franchise, unnecessary and therefore unlawful fixtures.
If unlawful, within the meaning of the legislative enactments, no aldermanic sanction can save them; for the stream can not rise higher than its source. Permission by the Common Council, if inconsistent with the law of the State, is wholly void, and, even if this were not the case, it is questionable whether the Common Council of the city has power to consent to the erection of a single pole. The charter gives it power to regulate the use of poles in streets, but the power to regulate a nuisance is not the power to create one. This becomes more apparent taken in connection with the prohibitive side of the charter, by which the Common Council is forbidden to permit any encroachment upon or obstruction of the streets, except the temporary occupation thereof during the erection or repair of a building on a lot opposite the same. Now, this either means something or nothing, and, with the principles in regard to legalizing nuisances in mind, we are inclined to believe it means all that we claim.
Before leaving this point, it may be added that, even if there were no such thing as an underground system, it is quite probable that most of the poles now standing would have to be condemned as nuisances; for, if smaller poles of the same or another material, such as iron, would answer the same purpose, the obstruction as it now exists is not reduced to a minimum, and, under the principles of which we have spoken, are therefore unlawful. That smaller poles would do, is, we think, capable of demonstration, but it is not necessary to enter upon a discussion of this matter, as our objections are aimed at the overground system as a whole.
To the reasons we have thus far given why the poles and wires should come down, there may be added another reason. Recent elevated-railway litigation has made the public more or less familiar with certain principles of law regarding the use of streets by private corporations. Whether the fee of a street is owned by the abutting owners, or has been taken by the public, but in trust to be used as a public street, no structure upon the street can be authorized that is inconsistent with the continued use of the same as an open public street, without compensation to the abutting owners, who are entitled to use it.[1] Measured by this principle, there is no difference between an elevated-
- ↑ 90 N. Y., 122; 91 N. Y., 153.
