Western Union Telegraph Co. v. Pennsylvania Railroad

After stating the case as above, delivered the opinion of the court.

By an act of Congress, approved July 7, 1838, and by sub- ■ ■ sequent' acts, March 3, 1853, 10 Stat. 249, 255, c. 146; sec. 3964, Rev. Stat., June 8, 1872, 17 Stat. 283, railroads within the limits of the United States were made post routes or roads.

By-act' of March 1, 1884, it is provided “that all public roads and highways^ while kept up and maintained as such, are hereby declared to be post routes.” 23 Stat. 3, c. 9.

The act-of 1866 is as follows, 14 Stat. 221, c. 230:

. “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any telegraph company now organized, or which may hereafter be organized under the laws of any State in this Union, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States,- over and along any of the military or post roads of the United States which have been or may hereafter be declared such, by act of Congress, and over, under, or across the navigable streams of waters of the United States: Provided, That such lines of .telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel of such military or post roads. And any of said companies shall have the right to take and use from such public lands the necessary stone, timber, and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of "said lines of telegraph, and may preempt and use such portion of the unoccupied public lands subject to preemption through which its said lines of telegraph-may be' located as may be necessary for its stations, not exceeding forty acres for each--station; but such stations shall not be - within fifteen miles ofseach other. .

‘■‘Sec. 2. And be it further enacted, That telegraphic communications between the several departments of the Government of the United States and their officers and agents shall, in their transmission over the lines of any of said companies, ,have priority over all other business, and shall be sent at rates to be annually-fixed by the Postmaster General.

“Sec. 3. And be it further enacted, That the rights and privileges hereby granted shall not be transferred by any company acting under this act tb any other corporation, association, or person -..Provided, however, That the United States may at any time after the expiration of five years from the date of the passage of .this act, for postal, military, or other purposes, purchase all the telegraph lines, property, and effects of any or all of said companies at an appraised value, to be ascertained by five competent, disinterested persons, two of whom shall be selected by the Postmaster General of the United States, two by the company interested, and one by the four so previously selected.

“Sec. 4. And be it further enacted, That before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance with the Postmaster General of the restrictions and obligations required by this act.”

The construction of this act is the fundamental question in the case. The Telegraph Company contends that the necessary implication from the provisions of the act is that telegraph companies may enter and appropriate for their poles and lines a part of the rights of way of railroads in invitum upon paying just compensation. In other words, that the act invests telegraph companies with the right of eminent domain. The Railroad Company denies this construction, and asserts that the act gives the consent of the Government to telegraph companies to construct lines through its public domain and over and along ills military and post roads, which are not the property of private corporations, and across navigable streams and waters. The act gives no right, the Railroad Company contends, to appropriate private property; but is an exercise by Congress of the national power over interstate commerce to secure telegraph companies from “hostile state legislation or contracts violative of an announced public policy.” In other words, the contention of the Railroad Company is, that after the act of 1866 was passed, it “became impossible for the States, by any legislation, to exclude telegraph companies from the post roads:” The contentions' of the parties are opposed, therefore, only as to the degree of right conferred by the act. It, is asserted by one party, and unqualifiedly admitted by the other, that Congress has power to grant the power of eminent domain to corporations organized for national purposes, and the arguments of the parties are addressed only to the considerations which serve to deters mine the intention of Congress. Both parties also claim authority for their respective contentions.

1. The act of 1866 came before this court for consideration over twenty-five years ago, in Pensacola Telegraph Company v. Western Union Telegraph Co., 96 U. S. 1. . The language of the court defining the rights conferred by the act has recently been repeated and sanctioned in Western Union Telegraph Company v. Ann Arbor R. R. Co., 178 U. S. 239. In both cases the judgment of the court was adverse to the rights claimed under that act by the Telegraph Company in the case at bar. A review of those cases, therefore, and a consideration of the arguments directed against them and in support of them will constitute the most appropriate discussion of the questions now presented, and apply immediately to their solution the authority of this court.

In Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, the legislature of Florida in 1866 granted to the Pensacola Telegraph Company “the sole and exclusive privilege and right” of maintaining and operating lines of telegraph through certain counties of the State.. In 1872 the property of the Alabama and Florida Railroad Company was transferred to the Pensacola and Louisville Railroad Company. On the fourteenth of February, 1873, the legislature of Florida passed an act, which was amended in 1874, authorizing the last-named company to construct and maintain a telegraph line along its railroad, and to connect with lines in and out of the State. This was in the territory embraced by the exclusive grant to the Pensacola Telegraph Company.

On the twenty-fourth of June, 1874, the Pensacola and Louisville Railroad Company granted to the Westérn Union Telegraph Company the right to erect a telegraph line upon its right of way, and transferred to it all the rights and privileges conferred by the acts of February, 1873, and 1874. The Western Union Company immediately commenced the erection -of the line, but before its completion the Pensacola Telegraph Company filed a bill to enjoin the work, on account of the alleged exclusive right of that company under its charter. Upon the hearing a decree was passed dismissing the bill, and an appeal was taken to this court. The Western Union Telegraph Company had accepted the act of 1866, and claimed to erect and maintain a telegraph line under its agreement with the Pensacola and Louisville Railroad Company, and under the provisions of that act. The case, therefore, presented an issue between rights asserted under a statute of Florida and rights given and protected by the act of 1866. The issue was important. The act of 1866 was presented for the first' time for interpretation and upon it depended not '•only the private rights of the contending companies but the more serious conflict of powers derived from the National and state governments. The questions, therefore, which bore on these issues called for, and, it is evident from the opinion of the court, received careful attention.

The first of these questions was whether-the act of 1866, was a grant to telegraph companies of portions of the public .domain and of rights in the public domain, or a grant of rights having a broader field of exercise — a grant of rights having operation and to be exercised throughout the whole of the United States. There was a marked difference in- th,e rights contended for, and they depended upon different powers. In the public domain the Government was proprietor as well as sovereign, elsewhere only sovereign, and on its powers as sovereign there were limitations, arising not only from the rights of the States, but arising from the ownership of private property and the necessity of a gran-t of eminent, domain to appropriate it. 'These limitations were of consequence in fixing exactly the rights conferred by the act of 1866, and were regarded by the court in its construction of that act.

The court declared, through Chief Justice Waite, that the act of 1866 was an exercise of the power of Congress over interstate commerce and the power to establish post offices and post roads, and, like other' powers of the National Government, could be exercised “upon every foot of territory under its jurisdiction.” It was held, therefore, that the act was not a grant of rights only in the public domain, and the character of the rights was made unmistakable. The statute, the court said, “in effect amounts to a prohibition of all state monopolies” in commercial intercourse by telegraph. This is expressed more than once as the fundamental idea and sole purpose of the statute. The court further said: “It (the statute) substantially declares, in the interest of commerce and the convenient transmission of intelligence from place to place by the Government of the United States and its citizens, that the erection of telegraph lines shall, so far as state interference is concerned, be free to all who will submit to the conditions imposed by Congress, and that corporations organized under the laws of one State for constructing and operating telegraph lines shall not be excluded, from prosecuting their business within its jurisdiction, if they accept the terms proposed by the National Government for this national privilege. To this extent, certainly, the statute is a legitimate regulation of commercial intercourse among the States, and is appropriate legislation to carry into execution the power of Congress over the postal service.

And this construction, making the act of 1866 merely an exercise of national power to withdraw from state control or interference commercial intercourse by telegraph, is further emphasized in the opinion and the objections to it completely answered, which were based on the ownership of the post roads by individuals or corporations, and the' necessity of implying a grant of the power of eminent domain to telegraph companies to appropriate them. The court said (p. 11):

“It [the act of 1866] gives no foreign corporation the right to enter upon private property without the consent of the owner and erect the necessary structures for its business, but it does provide, that, whenever the consent of the owner is obtained, no state legislation shall prevent the occupation of post roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges.”

