LOUISVILLE HOME TEL. CO. v. CUMBERLAND TELEPHONE & TELEGRAPH CO., 111 F. 663

SEVERENS, Circuit Judge, having made the foregoing statement of the case, delivered the opinion of the court. This being an appeal from an interlocutory injunction, we are required, in making our determination, to recognize the rule, which we have announced and applied in several previous cases, that we should not disturb the order unless the lower court has manifestly fallen into' some mistake of law or fact material to its decision. Garrett v. T. H. Garrett & Co., 24 C. C. A. 173, 78 Fed. 472; Proctor & Gamble Co. v. Globe Refining Co., 34 C. C. A. 405, 92 Fed. 357; Thomas G. Plant Co. v. May Co., 44 C. C.

A. 534, 105 Fed. 375, 379.

The circuit court appears to have accepted as correct the contention of the complainant that, by its prior occupation of the space which it occupied by erecting its poles, cross arms, and wires over a width of 8 feet and at the height of 25 feet, it acquired an exclusive right to occupy that width of space from the ground upward without limitation, and this without any intrusion by another party; for the order must be construed by reference to the fact that the intrusion which the defendant was charged with intending' to make when the injunction was moved for was that of stringing its wires above and out of contact with the structures of the complainant.

In this the court misconceived the nature and extent of the rights of the complainant. It may properly be conceded that its prior occupation of space under the franchise granted by the statute and ordinance would entitle it to the continued enjoyment thereof, so long as it continued to perform its obligations, without substantial impairment. But its right is not absolutely exclusive. It is subject to such incidents as result from the exercise of the rights of other parties who have acquired a valid franchise of similar character.

It is implied in such grants as were here made to the first company that the grant is subject to such limitations as will enable another company to enjoy a like franchise, and no property right is invaded by the adoption of such measures by the second company as will enable it to exercise its privilege, provided there is no unreasonable and unnecessary invasion of the operations of the first occupant. For the property right of the first is not to a monopoly. It is bound to exercise its privilege in such a way as to give room to another coming in under the power reserved.

In the present case the common council of the city expressly reserved the authority to grant to others, if it should deem it for the public interest, the same privileges in its streets as it granted to the complainant. Its determination that it was expedient to grant the Home Company the same privilege it had granted to the Ohio Valley Company cannot: be gainsaid, and the old company is bound to recognize the newcomer and grant all reasonable accommodation.

Upon principle it may be doubted whether the first company could block the way in any of-the streets so as to prevent the possible exercise of the power reserved to the common council. It is not intended, of course, to say that the first occupant may be despoiled, or the substance of its right appropriated. But this does not happen from merely giving place to a rival company, whose presence was expressly stipulated for by the contract, nor, probably, if the presence of the new party was the' result of the exercise of a power reserved by implication in such a grant of privileges.

The distinction between the actual invasion of the property of a former licensee engaged in supplying public utilities and those incidental consequences which result from the authorized exercise of the privileges granted to a subsequent licensee for similar purposes was pointed out in an elaborate opinion by Judge Brown, now a justice of the supreme court, in Cumberland Telephone & Telegraph Co. v. United Electric Ry. Co. (C. C.) 42 Fed. 273, 12 L. R. A. 544, where the authorities are collated. Mere inconvenience will not afford ground for complaint.

The injury must be grave and unwarranted by the requirements necessary to such further exercise of the municipal authority in that direction as may be deemed expedient. The evidence in the record leaves no doubt whatever in our' minds that the inconveniences likely to be suffered by the Cumberland .Company in consequence of the proposed construction by the Home Company are comparatively trivial.

The affidavits of experts and practical men show that the practice of constructing a system of lines by one company above the lines of another is very common in many cities which are enumerated, especially where both are telephone systems, and no substantial inconvenience has been found to result. The city at all times has the power of regulation.

It may not be arbitrarily exercised, but within reasonable bounds the cijty authority may rightfully designate in what manner the public interests require public services to be rendered, to the extent, at least, of determining in what part of a street” the facilities shall be located, and presumptively this exercise of the police power is valid. Its right to do this was not surrendered by the city when it made the grant of the franchise to the Ohio Valley Company.

The power in this instance was delegated to the board of public works, and there is an entire lack of proof that the board acted arbitrarily, or without due regard to the rights acquired by the Cumberland Company. Com. v. City of Boston, 97 Mass. 555; Chicago, St. L. &.N. O. R. Co. v. Louisville & N. R. Co. (Ky.) 58 S. W. 799; Gay v. Telegraph Co., 12 Mo. App. 485; Michigan Tel. Co. v. City of Charlotte (C. C.) 93 Fed. 11, and the authorities there cited. Besides, it follows from the conditions we have noted that there was no grave danger to be apprehended at the time this bill was filed.

The poles of-the Home Company had been already erected and the cross arms put on. No action appears to have been taken until after this was done. There appears no such impending danger of injury to the complainant from the stringing and maintenance of the wires pending the suit as would justify the interference of the court before the final hearing and anticipating the entire purpose of the bill. Blount v. Societe Anonyme du Filtre, etc., 3 C. C. A. 455, 53 Fed. 98 (per Jackson, J.). The order granting the preliminary injunction must be reversed, with costs.