Western Union Telegraph Co. v. Louisville & Nashville Railroad

270 Ill. 399

• Court: Illinois Supreme Court
• Decided: October 27, 1915
• Status: Published

Opinions

Mr. Justice Craig

delivered the opinion of the court:

This is an appeal by the Western Union Telegraph Company of Illinois, an Illinois corporation, from an order of the county court of St. Clair county dismissing a petition for condemnation filed by the appellant on February 3, 1912, seeking to condemn an easement in the right of way of the Southeast and St. Louis Railway Company, leased to the Louisville and Nashville Railroad Company.

The condemnation petition, as finally amended, sets up, in substance, that the petitioner is a corporation duly organized as a telegraph company under the laws of the State of Illinois for the purpose of owning, constructing, maintaining and operating lines of telegraph in the State of Illinois; that under and by virtue of the laws of the State of Illinois it is empowered to> exercise the right of .eminent domain and to construct lines of telegraph along and upon any railroad within the State in such manner and at such points as not to incommode the public use of said railroad; that the Southeast and St. Louis Railway Company, one of the defendants, is a corporation organized and existing under the laws of the State of Illinois, and is the owner of a railroad having a right of way varying from twenty-five feet to two hundred feet in width, extending easterly out of the city of East St. Louis through a portion of the counties of St. Clair, Clinton, Washington, Jefferson, Hamilton and White, to the center thread of the permanent stream of the Wabash river, in said White county, and that said railroad company is also the owner of two certain branches of railroad also located within the State of Illinois; that said railroad and its said two branches extend in all a distance of about 179 miles; that, the Southeast and St. Louis Railway Companj'', on January 27, 1881, leased to the Louisville and Nashville Railroad Company, also a defendant, the aforesaid right of way, with the right to use and operate said railroad' for forty-nine years; that said Louisville and Nashville Railroad Company is a Kentucky corporation, and is operating a single line of railroad from said city of East St. Louis, in St. Clair county, to the center thread of the permanent stream of the Wabash river, in White county, with branches to the town of O’Fallon, in St. Clair county, and from McLeansboro, in Hamilton county, to Shawneetown, in Gallatin county, all in the State of Illinois; that the petitioner desires to construct a line of telegraph over, along and upon said railroad; that a part of said railroad upon which the petitioner seeks to construct, maintain and operate its proposed line is situated in St. Clair county; that petitioner has located its proposed line upon said right of way and branches of said railroad described as aforesaid, and that it does not seek to acquire the fee of any lands or the right to use the same for any purpose except to erect, maintain and operate the proposed line for telegraph purposes; that the line of telegraph proposed to be constructed, maintained and operated upon said railroad between said designated places will be of the best material and upon the most approved plans; that the poles will be not less than sixteen feet nor more than seventy feet long, not less than twenty inches and not more than seventy-five inches in circumference at the base, tapering about one inch in five feet, the poles to be erected by being firmly set in the ground to a depth of not less than three feet and not more than nine and one-half feet; that the number of poles to the mile shall not be less than thirty nor more than sixty-five; that the dimensions of the poles, the depth at which set and the number of poles to the mile will vary according to the load in wires and cables to be placed upon such poles in order that the pole line shall be of proper strength; that there will be attached to such poles, near the top thereof, suitable cross-arms not to exceed ten feet in length, with insulators thereon, upon which will be strung wires of suitable material and sufficient in number to enable the petitioner to promptly transmit all telegraph messages offered to it for transmission; that the said proposed telegraph lines shall be constructed and maintained upon the southerly side of said right.of way from the city of East St. Louis to the center .thread of the permanent stream of the Wabash river, upon the south-westerly side of said right of way from the. town of McLeansboro to the town of Shawneetown, and along the north-westerly side of said right of way from a point upon the main line of said railroad approximately sixteen and three-fourths miles from the main station at East St. Louis to the town of O’Eallon, and not less than seven feet from the nearest rail of the main line of said railroad; that all wires, cross-arms and other attachments which are less than seven feet distant, horizontally, from the nearest rail of the main line of said railroad shall have a vertical clearance above the top of the rails of not less than twenty-five feet; that in places where the line crosses the tracks, or where it is necessary to do so to prevent interference with the work of said railroad, petitioner’s poles will be of such height as to permit the wires to be suspended so far above any structure of the railroad company as to prevent any interference therewith; that in no' place will the clearance above the nearest rail be less than twenty-five feet at such points of crossing; that said poles will be so erected and said telegraph line so constructed and maintained as not to obstruct or interfere with the business or use of said railroad and so as not to violate any provisions of the statutes of the State of Illinois. The following paragraph was added to the petition by amendment January 12, 1914:

“That petitioner does not seek hereby to acquire the space occupied, at the time of the filing of the petition herein, by any wire or wires on the said railroad right of way which said defendant railroad company at such time may have owned or operated; and petitioner represents, offers, stipulates and agrees that it will accommodate, carry and support upon petitioner’s said proposed telegraph-pole line such wire or wires as the said railroad company, at the time of the filing of the petition herein, owned or operated upon said railroad right of way and such additional telegraph or telephone wires as may thereafter be needed by said railroad company in the conduct of its business, and afford to said railroad company like benefits and. advantages, in respect to position and operation of all of said wires, as said railroad company enjoyed at the time of the filing of the petition herein.”

The petition further set out that petitioner stipulates and agrees that in the event that the said railroad company shall at any time desire to change the location of its tracks or construct new tracks, side-tracks or buildings where the same do not now exist, by reason of which new construction or change of tracks the petitioner’s proposed telegraph line may incommode the use of said railroad, then the petitioner will move such poles to such other point or points on said railroad and right of way as may be designated by said railroad company, and upon reasonable notice, and at the sole expense of the petitioner; that the petitioner has applied to said Southeast and St. Louis Railway Company and said Louisville and Nashville Railroad Company for permission to construct said telegraph-pole line upon said right of way but that said permission has been refused by said railroad companies, and that the petitioner is unable to agree with said railroad companies upon the just compensation to be paid by the petitioner to said railroad companies for the talcing and use of said easement upon said railroad for the petitioner’s proposed telegraph-pole line.