And again (p. 12):

“No question arises as to the authority of Congress to pro-, vide for the appropriation of private property to the úses'of the telegraph, for no such attempt has been made. The use of public. property alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized. State sovereignty under the Constitution is not interfered with. Only national privileges aré granted.”

This language and the distinctions imported by it were approved in Western Union Telegraph Company v. Ann Arbor Railroad Co., 178 U. S. 239. It was a bill in equity filed in the Circuit Court of Benzie County, Michigan, by a telégraph company against a railway company to restrain the latter from interfering with the rights of the telegraph company in a certain telegraph line along the right of w.ay of the railroad.' It was removed to the Circuit Court of the United States. The Circuit Court dismissed the bill, and its action was affirmed by the Circuit Court of Appeals. 33 C. C. A. 113. The Western Union Telegraph Company brought the case here. The decrees of both courts were reversed and the case remanded to the Circuit Court with directions to remand the case to the state court. This was' decreed on the ground that, by the statement of the complainant’s (telegraph company) own case, if was not brought “within the category of cases arising under the laws or Constitution of the United States.” We said that the bill was in effect for thé specific performance of a contract. “ It- is not argued,” we said (p. 243), by the Chief Justice, “by counsel for the telegraph company that the telegraph company had any right under the statute, and independently of the contract, to maintain' and operate this telegraph line over the railroad company’s property; and it has been long settled that that statute did not confer on telegraph companies1 the right to enter on private property without the consent of the owner, and erect the necessary structures for their business; 'but it does provide that, whenever the consent of the owner is obtained, no state legislation shall prevent the occu-. patión of post roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges.’ ”

And further (p. 244):''As we have said, it was not asserted in argument that the telegraph'company had the right independently of the contract to maintain its line on the railroad company’s property, and in view of- the settled construction of the statute, we could not permit such a contention to be recognized as the basis of jurisdiction.” In other words, by the decision in the Pensacola case no such Federal question remained to be based on the act of 1866.

Counsel, however, pronounce the extracts quoted from the Pensacola case and their repetition in the Ann Arbor case as dicta, and urge besides that the irresistible logic of other cases overthrows the authority of both. Neither proposition is tenable. We have said enough to demonstrate that the language we have quoted was the deliberate resolution of the court, and we might content ourselves by observing that, as the Ann Arbor case is the last expression of this court interpreting the act of 1866, prior cases, if not reconcilable with its exposition of that act, are superseded. We think they are so reconcilable.

One of the cases which is relied on, Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530, asserted the very valuable right obtained by telegraph companies under the act of 1866, .and vindicated it against a statute of Massachusetts, which provided for an injunction against the prosecution of business by the company as a means of enforcing the payment of taxes. This is the very essence of the effect given to the act of 1866 by the Pensacola and Ann Arbor cases. The telegraph company was in occupation of the post roads of the State of Massachusetts, whether railroads or the ordinary highways does not appear. Its right to be there was not controverted, and how it got there was of no consequence. .Its right to do business after and during such occupation was involved and was decided, and to this right the language of the court was addressed, and received limitation from it. The language of the court was substantially the same as that of the act of Congress. It enforced the right given by that aet, and gave to the telegraph company the .protection .of the national power and supremacy, and differs only in the instance, not in the principle, declared in the Pensacola case. The telegraph company, indeed, sought for more than the mere exercise of a right. It sought to turn the act of 1866 from a mere permission to exercise a right to the creation of such an- instrumentality of the National Government as to be exempt from state taxation. The court rejected that view.

So also must be limited the language in Telegraph Company v. Texas, 105 U. S. 460, and United States v. Union Pacific Railway Co. & Western Union Telegraph. Co., 160 U. S. 1. In the first the distinction which was necessary to make was between intra and interstate commerce, and to determine what rights as to the latter were conferred by the act of 1866. In the second case the efficacy of the act to prevent binding contracts against its policy was involved. The case called for that but no -moré, as far as the act of 1866 was concerned. Such an agreement was set up, and under it the Western Union Telegraph Company claimed the right to exclude all other telegraph companies from the roadway of the railway company, notwithstanding the act of 1866. Mr. Justice Harlan, speaking for .the court, said (p. 42), that such an agreement directly tended to make the act of July 24, 1866, ineffectual, and was, therefore, hostile to the object contemplated by Congress. Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 11.”

