xt73bk16mf8w_353 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/mets.xml https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14.dao.xml unknown 35 Cubic Feet 77 boxes archival material 51w14 English University of Kentucky Copyright has not been assigned to the University of Kentucky.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Louisville and Nashville Railroad Company and Lexington and Eastern Railway Company records Railroads -- Appalachian Region -- History. Railroads -- Kentucky -- History. [269e] Miscellaneous text [269e] Miscellaneous 2016 https://exploreuk.uky.edu/dips/xt73bk16mf8w/data/51w14/Box_35/Folder_3/1424.pdf section false xt73bk16mf8w_353 xt73bk16mf8w Index to Miscellaneous File No. 269 - 1916.
Senate Bill #347 prohibiting the condemnation of RR rights of way by
Telegraph Companies.
Expense Acct. of L.E. Earvie, Feb. 10, 1915, to Apr. IF, 191$.
In Re proposed changes in ER crossing & erection of new depot at Jackson
In Re Senate Bill No. 1 creating the 36th Judicial District of Ky.
In Re taking depositions of G. H. Justice in railroad cases.
Alcey Morris, Admrx. V. L&E Ry.Co. e Report of Proceedings.
In Re Supplemental Lease, Mortgage,&c. between L&N RR Co. and The '
_ t . . u '0
Eureka Lumber bompany, covering rails and Splices for a
narrow gauge road up bcalem Creek in Perry County.
Cornett eases — Misc. correspondence.
Lease,&c. bet. L&N RE Co and Ky. Association.
In Re E. h. Baxter - Attachement.
J.D. Pope V. L&N - Garrard Uircuit Court.
Contract,&o. bet. Ky. River Hardwood Co., The Mowbray & Robinson
Go. and the 1&N Eh Co.
In Re settlement of cases in Lee, Estill and Breathitt.
In Re Deed of Release between L&N R? Co. and Kitty B. Shryock.
In He proposed deed — City of Lexington to LdN for the contingent
reversionary interest of the Ltit; oi Lex. in the abandoned
L&E car shop lot & obligation from the L&N to the City
of Lexington covering consideration for the deed.
In Re settlement of certain Litigation in Lee County.
In Re Rule of Ct. of App., requiring maps, diagrams, &c. to be filed
wi th re (301‘43 .
In Re appeals in Logan Smith, Leed Thomas and G.H.Dickerson cases.
' Expense Acct., S.M.U. Jan. 15,1915? to Mch.l§, 1917.
In Re S.M.W's leave absence May 12, to Aug.15,1917, Military T. Camp.
In Re settlement cases — Breathitt and Lee.
In is ilacing of warning signs at points where trespassing on Company’s
right of Way and other property is extensive.
Misc. correspondence at back or file.

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-gfigww2%éZ%aA%fl; March.17, 1916
/
744%20/ / A
Mr. Samuel M. Wilson,
Local Attorney, ‘
Lexington, Ky.
Dear Sir:
I write to express my warn appreciation of the valu-
able assisfimoe wnich you rendered in connection with the pass-
age of Senate Bill 30.347, prohibiting the condemnation of
railroad rights of way by telegraph companies. As you perhaps
know, this bill passed in the Senate by 31 to 2, and in the House
by 84 to 10, and has been signed by the Governor.
Without the loyal and efficient aid of yourself and our
other attorneys throughout the State, this very important re-
sult could not have been attained.
The Executive Denartment and the other members of the
Law Department join me in heartily thanking you.
Respectfully yours,
General Counsel.