Thereafter the defendants filed their petition for a removal of said cause to the United States district court for the eastern district of Illinois, on the ground that the suit was solely of a civil nature and arose under the constitution and the laws of the United States, together with a bond for such removal, and the cause was removed to the said court. In the latter court the petitioner (appellant here) made an application to remand the cause to the county court of St. Clair county, which application was denied and jurisdiction under the removal was upheld, and subsequently the proceedings for condemnation were dismissed. On appeal to the circuit court of appeals of the seventh circuit the judgment of the district court was reversed for want of jurisdiction in that court and the cause was remanded to the district court, with directions to remand the said cause to the county court of St. Clair county, which was done. (Western Union Telegraph Co. of Illinois v. Southeast and St. Louis Railway Co. 125 C. C. A. 466.) Upon said cause being remanded the defendants to the petition filed thirty-one objections to the petition and a motion to dismiss. -A hearing was had and a large amount of evidence taken on the objections. Of defendants’ original objections the court overruled 1 to 9, inclusive, and 18 to 31, inclusive, and sustained objections 10 to 17, inclusive; and of the objections to the amendment made January 12, 1914, objections 1, 2, 4, 6, 7, 9, 10, 11 and 16 were overruled, and 3, 5, 8, 12, 13, 14 and 15 were sustained, and thereupon the court dismissed the petition to condemn and entered judgment against petitioner for costs of suit.

The objections that were overruled were to the following effect: That the act of the General Assembly of the State of Illinois approved March 24, 1874, in force July 1, 1874, authorizing telegraph companies to condemn rights of way for their lines along and upon any railroad in the State of Illinois is in violation of the constitution of Illinois, and also violative of paragraph 3 of section 8 of article 1 of the constitution of the United States and of the fifth and fourteenth amendments to the constitution of the United States, and that since the passage of the acts of Congress of June 15, 1866, and June 8, 1872, relating to post-roads, no State has the power to confer upon telegraph companies the right of eminent domain to condemn any part of the right of way of an inter-State railroad; that the petitioner has no authority to condemn any portion of the right of way of the defendants, since defendants own and operate a railroad engaged in inter-State commerce; that the petitioner is neither a de jure corporation nor a de facto corporation, and hence has no power to condemn; that the description, in the amended petition, of the right of way sought to be condemned is void for uncertainty; that the petitioner is guilty of fraud and collusion with the Western Union Telegraph Company of New York and is seeking to violate the public policy of the State of Illinois, and therefore cannot condemn; that there is no allegation in the petition that the petitioner and the defendants attempted and failed to agree as to the amount of compensation to be paid by petitioner to defendants; that only the Federal court has jurisdiction of the controversy, since Federal questions are involved in the proceedings. The objections sustained by the court were, in substance, as follows: That the defendants have a preferential right of location for their line of telegraph for railroad purposes, and having selected and located a line of telegraph for their own use, petitioner cannot secure an easement for its line on the same location; that the construction of a telegraph line on the south side of defendants’ right of way, as proposed by petitioner, would incommode the public use of the railroad; that the location now sought by the petitioner for the proposed telegraph line is already devoted to a similar public use by the defendant railroad companies and cannot be condemned by the petitioner for the use sought by it.

The objections to the amendment to the petition of January 12, 1914, which the court overruled, were, in substance, that the petition could not be amended since it would change the location of the petitioner’s line as described in its amended petition; that the amended petition filed February 16, 1912, and the evidence introduced thereon, indicate the location of the proposed telegraph line to be where the Western Union Telegraph Company, a corporation of New York, had formerly constructed and maintained a line of poles and wires, and the petitioner is now estopped from making a new location on the railroad right of way; that until petitioner has acquired a right of way by condemnation it can make no stipulation as to how such right of way shall be used; that as petitioner owns neither right of way, poles, cross-arms or wires, it cannot stipulate, being without power to carry out the terms of the stipulation; that petitioner cannot make an agreement with the railroad companies, since the railroad companies refuse to stipulate; that the proposed agreement by petitioner would constitute a joint line of poles and wires, which would result in constant conflict of authority and responsibility, and the court has no authority to impose a joint arrangement upon the defendants. The objections sustained by the court were: That the petitioner cannot acquire a right of way by a stipulation not agreed to by the railroad companies; that petitioner has no power to bind a railroad as to how it shall use its own right of way; that the defendant the Louisville and Nashville Railroad Company is entitled to use its right of way free from interference, joint possession, ownership or partnership of a pole line with the petitioner; that petitioner cannot gain the benefits and advantages of the stipulation without a written contract, and defendants decline to enter into a written contract with petitioner; that the right of the Louisville and Nashville Railroad Company to maintain and operate an existing telegraph line owned by it and devoted to public service, and to erect and maintain additional telegraph and telephone wires, is necessary to efficiently carry on its railroad business, and its right to enjoy the free and separate use and possession of said property independently of other control or ownership is of great value, of which it cannot be deprived in the proceedings without violating the fourteenth amendment of the Federal constitution, or interfering with the transaction of its inter-State and intra-State business, in violation of the act of Congress approved July 24, 1866.

From the order sustaining these objections and dismissing the petition the petitioner prayed an appeal to this court, and assigns as error the action of the coitnty court in sustaining the objections and dismissing the petition to condemn. Appellees have assigned as cross-errors the action of the county court in overruling the other objections to the petition.

It was assumed by the court and the parties that the objections and the motion to dismiss the petition put in issue the sufficiency of the petition and the petitioner’s right to condemn, and upon this issue evidence was taken, without objection, by both parties as to the status of the parties to the suit, their previous business relations and dealings, and other matters leading up> to the filing of the petition to condemn. These facts, so far as material, are as follows:

