erty in its buried wires on the premises of subscribers. So that, in order to deny the defendant the right to use the earth for a return circuit, this very right must be conceded to complainant. And it must logi-. cally be conceded that, having first taken possession, it has acquired a monopoly of the earth. The position destroys itself, for it must, to be true, assume the existence of a right in one which has to be taken for granted in order to disprove that the same right exists in another. It is no answer to this to say that complainant has a natural current, not disturbing electrical conditions, or a harmless current. It is not a natural current, but an artificial one, depending for its existence on the generation and specific direction of increased electric fluid, and along an artificial channel. It is not harmless any more than the other, except that it is not powerful enough to overcome or practically interfere with the other, and in the sense that, in this contact, it produces no obviously injurious results. But it is unnatural, and the hurtful or harmless character, as compared to the other, is different in degree merely, and not in kind, as both are alike artificial and powerful. No scientist has yet been able to show how or where the injurious contact first occurs. Whether it originates on the land where the wires are buried, or elsewhere on the circuit, and pursues its entire round, is a matter of speculation merely. The hurtful overflow or disturbance may, in fact, originate at a point entirely away from the telephone wire's intersection with the earth, and on land which the telephone company does not claim; but, assuming the contact and disturbance to commence there, then it could not work an injury, unless, in connection with that particular land, the complainant had undertaken to use the earth away from it as a circuit; and so the injury is not to the specific property, but to the circuit of the earth thus sought to be appropriated and monopolized. Complainant's use of the earth as a return circuit was, of course, on the theory we are treating it, a rightful appropriation by complainant, because that of a property of the earth for such as is common to all. But it cannot, for that very reason, be an exclusive or monopolistic appropriation. If a right at all, it can only be a natural, common right, and cannot be asserted against the exercise of a like right which may impair it, because it cannot be exclusive property; for such use of the earth as may be made exclusive by monopolizing can never be recog‐ nized as property. Principles deduced from cases of poisoned air, polluted water, obstructed light, etc., are inapplicable, as drawn from plausible, but faulty analogies. These are injuries resulting in specific places to persons having the right to the free and exclusive enjoyment of so much of these elements as are their own, or necessary to their own use. . . That complainant's private property is not affected, independently of its claim to the use of the earth as a circuit, is manifest, for no electric fluid could affect such property in the form of land leased or owned by complainant, unless the circuit the artificial circuit was established. . . . The assumption that complainant has the same right to the use of the electric circuit established over adjacent lands as it has to the support of adjacent land, use of surrounding air, or of water distantly flowing and finally passing through its property, is obviously fallacious, because all these are natural elements in natural condition, ultimately naturally brought, without artificial means or special appropriation thereby, for complainant's use. But complainant's claim to a special artificial use of the earth throughout that portion claimed by it, as well as by others, if it is a special artificial use, is not helped by reference to natural conditions, under which its right to the enjoyment of natural elements is conceded; for, if treated as a natural right, complainant's claim to the earth as a circuit cannot exist to the exclusion or hindrance of an equal natural right in another. . . . I have discussed the questions involved only upon principle, but my conclusions on both propositions are sustained by authority. The first proposition is directly adjudged by the Courts of last resort in New York and Ohio, and my conclusion as to the second seems to have the approval of the greater number of Courts which have considered it, though not all together in theory. . . . I have not, however, attached much importance to the preponderance of decided cases. The question is practically a new one. The cases on it are few, the reasons for each often different from the others, and none absolutely conclusive. I have preferred to rest this dissent upon its own reasoning. WILKES, J. (dissenting). I concur in the opinion of the majority as to the liability of the electric railway company for damages for the interference of the poles and wires of the railway company with those of the telephone company on Main street, East Nashville, upon the ground upon which it is placed by the majority. I also concur with the majority as to the liability of the railway company for all damages caused by conduction, and think the conclusion can properly be arrived at upon the grounds taken by the majority. But I am unable to concur with the majority that the use of the streets by an electric railway company is an ordinary use of the streets in the sense of the statute and charter provision. BRIGHT, Special Judge. I concur in this opinion. 