 In Re 7» ‘ ,
SENATE BILL No. 347 '.
I ‘ Prohibiting the
» Condemnation of Railroad Rights of Way by
' Telegraph Companies.
REPLIES OF W. L. MAPOTHER,
, First Vice-President of Louisville & Nashville Railroad
- Company,
TO '
Letter of the Western Union Telegraph Company’s Man—
v ager to the Members of the Kentucky Legislature
- and to an earlier letter of the Western “'
Union’s Attorney to the Louisville ‘
Board of Trade. . v
.— WESTERFIELD-BONTE Co.. xxcoxrom‘rzm Louisvxua. KY. _

 . 7 ,. . . 3,3,
, _ . , ‘ . ’ ' till
. ‘ ' ' _ ' ,. . ’ ‘l':
. , 1 ' . _ E -, ' . V’ ' - , 7 i E To the Members of the Senate and House of Representa-
, 7, 1 I . , . _. E‘ E; tives of the Commonwealth of Kentucky:
. - . ‘- . .- . . i},
. ‘ ' . ' _ _ ii? The newspaper controversy between representatives
' ' ' i E . ' , ' I E . I 3E of the \Vestern Union Telegraph Company and myself is
~—< ' , ' E ” , i - . . " ‘ ‘ i’i not of my choosing. It was begun by the letter of Mr.
.. E a . E 1E Overton Harris, attorney for the \Vestern Union, ad—
. ‘ ' ' EV '1 g , ’- « i _ E dressed to the Board of Trade at Louisville, in which he
' L [El' attacked the Louisville and Nashville Railroad Com-
, , ‘ . _ ' ~ I 7 j pany’s advocacy of Senate Bill No. 347, prohibiting the
, , i ‘ ' .7 ‘ j ' ' . condemnation of railroad rights of way for telegraph
' , ' * i E i , _ El lines. To this I replied, stating frankly that the Louis—
“ . i . L 1 E ' Ville and Nashville, and other railroads in the State, were
_ ‘ ' ' . ,1 advocating this bill and giving the reasons why the exist-
- ’1 . E 7 7 7 ' V ' E ing act should be repealed. These in brief were because
’ , , ‘7 . . ‘ 7 the court only this month construed the act to permit
' E ' , E ' _ l the telegraph companies to acquire joint ownership in
’ E 1 ' E the railroad property for a merely nominal sum and be-
. , h ‘ , cause such a. construction of the act would innnediately
, ' - ‘ ' L‘ :’ lead to the filling up of all railroad rights of way in the
' ' I ‘o' _ ‘ . ‘ gt: State with telegraph lines and produce a condition which,
, . . under the modern system of operating trains by auto-
' . _ y i a, matic block signals, would seriously endanger the safety
' ' , ' E ' i _ ‘ it of the traveling public.
K E '. V . . I ‘ ‘1‘ In this morning’s papers there appears over the signa~
, . . _ w , i ' . f ' ture of Mr. Charles Smith, manager of the Western Union
\ , ’ . 7 _ , ' ' 7 iii Telegraph Company, a reply to my letter. It is an elab-
' . ' ;E orate legal argument, devoted almost exclusively to the
. ' ‘ i' E: questions of law involved in the recent litigation be.—
‘ " ‘ . EEi tween the \Vestern Union and the l). & N, wherein the
‘ - it
_ , l 3

 l , ‘ '
i l
i ,
i 2 g 3 ,
3 Federal Court, on February 16, 1916, entered its final it could terminate the contract (under a clause giving it
a judgment, giving to the Western Union on the payment the right to terminate on one year’s notice) and could
g of $5.00 per mile a right of way in perpetuity over 942 then by means of this Kentucky statute get practically

i miles of railroad in Kentucky with the privilege of in- v for nothing and in 1301'P9tuity7 £1109 from 3113’ 00111001 by

i gress and egress at any and all places and the right to the L. & N., all the rights which under this contract were

pass up and down and across the rights of way with men costing it great sums 0f money P91“ 51111111111-

3 and teams at will. As Mr. Smith’s communication is ad- Accordingly the Western Union gave this notice 0f

l dressed to you, I ask you to indulge me in this brief re— termination in the summer of 1911, and just before the