On June 18, 1884, the Louisville and Nashville Railroad Company and the Western Union Telegraph Company, a corporation organized under the laws of the State of New York, entered into a written contract whereby the railroad company granted to the telegraph company for a term of twenty-five years from July 1, 1884, the exclusive right to construct and maintain telegraph ‘lines upon the rights.of way owned or controlled by the railroad company during the existence of the contract. It was further provided that after the expiration of twenty-five years the contract should continue in force until the expiration of one year after written notice should be given by one of the parties to the other of an intention to terminate the same. The telegraph company, among other things, agreed to set apart one wire for the preferential use of the railroad company, and further agreed that if the railroad company should at any time require greater wire facilities on any portion of its road the telegraph company would furnish an additional wire for the railroad company at the cost price thereof upon its poles, or the railroad company might at its own cost string such additional wire upon the telegraph company’s poles in such manner and position as the teler graph company might direct. In 1901 the telegraph company, at the request of the railroad company, strung an ■ additional wire for the railroad company upon its poles, and the cost thereof, amounting to $3820.61, was paid by the railroad company. This wire has ever since remained upon the poles of the telegraph company and has been used exclusively by the railroad company. In 1902 the Western Union re-built its system along the railroad company’s right of way and placed the poles in new places on the south side of the right of way and about five feet laterally from the old poles. The wires used by the railroad company were moved to other places on the cross-arms and poles selected by the telegraph company, and the telegraph company continued to maintain, repair and furnish current for these wires so used by the railroad company to the date of filing this petition. On August 17, 1911, the telegraph company served notice upon the railroad company that it would on August 17, 1912, terminate the contract above mentioned. On October 5, 1911, the Western Union Telegraph Company of Illinois was organized under the laws of this State with a capital stock of $25,000, for the purpose of owning, constructing, maintaining and operating lines of magnetic telegraph in the State of Illinois. The subscribers to the capital stock were all officers or employees of the Western Union Telegraph Company of New York and their subscriptions to the capital stock were paid by the Western Union Telegraph Company of New York. The directors and officers of the Illinois corporation were elected from among the stockholders. It also appears that the organization of the Illinois corporation was brought about by the Western Union Telegraph Company of New York for the purpose of condemning the right of way sought in the petition subsequently filed. In November, 1911, the charter of the Louisville and Nashville Railroad Company was amended, and the railroad company, in addition to the powers conferred upon it by its original charter, was thereby authorized to construct and operate telegraph and telephone lines, not only for use in operating its railroad, but also for the purpose of serving the public as a common carrier of messages. On January 12, 1912, the president of the Western Union Telegraph Company of Illinois directed the district foreman o.f the Western Union Telegraph Company of New York to locate a telegraph-pole line for the Western Union Telegraph Company of Illinois along the right of way .of the Louisville and Nashville Railroad. Company in Illinois, and to locate such line practically on the same line then occupied by the poles and wires of the Western Union Telegraph Company of New York. These instructions were carried out, and the line was located on the south side of the railroad right of way and followed the line then occupied by the poles and wires of the Western Union Telegraph Company of New York. On January 31, 1912, the Western Union Telegraph Company of Illinois made a formal offer to the railroad company of five dollars per mile for an easement for a pole line upon the railroad right of way. This offer was refused, and the railroad company refused to submit a counter-offer or state what it was willing to do. On February 3, 1912, the petitioner filed its original petition to condemn the right of way described in said petition, in the county court of St. Clair county. On February 9, 1912, the board of directors of the petitioning company, by resolution, determined to accept, and did by appropriate action accept, the obligations and restrictions of the act of Congress approved July 24, 1866. On February 12, 1912, the Post-master General of the United States acknowledged the receipt and filing in the ppst-office department at Washington of said acceptance of the act of Congress. On the 27th day of February, 1912, employees cfif the Louisville and Nashville Railroad Company, acting under oral instructions from its chief engineer, laid out and located a proposed telegraph-pole line for said railroad company upon the southerly side of its right of way in Illinois, selecting practically the same location as that described by petitioner in its letter of January. 12, 1912, and in its original and amended condemnation petitions filed on February 3 and February 16, 1912, respectively, and practically identical with the proposed pole line theretofore located by employees of the petitioning company on the railroad company’s right of way in Illinois between the 16th and 22d days of January, 1912. Instructions for this work were given February 1 and afterwards commenced on the line of the road in Tennessee, but the locating was not commenced in Illinois, as shown by the evidence, until February 27, 1912. On August 5, 1912, the railroad company gave written notice to the Western Union Telegraph Company of New York requiring the latter to commence immediately after August 17, 1912, to remove from the railroad right of way and premises all the poles, wires, batteries, instruments, appliances and other fixtures comprising the telegraph line, and to complete such removal previous to December 1, 1912. The telegraph company was further notified that in defa.uk of its compliance with such requirement of removal previous tO' the prescribed date, the railroad company would take possession of, appropriate and use, after that date, all the telegraph company’s poles, cross-arms, wires, batteries, instruments, appliances and other fixtures remaining at that time on the railroad company’s right of way or premises, and would hold or otherwise dispose of the same as its own property and refuse to longer permit the telegraph company to- use the same for any purpose. The railroad company further gave notice that it would be compelled to malee use of the telegraph company’s poles and wires for telegraph business in conducting the railroad’s business until the removal of the telegraph company’s lines, because of the inability of the railroad company meanwhile to erect its own telegraph or telephone poles. On October 14, 1912, the Western Union Telegraph Company of New York filed its bill of complaint in the district court of the United States for the western district of Kentucky to enjoin the threatened action by the railroad company until the termination of various condemnation proceedings pending in the various States, among others by petitioner in lilinois. Thereafter an injunction issued and the status quo of the property has since been thereby preserved, the order of the court issuing the injunction having been affirmed by the circuit court of appeals for the sixth circuit. (Louisville and Nashville Railroad Co. v. Western Union Telegraph Co. 124 C. C. A. 573.) On the 14th of November, 1912, the board of directors of the Louisville and Nashville Railroad Company adopted a resolution which recited that in October, 1912, the president had given instructions to the fourth and first vice-presidents to proceed to assemble the materials and to construct a pole line in Illinois for carrying telephone wires, thereon, and in locating the poles to consult the signal engineer so as to facilitate the attachment of electric automatic block signals, and it was resolved that the acts of the first and fourth vice-presidents, and the location and selection of the company’s right of way by the engineer’s department, (in Illinois on February 27, 1912,) be ratified, approved and confirmed. On the 18th day of November, 1912, the Western Union Telegraph Company of New York entered into a written agreement with the Western Union Telegraph Company of Illinois, petitioner herein, whereby the Western Union Telegraph Company of New York agreed to sell and convey to the former all the telegraph lines and telegraph property belonging to it and theretofore used by it in connection with the operation of its lines of telegraph along the line of the Louisville and Nashville Railroad Company within the State of Illinois. The conveyance was to be made upon the acquisition by the petitioner, the Western Union Telegraph Company of Illinois, of the right to construct, maintain and operate lines of telegraph along the right of way of the Louisville and Nashville Railroad Company within the State of Illinois and upon the payment of $25,000.

