McArthur v. Morgan.

if they had purchased the less of the respondents, unless when making such purchase, by way of payment therefor, wholly or in part, they had intentionally bound themselves not to attempt to secure the greater as against them. With this exception, every petitioner who brings himself within the terms of the act may, by means of it, secure for himself the largest possible right to the use of a stream, notwithstanding the fact that he is in possession and use of a lesser one. And Mr. Morgan is not, by reason of the fact that he is entitled to receive rent from the petitioners as long as they choose to avail themselves of this lesser right, in such use of a mill site upon his land as will protect it from the operation of the act as against them.

It being admitted that in 1872 Morgan purchased a site on which there had once stood a saw-mill with intent to use the power there available, and proven that at the hearing in 1880 he had done nothing to carry that intent into execution, it became necessary for the committee to determine as a fact whether he then held or had abandoned that intent. The question as to what a man intends to do is always one of fact; and proof of an intention in 1872 did not as a matter of law force upon the committee the conclusion that it existed in 1880. Leaving the proof in that state the petitioners exposed themselves to a finding as a fact that it continued; Morgan exposed himself to a finding as a fact that the intent existing and susceptible of being put in execution in 1872, of the existence of which thereafter there had been no visible manifestation up to 1880, had been abandoned. To say as a matter of law that if the owner once resolves to use his mill site, he thereby protects it during his ownership from the operation of the flowage act, although he makes no use of it, is to nullify that act.

The court did not err in accepting the finding of the committee that in 1880 George Morgan had no intention to use the power available upon the premises purchased by him in 1872.

In his answer is an averment that before the bringing of the petition he had commenced the erection of a dam and

McArthur v. Morgan.

and

mill upon his land, and upon the hearing he introduced evidence tending to prove it. The committee in their report make no special mention either of this averment or this evidence. In the remonstrance he complained of this omission as a failure to perform their duty, and asked the court to re-commit to them the report with instructions to make good the defect. This the court refused to do. The averment is that he "originally purchased his said lands with a view to utilize the water power thereon, still intends to erect a mill and had begun the construction of said mill." As there is no suggestion here of more than one mill site upon the land, and as the record does not make certain that he offered evidence touching more than one, the court might well assume the finding by the committee to be that at the time of the hearing he had no intention to use power anywhere upon his premises. Thus interpreted it is a distinct finding that the averment was not proven, and renders quite unnecessary any special finding as to whether the proposed dam would or would not injure any possible site on his land.

The respondents asked the court to determine the questions of fact which they said the committee had left undetermined, and in so doing to permit them to introduce evidence in addition to that introduced by them upon the same points before the committee. The court denied both requests. In this denial there is no error. As to the first, we have said that upon a proper interpretation of the finding there is no defect in it. Secondly, if there had been, the committee heard and weighed evidence for the court. and reported to it the resultant facts. Having a day before the committee the respondents had their day in court. If the committee neglected to report their conclusion from evidence upon a given point, they would have an opportunity to add such conclusion; but only upon the evidence already heard.

There is no error, and a new trial is not advised.

In this opinion the other judges concurred.

American Rapid Telegraph Co. v. Connecticut Telephone Co.

SUPREME COURT OF ERRORS.

HELD AT NEW HAVEN FOR THE COUNTY OF NEW HAVEN,

ON THE FIRST TUESDAY OF DECEMBER, 1881.

Present,

PARK, C. J., CARPENTER, PARDEE, LOOMIS AND GRANGER, JS.

THE AMERICAN RAPID TELEGRAPH COMPANY vs. THE CONNECTICUT TELEPHONE COMPANY.

The Connecticut Telephone Company, organized as a joint stock corporation under the general law of this state, for the purpose of constructing and operating within the state mechanism for telephonic communication, purchased from the Bell Telephone Company, a Massachusetts corporation, which owned a patent for a telephonic device, a license for a term of years to use its device within a certain district in this state; the contract containing a provision that no telegraph company, without the consent of the licensors, who designated one company for the purpose, should be allowed through it to collect and deliver messages from and to its customers. Another telegraph company which had a station in the district, having demanded of the Connecticut corporation the same benefit with the other company, with an offer of payment, and been refused, applied for a mandamus to compel the corporation to grant the benefit. Held, in refusing the application

1. That the Massachusetts corporation, owning the patent, had a right in granting licenses for its use to impose whatever restrictions it chose. 2. That the Connecticut corporation therefore acquired a right only to the restricted use of the patented device, and its duty to the public did not extend beyond that restricted use.

