proper for the purpose of erecting or maintaining its lines" it is held to have no power to sell or transfer its entire business and franchise, such a sale being declared to be contrary to public policy and void.88 Power may, however, exist to sell or transfer an electrical franchise or business where it is given either expressly or by necessary implication. And where an ordinance granting a franchise provided that in case the franchise shall be assigned, the obligations imposed thereby upon the assignor shall be binding upon the assignee, it constitutes a contract between the city and the one to whom the franchise is granted and the assignee will be bound thereby.8

89

§ 489b. Electric lighting appliances - Switchboards - Dynamos Electroliers Signs Whether fixtures.- Dynamos and engines, not especially adapted for use in a particular build ing and introduced into the building upon considerations of temporary economy, and not of necessity, and which can be removed without difficulty and without any injury to the building or themselves are held to be chattels and not fixtures. And it has also been decided that chandeliers, switchboards and electric signs which can also be removed without injury to the building are to be regarded as chattels and not fixtures.90

§ 490. Mortgage of lines-Telegraph and street railway companies. Street railway and telegraph companies have no power to mortgage their franchises, lines or property, unless such power has been expressly conferred upon them by statute, or by their charters, and a mortgage without such power is wholly void.91

§ 491. Mortgage of telegraph lines. The poles and wires of a telegraph company, when in position, have been held to

88 Cumberland Teleph. & Teleg. Co. v. City of Evansville, 127 Fed. 187, holding that the object of such a statute is to enable the company to carry on its business.

89 Mahan v. Michigan Tel. Co., 132 Mich. 242, 93 N. W. 629, 8 Am. Elec. Cas. 38.

90 New York Life Ins. Co. v. Allison, 107 Fed. 179, 46 C. C. A. 251.

See also General Electric Co. v. Transit Equip. Co., 57 N. J. Eq. 460, 42 Atl. 101; compare Gunderson v. Swarthout, 104 Wis. 186, 80 N. W. 465.

91 Richardson v. Sibley, 11 Allen (Mass.), 65, 87 Am. Dec. 700; United States v. Western Un. Teleg. Co., 50 Fed. 28.

93

constitute a part of the realty.92 And a mortgage by a railroad company upon its property may cover all structureupon the land of the railroad, including poles and wires which it has erected for telegraph purposes. And a mortgage upon a railroad has also been held to include wires of a telegraph company strung upon the railroad company's poles and which the latter was bound by contract to purchase.** But where two telegraph companies consolidated and by an agreement between them provided in effect that the strung wires should remain personalty, it was held that they did not partake of the character of realty, since the two companies might make a valid agreement by which the character of the annexed property would be determined as against an existing mortgage. the absence of any special agreement, however, strung wires will not be deprived of the character of realty. So wires strung prior to the execution of a trust deed to secure receiver's certificates, were held not to be deprived of the character of telegraph lines by the act of an employee of the contractor for their erection in detaching and grounding them.96

95 In

§ 491a. Mortgage covering after acquired property.- Where a mortgage is given by an electrical company which covers existing and after acquired property of the mortgagor and it is duly recorded, such mortgage will be a lien in equity upon poles and wires which are subsequently acquired and though the poles are erected on the land of another under an agreement with him, the latter's right in the premises must yield to that

92 Vane v. Newcombe, 132 U. S. 220; New York, Ontario & Western Ry. Co. v. Western Un. Teleg. Co., 36 Hun (N. Y.), 205, 1 Am. Elec. Cas. 753; American Un. Teleg. Co. v. Middleton, 80 N. Y. 408. But see §§ 913-920, herein, on Taxation. And see Readfield Teleph. & Teleg. Co. v. Cyr, 95 Me. 287, 49 Atl. 1047, holding that telephone poles erected in highways with wires and insulators thereon retain their character as chattels and may be seized and sold on execution as personal property.

93 New York, Ontario & Western Ry. Co. v. Western Un. Teleg. Co., 36 Hun (N. Y.), 205, 1 Am. Elec. Cas. 753.

94 New York, Ontario & Western Ry. Co. v. Western Un. Teleg. Co.. 36 Hun (N. Y.), 205, 1 Am. Elec. Cas. 753.

95 Boston Safe Deposit & Trust Co. v. Bankers & Merchants' Teleg Co., 36 Fed. 288.

96 Postal Teleg. Cable Co. v. Vane. SO Fed. 961, 53 U. S. App. 319.

of the mortgagor.97 And where a mortgage given by a street railway company recited that it covered real and personal property and franchises of the company either owned at the time or subsequently acquired and the conveyance clause recited that the lien on after acquired property was limited to such rights as were acquired under leases from other railway companies as "should be connected with or appurtenant to " the mortgagor's railroad, it was decided that the lien given by the mortgage covered rights acquired under a subsequent lease to the mortgagor by other companies owning roads which were connected with and operated in connection with, the railroad of the mortgagor, and also a lease by and the capital stock of a new railway company which was organized only to hold title to another road which was also operated in a similar manner, all of which were operated by the mortgagor in connection with or as a part of its system.98