3 Sponse to that very remarkable paper. expiration of the year filed this condemnation suit in the

i Though presumably presenting the Western Union’s summer of 1912. Then it was, after the contract had

Whole case it does not attempt to refute the numerous ' been terminated by the lVestern Union so that it no

i arguments against giving it the power to condemn rail— 10115391” had any rights at all upon the L- & N73 right 0f

road rights of way, and this is true simply because abso- way, that the L. & N. gave it notice to move its poles with—

i lutely no arguments in support of such an inexpedient ‘ in a reasonable time, to-wit, by the following December.

i and unreasonable statute can be presented. This action by the L. & N,. was essential because, as

i The only fact Mr. Smith discusses is the history of the Western Union had terminated its contract with the

g the litigation between the two companies, but his state— L- & N., it became necessary for the L- & N- to bUild its

. ment leaves a most erroneous impression. He com- own telegraph lines for the safe and proper operation

i ments upon the fact that the Western Union poles have of its trains; and it needed the space on its right of way

been on the L. & N. right of way for thirty years and 3 for this purpose. 1

that in August, 1912’ notice was given by the L. & N. to The rest of Mr. Smith’s communication is devoted

the Western Union to remove the poles by December 1’ for the most part (1) to the creation of the impression in

i 1912. The fact is that those poles were placed on the your minds that the L. &- N. is seeking by Senate Bill No.

i L. & N. right of way under contract between the two 347 to “reverse a judgment entered after full hearing .
:_ companies, believed by them to be fair to both parties, and full consideration,” and (2) to establish the legal

under which the Western Union rendered very valuable j proposition that under statutes like this a telegraph

service to the L. & N. service, which the president of the ‘ company should be required to pay only nominal compen- ;
3 lVestern Union has estimated to be worth several hun- sation for the right to OCCHPY and use forever a railroad

dred thousand dollars per year. But in August, 1911, company’s right 0f way. A
‘ the \Vestern Union evidently conceived the notion that

. r

 4 E 5

- The fiI‘St PTOPOStttOH is most surprising since it is, as V attention to the statute until the Western Union recently

I understand, conceded by all lawyers that a judgment 1 brought this test case, which is the first one that has ever

i cannot be affected by the subsequent repeal 0f the law t been tried out under the statute. It need not fear any

3 upon which it is based, and yet Mr. Smith, in this care— _‘ forfeiture of its poles, etc., for the Federal Court, that

i fully prepared legal argument, declares that the purpose i has control over the whole subject will, by its injunction,

g of the proposed law is to defeat proceedings, which “after which is still in full force, give it time for the removal .

i long and vigorous litigation have resulted in a judgment of its poles, wires, etc. But, to remove any possible

t in favor of this company,” which assertion he later re— , doubt about the matter, I hereby agree for the L. & N.

. peats in still more emphatic language where, in speaking L that, if the judgment should be reversed, and the trial

i Of a losing litigant’s usual disagreement With the court, ; court should hold that this act ends the litigation, we will

i he says “but it is not, we Shhlhit, usual for the Legisla- ‘ neither claim nor injure the poles and wires provided

é ture to come to his aid and, by a statute, seek to reverse they are removed within six months from the time the

g a judgment entered after full hearing and full considera- court so adjudges,

i tion.” ‘ It will be understood, too, that the L. & N. has no

I am advised that this act can not possibly reverse or ‘ need for them as it has already constructed about two-

5; affect in any way the Western Union’s jUClgment. ,' thirds of its own pole lines and will shortly complete the

g It is true that we expect to appeal from this judg- l entire line.

