Popular Science Monthly/Volume 25/June 1884/The Pole and Wire Evil
By OLIVER E. LYMAN.
WHEN any system of business is so conducted as to arouse a feeling of opposition on the part of right-minded citizens generally, it is safe to say that some evil exists, which renders the immediate reformation of that system, in whole or in part, a matter of public importance. Judged by this standard, our telegraphic and electrical system would seem to be in need of reformation. That it has evil features no one can deny, and nothing about it, perhaps, is more obnoxious than the method at present in vogue in cities of constructing lines over-ground—a method which has increased in obnoxiousness with the recent remarkable growth and expansion of the electrical system.
The mode of construction has not been conformed to the changed conditions which this growth, simultaneously with the progress of civilization, has brought about. The same method of hanging wires on posts which was introduced by Professor Morse has been persevered in ever since, regardless of the fact that the conditions which rendered his single line across an open country, twoscore years ago or so, innocent and proper, are not the same in our densely-built and populated cities of to-day. Ignoring other causes of change, the telegraphic business, most of which is conducted in cities, has wonderfully increased. In place of his one company there were in 1880 seventy-seven telegraphic and one hundred and forty-eight telephone companies in the United States, which numbers have, since that time, been greatly increased by the more general introduction of the system of telephonic communication and the incorporation of many electric-light companies, to say nothing of an increase in telegraphic associations. The single wire from Washington to Baltimore had increased in 1880 to 325,517 miles of wire, 34,305 of which were operated by the telephone companies, and in October, 1883, one company alone, the Western Union, was operating 432,726 miles of wire, nearly enough to reach from the earth to the moon and back again. This same company in 1866 used only 75,686 miles of wire, so that it will be seen it has nearly six times as much wire strung over the country as it had then, and these 432,726 miles of wire are exclusive of 144,294 miles of cables and poles. Of the latter ungainly commodity it set up, in the year 1880 alone, 168,056, which is about two thirds of all the poles erected that year.
The magnitude of these figures is by no means wholly due to the extension of lines in newly developed portions of the country. The growth has taken place in cities as well. In New York city, for instance, there are now twenty-five public telegraph and four telephone companies, to say nothing of electric-light organizations and private parties using wires. Their operations are conducted in two hundred and eighty-five offices, allowing only one office to each telephone company. But, as each telephonic subscriber requires a separate instrument, there are, practically, as many offices as subscribers, and the above number must be increased by several thousands. As each of these thousands of telegraphic and telephonic offices has from one to several hundred wires running from it to some other point, one realizes what a gigantic net-work of wires has been woven over us; and, when we add the testimony of the senses, the stupendousness of the encroachment becomes still more apparent. From roofs of private buildings and from poles in public streets the meshes depend, each pole strung with from to one to one hundred and sixty or even more wires. At the corner of Wall and Water Streets, for instance, is a pole with one hundred and ninety-six insulating points. Be these public ways wide or narrow matters not, so far as encroachment is concerned. Some of the largest poles have been erected in the narrowest ways. In Fulton Street, west of Broadway, for example, there are poles seventy-eight inches in circumference. In other places poles sixty and sixty-four inches in circumference have been placed, and a diameter of a foot and a half is common.
Now, all these facts and figures bear startling testimony to the extent to which a system of encroachment upon public and private rights may silently proceed when unchecked. When to this thought we add a recollection of the instances of danger, obstruction, and accident occasioned to life, limb, and property by wires and poles, it must be admitted that a system, whose benefits can hardly be overestimated, has nevertheless become, through an utter disregard of the changed conditions brought about by time, obnoxious in its operation. In the language of modern thought, it has failed to adjust itself to its changed external relations. It is out of correspondence with its environment. This want of correspondence in the case of a human being is called death. In the case of the system under discussion, instinct has taught the layman to call it a public nuisance, which, if so, is theoretically about the same thing as death, inasmuch as, in the eye of the law, that which is a public nuisance has forfeited the right to exist. That this lay opinion is right and that the system is, per se, a, public nuisance, is a matter of elementary law.
How comes it, then, that such a condition of things has arisen? Ask the offending corporations, and they will tell you that it is a legalized nuisance, and point to legislative enactments which they claim legalize their acts. It becomes necessary, then, to examine these enactments. In a magazine article it is of course impossible to review the laws of all the States. We propose to confine ourselves, therefore, to those affecting New York city, which is the longest-suffering and most interested of our municipalities.
The Legislature of the State of New York, in 1848, authorized the 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. 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 disadvantage 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. 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 confounding the franchise, which is to construct lines, with the method of its exercise. The two are distinct. The former is absolute; the latter is conditioned. None can dispute the right to construct lines, but how it shall be done depends upon what is necessary. Piers and abutments may be necessary in certain places, and posts in others. When necessary they may become lawful; but neither piers, abutments, nor posts are lawful erections where they are unnecessary. This is a fair construction of the language used.
Are posts, then, necessary to the enjoyment of the franchise of the telegraphic companies in cities? That depends upon whether there is any other practicable way of exercising the franchise which is less of a nuisance, for the franchise must be exercised, in crowded cities, at least, in such manner as to obviate the nuisance, if possible, and inflict the least injury upon others, the best means to that end being employed, and, if there are two ways in which a franchise can be exercised, one of which would create a nuisance and the other would not, or would at least diminish it, that method must be adopted which will obviate the nuisance, or reduce it to a minimum. Otherwise, the act becomes unlawful for exceeding the limits within which obstructions are allowed in the interests of the public.