The main question to be determined at the present stage of the litigation between the parties hereto is the right of the appellant company to bring the condemnation suit in question' under the Eminent Domain law of this State. All the reasons urged against the right of appellant to maintain its action, as embraced in the objections filed to the petition, may be divided into two general classes: (i) Those going to the validity of the law under which the suit is brought, as to one of the defendants; (2) those concerning the effect the condemnation would have on the public use of the railroad whose right of way is sought.

As to the first contention, the law allowing telegraph companies to exercise the right of eminent domain was enacted in 1874. (Hurd’s Stat. 1913, p. 2419.) The first three sections of the law are as follows:

“Sec. 1. That every company heretofore incorporated under any general or special law, or which may be incorporated under any general law of this State for the construction or operation of any telegraph line through or in this State, shall possess the powers and privileges and be subject to the duties, restrictions and liabilities prescribed in this act.

“Sec. 2. Every such company may enter upon any lands for the purpose of making surveys and examinations with a view to the erection of any telegraph line, and take and damage private property for the erection and maintenance of such lines, and may, subject to the provisions contained in this act, construct lines of telegraph along and upon any railroad, road, highway, street or alley, along or across any of the waters or lands within this State, and may erect poles, posts, piers or abutments for supporting the insulators, wires and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the railroad, highway, street or alley, or interrupt the navigation of such waters.

“Sec. 3. When it shall be necessary, for the construction, alteration or repair of any line of telegraph, to take or damage any property, the same may be done and the compensation therefor ascertained and made in the manner which may be at that time provided by law for the exercise of the right of eminent domain.”

It is not pointed out in the able and exhaustive brief of counsel for appellees in what respect this law is contrary to the constitution of this State. The law has been in force many years and has received the consideration of this court. (St. Louis and Cairo Railroad Co. v. Postal Telegraph Co. 173 Ill. 508.) Similar laws have been enacted by several States of the Union, and these laws have been construed and passed upon many times, not only by the courts of last resort of those States but by the Federal courts, and the right of the law-making power of a sovereign State to enact such laws cannot be questioned. As recognized by all authorities, eminent domain is a right inherent in all sovereignties, and is defined as the right of the nation or the State, or of those to whom the power has been lawfully delegated, to condemn private property for public use, and to appropriate the ownership, or possession of such property for such use upon paying the owner due compensation, to be ascertained according to law. (15 Cyc. 557.) It would seem that the above law was enacted in view of the commercial necessities of the times. The telegraph is a very important aid to business and to the welfare of the people generally. In enacting the law the legislature recognized the fact that telegraph lines would ordinarily follow the shortest routes between the centers of population,—the towns and cities,—-and that such routes as were most available were at that time, and would be in the future, to some extent occupied by public roads and by railroads, and for that reason it included the provisions of the second section of the act, which permits telegraph companies to construct lines along and upon any railroad, road, highway, street, etc., in such manner and at such points as not to incommode the public use of such railroad, highway or street. Since the enactment of the law of 1874 telephones have been invented and come into general use. In 1903 the law was amended so as to apply to’ telephone lines and exchanges. We must decline to consider the constitutionality of this law at this time. The State, in its exercise of the powers of sovereignty, having full right to enact such laws, the only possible constitutional objection that could be urged would be that in regard to taking or damaging private property for public use without just compensation, and that is not sought to be done by the petition in question. On the contrary, the object of the proceeding is to ascertain, by means of a court and jury, in the manner provided by law, the compensation to which the. defendants to the petition shall be entitled by reason of the occupancy of the railroad right of way,, and we think that this sufficiently disposes of the objection made by appellees that the proceeding is contrary to the fifth amendment and to section i of the fourteenth amendment to the constitution of the Unitéd States and to section 2 of article 2 of the constitution of Illinois, which constitutional enactments prohibit the taking or damaging of private property without just compensation.

It is also urged that one of the defendant companies, the Louisville and Nashville Railroad Company, is an interstate carrier engaged in the operation of a railroad in interstate commerce, and is not subject, because of section 8 of article 1 of the constitution of the United States, (giving Congress power to regulate commerce among the States,) and laws enacted by Congress in pursuance of such constitutional provision, to condemnation proceedings in a State court. The petition for condemnation avers, and the evidence sufficiently shows, that the owner of the fee in the right of way sought to be condemned is the Southeast and St. Louis Railway Company, which is an Illinois corporation. The proceeding, therefore, is one by the Western Union Telegraph Company of Illinois, an Illinois corporation, against the Southeast and St. Louis Railway Company, also an Illinois corporation, as owner of the right of way, and the Louisville and Nashville Railroad Company, as lessee thereof. No Federal law has been cited, and we are aware of none, which specifically prevents the exercise of the right of eminent domain under the sovereign powers of a State by a corporation lawfully organized and doing business under the laws of that State, against the property within that State of another corporation also organized and doing business under the laws of that State, leased to a corporation engaged in inter-State commerce. If the contention of appellees in this respect is correct, then it would be impossible for a railroad or telegraph line, or any other corporation which would otherwise have the right of eminent domain, to condemn a right of way over or across the right of way of another railroad which might be engaged in inter-State commerce. As there is hardly any railroad at the present day but that is engaged, to a greater or lesser extent, in inter-State commerce,-the State law of eminent domain would be a nullity. The right to so condemn in such a case has been upheld by this court in many cases and has never been questioned, so far as we are advised. Neither the Inter-State Commerce law nor any other law which has been enacted by Congress pursuant to section 8 of article i of the constitution of the United States, which authorizes Congress to regulate commerce among the different States, has ever been held to give Congress the exclusive jurisdiction in such matters nor to deprive the State of the power to enact suitable legislation in regard to intraState commerce on railroads, even though such railroads may also be engaged in inter.-State commerce. In the cases of Simpson v. Sheppard, Simpson v. Kennedy and Simpson v. Shillaber, 230 U. S. 352 (57 L. ed. 1511,) known as the Minnesota Rate cases, it was held by the Supreme Court of the United States that the States continue to possess the right to prescribe reasonable regulations for the exclusively internal traffic on inter-State carriers after the passage of the Inter-State Commerce act of 1887 and the amendment of June 29, 1906, although it may be that by reason of the interblending of the inter-State and intra-State operations of such carriers adequate regulation of inter-State rates cannot be maintained without imposing requirements with respect to their intra-State rates which substantially affect the former, and, as stated in the opinion in the Simpson case, quoting from Escanaba Transportation Co. v. Chicago, 107 U. S. 678, (27 L. ed. 442) : “But the States have full power to regulate, within their limits, matters of internal police, including in that general designation whatever will promote the peace, comfort, convenience and prosperity of their people. This power embraces the construction of roads, canals and bridges and the establishment of ferries, and it can generally be exercised more wisely by the States than by a distant authority. * * * When its [the State’s] power is exercised so as to unnecessarily obstruct the navigation of the river or its branches, Congress may interfere and remove the obstruction, * * * but until Congress acts on the subject the power of the State over bridges across its navigable streams is plenary.”

