place its poles in the city street without compensation to the owner, if he owned to the center of the street.

The argument is pressed upon us that the question to be decided in this case is new, and that it ought to be decided with reference to the wants and customs of the advancing civilization, which it is alleged is doing so much to render life more comfortable, attractive and beautiful. Courts are frequently addressed with such arguments, which are quite forcible, and have in this case been very eloquently, plausibly, and aptly advanced. The answer to be made is that, although this particular phase of the question, strictly speaking, may itself be new, yet the principle which governs our decision is as old almost as the common law itself; and in deciding this appeal favorably to the defendant herein we should be overturning and making nothing of cases which have been regarded as the law for generations past. A majority of the states whose courts have considered the question have decided it in accordance with our own views. The cases are collected in the brief of the learned counsel for the respondent herein. Let the defendant pay the owners for the value of the use it makes of the land outside and beyond the public easement in the highway, and the necessity of the broader decision is done away with. It has the power to take the land upon making compensation, and hence the refusal of an owner will not stop the proposed undertaking. The amount of the compensation is not now the question, but that in many cases it can be any thing more than merely nominal would seem to be a proposition which would not require great elaboration of argument to make plain. The use would frequently be but a technical encroachment upon the rights of the adjoining owner, and there would be but little fear that anything more than nominal damages would be allowed. This cannot, however, alter the legal rights of the parties, and in regard to them we think the courts below have decided correctly, and the judgment appealed from should be affirmed, with costs. All concur. Judgment affirmed.*

Telegraph and telephone poles and wires in street rights of abutting owners.- The authorities upon this question are collected and reviewed in 6 Am. R. R. & Corp. Rep. 340, note. People v. Eaton, (Mich.) 59 N. W. Rep. 145, is a recent case involving the same question as the principal

* Reported in 38 N. E. Rep. 202.

case.

The statutes of Michigan authorized the construction of telegraph lines upon the public highways, provided they were so constructed as not to incommode the public in the use thereof, but made no provision for compensation to the owner of the fee. Eaton was convicted of an assault upon an employee of a telegraph company, who was at the time engaged in erecting a line of poles in the highway in front of his farm, under authority of the statutes referred to. Eaton ordered the employees of the company to desist from erecting the poles, and, in endeavoring to enforce his command, committed the assault in question. As the cases upon this question are few, we give so much of the opinion as discusses the right of the abutting owner to compensation. After referring to the statutes the court says:

"The principal question in this case is whether these acts conflict with article 15, section 9 of the Constitution, which provides: 'The property of no person shall be taken by any corporation for public use without compensation being first made or secured in such manner as may be prescribed by law.' Is the placing of telegraph poles along a public highway an additional servitude upon the land of the adjacent proprietor? Public highways are under legislative control. They are for the use of the public in general, for passage and traffic, without distinction. The restrictions upon the use are only such as are calculated to secure to the general public the largest practicable benefit from the enjoyment of the easement. When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods. Cooley Const. Lim. 588. It has been settled in this state that lands to be taken or granted for public highways are so taken or granted for all the purposes for which they may be used for the benefit of the public, for the passing or repassing of travelers thereon, for the transportation of passengers by stage coach, omnibus or street cars propelled by horses, steam or electricity, and that the laying of tracks for such street cars is not an additional servitude upon lands of adjacent proprietors. In Railway v. Mills, 85 Mich. 634; 48 N. W. Rep. 1007, the defendant threatened to cut down and destroy the poles erected for stringing wire for the use of an electric street railway, and the claim was made by the defendant that he had the right to remove such poles because they were an additional servitude. It was held that he had no right; that the erection of poles for such a road was in the furtherance of public travel; and that, to constitute an additional servitude, there must be an injury to the present use and enjoyment of the land. See, also, People v. Ft. Wayne & E. Ry. Co., 92 Mich. 522; 52 N. W. Rep, 1010; Dean v. Railway Co., 93 Mich. 330; 53 N. W. Rep. 396. It is difficult to see any distinction between the use of the highway for electric railway poles and poles erected for the use of telegraph or telephone companies. In commenting upon this claimed distinction, Judge DILLON, in his work on Municipal Corporations (4th ed. p. 893, note), says: 'The distinction is so fine as to be almost impalpable.' These telegraph construction acts have been in force in this state for many years, and this is the first time in the history of the state, so far as I have discovered, where it has been claimed that the placing of such poles in the highway is an additional servitude. We are aware that in some states the doctrine is laid down that the placing of such poles creates additional servitude upon the fee, but there are many cases holding the other way. Pierce v. Drew, 136 Mass. 79, and Julia Bldg.

*

Assn. v. Bell Tel. Co., 88 Mo. 258, hold that additional servitude is not created; and, we think, upon better reasoning. These cases accord with the views of this court in Railway v. Mills, supra, and other cases in this state relative to the use of the street for street railway purposes. If damage follows from the erection of such poles, the acts provide a method of settling that question. * When these lands were taken or granted for public highways, they were not taken or granted for such use only as might then be expected to be made of them, by the common methods of travel then known, or for the transmission of intelligence by the only methods then in use, but for such methods as the improvement of the country, or the discoveries of future times, might demand. The parties setting these poles were acting under color of legal right. The statute under which they acted is not in conflict with the provisions of the Constitution above cited. It would be a great calamity to the state if, in the development of the means of rapid travel, and the transmission of intelligence by telegraph or telephone communication, parties engaged in such enterprises were compelled to take condemnation proceedings before a single track could be laid or a pole set. The legislature certainly has never so regarded this provision of the Constitution, and never till now, when more than forty years have elapsed since the passage of these acts, has any one supposed that such a construction was to be placed upon the provisions of the Constitution. The conviction must be affirmed." MCGRATH, Ch. J., dissented.