Now, it is well known that there is, besides the overground system, an underground method of constructing lines. The latter, manifestly, does not permanently obstruct the streets, or incommode the public use of them. In fact, the courts have decided that it is not in fact or in law a nuisance. Moreover, under this system, the exercise of the franchise is very unlikely to result in injury to person or property. If this system is practicable, the telegraphic companies must, in view of the principles applicable to their case, adopt that method. For, if the pole system is a nuisance, and the underground way is not; or, if the former permanently obstructs the streets, and the latter does not; or, if the pole system is dangerous to life, limb, and property, and the underground plan is not, or is less so—then, so long as the poles are left standing, and the wires strung, the franchise is not exercised in such manner as to reduce the nuisance to a minimum, and to inflict the least injury upon others, and the corporate acts are unprotected by law.
The question of necessity resolves itself, then, into a question of the practicability of the underground system. There are many who claim it to be impracticable, and, as a matter of course, there are imperfections in the system, in which respect the overground method is like it. But to all that may be said against it, there is one indisputable reply, that subterranean wires are serving their purposes successfully in various parts of the world to-day. The system is successful in London; also in Paris, and other European cities. Miles of wire have been successfully operated in Washington. An underground system has been tried with success in Philadelphia. It has worked well in 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. Measured by this principle, there is no difference between an elevated-railway structure and a telegraph-pole. Both are uses of the street inconsistent with the use of the same as an open public street. Such use in both cases violates the rights of abutting owners to freely use or pass over the street. How, then, has a single post been legally erected, if the owner of the premises, whose rights are violated by the erections in front of his property, has not first received compensation, be it ever so little, awarded him in due form? It is safe to assume that not one cent has ever been paid by way of such compensation, and, that being the case, such structures must fall under the prohibition of the above principle, and are therefore unlawful.
But, if, after all, none of the foregoing objections are tenable, is there no way of getting rid of the evil? If a panacea does not already exist, one suggests itself in legislation. Our State Legislature can relieve us. It has the power to drive the poles and wires from the street, and compel the construction of lines underground. As to wires yet unstrung and poles yet unerected, it may be said this course would be quite proper, but with regard to those already up (assuming that they are legally up) would not such legislation be manifestly unconstitutional, as impairing the obligation of the charter contract which, we will say, authorized their erection?
Now, the framers of the Constitution, in declaring against the enactment of laws impairing the obligations of contracts, never intended that the Legislature should altogether avoid retrospective action upon the civil relations of parties to existing contracts. No Legislature ever did avoid it, they said, and to require it would be extremely inconvenient. It has accordingly frequently been held by our courts that the clause in question does not so far remove from State control the rights and properties which depend for their existence or enforcement upon contracts as to relieve them from the operation of such general regulations for the good government of the State and the protection of the rights of individuals as may be deemed important. All enactments are subject to the subsequent exercise by the Legislature of what is known as the police power, which the Legislature can not alienate, if it would, but must reserve to itself in order to avoid embarrassment in the exercise of control over the general welfare. By virtue of this power the Legislature may, for the public welfare, subject persons and property to various restraints and burdens. It may abate nuisances, even if in their origin they may have been permitted or licensed by law. It would be monstrous if it were otherwise. If a charter implies that a corporation may always continue to exercise its rights in the same way in which their exercise was at first permissible, and under the regulations then existing and those only, the public would be helpless when, without anybody's fault, circumstances so change that what was once lawful, proper, and unobjectionable, becomes a public nuisance, endangering the public health or the public safety. As circumstances change, regulations affecting the exercise of a franchise may be changed, too. "It can not be," said the Court in one case, "that the mere form of the grant should prevent the use to which it is limited being regarded and treated as a nuisance when it becomes so in fact." In that case, as in many others, the exercise of the police power was held constitutional, even though it directly violated rights theretofore given. By this power the removal of mill-dams once lawfully erected has been compelled, and railroads have been obliged to adopt devices for safety not prescribed in their original charters, even though it caused expense. That is not a matter to be considered when a question of public safety is concerned. Then why should this power not be resorted to in the case of telegraphic and electrical obstructions? Are they exceptions to the rule that when under changed circumstances lawful erections become nuisances they may be abated? We think not. The police power ought to be exercised. Legislation, by virtue of it, driving the wires underground and the poles from sight, would, we submit, be in every respect constitutional and proper.
Such legislation might take the form of direct enactments against the evil, or of a delegation of authority to act in the matter to municipalities. While the police power can not be alienated, it may be delegated to a municipality; for one of the objects of the creation of municipalities is to exercise certain powers of the State in localities. In New York city, it may be that, in the right to regulate the use of streets for poles, the local legislative body has been already clothed with this power sufficiently to meet the evil. Be that as it may, the point remains the same, that the evil is to be met by legislation. Whether by the principal directly, or indirectly by its agent, matters not, so far as its propriety or constitutionality is concerned.
If we are right in our conclusions in this article, why should the evil be allowed longer to exist? Is the corporate power greater than the influence of public opinion? Or, if so, shall public opinion be left unsupported by concerted action? As in politics, or almost any other sphere of action where many are concerned, so, in the suppression of this evil, much depends upon the part taken and the activity displayed by the individual. Those who put forth no exertion to save their rights and tranquilly sleep on them need not be surprised if their rights are trampled upon.