6 ment, but if it is a proper one it will be affirmed. If, how- i As to Mr. Smith’s elaborate citation of authority to 1
: ever, the Appellate Court should reverse it because er- ‘,‘ support the proposition that a telegraph company should

2 roneous, then, for the met time, might the question arise i acquire a joint interest and user in a railroad company’s ‘
i as to the effect of this proposed law if passed, when the j right of way for a nominal compensation, I wish to thank 3
‘ Sllit is sought to be retried. l, him for clearly bringing that point to the front. that- 3
E If the court should then hold that the case can not I ever may be the situation in the States of Texas, Mon-

2 proceed further the \Vestern Union would be and should ', tana, Idaho, Utah and a few other jurisdictions, where ‘
t be on the same footing as all other telegraph companies 1 statutes of this sort have been so construed, we confess

l and just where it was before the passage of the act of l that we did not think it possible that such a construction

1898. It will be remembered that the railroad companies 5 would be applied in a state like Kentucky, where many ‘
i and the telegraph companies lived together peaceably of the rights of way are very narrow, and the pole lines J
i until the year 1898, without any condemnation statute, 1 must of necessity be so close to the track as to seriously

and have done so since that time without paying any f interfere with the enginemen’s view of signals and track

5 l

 l ' ' ' .

1

i

l 6 7

! obstructions, as also with double tracking, borrowing of Letter of First Vice-President Mapother to the

earth and numerous other railroad uses. Board of Trade.

i I cannot, within the proper limits of a letter of this The advocates of Senate Bill No. 347, prohibiting the

3 character, discuss the details of the cases cited by Mr. condemnation of railroad rights of way for Wire line

i Smith for the “Testern Union Telegraph Company, in purposes, reproduce here the letter of Mr. Mapother of ‘
t which he says nominal damages were allowed. Suffice I] February 25th, in reply to a written communication of i
3 it to say that in this case between the \Vestern Union and i: the Western Union Telegraph Company’s attorney to the

the Louisville and Nashville Railroad Company, when the ii Louisville Board 0 f Trade protesting against the passage ‘
matter was submitted to a jury, as it was on the first of this bill.

i trial, the jury fixed the damages at $500,000. But the It is as follows: ‘
a court set that verdict aside and, 011 account of the court’s

i construction of the Kentucky telegraph condemnation Mr. Wittttti‘m Heyburn, Chairman. Transportation Com-

E statute, in the second trial instructed the jury to find nuttee, Board of Trade, Louisville, Ky; ‘
j practically nominal damages. ' DEAR SIR: I notice from the press that a letter has .
3 In conclusion, I call attention to Mr. Smith’s enume- been addressed to you by Mr. Overton Harris, attorney

l ration of thirteen States where there are laws specifically for the Western Union Telegraph Company, Of February ’
i authorizing condemnation of railroad rights of way by 24; complaining 0f the hiii recently introduced in the

: telegraph companies. There are forty—eight States in Kentucky Legislature, WhiCh Pi'OhibitS the condemnation I
i the Union. I do not profess to know the different laws 0t railroad rights 0f way by telegraph companies f0? '
Z of each, but I am advised that in a number of states, in- their wire lines. 1
eluding such prominent ones as Massachusetts, New I have hOt seen this letter, hht Mr. Harris is entirely
t; York, New Jersey, Pennsylvania, etc., no such law as this correct ih his assumption that the L- &' N" along With E
:1 is countenanccd. other railroads, is supporting this measure. He is wrong, 1
Respectfully, {1‘ however, in supposing that the bill, if passed, will inter- E
j “7. L. MAPOTHER, Q5 fere with the contracts between the railroads and the
; First Vice_P7-gsidem telegraph companies made upon the strength of the exist- ;
f L. of? N. Railroad Company. ing telegraph statute. There was no statute permitting 1
i such condemnation until the passage of the present act
ihiiiSViih‘v it)"; February 287 1916' in 1898, whereas the telegraph lines have been on all the
railroads by contract since before that date, the L. 85 N. i
i ' contract having been made in 1884:. ;
l