We heed not dissent from these views or qualify the general language by which they were amplified and supported. Whatever riglits were granted by the act of 1866 were granted to all telegraph companies, and could not be defeated by a binding contract with some one company,^ nor could such an a'gree- ■ ment be used to evade or escape the commands of the statute constituting the Union Pacific Railway, passed in 1862, or the supplementary act of 1888, which was passed by virtue of a power reserved in the act of 1862. The suit was brought to enforce the duties and obligations imposed by those statutes on the railway company. The statutes are quoted in the opinion, and the act of 1866 is referred to only as reinforcing the provisions of the statute of 1862. It was only necessary* therefore, to declare the policy of the act of 1866 as a grant of rights to all telegraph companies. The consideration of the court was not directed to anything else. The extent of the rights granted as presented , in the case at bar could not have been in contemplation. They were not in issue, and it could not have been intended to anticipate and decide the controversies which might be based upon them.

St. Louis v. Western Union Telegraph Company, 148 U. S. 92, is also urged by the Telegraph Company as inconsistent with the Ann Arbor case. It is clearly not so. The case involved the validity of a charge or rental made by the city of St. Louis for the use of its streets by the telegraph company. The charge was imposed by the same ordinance that gave permission to the telegraph company to occupy the streets of the city. The telegraph company resisted the charge upon several grounds, among which were the provisions of the act of 1866, and its acceptance by the company. The charge was held to be a valid one, but on no ground which involved the consideration of the right of the telegraph company to occupy the streets. The right was not disputed. The ordinance of the ■ city conferred it. The claim made under the act of 1866 wTas that it exempted the telegraph company from a payment of any compensation. But compensation was decreed on the ground that the franchise or privilege granted by the act of 1866 could only be exercised in subordination 'to public as well as private rights, and, as entry upon the latter could only be made upon the payment of just compensation, entry upon the former was subject to the same payment. This was all that was necessary to decide to sustain the charge made by the city. In other words, it was all that was necessary to decide to meet the extreme contention made by the telegraph company, that under the act of 1866 it was entitled to occupy the streets without charge, notwithstanding its occupation was exclusive and permanent, as the court said it was. It is manifest that to hold there can be no entry upon property without payment of compensation, is not to decide that such entry can .be made upon tender of compensation. Certainly, as to private- property or rights, the non-consent of the owner is a factor .to be dealt with. Non-consent, if resolute, can only be overcome by power conferred by law; in other words, by the exercise of eminent domain. The act of 1866 was not considered in that regard.

By this review of - the cases it is evident that there is no inconsistency between them and the Pensacola case and the Ann Arbor case, and iye are brought to the discussion of the general considerations urged against the latter cases. Construed, as they construe the act of 1866, it becomes meaningless, counsel say. If the act grants-no rights, it is urged, except by permission of the railroad companies, it confers no more than can be obtained from the railroad companies. The objection is best answered by examples. • The telegraph company had such permission in the Pensacola case. It needed, however, the act of 1866 to make its exercise effectual against the legislation of the State of Florida. In the Union Pacific case a claim of a monopoly by one telegraph company was answered by the act construed as a grant of rights to all companies. These examples show important results achieved by the act, and the principles of the cases may come to be applied -to prevent other hostile action of States or individuals.

