"The primary use of a highway being for travel and transportation, its use by a telegraph company to facilitate communication is subordinate to its use by the public for the primary purpose. This principle is recognized in the statutes of Ohio regulating the use of public roads by telegraph companies." 27 It is, therefore, obvious that it is within the power of the legislature to enact statutes relating to public streets, authorizing their use for additional street uses. 28

§ 143a. Same subject continued.- Property of a telephone company being property devoted to a public use is a legitimate subject of legislative regulation and control. When the owner of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must to the extent of that interest, submit to be controlled by the public for the common good, as long as he maintains the use to which he has so devoted his property, and he can only escape such public control by withdrawing his grant and discontinuing the use. A telegraph and telephone company's

29

somewhere. As the legislative power of a State is vested in the legislature, generally that body has the supreme control." St. Louis v. Western Un. Teleg. Co., 149 U. S. 465, 4 Am. Elec. Cas. 116, 13 Sup. Ct. 990, per Brewer, J. "The power of the State and of municipal corporations over public or common property, to regulate the use of it for purposes of public utility is no longer a mooted question, where no constitutional rights are infringed. It is well defined to be the rightful authority which exists in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate individual property for the public benefit as the public safety, necessity, convenience or welfare may demand." Irwin v. Great Southern Teleph. Co., 37 La. Ann. 63, 1 Am.

Elec. Cas. 710, per Bermudez, C. J., citing Cooley's Const. Lim. p. 652, § 524, p. 661, § 531, p. 676, § 542; Angell on Highways, § 237, and quoting Dill. on Mun. Corp. (3d ed.), §§ 657, 698.

27 Ganz v. Ohio Postal Telegraph Cable Co., 140 Fed. 692, 694, per Richards, Cir. J. Bates Ann. Stat., SS 3454, 3461-1. Case reverses Ohio Postal Teleg. Cable Co. v. Board of Commissioners, 137 Fed. 947. See note, § 130, herein.

28 Lahr v. Metropolitan Elevated
Ry. Co., 104 N. Y. 292, 4 N. Y.
St. R. 340, 25 Week. Dig. 543, 10 N.
E. 528, per Ruger, Ch. J., cited in
Johnson V. The Munson-Huston

Elec. Co., 54 Hun, 469, 28 N. Y. St.
R. 295, 7 N. Y. Supp. 716, 3 Am.
Elec. Cas. 204.

29 Hockett v. State, 105 Ind. 250, 258, 55 Am. Rep. 201, 5 N. E. 178, per Niblack, C. J.

rights in using the public streets or highways for its poles, etc., may be limited by the statute and must also be exercised in subordination to the rights of the public to a reasonable use of such streets for public travel. 30 And the right to erect poles, etc., in the streets may be derived directly from the legislature and the city's powers be limited, being such only as are delegated and subject to such direct control as the legislature may deem proper to exercise. 31 Again, it is the settled law of the State of New York that telegraph and telephone companies derive their right to erect poles and string their wires directly from the State, and while the sovereign power of the State may be delegated to cities and villages in regard to such management and control of these companies, still such surrender of sovereignty must rest on express legislation containing a clear and unqualified grant of power and cannot be implied.32 In Indiana it is declared that while the legislature has delegated to municipalities the exclusive control of their streets, yet the control of public places is primarily in the legislature and as it gave so it may take away or modify the power delegated, and also that there is no doubt of the authority of the legislature to grant to individuals and corporations the right to erect poles and wires upon the streets of a municipality without its consent or over its objection.33 In Michigan a city has power to grant a franchise to an electric light company even though such company was incorporated under the general laws, at least having granted such franchise and the company having operated thereunder for years the city would be estopped to revoke the franchise.34 In Minnesota, tele

30 Little v. Central District & P. Teleg. Co., 213 Pa. 229, 62 Atl. 848, Act April 29, 1874, § 33, P. L. 92.

31 Abbott v. City of Duluth, 104 Fed. 833, affd. 117 Fed. 137, Laws Minn. 1860, c. 12, § 1.

32 Village of Carthage v. Central New York Teleph. & Teleg. Co., 185 N. Y. 448, 78 N. E. 165, revg. 110 N. Y. App. Dis. 625; Transportation Corp. Law, art. VIII, § 102.

33 Coverdale v. Edwards, 155 Ind. 374, 58 N. E. 495, 7 Am. Elec. Cas.

15. In this case, however, this right as to grants had been vested exclusively in the city's discretion and there was a restriction in the franchise of the right to revoke at pleasure.

34 Wyandotte Elec. Light Co. v. City of Wyandotte, 124 Mich. 43, 82 N. W. 821, 7 Am. Elec. Cas. 43. In this case the company was incorporated under the general law instead of under the electric lighting act.

phone companies have, under the general laws of the State the right to erect poles and wires within urban ways and streets as well as upon rural highways.35

§ 143b. State regulation-Letters patent.-State regulation of property is not precluded by the fact that the object sought to be controlled, as in case of a telephone, is covered by letters patent of the United States granting the exclusive right of making, vending and using such tangible property.3

36

§ 144. Legislative control-Fee of streets in trust in city.— Another limitation of the power of the legislature over streets exists where the fee of the streets is vested in a city, in trust to be appropriated and kept open as public streets. Then in so far as they are held for public streets, they are subject to legislative control, and it has power only to deal with them as streets and to regulate the use of them as such, for public purposes and not for uses inconsistent with such street use. In other words, "The power of the legislature is limited to a regulation of the use for which the property is held by the city in trust." 37 So, where on the platting of an addition to a

35 Northwestern Telephone Exchange Co. v. Minneapolis, 81 Minn. 140, 7 Am. Elec. Cas. 179, Gen. Stat. 1866, § 28, c. 34, as am'd Gen Laws 1881, c. 73. (Gen. Stat. 1894, § 264.)

