ances caused by conduction. The plaintiff was compelled, in order to reclaim its plant, to put in this McLeuer device at a cost of $3, 660.58. Second. Injury resulting from what is called "induction" or parallelism." The wires of the telephone company and of the railway company are parallel upon some of the streets. It is a physical fact of much importance in electric mechanism that when two wires of two circuits are parallel to each other, and there is a current of varying intensity on one of them, this will produce in the other, in the opposite direction, a current of electricity of similar variation. The amount of induction depends upon variation in current, the distance of the wires from each other, and the length of the parallelism of the wires. The current upon the trolly wire and the feed wire of the railway is quite variable in quantity and intensity, owing to the drain upon the store of the electricity by the moving and stopping of the car. Nor is the electricity, as generated, exactly uniform in its flow from the dynamo. The result is, wherever the telephone wire is parallel with the trolly wire and feed wire, there is induced upon the telephone wire a current whose variation corresponds with the variations of the electrical current on the electric railway wires, thereby producing such disturbances as render the use of the telephone plant impracticable. But one practicable remedy has been discovered for the disturbances caused by induction; that is, to destroy the parallelism of the wires of the two circuits. This remedy is practicable for the telephone company alone. The expense incurred by plaintiff on this account was $856.30. Third. The plaintiff expended $816 in putting up higher poles on Main street, in consequence of conflict produced by the erection of defendant's poles and wires. The plaintiff's poles occupied one side of Main street, and defendant's poles were put up on both sides of said street, and conflicted with plaintiff's poles and wires, so as to render it necessary for plaintiff to put in new and higher poles. The majority of the Court think the defendant could have reasonably avoided this conflict by supporting its wires upon a single line of poles with arms, erected through the middle of the street, or upon the opposite side from the telephone poles and wires. Judge SNODGRASS and the writer of this opinion do not concur in this finding of fact. The contention of the parties will be stated and disposed of in order, and so much of the Court's charge as may be deemed material will be stated in the proper connections. The fact that plaintiff sustained loss in consequence of the construction and operation of defendant's plant is admitted by defendant. The amount of that loss is accurately ascertained, and is not a matter of controversy. The sole question for determination is defendant's liability for that loss. The loss by conduction is distinct from that resulting from induction and from conflict of the poles and wires of the two systems. The two items last named - loss by induction and by conflict of poles and wires - may be conveniently considered together as involving the same or similar questions. But loss by conduction will be considered apart from other matters. 1. Is defendant liable for loss that plaintiff sustained from induction and from conflict of the poles and wires of the two systems? This loss, unlike that caused by conduction, occurs upon and within the streets, and is a direct and immediate result of plaintiff's occupation and use of the streets simultaneously with defendant, and would be obviated or remedied by the withdrawal of either party from the streets It is important to ascertain the exact status and relative rights of these companies as regards their use and occupation of the public streets. . . . We hold the electric street railway a legitimate use of the streets within the original general purpose of dedication, and therefore an ordinary use. Judges WILKES and BRIGHT do not concur in the conclusion that electric street railways are an ordinary use of the streets. By whose negligence or fault has plaintiff sustained the loss under consideration? Clearly, upon the facts as found by the majority, the loss caused by conflict of poles and wires is imputable to defendant's fault or want of care. Having power to have avoided this conflict without injury to its plant, it was defendant's duty to do so. The conflict was the result of defendant's unnecessary act. On the other hand, the loss by induction cannot be imputed to any fault or negligence of defendant. Its plant was, as regards this matter, properly constructed and operated. Defendant could not obviate induction without abandoning the streets where it occurred. Induction is such obstruction of the streets as plaintiff is forbidden to create. . . . A child upon defendant's track, in front of its moving car, is not, in a strict sense, an obstruction; but who will say that the fact does not seriously interfere with defendant's free and unembarrassed use of the street? . . . The plaintiff cannot recover for the loss sustained from induction. It results from its unlawful obstruction of defendant's use of the streets. The consideration of other questions is irrelevant in this connection. 