 ‘ 9
. 8
r. . . highways in the. State) without settling like a parasite .
? The statute of 1898, Which was slipped through the ~ 5 . .
, . . . . . 13 upon the carefully selected, cleared, fenced and highly im-
; Legislature under a title which gave no intimation o 1 N 1. . . , . ,7 -. ‘
~ , . proved nari ow sti 1p of land (aveiaging Slkty—Slx feet or
‘ its contents, has always been regarded by the railroads . _ _ . ’
l , . . less in Width) which a railroad has purchased and needs
' as most unWise and unjust, but the extent of its inon- £0 ”E o d . t1 f t r 6)
_ , , r 1 s own purposes 11 W an in 1e 11 u e;
‘ stros1ty dld not appear until February 16’ 1916’ when But aside from the injustice to the railroads a due I
4 . . . . _._ 1 1 _ - (.1 c L ,
- the Federal Court of the district construed it, 111 effect, ' _ . ’ .
E . ‘ regard for the safety of the traveling public demands 1
v to mean that a telegraph company can be required to . . . _ . 1
i 1 , 1 t' f t1 . lt 't bt . ll that a railroad right of way shall be as free as poss1ble
. a 011 nomina com ensa ion or 1e mg i s 1 o ‘ains; _ . '
l p y y p . from the interference of outs1ders over whom the railroad
‘ m other words, that a telegraph company can acquire com an has no control and from all unnecessarv ob ‘
‘111 absolute ' ' t T - ' h' ' ‘a'li‘o‘id’s right of “"1 p y ‘ i ‘ ‘ u - .
. ( , Joni OVHICIS 1p in a 1c1 ( . . b (y . . . _ . 1
. ‘ . . . , . structions to the View of engineers in looking out for the
I With the power and right in perpetuity to erect and inain- _ . ,1
l . . . . numerous and various Signals—an average of one every 1
i tain thereon its lines of poles, wires, brace poles, guy minute by which the trains are now run The poles ‘
' . - —_ . ' , C - 7 l
Wires etc. and to enter u 011 it at an 7 and all laces _ _ a
t ’ ’ c p , c 3 C . c 1) cross arms, and Wires already seriously obstruct the View, 1
5 and travel on, along and across it at Will With men and 1 d 11' ,11 1 b t 'tl tl _ 1. i
' . . . 2 11 '11s W1 a ways 0 rue even Wi 1 1e one Wire me 1
i teams, and that for this valuable right, With the conse- 11_ 1 .1 1 t 1 ( 'th 't l
. W 101 every rai roar mus lave e1 er 1 s own or one ‘
. quent damages to the railroad, a telegraph company shall with Which it has '1 contract) for operating its trains l
. . . . ’ c x (, c ( . ( _ ‘ ‘
i pay only nominal compensation—1n the case mentioned _ _ . . , O ’ ;
t _1 t 't} t d' tl f t tl t tl t but this is all the more reason why additional telegraph ;
. (' _ . , o- , 1 1e 1' er . . ‘
i $5 per m1 e . no “I 1% an mb‘ 1e ac a p op . y lines should not be given the right to further occupy the l
; thus shared is worth many thousands of dollars per mile. , , , g
_ . . _ railroad rights of way. If this law, as now construed,
This strikes the moral sense of every faii'-niiii<_led man , _ , . g
_ . _ . stands it means that every ex1sting contract Will be term- 5
. as inherently wrong. The act, therefore, which the West- , . i
r _ ‘ “’ mated by the telegraph company, as the \Vestern Union l
' ern Union contended, and the court held, had that mean- Telecriapli Compa 1 t .1 t . t 1 ‘t t t ,
. , , b ' . (ny vo un am y ermina e( i s con rac >
i ing should be repealed 111 order that the other thousands _ _ _ Y l
l . . . ; With the L. & N. and, in lieu thereof, both the Western f
. of miles of railroad 1n the State owned by all of the l U . _ .- z
.- . . , ' ‘ 1 fl». t 1 ‘ _V .1 ,.7 l nion and other telegiaph lines “'1“ condemn and take g
1 railioad companies may not )0 con sca ec as tie 9L , , _ _ g
l ,1 f tl L & \Y , , _ 1 1, , tl' Qt t 1 s, for a song an absolute right of way in perpetuity over %
. mi es 0 1e . *- 1‘. s principa mes 111 ns t. a e 1ave . . . . . . E
l b f every railroad 111 the State. This Will mean the piling t
een so ar. . . . .
3 v . _ up of obstructions and interferences, which, being fur- l
g The Western Union is worth $177,000,000. ‘Vliy 1 . . . . ‘ . . l
1 . . . . . . _ tier multiplied as busmess moieases in the future, Will ;
; should it not obtain its own rights of way (which it is . . . , l
r _ . ‘. ultimately, of necess1ty, become Simply intolerable. ;
} authorized by statute [0 do over all public roads and f
3 ' p
l I
1
1 .
I l
i 1
9