GAMEWELL FIRE ALARM TEL. Co. v. CRANE et al.

(Supreme Judicial Court of Massachusetts, October 27, 1893.)

CONTRACTS IN RESTRAINT OF TRADE. AGREEMENT NOT TO ENGAGE IN BUSINESS. A stipulation by a manufacturer of fire alarm and telegraph apparatus, on a sale of all his machinery, stock, letters patent and inventions, that he will not for ten years engage in the manufacture and sale of such apparatus, or enter into competition with the purchaser, either directly or indirectly, while valid in so far as the patents and inventions agreed to be sold are concerned, is void, as against public policy, in so far as it prohibits the seller from engaging in the manufacture and sale of such apparatus under other patents, or under no patents at all, since the prohibition is not restricted as to place, and not necessary to the purchaser's enjoyment of the patents and inventions which he had purchased.

BIL

ILL by the Gamewell Fire Alarm Telegraph Company against Moses G. Crane and Frederick W. Cole to enjoin defendant Crane from engaging in the manufacture and sale of fire alarm and police telegraph apparatus in violation of his contract with plaintiff, and to enjoin defendant Cole from participating with Crane in the violation of said contract. Final decree was

entered in plaintiff's favor as against defendant Crane, but the bill was dismissed as against Cole. Plaintiff and defendant Crane both appeal.

M. Storey and S. L. Powers, for plaintiff. S. J. Elder and Brackett & Roberts, for defendant.

FIELD, Ch. J. The plaintiff company and the defendant Crane have each appealed from the decree of the Superior Court. The principal question is whether the following stipulation in the contract between the plaintiff and Crane is void. The stipulation is: "Said Crane further agrees not to engage in the business of manufacturing or selling fire alarm or police telegraph machines and apparatus, and not to enter into competition with said Gamewell Company, either directly or indirectly, for the period of ten years next ensuing after the date of this agreement." Crane had been a manufacturer of fire alarm and police telegraph apparatus from the year 1856 to 1886, when the contract was entered into which is the subject of this suit. From the year 1879 to January, 1891, he was a director of the plaintiff company. In 1881 he, or the firm of which he was a member, entered into a contract with the plaintiff company to do all of its manufacturing. He testified that the company "was to have the use of patents of mine for the term of ten years, and to give all its manufacturing to Moses C. Crane or Crane & Co., and they agreed not to compete with the Gamewell Company during that time." This is the contract which was annulled by the contract in suit. By the contract in suit Crane sold and conveyed to the company all his machinery, tools, draw cases and other property used in or connected with his business of manufacturing for said company, including "stock supplies partly manufactured, and raw material of every kind in any way pertaining" to said business of manufacturing in his factory at Newton Highlands, in Massachusetts, and he agreed to transfer to said company exclusive rights under and control of all letters patent for fire alarm and police apparatus only, owned or controlled wholly or in part by him, together with exclusive rights under and control of all improvements in said fire alarm and police apparatus only, made by him up to the date of the contract, and he gave to said company the "first

option to purchase or obtain exclusive control for fire alarm and police purposes only, under any and all letters patent, improvements applicable to such apparatus which may be made by said Crane during the term of ten years next ensuing after the date of this agreement," etc. The consideration to be paid was $30,000 in cash and notes, and such unwrought stock, machinery, etc., as was on hand at the date of the transfer, and was not included in the schedule attached to the contract, was also to be paid for at the "cost price, to be fixed by appraisal." Crane also agreed to let his factory to the company at a reasonable rent if the company desired to hire it. The company actually paid Crane about $47,000 as the consideration of the contract and the property conveyed.

The plaintiff contends that the agreement "not to engage in the business of manufacturing or selling fire alarm or police telegraph machines and apparatus, and not to enter into competition with said Gamewell Company, either directly or indirectly, for the period of ten years," etc., is not void as being in restraint of tradeFirst, because it is an agreement pertaining to "property and business protected by patents;" secondly, because the restraint is coextensive only with the business sold, and is necessary to enable the company to enjoy fully what it has bought and paid for; and, thirdly, because it relates to a single commodity, not of prime necessity, and not a staple of commerce. See Roller Co. v. Cushman, 143 Mass. 353; 9 N. E. Rep. 629; Machine Co. v. Morse, 103 Mass. 73; Gloucester Isinglass & Glue Co. v. Russia Cement Co., 154 Mass. 92; 27 N. E. Rep. 1005. There seems to be no reason why the defendant Crane should not assign the patents and inventions which he agreed to assign, if there are any, and no serious objection has been raised by the defendant on this part of the case. The defendant contends that he has a right to assist in forming a corporation, and to act as one of its officers, the business of which is to manufacture and sell fire alarm and police telegraph machines which are not made under any patents owned by the plaintiff, or under any patents which he has agreed to assign to the plaintiff, or which the plaintiff has elected to purchase, under the, option given in the contract, even although by so doing he enters into competition with the plaintiff in its business. He, in effect, concedes that,