It is claimed, however, that by the passage of the Federal law of July 24, 1866, Congress has assumed all power over telegraph lines engaged in inter-State commerce. The first and fourth sections of said act (U. S. Rev. Stat. 1901, sec. 3964,) are as follows:

“Sec. 1. That any telegraph company now organized or which may hereafter be organized under the laws of any State in this Union, shall have the right to construct, maintain and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post-roads of the United States which have been or may hereafter be declared such by act of Congress, and over, under or across the navigable streams or waters of the United States: Provided, that such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters or interfere with the ordinary travel on such military or post-roads. And any of said companies shall have the right to take and use from such public lands the necessary stone, timber and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance and operation of said lines' of telegraph, and may pre-empt and use such portion of the unoccupied public lands subject to pre-emption through which its said lines of telegraph may be located, as may be necessary for its stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other.

“Sec. 4. And be it further enacted, that before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance with the Post-master General, of the restrictions and obligations required by this act.”

Counsel for appellees cite the case of Western Union Telegraph Co. v. Pennsylvania Railroad Co. 195 U. S. 540, (49 L. ed. 312,) as sustaining the contention that under the Federal law above set out the petitioner cannot condemn a right of way for its telegraph line. But such is not the holding in that case. On the contrary, the decision in that case seems to hold that such right, if exercised at all, must be under a State statute. The main holding in that case is, that under the congressional enactment of July 24, 1866, a telegraph company does not possess, by virtue of that law, alone, the power to condemn a right of way for its telegraph line on the right of way of a railroad. In the opinion the earlier case of Pensacola Telegraph Co. v. Western Union Telegraph Co. 96 U. S. 1, (24 L. ed. 708,) is referred to and explained. In the latter case it was held that a telegraph company organized under the laws of the State of Florida and having by its charter the exclusive right to construct and operate a telegraph line in certain counties in that State, could not prevent, by injunction, an inter-State telegraph company from erecting and maintaining its line along the line of a railroad running through the counties in question when the inter-State telegraph company had by private agreement been granted that right by the railroad company. The holding was, in brief, that the law of 1866 in effect amounts to prohibiting all State monopolies in commercial intercourse by telegraph. In the Pennsylvania, Railroad case, which arose in the United States circuit court for the district of New Jersey, the Supreme Court, in deciding, as aforesaid, that the telegraph company had no right, under the Federal law, to exercise the right of eminent domain expressly commented upon the fact that the statute of New Jersey did not make the railroad right of way public property, so as to subject it to occupation by the telegraph company under the provisions of the Federal law of 1866, and further commented upon the fact that the statute of New Jersey did not confer the right of eminent domain upon the telegraph company. In the opinion of the court occurs the following language: “In Postal Telegraph-Cable Co. v. Oregon Short Line Railroad Co. 104 Fed. Rep. 623, and Postal Telegraph-Cable Co. v. Oregon Short Line Railroad Co. 114 id. 787, there were views expressed favorable to the contentions made in the case at bar by the telegraph company, but the judgments in both cases were ultimately rested upon the local statutes,— Idaho and Montana,—which granted the right of eminent domain to telegraph companies. We may also observe that the first case went to the circuit court of appeals of the ninth circuit. That court sustained the judgment of the circuit court upon the statute of Idaho and upon general legal principles. It did not refer to the act of 1866. (49 C. C. A. 663; 111 Fed. Rep. 843.) In Postal Telegraph-Cable Co. v. Southern Railroad Co. 89 Fed. Rep. 190, and Postal Telegraph-Cable Co. v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co. 94 Fed. Rep. 234, the act of 1866 was more directly passed on. Both cases were proceedings in eminent domain,—one brought in the courts of North Carolina and removed to the circuit court of the United States, the other brought in the circuit court of the United States for the northern district of Ohio. In passing on the sufficiency of the petition in the first case, Judge Simonton said that the right of petitioner to construct its lines along the right of way of post-roads of the United States was given under the act of Congress of 1866, but, he observed, the mode or method of exercising the right conferred was fixed by the laws of the several States, and it was exclusive in its character in ascertaining the amount of compensation to be allowed. The right of the telegraph company was therefore considered and adjudged under the North Carolina statutes. In the second case a motion was made to dismiss on the ground that the power of eminent domain was not conferred by any law of the United States or the State of Ohio. The motion was sustained.” In the same case (Western Union Telegraph Co. v. Pennsylvania Railroad Co.) there was a dissenting opinion by Mr. Justice Harlan, in which he holds that the telegraph company has, by implication, the right to exercise the right of eminent domain under the congressional enactment of 1866, but it is nowhere intimated, either in the opinion of the court or in the dissenting opinion, that such companies do not have the right to exercise the right of eminent domain under State laws granting that right. On the .contrary, as the excerpt from the opinion which we have set out above shows, such right seems to be fully recognized and acquiesced in. A review of the decisions in other Federal cases cited in the opinion will show that such rights have been recognized and passed on by such courts under the eminent domain laws of the States of Idaho, Montana, North Carolina and Ohio, and similar State statutes involving the right of a telegraph company to condemn a railroad right of way under eminent domain have been involved in the following cases, and in each case, although the railroad opposed the right of the telegraph company to condemn, the telegraph company was successful and in none of them was the question of the unconstitutionality of the State law intimated : St Louis and Cairo Railroad Co. v. Postal Telegraph Co. supra; Union Pacific Railroad Co. v. Colorado Postal Telegraph-Cable Co. 30 Col. 133; Savannah, Florida and Western Railway Co. v. Postal Telegraph-Cable Co. 112 Ga. 941; Mobile and Ohio Railroad Co. v. Postal Telegraph-Cable Co. 120 Ala. 21; Railroad Co. v. Telegraph Co. 101 Tenn. 62; Mobile and Ohio Railroad Co. v. Postal Telegraph-Cable Co. 76 Miss. 731; Postal Telegraph-Cable Co. of Louisiana v. Morgan’s L. & T. R. & S. Co. 49 La. Ann. 58; Postal Telegraph-Cable Co. of Louisiana v. Louisiana Western Railway Co. 49 La. Ann. Rep. 1270; Postal Telegraph-Cable Co. of Utah v. Oregon Short Line Railway Co. 23 Utah, 474; Postal Telegraph-Cable Co. v. Southern Railway Co. supra; Postal Telegraph-Cable Co. of Idaho v. Oregon Short Line Railroad Co. supra; Postal Telegraph-Cable Co. of Montana v. Oregon Short Line Railroad Co. supra; Postal Telegraph-Cable Co. v. Cleveland, Cincinnati, Chicago and St. Louis Railway Co. supra.