 T 10 i
Mr. Harris seems to complain as to the haste with
which the friends of Senate Bill 347 are pushing that
i measure. If there be haste it is because the existing law
, has only become understood within the last few days,
~ the case above mentioned being the only one ever tried _
, . out under it, and the railroads are naturally unwilling, ..
, if they can avoid it, to have the repeal of this statute,
which is sure to come, postponed until the next Legisla- t
. ture, since within the two years intervening the telegraph , 5
1 companies could, and would, condemn their rights of way ' E
over every railroad in the State. This is one occasion 2 f

i when the railroads of Kentucky (many of them Ken-
3 tucky corporations and all large taxpayers) can justly
: call upon the Legislature for relief against the injustice ;
i and inexpediency of permitting the telegraph companies,
all of them foreign corporations, to acquire joint owner- ‘i
' ship and control over their rights of way, and to acquire
.. these rights in perpetuity for the nominal sum of $5 per i
mile. Yours very truly, E
~ W. L. MAPOTHER,
First Vice-President ’ Z

‘ L. c6 N. Railroad Company. f
i Louisville, Ky., February 25, 1916. i
2 V l

 ’«1 7 1” ' . .~" . ‘
i: 1 r >\ ‘ ‘ . —
K V
. r ,'.. ‘ " 'i , " l ‘ _' i
1 9 r . ‘ ‘
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. 5, , ] .
Q ‘ .

 , i‘
L

 Some, Reasons Why Telegraph Lines Should
Not Be Permitted to Condemn the Right
to Use Railroad Rights of Way.

 lit;
l
l:
i
..;
. t;
it Some Reasons Why Telegraph Lines Should
‘ Not Be Permitted to Condemn the Right
‘ t to Use Railroad Rights of Way.
The undersigned, because of some familiarity with
_ it this subject, acquired in a recent trial of a suit (herein—
? after mentioned again), in which a telegraph company
. . l was seeking in the Federal Court to condemn rights over
g; a railroad right of way, have been asked to state their ‘
E views as to the propriety of a telegraph company having
' t the power to acquire by condemnation the absolute right
,‘, in perpetuity to locate, construct and maintain its poles,
‘ 3 wires, and other structures, upon the rights of way of a
' l railroad.
. ' lJ Not until 1898 were telegraph companies ever given
' t the power in Kentucky to condemn rights of way for their
t poles along the rights of way of railroad companies. But
. “ I til in 1898 a statute was passed (Kentucky Statutes, 46790),
' t authorizing a telegraph company to take by condemna—
; tion an absolute right in perpetuity to use railroad rights
‘:' of way in constructing and maintaining their lines of
1 wires and poles, which necessarily (as has been lately
l held) involves the right of ingress and egress to the tele—
[j graph company for its employes to go upon and up and
t down the right of way of the railroad company at will
, ' l for the purpose of maintaining telegraph lines, a right
,t which will thus bring on the railroad right of way large
l numbers of persons over whom the railroad company has
t no control—-in other words, strangers to the railroad
t .

