The contention that an act of Congress as construed and applied
by the district court transcends the power of Congress, if of
sufficient substance, gives this Court jurisdiction of a direct
appeal under § 238, Judicial Code.
The Post Road Act of 1866 substantially declares, in the
interest of commerce and the convenient transmission of
intelligence from pace 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. Pensacola Tel. Co.
v. West. Un. Tel. Co., 96 U. S. 1
A state has no authority to say that a telegraph company may
operate lines constructed over postal routes within its borders.
West Un. Tel. Co. v. Massachusetts, 125 U.
A city may not arbitrarily exclude wires and poles of a
telegraph company from its streets, but may impose reasonable
restrictions and regulations. West. Un. Tel. Co. v.
Richmond, 224 U. S. 160
Where a town has given written permission to a telegraph company
specifying how posts could be placed and wires run and the company
has complied with such permission, such lines are protected by the
Post Road Act of 1866 against subsequent exclusion or other
arbitrary action by the town.
A municipality may, under exceptional circumstances, be held to
have waived its rights, or to have estopped itself to assert them
as by acquiescing for a long period in the maintenance of the
system and large expenditures of money in connection therewith by a
The Post Road Act of 1866 must be construed and applied in
recognition of the existing conditions and with a view to
effectuate the purposes for which it was enacted.
Where rights of a telegraph company under the Post Road Act
would be violated by threatened arbitrary action by a municipality,
they may be protected by injunction, but the injunction should not
prevent the municipality from subjecting the location and operation
of the company's lines to reasonable regulations.
Page 239 U. S. 314
The facts, which involve the rights of telegraph companies
under, and the construction of, the Post Road Act of 1866 are
stated in the opinion.
Page 239 U. S. 316
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
Appellant was enjoined by the decree below from interfering with
the operation of lines owned by the appellee company. The
controversy arose under the Act of Congress approved July 24, 1866
(14 Stat. 221, c. 230, Rev.Stat. §§ 5263 et seq.
declares that companies accepting its provisions "shall have the
right to construct, maintain, and operate lines of telegraph . . .
over and along any of the military or post roads of the United
States," provided they do not interfere with ordinary travel.
Appellant insists that, as construed and applied below, the statute
transcends the powers granted to Congress by the Constitution, and
there is sufficient substance in the claim to give us
The appellee was incorporated under the laws of Massachusetts
April 7, 1884. Immediately thereafter, it filed with the Postmaster
General a written acceptance of the restrictions and obligations
prescribed by the Act of July 24, 1866, and constructed lines of
wires strung upon poles across the Commonwealth of Massachusetts,
and particularly along certain streets and roads in the Town of
Essex. These have been continuously operated in connection, on the
east, with cables reaching foreign countries, and, on the west,
with wires leading to all parts of the Union; for a long time, they
have constituted an important part of the Postal Telegraph &
Cable system, and over them pass great numbers of interstate and
Page 239 U. S. 317
messages, many being transmitted for the United States under
The especially pertinent provisions of the Massachusetts laws
relating to companies incorporated for transmitting intelligence by
electricity, in force during 1884 and long thereafter, appear in
Public Statutes, Chapter 109, §§ 2, 3, 15, and Chapter 27, § 49,
and are as follows:
"Each company may, under the provisions of the following
section, construct lines of electric telegraph upon and along the
highways and public roads and across any waters within the
commonwealth, by the erection of the posts, piers, abutments, and
other fixtures (except bridges) necessary to sustain the wires of
its lines, but shall not incommode the public use of highways or
public roads nor endanger or interrupt the navigation of any
"The mayor and aldermen or selectmen of a place through which
the lines of a company are to pass shall give the company a writing
specifying where the posts may be located, the kind of posts, and
the height at which, and the places where, the wires may run. After
the erection of the lines, having first given the company or its
agents opportunity to be heard, they may direct any alteration in
the location or erection of the posts, piers, or abutments and in
the height of the wires. Such specifications and decisions shall be
recorded in the records of the city or town."