In the recent case of Louisville and Nashville Railroad Co. v. Western Union Telegraph Co. supra, decided by the United States circuit court of appeals of the sixth circuit, which was a suit to enjoin a condemnation suit instituted by the Western Union Telegraph Company of New York against the Louisville and Nashville Railroad Company under a statute of the State of Kentucky which allows foreign telegraph companies to exercise the right of eminent domain, the court expressly held that the Kentucky statute was not invalid as attempting- to regulate inter-State commerce. The Illinois statute, when properly enforced in such cases, would not conflict with the Inter-State Commerce law, as the right of telegraph companies to condemn is subject to the provision that such condemnation shall not incommode the public use of the railroad, and when the condemnation is made in such manner the railroad will not be incommoded in° its public use as an inter-State carrier or otherwise. In Western and Atlantic Railroad Co. v. Western Union Telegraph Co. 138 Ga. 420, the Supreme Court of Georgia held that a telegraph line so constructed and maintained as not to interfere with the transportation of passengers- and goods beyond the State is not a burden on inter-State commerce.

There is another point that remains to be considered in connection with the possible conflict that may arise between State and Federal jurisdiction by permitting the petitioner to condemn the right of way to the center thread of the permanent stream of the Wabash river. By the act of Congress of April 18, 1818, enabling the people of Illinois to form a constitution and State government and fixing the boundaries of the State, the south-eastern boundary was fixed as beginning at the mouth of the Wabash river, thence up the same, etc. It was further provided in that act that the State of Illinois should have concurrent jurisdiction with the State of Indiana on the Wabash river so far as said river shall form a common boundary to both, and also concurrent jurisdiction on the Mississippi river with any State or States to be formed west thereof, so far as said river shall form a common boundary to both. The constitutions of Illinois of 1818, 1848 and 1870 have followed the enabling act of Congress in establishing these boundaries, and it has been held that when the middle of a navigable river becomes the boundary line between two States, the middle of the current or channel of commerce will be regarded as the boundary line. (Keokuk and Hamilton Bridge Co. v. People, 145 Ill. 596; Iowa v. Illinois, 147 U. S. 1; 37 L. ed. 55.) The phrases "middle of the river” and “middle of the main channel” are' equivalent expressions and both mean the main line of the channel, or, as it is frequently expressed, the middle thread of the current. (Buttenuth v. St. Louis Bridge Co. 123 Ill. 535.) There is'no doubt that the Wabash river is a navigable river, and as such i-t is under the control of the United States, and it is not within the power of a State to interfere with such control or navigability. The congressional enactment of 1866 regarding telegraph lines, which we have heretofore set out, expressly gives telegraph lines the right to cross navigable rivers in the United States in such way as shall not interfere with the navigability thereof, and it appears from the evidence in this case that the petitioning telegraph company has accepted the provisions of that act and such acceptance has been approved by the Post-master General of the United States. Petitioner only seeks to construct the proposed telegraph line across any lands or waters within this State in accordance with the laws of this State and in such manner as will not interrupt the navigation of such waters. All that petitioner seeks to do by its petition is to condemn a right of way within the regular boundaries of the State of Illinois, which it has full right to do if it has any right to condemn at all, and if granted that right by the courts of this State it will only be such right as the State could give, and would be no protection to the petitioner in anything it might do which would involve conflict with the authority of the Federal government over the Wabash river. For these reasons we do not think the objection well taken.

There were other objections which are the subject of cross-errors of the appellee companies, as to the sufficiency of the petition, the description of the portion of the right of way sought to be condemned, and the failure to agree on compensation. These questions have received the consideration of this court in the case of St. Louis and Cairo Railroad Co. v. Postal Telegraph Co. supra, in which it was held that the petition there considered, which was very similar to the petition in the case at bar, was sufficient. As is stated in the opinion: “To locate each pole by an individual description, so as to designate by metes and bounds the exact spot of earth occupied by each, would require the insertion in the petition of 4500 separate descriptions. The very statement of such a proposition shows its unreasonableness.” It was also held in that case that it was not necessary to file a plat of the location of the proposed line of telegraph. The court further held that where an offer has been made by the telegraph company for the use of the right of way, and the owner, as was shown by the petition in this case, refuses to sell, there is sufficient showing of a failure to agree on the compensation.

It is further objected that the petitioning company is - neither a de jure nor de facto corporation, and that it is acting collusively and fraudulently with the Western Union Telegraph Company of New York. The incorporation proceedings are regular on their face and the petitioner is regularly organized and in a position tO' transact the business and exercise the powers for which it was organized. If it has been organized in an unlawful manner or for an unlawful purpose, even if there were evidence to that effect, it could not be considered in a collateral proceeding. Brown v. Calumet River Railway Co. 125 Ill. 600 and cases cited.

It remains to consider the second series of objections to the petition which were sustained by the court below, that the construction and operation of the telegraph line would incommode the public use of the railroad, that appellees had the preferential right to the construction of a telegraph line in the interest of the public, and that property already devoted to public use cannot be condemned for another public use.