 2 3 i
company. This Act probably would never have been i per mile per annum, which would mean on 1,000 miles of 1
passed but for its misleading title, which gave no intima— ll railroad that 4,000 new poles would have to be erected
3 tion of its real purpose. And the fact that there is no each year. It was also estimated that it takes about six l
real need for it is shown by the fact that, although the men to replace a pole; so that, as different poles need 1
Act has been on the statute books for sixteen years, there I replacing at different times and different places, there ‘
has never been any attempt to use it except in two cases. ' would be involved in the course of a year the equivalent E
This legislation is inherently vicious; it leads to a con— J of 24,000 men on the rights of way of the railroad com— I
dition of things which is very dangerous to the public, l pany in the simple matter of replacing poles. And this g
and the Act itself, under the interpretation lately given f ‘ does not include the linemen who do the work of replacing E
it, is grossly unjust to the railroad companieS, Whose ’ broken wires and insulators, etc., nor the men and teams ‘
‘ rights of way are taken. Being indefensible, it should be i 1 necessary in conveying the poles upon and along the right E
repealed so far as railroad rights of way are concerned, ~ of way. There will thus be introduced on to the railroad l
and that is what is proposed to be done by a bill recently 1 5 rights of way continually large numbers of these persons 1
introduced in the Kentucky Legislature. E ‘ who are strangers to the railroad company, over whom it
has no control, who are not familiar with its rules, nor ‘
The PUbfiC Interest. governed by them, and who are not subject to its dis— _ ‘
As said above, the effect of this Act is to allow a tele- cipline. _ . . . . I
graph company to acquire in perpetuity the independent ‘ ; That this is a Situation fraught With great danger has
right to place its poles, wires, and all the appliances of a been recognized by‘ all the courts Of F1118 country Wlth
telegraph line upon the right of way 0 f a railroad com— 1 extraordinary unanimity from the earliest railroad days ‘
pany. And this line, of course, has to be maintained. 1 down to the present time. Ordmarily, when a right of 1
\Vires break, wooden poles rot or are blown down, and E way is given to a person over the land Of another, or when ‘
there is continual necessity for repairing, replacing, or ‘ it is acquired by the public for a high road over the land l
reconstructing a line of this character after it has once Of an individual, this does not give any one person an 1
been built, the result of which is that telegraph employes , exclusive right 0f pOSSGSSion 0f the right Of way. It gives ‘
are required to be continually going up and down the C a right to use the land for a passage way, bUt not cm ea;-
railroad right of way, taking with them often teams and i g elusive right in any 0110‘ Although this is true, yet in the
materials for their repair or replacement work. It was t case of railroads the courts have held for more than half
estimated by telegraph men in a case recently tried that E ' a century that it is absolutely necessary for public safety
it is 1106053313, to replace on an average about four poles of . that a, railroad company shall have the caacluslve right of

