tage to himself or the pole, but "the fourth dimension" is not as yet a demonstrated fact, and without it the space occupied by the poles is withdrawn from the public use. The fact that sufficient space remains for public traffic is immaterial.[1] The public use of the streets is therefore disturbed and inconvenienced, or, in other words, is incommoded. This, unfortunately, is not the full extent of the disturbance. To illustrate:
That man should be protected in the enjoyment of life, limb, and property is recognized in every system of law. That the fire department is a potent instrument in such protection goes without saying. That its occupancy of the streets, with its paraphernalia of safety and protection, is a proper public use of the streets, none will gainsay; and that the fullest facilities should be afforded it for the untrammeled exercise of its protective powers is self-evident. Now, a New York city fire-department official recently stated that the firemen are delayed at almost every fire in raising ladders by the wires which are strung in front of the houses. He considers them a very serious obstruction, and adds that if there were no telegraph-wires strung through the streets the fire department could raise a much longer ladder than they do at present. Serious difficulty, he continued, is met with in fighting fires from the outside of buildings, on account of the wires, which make a net-work in front so strong that it is impossible to force the water through it. Poles, too, are in some instances placed so close to hydrants as to interfere with the firemen's work. This being so, how can it be denied that the public use—and a very important public use—of the streets is seriously interfered with and incommoded? Must it not, then, be admitted that, measured by one of the tests of legality, the overground system falls short of the requirements necessary to bring it within the pale of protective legislation, and must still be adjudged an unlegalized public nuisance?
How does it stand the other test prescribed by the Legislature? Are poles and over-ground wires necessary fixtures in cities? The companies contend that the statutes expressly authorize the erection of posts and wires. Is this so? The act of 1848 (which, if not supplanted by the act of 1853, is the only one which refers to posts) authorized the erection of the necessary fixtures, including posts, piers, or abutments. The only permission given is to erect such fixtures, including posts, piers, or abutments, as are necessary. Only by doing violence to the English language can the words be interpreted otherwise. The construction placed upon them by the companies, followed out, leads to an absurdity. If, as they claim, there is unlimited authority to erect poles in the streets whether necessary or not, there is exactly the same authority to erect, in the streets, piers and abutments. But it is plain that such erections were never intended to be made in the streets, and no company would claim it. The fallacy lies in confound-
- ↑ Allen's "Telegraph Cases," p. 180.