The appellees introduced a large amount of evidence as tending to show that a telegraph line along the right of way of a railroad company is a serious detriment to the operation of the railroad, and there was a large amount of evidence offered on behalf of appellant to the effect that a telegraph line would not interfere with or incommode the public use of the railroad. It appears from the notice served upon the Western Union Telegraph Company of New York by appellee the Louisville and Nashville Railroad Company to remove the poles and wires already there, that the railroad company attempted to reserve the right to use such poles for its own telegraph signal purposes, until it could erect its own line of poles on the right of way. We can only infer from the evidence that a telegraph system built in substantially the same manner as the system proposed to be erected by appellant has been and is now, and will be for many years, in use on the right of way in question. In fact, it appears from the evidence that a telegraph line has been on the right of way for some forty years, and it is in keeping with our common observation and knowledge of such matters that a telegraph line is necessary to the proper operation of any railroad system and that such telegraph line on the right of way does not incommode the public use of a railroad. In St. Louis and Cairo Railroad Co. v. Postal Telegraph Co. supra, it was held that two telegraph lines would not incommode the public use of a railroad with a right of way similar to the one in this case. At the present time the Western Union Telegraph Company of New York has strung on its poles and has devoted to the use of the railroad company two wires, which are apparently sufficient for its needs. By an amendment to its petition the petitioning company has offered as follows: “That petitioner does not seek hereby to acquire the space occupied, at the time of the filing of the petition herein, by any wire or wires on the said railroad right of way which the said defendant railroad company at such time may have owned or operated; and petitioner represents, offers, stipulates and agrees that it will accommodate, carry and support upon petitioner’s said proposed .telegraph-pole line such wire or wires as the said railroad -company, at the time of the filing of the petition herein, owned or operated upon said railroad right of way and such additional telegraph or telephone wires as may thereafter be needed by said railroad- company in the conduct of its business, and afford to said railroad company like benefits and advantages, in respect to position and operation of all of said wires, as said railroad company enjoyed at the time of the filing of the petition herein.” The petitioner had a right to amend its petition and thereby limit the character of the easement sought to be condemned. The reason for making the amendment was, that it developed on the trial that the Louisville and Nashville Railroad Company had, by permission or license from the Western Union Telegraph Company of New York, strung a telephone wire and some signal wires for short distances at certain places on the poles of the telegraph company, which were in use in operating the road. The court below had also announced its' finding that one of the wires of the Western Union system was the property of the railroad company, and it was therefore considered that the telegraph line was jointly owned and operated by both the railroad and telegraph companies, and the railroad company had in use and operation a telegraph line necessary for its own use along the right , of way in the identical place sought to be condemned by the petitioner. We think the holding of the trial court as to the ownership' of the wire in question was erroneous. It appears from the evidence that in 1884 the Western Union Telegraph Company of New York had installed and' wTas the owner of a complete telegraph system along the line of the Louisville and Nashville railroad. That year a contract was made whereby the Western Union set apart one of the wires of the system so installed and owned by it, for the use of the railroad company. It was provided in the contract “that if the railroad company shall at any time require greater wire facilities on any portion of its road than herein provided, the telegraph company will furnish an additional wire at the cost price thereof' upon its poles, or the railroad company may at its own cost string said additional wire upon the telegraph company’s poles in such manner and position as it may direct.” The contract further provided that the telegraph lines and wires covered by the contract shall form part of the general system of the telegraph company. Had the railroad company exercised its right, under the contract, to “at its own cost string such additional wire upon the telegraph company’s poles in such manner and position as it may direct,” there would be some reason for holding that such wire belonged to the railroad company. The evidence shows that when the railroad company desired another wire it requested the telegraph company to furnish and string the wire. Such wire was only a part of the accommodation furnished. The telegraph company furnished with it support from its poles and cross-arms, electric current from its batteries and the necessary connections, and other things which made the wire part of the entire system and which were much greater than the cost of the wire when placed on the company’s poles. The effect of the contract ahd the transaction consummated. . pursuant thereto was, that the telegraph company added an additional wire to its system and the railroad company paid a certain price for its use. At the time of filing the suit the contract between the Western Union Telegraph Company of New'York and the Louisville and Nashville Railroad Company had been terminated by notice duly given as provided, and subsequently the railroad company gave the Western Union notice to remove all its poles, wires and other property from the railroad right of way, and they have only been kept there since by the injunction of the United States district court. It is doubtless true that the railroad company has a right to construct a telegraph line as a necessary part of the equipment with which to operate its road." It is also true that if the railroad company had constructed such line the petitioner could not, by condemnation, take the identical location occupied by the railroad company, to the injury of the latter. This it is not seeking to do. The statute gives the petitioner the right to condemn along and upon the right of way of the appellees. There is' a difference between damaging the railroad and incommoding the public use of the road. The statute giving the right to condemn assumes that there will be damage suffered by the railroad company whose property is taken, and provides how such damage may be, ascertained and compensation allowed by a jury. The only difference between railroads and public roads and other premises in condemnation proceedings is, that the telegraph company shall erect its poles, posts, etc., “in such manner and at such points as not to incommode the public use of the railroad, highway, street,” etc. The petition sufficiently avers that the proposed system shall be constructed in such manner as not to incommode the public use of the railroad. The public use of the railroad means the ordinary use to which the railroad is put, as a common carrier, in transporting passengers and freight. Such use requires two lines •of telegraph wire along the roád and some few telephone and signal wires at some points. The petitioning company agrees to so install and construct its system that all these appliances necessary for the railroad in its public use shall not be interfered with, or, in other words, in such manner, that the railroad shall not be incommoded in its public use.' With the wisdom of the law which gives telegraph companies the right to condemn we have nothing, to do. It is only within the power of the courts to say whether or not the petitioner has brought itself within the law so that it is entitled to condemn. South Park Comrs. v. Ward & Co. 248 Ill. 299; Chicago, Rock Island and Pacific Railroad Co. v. Town of Lake, 71 id. 333.

