incorporation of companies for the purpose of constructing a line of wires of telegraph through the State, from and to any point within it. This was the franchise, and it was given upon certain terms, conditions, and liabilities. Lines of telegraph might be constructed along and upon any of the public roads and highways, or across any of the waters within the limits of the State, by the erection of the necessary fixtures, including posts, piers, or abutments for sustaining the cords or wires of such lines, provided the same were not constructed so as to incommode the public use of the roads or highways or injuriously interrupt the navigation of the waters. By a subsequent act, in 1853, it was provided that any number of persons might associate for the purpose of owning or constructing, using and maintaining a line or lines of electric telegraph, whether wholly within or partly beyond the limits of the State, or for the purpose of owning any interest in such line or lines of electric telegraph or any grants therefor, upon such terms and conditions and subject to such liabilities as were prescribed in the act of 1848. Such association was authorized to erect and construct from time to time the necessary fixtures for such lines of telegraph, upon, over, or under any of the public roads, streets, and highways, and through, across, or under any of the waters within the limits of the State, subject to the restrictions contained in the act of 1848.
It is under these acts that the evil we complain of has principally arisen. With regard to the exceptions, as, for instance, the electric-light companies, although the language of the statutes authorizing their creation is in some respects different, the principles laid down in this article are, in the main, so far applicable that the same general conclusions are deducible. For the same reason, therefore, that led us to avoid a general review of all the State laws, no separate discussion on this point will be instituted.
It will be observed that, in the legislative acts cited, unqualified power as to the methods of exercising the franchise is not given. The companies are, in effect, prohibited from erecting any fixtures except those which are necessary, and, whether necessary or not, the land-fixtures must not incommode the public use of the streets. Any unnecessary or incommoding fixtures still remain an unlegalized public nuisance. Are, then, the wires and posts necessary, as at present erected? Do they incommode the public use of the streets?
Take the latter question first. When a street is laid out and opened, all persons acquire the right to use it, to pass and repass at their pleasure on any part and in such direction as may suit individual convenience and taste.[1] This is what is meant by the public use of a street. Now, the right of the public to use the public streets freely and in every part can not well be exercised when poles occupy a portion of the land. If what is called "the fourth dimension of matter" were a reality, a person might be able to pass through the pole without disadvan-
- ↑ Allen's "Telegraph Cases," p. 139.