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possession of its right of way. While this has not been i country, and the speed and power of these trains, have E
I held by virtue of the language of any statute giving this enormously increased since 1853. And thus the danger re- l
: exclusive right of possession to the railroad company ' sulting from allowing strangers, not under the control of l
r over its right of way, but, without any such language in the railroad company, to come upon the right of way and i
; the statute, the courts have declared that it must exist, ‘ thus lead to possible interferences with the operations of g
i as a matter of necessity, for the sake of public safety. l,‘ these trains, is vastly greater than it was 60 years ago. .
The leading case on this subject was one in Which : Moreover, train movements are controlled today dif— l
Chief Justice Redfield wrote the opinion of the court in i ferently from those conducted in 1853. At that time 1
1853, more than 60 years ago, when railroads were in ::h trains ran by schedules or time-tables only, where loco-
1 their infancy, and the principles there established have ' ‘ motive engineers had nothing special to look out for, ex- j
j never been departed from. The case referred to is Jack- ' cept persons approaching the track, so as to avoid in-
1 son v. Rutland & B. R. Co., 25 Vt. 150, 60 American Deci- 2 juries to them. But today train movements are con- i
‘ sions, 246, Where the court used this language: trolled largely by signals along the rights of way. There l
” _ _ . are the train orders, which are sent by telegraph from i
The nght Of a rallway company to the exclumve i the train dispatcher at some main point to stations along 1
possessmn of the land taken for the purposes of their . . . l
road difiers very essentially from that of the public I the hue, and, in order that the engineer approachmg the l
in the land taken for a common highway. The rail- .- station may know whether or not there is an order for 3
, fggazmi?fig 27:15:33 [0732: ZZZuZZg (33%;; gags: ’1, him, a signal, usually called a semaphore, is placed at the
gers, workmen, and the enjoyment of the road, bane 1 station which he must see as he approaches. Again, on
the right at all times to the exclusive occupancy 0]“ lines where the traffic is especially heavy, there has come 3
the land taken, and to exclude all concurrent occu- into use—and its use is annually urged by the Interstate
pancy by the former owners, in any mode and for any , , ,
purpose. Any other view of the subject must lead I Commerce Comm1ss1on as a safety dev1ce—what are p
to the imminent peril of life and property, and ulti— , known as automatic signals, being signals which are ‘
mately t? the most glaring absurdities.” (60 Amer- i placed all along the right of way at an average distance :
ican De01s1ons, 250.) I _ . _ :
‘ of about a mile apart. These cons1st of poles or stafis, ,
The truth, as thus stated in those early days of rail- i to each of which is attached an arm, and the position of .
roading, has been vastly emphasized by the manner of ,1 that arm indicates either (1) danger, (2) caution, 01' (3) 3
conducting railroad operations in these modern times. ’1 safety. If the arm stands erect, it "is safety; if it stands
The number of trains operating today, in order to ac- at an angle of 45 degrees to the pole, it is caution; and
commodate the increased and increasing traffic of a great A if it stands at an angle of 90 degrees to the pole (hori-
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a, 6 i 7
zontal to the ground), it means danger. According, there- 1 31th tihe operation of the mechanical dev1ce may lead to t
fore, to the location of this arm, the action of the engineer ”35:1 cgpsequencfs. f h' f
in controlling his train is governed. Again, there are . 81;“ e enamp 8:11 t \1: 0:0?flredcinltia ew mgntshts ‘
‘ Signals at all railroad crossings and junction points, I :goiannngssee ?Ith e i as Vlf e, k' a anoogah ' r
where there are interlocking devices. A locomotive en- V, _ ouisW : uring r; lcoursehor ma 11:? lslome c ang:s 1
, gineer’at a recent trial, above referred to, testified that t 11.1 I: :8 ern Urgfmt e eggap ;nle, W 1: was :11 t e
j when running at the rate of 60 miles an hour on a line 1' 1.1g 0 way, a es ern mon e egrap Wire ecame 3
where there is an automatic Signal line he Passes some t crossed With a signal wire Of the railroad company, the t
; kind of ,L signal which he must be on the lookout for if result of Which was that a foreign current of electricity
, c ’ j t . . . . . l
‘ every 40 or 45 seconds, from which it is apparent that u i :3: 2:210:::::a11n::1:h:e::g10na1 27:;,:Vlghf:]::1f:r:kil::n::i
. the train is running 40 miles an hour, he passes some kind } position (th: danger signagwat whiZh it shoiild have i
1 of a signal every minute. i ’ -
‘ Thus the absolute necessity thatalocomotive enginee StOOd’ to a vertical position, WhiCh is the signal for g
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have as unobstructed a view of the signals along the right , safety; and, as a consequence (.)f thls’ a 0011181011 occurred 1
of way of the railroad as is possible to attain is indis- I between two “trains, resul‘tmg m the death of twelve 1060- l
putably manifest. Yet the telegraph poles and their t ple (;md the 1’”,qu of thtrty 07512678"