186 THE POPULAR SCIENCE MONTHLY, 



other cities ; and, finally, for its own convenience, the Western Union 

 Company has several miles of wire underground in New York city, 

 which are also operated successfully. When to these undisputed facts 

 we add that such a practical genius as Edison has declared that there is 

 no reason whatever why all wires operating electrical apparatus should 

 not he underground, except expense, which in the eye of the law is no 

 excuse, there is sufficient demonstration of the practicability of the 

 system for the purposes of this article. Unless such evidence can be 

 rebutted, the companies are guilty of erecting, in the exercise of their 

 franchise, unnecessary and therefore unlawful fixtures. 



If unlawful, within the meaning of the legislative enactments, no 

 aldermanic sanction can save them ; for the stream can not rise higher 

 than its source. Permission by the Common Council, if inconsistent 

 with the law of the State, is wholly void, and, even if this were not 

 the case, it is questionable whether the Common Council of the city 

 has power to consent to the erection of a single pole. The charter 

 gives it power to regulate the use of poles in streets, but the power 

 to regulate a nuisance is not the power to create one. This becomes 

 more apparent taken in connection with the prohibitive side of the 

 charter, by which the Common Council is forbidden to permit any 

 encroachment upon or obstruction of the streets, except the temporary 

 occupation thereof during the erection or repair of a building on a lot 

 opposite the same. Now, this either means something or nothing, 

 and, with the principles in regard to legalizing nuisances in mind, we 

 are inclined to believe it means all that we claim. 



Before leaving this point, it may be added that, even if there were 

 no such thing as an underground system, it is quite probable that 

 most of the poles now standing would have to be condemned as nui- 

 sances ; for, if smaller poles of the same or another material, such as 

 iron, would answer the same purpose, the obstruction as it now exists 

 is not reduced to a minimum, and, under the principles of which we 

 have spoken, are therefore unlawful. That snialler poles would do, 

 is, we think, capable of demonstration, but it is not necessary to enter 

 upon a discussion of this matter, as our objections are aimed at the 

 overground system as a whole. 



To the reasons we have thus far given why the poles and wires 

 should come down, there may be added another reason. Recent ele- 

 vated-railway litigation has made the public more or less familiar with 

 certain principles of law regarding the use of streets by private corpo- 

 rations. Whether the fee of a street is owned by the abutting own- 

 ers, or has been taken by the public, but in trust to be used as a public 

 street, no structure upon the street can be authorized that is inconsist- 

 ent with the continued use of the same as an open public street, with- 

 out compensation to the abutting owners, who are entitled to use it.* 

 Measured by this principle, there is no difference between an elevated- 

 * 90 N. Y., 122 ; 91 N. Y., 153. 