This court, when it came to consider the act of. 1866 in the Pensacola case, was confronted, as we are confronted now, ■with the serious nature of the right of eminent domain. It is indeed “inseparable from sovereignty,” but it is accompanied and restrained by inexorable limitations. The property taken must be for a public use, and there must be compensation made for it, and compensation, whether it be regarded as part of the power or a'limitation upon the power, is so far- essential that the absence of a provision for it has been regarded as important in determining the intention of the legislature when a grant of such power is claimed. 1 Lewis Eminent Domain, section 240, and cases cited. We said in Sweet v. Rechel, 159 U. S. 380, 399, by Mr. Justice Harlan: “It is a condition precedent to the exercise of such power (eminent domain) that the statute make provision for reasonable compensation to the owner.” Many state cases were cited) and also (p. 402), Cherokee Nation v. Southern Kansas Railway Co., 135 U. S. 641. The act of Congress under review in the latter case, it was contended,.did not provide for compensation for the property taken. In -reply, Mr. Justice Harlan, delivering the opinion of the court, said (p. 659): “The objection to the act cannot be sustained. The Constitution declares that private property shall not be taken ‘for public use without just compensation.’ It does not provide or require that compensation ’ shall be actually'paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain and adequate provision for obtaining compensation before his occupancy is disturbed. Whether a particular provision be sufficient to secure the compensation to which, under the Constitution, he is entitled, is sometimes a question of difficulty-.” The' requirements of the Constitution were held to be fully met because the act which was under consideration provided that before the railway which was authorized should be constructed through any of the lands proposed to be taken, full compensation should be made to the owner for all property taken, or damage done by reason of the construction of the road, and in the event of an appeal from the finding of the referee the railway company should pay into court double the amount of the award to abide the judgment.

In Kohl et al. v. United States, 91 U. S. 367, acts of Congress were considered/ one providing for the acquisition of a site for a public building, the other an appropriation act. The appropriation made by the latter was “for the purchase, at a private sale or by condemnation, of ground for a site” for the building. The real controversy in the case was whether the acts of Congress intended the site to be obtained under the authority of the state government in the exercise of its power of eminent domain or by the United States Government in its own right, and by virtue of its own eminent domain. The court held the latter, and, commenting on the sufficiency of the acts to give the right, said (p. 374): “The authority here given [the first act] was to purchase. If that were all, it might be doubted whether the right of .eminent domain was intended to be invoked. . . . That Congress intended more than this is evident) however, in view of the subsequent and amendatory act passed June 10, 1872, which made an appropriation 'for the purchase at private sale or by condemnation of the ground for a site’ for the building.” But in the act of July, 1866, there is not a word which provides for condemnation or compensation. The rule that when a right is given all the means of exercising it are given does not, as we have seen, apply to the extent contended for by the Telegraph Company. The exercise of the power of eminent domain is against common right. It subverts the usual attributes of the ownership of property. It must, therefore, be given in express terms or by necessary implication, and this was the reasoning in the Pensacola case and applied directly to the act of 1866. We may repeat the language of the court: “If private property is required it must, so far as the present legislation is concerned, be obtained by private arrangement with its owner. No compulsory proceedings are authorized.”

In Sweet v. Rechel, Cherokee Nation v. Kansas Railway Co., and Kohl v. United States, all cited supra, the property to which the constitutional protection was applied was property in private use. Their doctrine applies as well to private property devoted to a public use. There is no difference whatever in principle arising from the difference in the uses. A railroad right of way is a very substantial thing. It is more than a mere right of passage. It is more than an easement. We discussed its character in New Mexico v. United States Trust Co., 172 U. S. 171. We there said (p. 183) that if a railroad’s right of way was an easement it was “one having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it corporeal, not incorporeal, property.” And we drew support for this from a New Jersey case, in which State the rights of way in the case, at bar are situated. We quoted N. Y., Susquehanna & Western Railroad v. Trimmer, 53 N. J. L. 1, 3, as follows: “ ‘Unlike t% use of a private way — that is,. discontinuous— the use of land condemned by a railroad company is perpetual and continuous.’ ” And it is held in Pennsylvania “ that a railway company is a purchaser, in consideration of public accommodation and convenience, of the exclusive possession of the'ground paid for to the proprietors of it.” Philadelphia & Reading Railroad Co. v. Hummell, 44 Pa. St. 375. It is “a ■fee in the surface and so much beneath as may be necessary for support. . . But whatever it may be called, it is, .in substance, an interest,in the land, special and exclusive in its nature.” Pennsylvania Schuylkill Valley R. R. Co. v. Reading Paper Mills, 149 Pa. St. 18; Philadelphia v. Ward, 174 Pa. St. 45; Railway v. Peet, 152 Pa. St. 488.