252. W. E. B. Correspondence of the Boston Transcript. Washington, Jan. 25, 1910. Because the working of the wireless telegraph operators is a matter entirely outside the comprehension and knowledge of the average layman, the troubles with which this class of communicators has to deal are unappreciated to a great degree. It seems to be an agreed premise that regulation of some sort is needed and at once, and it seems further to be agreed that the suggestion as presented to the House by Representative Roberts of Massachusetts opens up the most feasible method for such control. His suggestion is that the President be empowered to name a board which shall include men from the Government service and from the commercial companies, as well as an expert civilian, and that this board shall proceed to formulate regulations as experts and submit these regulations to the House later for enactment into law. That the suggestion will pass the House in due course there is little doubt, and that the report of the board will be accepted would appear also to be reasonable. Since the suggestion as to legislation in this form was made Mr. Roberts has been receiving communications in great number from the several Governments, departments and from the commercial companies as well, all directed to the end of showing in detail the need for regulation of some sort. The greater proportion of the trouble seems to be due to unscrupulous amateurs who insist on working their private stations at all hours regardless of the needs of the public or the necessities of endangered humanity. As a case in point, the Bremen, carrying the usual large passenger list, was approaching the New England coast during the short time, a year or so ago, that the Nantucket Shoals Lightship was out of commission. The steamer was calling for the lightship for information as to weather conditions and location. She was answered, and was much shocked and surprised to find that the reckoning as computed by her navigator was apparently in error. Information that was untrue was also given regarding weather conditions. On reaching New York the matter was looked into and it was discovered that the lightship had been sunk a week prior to the sending of the messages and the work was that of amateurs. Had not the captain of the steamship been very confident of his location he might well have changed his course as a result of these messages and lost his ship and its human freight. Again, it is an ocean steamer that is to be blamed for interference fraught with the possibilities of death for the crew of a wrecked schooner. This occurred in New York harbor, the schooner being ashore some miles outside and the crew in danger. Effort was made to locate the revenue cutters in New York, and because of the attitude of the operator on the Bermudian, the ocean steamer in question, it was not possible to do this directly and the messages had to be relayed, causing a delay of hours. It develops that the Bermudian merely wished to report her location and could have waited a short time as well as not to do this. The greatest trouble is caused by the use of high-powered stations by the amateurs, as these high-powered sending stations cannot be choked off. In every large city in the country are many of these stations, and in the city of Boston alone it is stated that 150 is a conservative estimate of the number in operation at present. Much of this trouble is due to the indiscriminate use of these stations by the men who own them and their lack of ability to realize and appreciate just what they are doing. Dealers in electrical supplies are also in a degree to blame, as they sell the amateurs the apparatus they desire without any effort to find out what the man knows of his art and well knowing that in the hands of a reckless or careless person much trouble and delay must follow. Then there is the type of aerial Socialist who insists that there can be no property in the air and that he has as much right to use his apparatus at any time and in any way as those who may be sending important messages. Such a one, in the opinion of the government, is , who takes delight in interfering with Government and private messages times without number, as the records of the wireless companies and the Navy Department show. . . . In the storm of Dec. 25, 1909, the following message was received by the revenue cutter Gresham: "Steamer Victorian is reported in collision somewhere off Cape Cod. Help is wanted at once, ten are reported drowned and many injured." Because of this message, received in the course of one of the worst storms ever known on the New England coast, the revenue cutter Gresham proceeded to weigh anchor and was all but on her way to assist when it was proved that the message was sent by an amateur in Brockton. This instance alone is sufficient proof of the awful possibilities for loss of life and danger to shipping in the ungoverned use of wireless stations. In Europe, regulation has been undertaken and in England a form of license has been adopted whereby the postmaster general has supervision over the entire range of wireless operations on ship stations. Further, because of the continued interference with official messages and commercial work, a convention was held in Berlin in 1906 at which the great majority of the sovereign Powers were represented, including the United States, and regulations were adopted whereby the several Governments agreed to certain recognition for the messages of each other and certain tolls. All this is very satisfactory as far as it goes, but until such time as the amateur and the grasping manufacturer are under control in some way, the highest efficiency of which wireless telegraphy is capable can never be realized. The war for the control of the air between rival commercial companies has been quite intense in earlier days of the work, but has been discontinued now so that there is but little trouble between them. The greatest annoyances at present are the men who do not realize what they are doing, and those (by far the greater offenders) who realize fully what they are causing in the way of trouble and delay, but who persist in their actions because of a belief that they have a right which might be injured or derogated if legitimate business was allowed to go on; or who have some petty spite against an operator of a Government or commercial station.' 