Western Union Telegraph Co. v. Franklin Construction Co.

47 A. 616, 70 N.H. 37

Opinion

Pike, J.

The use of the plaintiffs’ wire in the construction of the defendants’ road was such an exercise of dominion over it as to constitute a conversion (Evans v. Mason, 64 N. H. 98 ; Baker v. Beers, 64 N. H. 102, 105), and the plaintiffs are entitled to judgment therefor. Both defendants are hable, — the Construction Company for appropriating it in the construction of the road, and the railroad company for receiving and holding it as their own. Dotey v. Hawkins, 6 N. H. 247, 249; Hyde v. Noble, 13 N. H. 494, 499 ; Lovejoy v. Jones, 30 N. H. 164, 169; Cooper v. Newman, 45 N. H. 339, 342; Farley v. Lincoln, 51 N. H. 577, 580; Gould v. Blodgett, 61 N. H. 115, 121.

The count in trespass for cutting down the poles and wire which interfered with the operation of the railway raises a federal question involving the construction of a United States statute, and its consideration here would be of little practical value. Patten v. Cilley, 67 N. H. 520, 525; Bartlett v. Blair, 68 N. H. 232. In the absence of express adjudication by the supreme court of the United States in cases like the present, judgment is ordered for the defendants.

Gase discharged.,

Blodgett, C. J., and Young, J., did not sit: the others concurred.