2. Is defendant liable for loss sustained by plaintiff from the effects of conduction? The loss by conduction, unlike that caused by induction, does not result from plaintiff's obstruction of defendant's use of the streets for an ordinary purpose. This interference would occur, and cause precisely the same loss to plaintiff, and in precisely the same manner, if plaintiff had no poles or wires upon the streets. . . . This brings us to the consideration of a novel and very important question. It is insisted by defendant that plaintiff cannot recover the damages caused by conduction except upon the theory that it has the right to the exclusive use of the whole earth for electric purposes. A monopoly of the earth's use for any purpose, or by any person, is, of course, inadmissible. The plaintiff, however, repudiates this ambitious and extravagant claim, and insists that its demand is the more modest and reasonable one for the exclusive use of electricity upon its own premises, in an authorized and harmless manner, without injurious disturbance from nonnatural electric conditions, caused by the defendant's acts. . . In the operation of defendant's plant large and turbulent artificial currents of the electrical fluid were generated and poured into the streets beyond defendant's control. These currents, following a natural law, left the streets and overflowed private property for half a mile on either side. It was upon the private property of plaintiff and its subscribers, and not elsewhere, that these abnormal electric currents found and ascended plaintiff's ground wires, and throttled its plant. The injury by conduction can be obviated at an expense which entails no great hardship upon either party. We think, upon these facts, that plaintiff has the right to the protection of the Courts in the enjoyment of its property. Franchises, easements, and the ability to use property, though intangible, have value, and are, equally with tangible property, entitled to the recognition and protection of the Courts. If the plaintiff's claim, that contemplates no more than a lawful and harmless use of its own property, shall be characterized as a demand for the monopoly of the whole earth, what shall be said of defendant's larger demand for a hurtful use, not only of the streets, but of private property for half a mile on either side? The plaintiff's request is: "Let me alone in that use or application of electricity upon my own premises that causes no harm or disturbance to any one anywhere." The defendant's com The mand is, "Get out of my way!" to all feebler electrical enterprises that may have the misfortune to come within the range of its power. plaintiff proposes an adjustment of conflicting claims with defendant by the rule embodied in the enlightened maxim, "sic utere," etc., while defendant insists upon the application of that ruder maxim, "might makes right." . . . To concede defendant's claim is to give to it an injurious use of plaintiff's property, and at the same time to deny plaintiff the harmless use of its own. The argument that assumes that plaintiff is claiming the whole earth as a return circuit, and therefore appropriating a common right to its exclusive use, because "plaintiff's portion of the earth cannot be isolated and separated electrically from the balance of the earth," is one which, if pressed to its logical results, would work a revolution in the law as to the use of the earth, the water, and the air. How, if this argument be sound, can any one insist that the air and water, that by the operation of natural law visit his premises and support life, shall not be rendered noisome and impure by the injurious acts of his neighbor? It is impossible that this portion of the air and water can, in advance be "isolated and separated from the balance." Is not the right to the use of air and water as "common" as that to use electricity? If the right to the harmless use upon one's own premises without injurious disturbance from others of air or water. or electricity is made to depend upon his ability to isolate and separate in advance his portion of these elements fom the "balance," that right resolves itself into an "airy nothing.". . . The doctrine that reason sanctions and justice approves, as it appears to us, is that the lawful, harmless, and accustomed use upon one's land alike of water, air, or electricity, cannot be lawfully obstructed or impaired by the injurious act of another, attended with such disturbance of natural and existing conditions and consequent loss as that caused by conduction in this case, especially when the party performing the injurious act had the power to obviate and remedy the injury or loss without greater sacrifice, comparatively, than is required of defendant in this case to remedy conduction. It is not material that the injurious act is done upon the premises of one other than the injured party, as if the channel of a stream is cut upon adjoining lands, and the water diverted, or the waters on them arrested in their regular flow, and then turned loose in flooding quantities. To