■ A railroad’s right of way- has, therefore, the substantiality .of the. fee, and it is private property even to the public in all else but an interest and benefit in its uses. It cannot be invaded without guilt of trespass. It cannot be appropriated in whole or part except upon the payment of compensation. In other words, it is entitled to the protection of the Constitution, and in the precise manner in which protection is given. It can only be taken by the éxercise of the powers of eminent domain, and a'condition precedent to the exercise of such power is, we said, in Sweet v. Rechel, that the statute conferring it make provision for reasonable compensation to the owner of the property taken. This condition is expressed with even more emphasis in Cherokee Nation v. Southern Kansas Ry. Co., supra.

A few more words may be necessary to avoid all possible misunderstanding of the purpose for which we have cited those cases and Kohl v. United States. We have cited them, not as tests of the validity of the act of 1866, but as tests of its. meaning, supporting the authority of the Pensacola case and Ann Arbor case. We have no occasion to consider the validity of the act of 1866 as an attempt to grant the power of •eminent domain. We decide the act to be an exercise by Congress of its power to withdraw from state interference interstate commerce by telegraph. As such, of course, the act is an efficient and constitutional enactment.

Certain eases decided at circuit are cited for our consideration, and we will close this branch of our discussion bv a brief review of them.

In Postal Telegraph Cable Co. of Idaho v. Oregon Short Line Railroad Company, 104 Fed. Rep. 623, and Postal Telegraph Cable Company v. Oregon Short Line R. R. Co., 114 Fed. Rep. 787, there were views expressed favorable to the contentions made in the case at bar by.the Telegraph Company, but the judgments in both cases were ultimately rested upon the local statutes — Idaho and Montana — which granted the right of eminent domain to telegraph companies. We may also observe that the first case went to the Circuit Court of Appeals of the Ninth Circuit. That court sustained the judgment of the Circuit Court upon the statute of Idaho and upon general legal principles. It did not refer to the act of 1866. 111 Fed. Rep. 842.

In Postal Telegraph Cable Co. v. Southern Railway Co., 89 Fed. Rep. 190, and Postal Telegraph Cable Co. v. Cleveland, C. & St. L. Ry. Co., 94 Fed. Rep. 234, the act of 1866 was more directly passed on. Both cases were proceedings in eminent domain — one brought in the courts of North Carolina and removed to the Circuit Court of the United States; the other brought in- the Circuit Court of the United States for the Northern District of Ohio. In passing on the sufficiency of the petition in the first case, Judge Simonton said that the right of petitioner to construct its lines along the right of way of post roads of the United States was given under the act of Congress of 1866, but, he observed, “ the mode or method of exercising the right conferred was fixed by the laws of the several States, and it was exclusive in its character in ascertaining the amount of compensation to be allowed.” The right of the Telegraph Company was, therefore, considered and adjudged under the North Carolina statutes.

In the second case a motion was made to dismiss on the ground that the power of eminent domain was not conferred by any law of the United States or the State of Ohio. The motion was sustained. District Judge Ricks said: “The act of July 24, 1866, made no provision for compensation or payment for property to be taken, hence the procedure cannot be sustained by virtue of that act.” He cited the Pensacola case, supra.