So far as the railroad company seeks to retain the present location of the telegraph line for its own telegraph line for commercial purposes it cannot claim a preferential right. - In such case it is the same as any other company and can claim no preferential right, and the preference is to be given, in condemnation proceedings, to the one. who'.first locates, the line which - is in dispute. (Golconda Northern Railway v. Gulf Lines Connecting Railroad of Illinois, 265 Ill. 194, and cases there cited.) The evidence in this case shows that the line of the petitioning company was located January 12, 1912. The same line was not located by the railroad company until February 27, 1912. Under the circumstances, therefore, if the railroad company refuses to accept such stipulation or opposes the condemnation on the terms offered by the petitioner, which it has full right to do, it will be in no position to complain that it is incommoded in the business use of its road, where such incommoding is caused by its own acts. By the petition as amended the petitioner offers, as a condition to being granted the right to condemn, to do certain things. If these things are done the road will not be incommoded in its public use. The amendment to the petition was more than an offer or stipulation that had to be accepted by the appellees to become of binding force and effect. It limited the character and nature of the easement sought. It is the same as if a railroad company sought to condemn.a right of way over the right of way of another railroad. If a petitioning company offered to construct an overhead or an underground crossing so as not to interfere with the operation of another road, it would be so limited in the judgment of the court and damages would be recoverable on that basis. It would not be allowed a judgment for a grade crossing. In St. Louis and Cairo Railroad Co. v. Postal Telegraph Co. supra, this court held that allegations in the petition as to the offer of the petitioning company to move its poles in case the railroad company should in the future lay down another track or erect certain structures on the right of way were valid and binding, citing Chicago and Alton Railroad Co. v. Joliet, Lockport and Aurora Railway Co. 105 Ill. 388, and Peoria and Pekin Union Railway Co. v. Peoria and Farmington Railway Co. 105 id. 110. In Eldorado, Marion and Southwestern Railroad Co. v. Sims, 228 Ill. 9, this court said: “It is not uncommon, in condemnation proceedings to acquire property for right of way purposes, to permit the party seeking to condemn, to stipulate as to the manner in which the land shall be used, or that the party seeking to condemn will perform certain things connected with or upon the land, such as fencing the right of way, erecting crossings, putting in culverts, underground passageways, etc. A¥e think the right to make stipulations upon the part of the condemning party which do not affect the rights of the public by rendering the right of way sought to be acquired unsafe to the traveling public for use for railroad right of way purposes, and which tend to lessen the damages to the land owner, is in conflict with no rule of public policy.” It is the nature of the easement which is sought to1 be condemned that distinguishes the case at bar from the case of Western and Atlantic Railroad Co. v. Western Union Telegraph Co. 138 Ga. 420, relied upon by appellees. In that case the AVestern Union Telegraph Company operated its telegraph system on two lines of poles,—one line on each side of the track of the railroad company. The telegraph company was operating its lines under a contract with the railroad company, which was apparently the same contract heretofore referred to, dated June 18, 1884, and which ran from July 1, 1884, and was to continue for twenty-five years, and thereafter until one year after notice by either party to terminate the contract. The telegraph company served notice on the railroad company of its intention to terminate the contract, and commenced proceeding's, under the statute, to condemn a right of way for its line along the right of way of the railroad company on both sides of the railroad track and along the same location on one side of the track claimed by the railroad company as necessary to maintain a telegraph line for the operation of its road. The railroad company had at its own expense strung certain wires on the poles of the telegraph company for its exclusive use in operating its railroad and was using said wires at the time of the condemnation proceeding. There was no limitation in the character of the easement sought to be condemned, as in the case at bar, and had the petition to condemn been granted, the railroad company would have been deprived of its telegraph lines as they were located and compelled to construct a telegraph system necessary to operate its road on some other part of its right of way and subject to the.prior location of the telegraph company. Under these circumstances the court said in the opinion in that case: “These conflicting claims must be solved by the rule that property dedicated to one public use cannot be subjected to another public use except in cases where the latter use does not materially interfere with the former.” The court further held that while the railroad company has a preferential selection of the portion of the fight of way upon which to construct and operate its own telegraph line necessary for the proper operation of said road, a telegraph company may condemn a right of way on and along the right of way of a railroad company when the proposed line of telegraph will be so constructed as to produce no material interference with the railroad company’s free exercise of its franchise or with the actual operation of the railroad. In that case the court also held that a railroad company cannot defeat the exercise of the right of eminent domain by a telegraph company in constructing a line of telegraph on a portion of its right of way, by the construction and maintenance of a line on both sides of its track when a line on one side of its track is ample to furnish it with necessary telegraph service. It was further held in that case that a telegraph company will not be permitted to condemn the right of way of a railroad company for the construction and maintenance of its line of telegraph in such a manner as to materially interfere with the railroad company in the operation of its trains and in the transportation of passengers and goods.

Another contention of appellees is that appellant is seeking to condemn for its purposes property already occupied and subjected to the same use, and that it has a preferential right to construct a telegraph system where the present system of the Western Union Telegraph Company of New York is now located. In the case at bar the most that appellees claim in the way of property subject to another use for telegraph purposes is one wire strung on poles not owned by appellees and supplied by an electric current not furnished by appellees. The space occupied by this wire, without the poles, cross-arms, insulators and other accessories of the Western Union Telegraph Company of New York, is all that can be claimed by appellees that will be taken, and that has been eliminated by the amendment to the petition to condemn. In all prior cases which have arisen in which was involved a condemnation of property already subjected tO' another public use, there has been some tangible, appreciable property involved. A condemnation proceeding under the Eminent Domain act is for the purpose of talcing property. In this case appellees own no telegraph line or property of that nature that will be taken. It is necessary to keep in mind that the only questions in this case arise from the fact that appellant is a telegraph company seeking to condemn a portion of the right of way of appellees, which are railroad companies. It is true that the portion of the right of way sought to be condemned is occupied by the Western Union Telegraph Company of New York. That company is not a party to the suit, nor can it be said to be acting in collusion with appellant when appellant is doing exactly what the law authorizes it to do and the only thing it can do. There has been no attempt to conceal the facts or the relations between appellant and the Western Union Telegraph Company of. New York. The fact that appellant has made an arrangement with the Western Union Telegraph Company of New York to buy its poles and wires, etc., furnishes no reason for saying that such acts are unlawful or in any way improper, nor can appellees truthfully claim that they have been in any way hampered ór prevented from exercising any rights which they may have exercised in the premises by reason of their contract with the Western Union Telegraph Company of New York. It is very plain from the record that from the time notice was first given to cancel the contract existing between the Western Union Telegraph Company of New York and appellees, the latter, with full knowledge of all the facts and circumstances, have had full opportunity to take such action as their officers saw fit, and they did take all steps that they considered necessary. While it is true the petition to condemn was originally filed prior to the termination of the contract and after notice was given to terminate such contract, appellant has gained no advantage thereby. The injunction obtained from the Federal court by the Western Union Telegraph Company of New York, restraining appellees from removing the poles and wires of the New York company- from the right of way of appellees, was not issued until November, 1912, while the contract was terminated pursuant to notice the preceding August.

For the reasons given, we think the case should have gone to a jury on the petition, as finally amended, to fix the damages.

The judgment of the county court of St. Clair county •is affirmed in so far as it overruled the objections to the petition and amended petition and is reversed in so far as it sustained the objections to the petition and amended petition, and the cause will be remanded to that court, with directions to overrule all objections sustained, and for further proceedings in accordance with the views herein expressed.

Reversed in part and remanded, with directions.