§ 492. Mortgage street railway lines-After acquired property - Louisville Trust Company case. In a case in the United States Circuit Court 99 involving the construction of a mortgage upon a street railway, the following points were decided: (1) The fact that street railway franchises which are mortgaged, confer the right to acquire property in the future, will not, of itself, cause subsequently acquired property to be

97 Monmouth County Elec. Co. v. Central R. Co. (N. J. Ch. 1903), 54 Atl. 140, wherein the court said: "The mortgage covered all existing and after acquired property of the mortgagor company, and was duly recorded before the execution of the agreement between the mortgagor company and the defendant. Under the agreement the poles and wires were erected on defendant's lands, and, as I construe its effect, they were the property of the mortgagor company, and they still remained its property at the time of the foreclosure. The mortgage expressly covered all after-acquired property, and under our decision, the mortgagors, in equity, a lien

upon these poles and wires afterwards acquired which is prior to mortgagee or judgment creditors subsequent in date to the mortgage." Per Emery, V. C.

See Metropolitan Trust Co. v. Dolgeville Electric L. & P. Co., 35 Misc. R. (N. Y.) 467, 71 N. Y. Supp. 1055.

98 Guaranty Trust Co. v. Atlantic Coast Electric R. Co., 138 Fed. 517 (C. C. A. 1905), modifying 132 Fed. 68.

See following section as to afteracquired property in case of mortgage of street railway lines.

99 Louisville Trust Co. v. Cincinnati Inclined Plane Ry. Co. (U. S. C. C., S. D. Ohio), 91 Fed. 699.

included in the mortgage. (2) An extension to a street railway line will not be rendered subject to a mortgage upon the original line by a statutory provision that extensions to street railways shall be considered as part of the original line, but such provision will be referred to the provisions of the general law, so as to make the powers of the owner with respect to the extension the same as if the line had originally included the extension. (3) An extension to a street railway line which had been completed and mortgaged will not be subject to a mortgage upon the original line by reason of a statutory provision conferring upon street railways power to change the location of their routes, and declaring that any mortgage upon the original line shall be effectual to create a lien on the changed line. (4) Although a street railway company may have power, under the general laws of the State, and the express powers conferred upon it, to mortgage subsequently acquired property, yet such property will not be rendered subject to a mortgage on its original line executed "under and by virtue of the authority in them vested by the laws of the State, and of all and every power and authority in them in anywise vested," unless expressly referred to in the mortgage. (5) Subsequently acquired rolling stock and machinery will be included in a mortgage upon the income accruing fom a street railway where such rolling stock and machinery is used in connection with the earning of the income. (6) Income from subsequently acquired real estate will not be included in a mortgage upon the tolls, incomes, issues and profits of the property mortgaged. (7) Future acquired property will not be included in a mortgage upon the railways, rails, bridges and real estate, cars and rolling stock of a street. railway company, unless words are used by which, expressly or impliedly, subsequently acquired property will be included. (8) Though by the expiration of franchises of a street railway company, a portion of its original track, covered by a mortgage, may be forfeited or lost, the mortgagee is still entitled to the full pro rata share of rolling stock, which should be apportioned to him in the absence of such loss.

§ 493. Mortgage of street railway easements Ohio. It is held that under the laws of Ohio, a street railway company may

mortgage its street easements, there being nothing in the laws of that State to contravene such right.1

§ 493a. Mortgage street railway property-Right of mortgagee to relief. Though a street railway company which has mortgaged its property is entitled, as a general rule, to control and manage the property mortgaged as it may choose, yet it cannot do anything which may materially impair the value of the property as security for the mortgage debt and the mortgagee will be entitled to relief against the proposed acts of either the mortgagor or his assigns which, if carried out, would tend to depreciate the value of the property.2

3

§ 494. Mortgage of electric light plant - Construction of.Although it is said that according to the weight of authority measured by the number of case, quasi-public corporations cannot mortgage or otherwise alienate their franchises, yet it is said in a recent case in New Hampshire that whether the reasons upon which this doctrine rests are sufficient to support it has been seriously questioned and it is there decided that an electric light and power corporation, which has acquired the right to construct its lines in the highways of a city by virtue of licenses from the local authorities and not by virtue of its incorporation, may mortgage its property and franchises to secure an indebtedness or may alienate the same. The court in this case referred to and considered various statutes and declared that this legislation all tends very strongly to prove the existence of a public policy in this State which allows quasipublic corporations,- even railroad corporations, the same freedom to incur debts and pledge their property and franchises therefor that is possessed by other corporations and by natural persons. Where this power may be exercised by such a company wires attached to poles, and used for the purpose

1 Louisville Trust Co. v. Cincinnati, 47 U. S. App. 36, 76 Fed. 296, 22 C. C. A. 344.

2 Fidelity Trust Co. v. Hoboken & M. R. Co. (N. J. Ch. 1906), 63 Atl. 273, so holding as to acts proposed to be done under a contract between the mortgagor and lessee.

In this case a motion to dissolve an injunction which had been granted was denied.

34 Thomp. Corp. §§ 5352-5355.

4 American Loan & Trust Co. v. General Electric Co., 71 N. H. 192, 51 Atl. 660, 8 Am. Elec. Cas. 117.