The Western Union Telegraph Company v. Ann Arbor R. R. Co., 33 C. C. A. 113, and St. Paul M. & M. Ry. Co. v. Western Union Telegraph Co., 118 Fed. Rep. 497, were respectively decided by the Circuit Court of Appeals of the Sixth Circuit and the Circuit Court of Appeals of the Eighth Circuit. It is difficult to reconcile them. Iri one it was decided, following the authority of the- Pensacola' case, "that the Telegraph Company could not occupy the line of the defendant’s railroad- without its consent or that of some predecessor in title. This was wanting. • In the other, it was conceded that the right of entry upon private property was not conferred by the act of 1866, without the owner’s consent, yet held that, as consent had been given, no reason could be perceived why a court of equity should compel a removal of the Telegraph Company’s lines from the railway’s right of way, “ especially where it appears that no express agreement was made that they should, be removed when its lines were erected.” \

2. It is contended by the Telegraph Company that the charters under which-the several railway companies constituting the system of the Railroad Company were organized expressly created, them “public .highways,”' and that in the . acquisition of land for their purposes they were public agents, “ and the land was taken by the. Government,-and in the eye-of the law as completely subject- to public uses as though it had been taken by the State itself ”. — that is to say, if we understand the argument, have become highways in the full sense of that word. And counsel further say the difference between them and ordinary highways “is not a legal difference, but is the difference of the kind of use to which the' highway is subject — in the one case, wheel vehicles drawn by horses; in the other, to steam vehicles drawn by locomotives along and upon iron rails.” They are subject, therefore, it is urged, as ordinary highways and streets of a city are subject, to the control of Congress by virtue of its power over interstate commerce.

Counsel in advancing the argument exhibit a consciousness of taking an extreme position. It would seem, certainly if considered with other parts of their argument, to make a railroad right of way public property. To that extreme we cannot go, for the reasons which we have already indicated. The right of way of a railroad is property devoted to a public use, and has often been called a highway, and as such is subject, to a certain extent, to state and Federal control, and for this many cases may be cited. But it has always been recognized, as we have pointed out, that a railroad right of way is so far private property as to be entitled to that provision of the Constitution which forbids its taking, except under the power of eminent domain and upon payment of compensation. The right of way of a railroad was recognized as private property in the Pensacola case, and we are brought back to the main question — the iftterpretation of the act of July, 1866, and upon that we have sufficiently dilated. '

It follows from these views that the act of 1866 does not grant the right to telegraph companies to enter upon and occupy the rights of way of railroad companies, except with the consent of the latter, or grant the power of eminent domain. Nor does the statute of New Jersey make those rights of way public property so as to subject them to such occupation under the provisions of the act of 1866.

It is admitted that the statutes- of New Jersey do not confer the right of eminent domain upon the Telegraph Company.

3. In view of our.conclusion, it is not necessary to consider the question whether, if the power of eminent domain were granted.by the act of 1866, it would be within the competency of a court of equity to ascertain compensation, or that compensation might be determined at law. That question was pertinent in Kohl et al v. United States, 91 U. S. 367. It is not pertinent in this case. The acts of Congress-passed on in Kohl et al v. United States, as we have seen, provided for the appropriation of a site for a public building by purchase ■ or by condemnation. By the act of 1866 power of condemnation is not given, and, of course, methods of procedure are not involved in it's construction.

It is equally unnecessary to consider the questions which might arise if the State of New Jersey gave the right of eminent domain to the Telegraph Company. It is conceded by counsel that such right does not exist, and it happens that under the poliéy of New Jersey the right of way of the Railroad Company enjoys in that State immunity from compulsory proceedings instituted by the Telegraph Company. But this has no bearing on the act of 1866, nor does it make that act, as construed by us, a grant to railroads of greater power over commercial intercourse by telegraph than the States have. Indeed, we think, a comparison between the States and railroads in that regard is misleading and overlooks the essential difference between restraints on the legislative power of the States and the rights of property.

On account of those restraints, it may be, and finding no impediment in the rights of property, interstate commerce, by telegraph, has marched to a splendid development, although in the acquisition of the means for its exercise it has relied on the consent of the owner of private property, or the power of eminent domain conferred by the States. We cannot but feel, . therefore, that there is something inadequate in the argument which is based on the apprehension that the act of July 24, 1866, construed, as we construe it, gives a sinister power to railroad companies. It gives no power to those companies but that which appertains to the ownership of their property.

Decree affirmed.

Mr. Justice Brewer concurred.