36 Hockett v. State, 105 Ind. 250, 257, 55 Am. Rep. 201, 5 N. E. 178. See §§ 521, 839, 1035, herein.

37 The Metropolitan Teleph. & Teleg. Co. v. The Colwell Lead Co., 67 How. (N. Y.) 365, 50 N. Y. Super. 489, 1 Am. Elec. Cas. 662, 663, per Ingraham, J.; American Rapid Teleg. Co. v. Hess, 125 N. Y. 641, 36 N. Y. St. R. 252, 26 N. E. 919, 3 Am. Elec. Cas. 144, per Earl, J. "While the city of New York owns the fee of the lands occupied by the streets of that city, whether laid out under the Dutch regime during the colonial period,

or after the organization of the State Government, its tenure is in trust for street uses." Kane v. New York Elevated R. Co., 125 N. Y. 164, 34 N. Y. St. R. 876, 26 N. E. 278. This case has been cited in a very large number of New York cases. Mortimer v. New York Elev. R. Co., 25 N. Y. St. R. 872, 57 N. Y. Super. 244, 6 N. Y. Supp. 898; Forbes v. Rome, Watertown, etc., R. Co., 121 N. Y. 505, 24 N. E. 919, per Peckham, J.; referring to Nager v. Troy Un. R. Co., 25 N. Y. 526, per Smith, J. See also Mahady v. Bushwick Ave. R. Co., 91 N. Y. 148, 153; Hine v. New York Elev. Ry. Co., 54 Hun, 425, 27 N. Y. St. R. 303, 7 N. Y. Supp. 464; Abendroth v. Manhattan R. Co., 122 N. Y. 1, 33 N. Y. St. R. 475, 25 N. E. 496; Tuttle v. The Brush

city, the fee simple vests in the public, the latter will hold the title to the streets and alleys in trust for the uses to which they are dedicated.38 In a case in Utah, the use of certain streets of Salt Lake City was sought for the purposes of an electric street railway. Such streets were part of a tract of land entered under acts of Congress and settled and occupied as a town site in trust for the several use and benefit of the occupants, and it was admitted that the fee to said streets was in the city in trust for street uses, but subject to the equitable easements in fee of abutting owners.39 Under the law of Illinois municipal corporations have a fee simple in, and exclusive control over, the streets, and the municipal authorities may do anything with, or allow any use of, the streets not incompatible with the ends for which streets are established, and it is a legitimate use of a street to allow a street railroad track to be laid down in it.40

§ 145. Constitutional municipal charter-Control of streets and public places.- A municipality, by virtue of a charter framed under express authority from the people of the State, given in the Constitution, may have control of the use of its streets and public property and of property devoted to public uses within its territorial limits, and it represents the public in relation thereto.41

Elec. Illum. Co., 50 Super. (N. Y.) 464, 1 Am. Elec. Cas. 508, 509, per Ingraham, J.; Story v. New York Elev. R. Co., 90 N. Y. 122; Clausen & Sons Brewing Co. v. The Baltimore & Ohio Teleg. Co. (Supreme Ct. N. Y., 1884), 2 Am. Elec. Cas. 210. Examine Chicago, etc., R. Co. v. Newton, 36 Iowa, 299; Milwaukee v. Milwaukee, etc., R. Co., 7 Wis. 85. The act of the Nova Scotia legislature (50 Vict., c. 23), vesting the title to highways and the land over which the same pass, in the Crown, for a public highway, does not apply to the city of Halifax. O'Connor V. Nova Scotia Teleph. Co., 22 Can. S. C. 278.

38 Jaynes v. Omaha St. R. Co., 53 Neb. 631, 74 N. W. 67.

39 Block v. Salt Lake City Rapid Transit Co. (Utah, 1893), 8 Am. R. & Corp. Repr. 327, 4 Am. Elec. Cas. 193, per Bartch, J.

40 Blair v. City of Chicago, 201 U. S. 400, 26 Sup. Ct. 427, 50 L. Ed. revg., 132 Fed. 848.

41 So held in a case relating to municipal control over streets and public places within its limits, and sustaining the right to charges in the nature of rentals for use of streets for telegraph poles. The court, per Mr. Justice Brewer, said: The city of St. Louis occupies a unique position. It does not like

§ 146. Municipal agencies - Power over streets and public places. A city is the creature of the State. A municipal corporation is simply a political subdivision of the State existing by virtue of the exercise of the power of the State through its legislative department.42 But the legislature generally confers upon subordinate municipal agencies such powers of the sovereign authority as it deems shall best promote the public interests. 43 It has the right to, and may confer