3. That the statute (Session Laws of 1879, ch. 36, amending Gen. Statutes, p. 342, sec. 8,) requiring all telegraph and telephone companies to receive despatches from all other telegraph and telephone lines and transmit them on payment of the usual charges, could not operate to compel the Connecticut corporation to do what it had no right to do. 4. That a Massachusetts statute to the same effect was to be regarded as

American Rapid Telegraph Co. v. Connecticut Telephone Co.

applying to the action of the Massachusetts corporation as a carrier of speech in that state, and as not affecting its right to manufacture its instruments and sell or lease them in other states as the owner of the patent.

APPLICATION for a mandamus; brought to the Court of Common Pleas for New Haven County. The principal allegations of the application were as follows:

That the defendant, the Connecticut Telephone Company, was duly organized under the laws of this state, and located at New Haven, for the purpose of constructing and operating telephone instruments, and placing the same for hire in the dwellings, offices, stores and other places of business of the inhabitants of the various towns in this state. That it has an office in the town of Bridgeport, in this state, containing an apparatus which is connected by wires with a large number of its telephone instruments placed in nearly all of the banks, dwellings, offices, stores and other places of business of the inhabitants of Bridgeport, greatly accommodating them and constituting the only available means of continual and rapid communication with one another. That the plaintiff has an office in Bridgeport and is there carrying on the business of receiving and sending telegraphic messages to all parts of the world, and that it is absolutely necessary to the successful prosecution of its business that the plaintiff have one of the defendant's instruments placed in said office and the proper connections thereto attached. That the defendant by its incorporation under the laws of this state and its acceptance of the provisions thereof, is in duty bound, and has thereby contracted, to furnish its said telephone instruments to any person or corporation upon application and payment of its usual charges for the rent thereof; and that the defendant is able and in a condition to do what is herein asked for. That the plaintiff has applied to the defendant for said instrument and offered to pay its usual charges therefor, but the defendant has refused and still refuses and neglects to furnish said instrument or to give any valid excuse for such refusal or neglect. That the plaintiff, unless it shall be furnished with said VOL. XLIX-45.

American Rapid Telegraph Co. v. Connecticut Telephone Co.

instrument and have the benefit of the connections controlled thereby, will be deprived of its just rights and suffer great damage by loss of business, and the citizens of said Bridgeport will also suffer great loss and inconvenience by being deprived of suitable and rapid means of communicating with the plaintiff in receiving and sending telegraphic messages to other parts of the world; and that the plaintiff and said citizens have no remedy unless by a writ of mandaWherefore the plaintiff prays the court to issue a writ of mandamus requiring the defendant to furnish to the plaintiff one of its proper instruments and place the same in the office of the plaintiff in said Bridgeport, with proper connections attached thereto, in such manner as shall reasonably accommodate the plaintiff and the public and conform to the statute laws of this state regulating telegraph and telephone companies, upon payment of their usual charges, or signify cause to the contrary.

mus.

The court issued an alternative mandamus, and the defen dant made a return setting up the following facts:

That the defendant was organized as a joint stock corporation under the laws of the state of Connecticut, the object of the organization being stated in the articles of association as follows:-"The purpose for which it is constituted is to build, maintain, operate, own and control systems of telephone exchange in any or all of the towns situated in the state of Connecticut; to buy and sell the same, and to buy, sell, own and deal in any estate, real and personal, that may be necessary and convenient to the management of said business, and generally to do all things incidental and necessary to said business."

That Alexander Graham Bell invented a method of and apparatus for transmitting articulate speech by electricity, and March 7th, 1876, the same was duly patented to him by patent of the United States, by which the exclusive right to use and to license others to use, and to refuse to others the right to use said invention, was vested absolutely in said Bell and his assigns; and that the whole of said rights of said Bell were by him duly assigned to, and became