1 [ESSAYS: Edward W. Hatch, "Property Rights in Percolating Waters," (C. L. R., I, 505.) Simon G. Croswell, "Conflicting Rights of Telephone Lines and Single Trolley Electric Railways in the Highways," (H. L. R., IX, 493.) Samuel C. Wiel, "Running Water." (H. L. R., XXII, 190.) John B. Clayberg, "Genesis and Development of the Law of Waters in the Far West." (M. L. R., I, 91.) Samuel C. Wiel, "Priority in Western Water Law." (Y. L. J., 18, 189.) A. Miller Belfield, "Is Electric Interference Actionable?" (1894, Northwestern Law Review, II, 97.) "The Law of Electrolysis." (1899, A. L. R., XXXII, 280.) NOTES: "Percolating waters: correlative rights." (C. L. R., III, 429, 593; IV, 143, 305.) "Water, property right in." (C. L. R., VIII, 148.) 237.) "Percolating waters: landowner's right of appropriation." (H. L. R., VII, 120, 369; VIII, 180; IX, 362; X, 190, 183; XI, 200; XIII, 151, 299, 414; XVI, 295.) "Subterranean and percolating waters: Percolating waters: landowner's right of appropiration." (H. L. R., XVIII, 71.) "Rights incident to ownership of land: underlying salt brine." (H. L. R., XX, 487, 503.) "Diversion of subterranean percolating waters." (M. L. R., IV, 541.) CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: A. J. Willard, "Principles of the Law: Personal Rights." c. XVII, Common Right to the Use of Natural Elements, pp. 148–154. Topic 2. Kinds of Harmful Acts violating the Right ... 253. SHELDON AMOS. Science of Law. (1874. Chap. VIII, pp. 170, 176, 178, 180). A right of ownership, in itself, however minute it is, carries with it a legally supported claim to use a definite thing, for certain more or less definite purposes, and for a definite or indefinite time. The meaning of this claim, or right, is that all other persons whatever are forbidden to interfere with the owner in the exercise of his power in respect of the thing owned, up to the point to which the limits of that power reach. . . . Ownership must almost always have direct reference to possession, whether present or future. It is important, then, to investigate the real nature of possession. The true order of ideas is the following: - In ordinary speech, and apart from any legal significance attaching to the word, the possession of a thing is the merely holding or grasping it. If the thing be too large to hold, possession means the being able at any moment to turn it to all its possible uses or, at the least, to detain it so effectually as to prevent any one else turning it to any possible use. Thus, according to the illustrations so constantly given, he who has the key of a cellar and can open it when he pleases, is the possessor of the wine in it. He who has the key of a stable and can take the horse out when he pleases, or can prevent any one else taking it out, is the possessor of the horse. This has been called "natural possession," and has in itself no legal idea attached to it whatever. It is clear that there may be good reason for protecting a person in simple possession of this nature. . . . The position, then, of a person thus permanently protected in his possession is the following: - He is treated henceforward not merely as an actual possessor, and as deserving of mere provisional protection and reinstatement in case of his being violently extruded, but he is now able to establish a claim to lasting possession against any one else whosoever. . . . It is a right of this sort which, at the earliest stage of legal progress, is exactly co-extensive with a right of ownership, or, in other words, with "property" or dominium, two terms which are frequently opposed to the term possession. . . . The series of tenants and prospective tenants of the same thing may, indeed, chance to be an indefinitely long one; it being true, however, at any given moment, that there is only one person, or assemblage of persons, who has a right to immediate possession. ... . The results of this investigation are that ownership or property always has reference to possession, either immediate or prospective. 254. Justice OLIVER WENDELL HOLMES. The Common Law. (1881, pp. 214, 216, 241.) A legal right is nothing but a permission to exercise certain natural powers. The law does not enable me to use or abuse this book which lies before me; that is a physical power which I have without the aid of the law. What the law does is simply to prevent other men to a greater or less extent from interfering with my use or abuse. To gain possession [of a thing] a man must stand in a certain physical relation to the object and to the rest of the world, and must have a certain intent. If what the law does is to exclude others from interfering with the object, it Herbert Spencer, "Justice," c. XI, The Rights to the Uses of Natural Media. John Austin, "Jurisprudence, or the Philosophy of Positive Law," 4th ed., vol. II, p. 838 (Lecture XLIX.)] |