sustain plaintiff's claim accords with the analogies of the law, as will appear from the following cases: A manufacturer of cocoa matting used a delicate chemical to bleach his matting, which was then hung out on his own land, in the air, to dry. Another manufacturer made sulphate of ammonia, and the vapors escaping in the air combined with the bleacher's chemicals, and blacked his mats. It was shown that if the cocoa-mat maker had used another chemical, just as good or better, his mats would not have been affected. But it was held that he had the right to use any chemical he pleased, which would not hurt anybody else, and that he had the right to have the air come to his lands pure and untainted. Cooke v. Forbes, L. R. 5 Eq. 166. A manufacturer discharged the refuse from his works into a surface stream. It corroded the boilers of another factory below, which used water from the stream for steam purposes. The upper manufacturer was enjoined. Merrifield . Lombard, 13 Allen, 16. A manufactory of copper in one case, and of lead in another, gave off vapors which were carried by the winds upon the lands of another, and injured growing crops, fruit trees, and flowers. They had to close down. St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642; Appeal of Pennsylvania Lead Co., 96 Pa. St. 116. A brewer bored a deep well, and got water for use in making his ale. There was no running stream below. His neighbor had a similar well, but used it as a sink. The sewerage percolated the brewer's lands, and polluted the water so it could not be used in making ale. The brewer was protected in the use of his well. Ballard v. Tomlinson, 29 Ch. Div. 115. The Standard Oil Company stored oil in its warehouse. The oil barrels leaked. This leakage soaking into the earth, percolated Mr. Kinnaird's land, and ruined his spring. It was held the company had no right to thus use its property. Kinnaird v. Oil Co., 89 Ky. 468, 12 S. W. 937. A silk maker required water of great softness and purity to wash and dye his silks. He got it out of the Charnot. A public water company built a reservoir above, and so collected the water that when it was discharged the purity of the water was affected. The company had to quit. Clowes v. Waterworks Co., 8 Ch. App. 126; Gould, Waters, § 219; Water Co. v. Watson, 29 N. J. Eq. 372. Although the precise question determined in this case has not hitherto been necessarily involved in the decision of any case, it has, nevertheless, been considered by some of the Courts. Hudson River Tel. Co. v. Watervliet Turnpike & R. Co., 32 N. E. 148 (decided in 1892). . . . National Telephone Co. v. Baker [1893] 2 Ch. 201. The same doctrine is maintained by Judge Taft, then judge of the Superior Court of Cincinnati, and now a justice of the Federal Circuit Court of Appeals, in the case of City & Suburban Tel. Ass'n v. Cincinnati Inclined Plane Ry. Co. The injury by conduction constitutes such invasion or taking of plaintiff's property as renders defendant liable for the damage done. It is a direct and immediate result of defendant's injurious act. It imposes a burden upon plaintiff's property that impairs its use and value. The loss is fixed and definite in amount. It can make no difference that no material thing was taken, or that the loss resulted, not from contact of material things, but through the agency of the subtle and impalpable electric fluid. The important consideration is that a thing of value has been taken from plaintiff for the benefit of defendant as the representative of the public, and for that thing compensation must be made. . . . As the result upon the whole case, the judgment below is affirmed as to the loss by induction, and reversed in all other respects. And upon the written stipulation of the parties that final judgment shall be entered here there will be entered in this Court judgment in favor of plaintiff and against defendant for $3,660.58 for loss by conduction, and $816 for loss by conflict of poles and wires, with interest from date when expended, and all costs of this cause. Judge CALDWELL concurs in the result of this opinion on the question of conflict of poles and wires and on the question of induction, but does not agree on the question of conduction. SNODGRASS, J. (dissenting). I cannot agree with the majority of the court as to liability of defendant for injury by conflict of poles on the streets. . . On the main point in controversy the right of damages for injuries inflicted by conduction I also disagree with the majority. The majority opinion is founded and can be founded alone on the idea that the complainant has the natural right to the use of the earth as a return circuit, for the complainant does not profess to own the intervening earth between points where its wires on the premises of its several subscribers are buried and its plant. It is only in consequence of this use of the earth, and its natural right to use it, that the telephone company's intersecting locations at various places are of value. Disconnect these from the right to use the adjacent earth owned by others than itself intervening between these points and its exchange, and it has no valuable prop |