"No enjoyment by a person or corporation for any length of time
of the privilege of having or maintaining telegraph posts, wires,
or apparatus in, upon, over or attached to any building or land of
other persons shall give a legal right to the continued enjoyment
of such easement or raise any presumption of a grant thereof."
"The selectmen of a town may empower citizens of Massachusetts
to establish and maintain in such town posts, wires and other
apparatus for telegraphic and telephonic
Page 239 U. S. 318
communication in conformity with the provisions of Chapter
In Pierce v. Drew,
136 Mass. 75, 76, 77 (1883), the
supreme court said of Chapter 109:
"That it was the intent of the statute to grant to those
corporations, formed under the general incorporation laws, for the
purpose of transmitting intelligence by electricity, the right to
construct lines of telegraph upon and along highways and public
roads upon the locations assigned to them by the officers of the
municipality wherein such ways are situate, cannot be doubted. . .
"No right is given these companies to use the highways at their
own pleasure or to compel in all cases, as the plaintiff suggests,
locations therein to be given them by the municipal authorities.
The second section of the statute is to be construed with the third
section, and shows an intention that a legally constituted board
shall determine not only where, but whether, there can be a
location which shall not incommode the ordinary public ways, with
full power to revise its own doings and to correct any errors which
the practical working of the arrangements may reveal."
The evidence warrants the conclusion that, in 1884, appellee
made written application to the Essex selectmen for a right of way,
but their records disclose nothing concerning the matter. Directly
thereafter, without opposition, the existing lines were constructed
along four miles of the town's highways. During many succeeding
years, no objection appears to have been made to their operation,
and, until a short time before this suit was begun, their presence
was acquiesced in. Certainly no sort of affirmative action was
taken to interfere with them, and there is evidence indicating that
half the poles were relocated under direction of a selectman about
1895, when the electric railway was laid down.
In 1902, repairs being needed, the selectmen were petitioned
Page 239 U. S. 319
to locate the poles and license their future maintenance. This
request was not granted. In 1905, repairs having become imperative,
another petition for a location was presented. This was refused;
officers of the town then denied appellee's right to use the
highways, and threatened to prevent repairs, by force if necessary,
and to take action against future operation of the lines within its
limits. Thereupon, July 31, 1905 (twenty-one years after original
construction), the telegraph company, relying on the Act of 1866,
commenced this proceeding in the district court, seeking an
injunction against threatened interference. By a temporary order
granted September 5, 1905, the town, its officers, agents, and
"enjoined and restrained, until the further order of this court,
from interfering in any manner whatsoever with the complainant's
line of telegraph in said defendant town, or with the location or
relocation by the complainant on the roads and highways now
occupied by its said line of telegraph in said defendant town, or
with the resetting of the poles of said line in said town by the
complainant, or with the complainant's making such repairs and
changes as are necessary to put said line in a condition of safety
and efficiency, or from in any manner causing or allowing any other
person or corporation to interfere with or stop such location,
relocation, resetting, repairs, or changes by the complainant."
Answering, September 26, 1905, appellant claimed the lines were
constructed without any authority whatsoever, and denied the
company's right, under the Act of 1866 or otherwise, to maintain or
operate them. A cross-bill was also presented alleging unlawful use
of the ways and praying that the company be restrained therefrom
until a franchise shall be obtained as provided by state laws.
No motion was ever made to dissolve the temporary injunction.
The cause coming on for final hearing upon pleadings and proofs in
1913 (twenty-nine years subsequent
Page 239 U. S. 320
to construction), the court held that the Act of 1866 protected
the lines from interference, and rendered a decree dismissing the
cross bill, sustaining the original bill, and awarding a perpetual
injunction substantially in the language of the preliminary order
dated September 5, 1905.
Appellant now maintains that the court below erroneously
construed and applied the Act of 1866, and undertook to bestow upon
the telegraph company rights in its highways beyond the power of
Congress to grant; that its ways are occupied without lawful
authority, either state or federal; that such occupation
constitutes a continuing nuisance, and that the original bill
should have been dismissed, leaving the town free to act as seemed
Many opinions of this Court establish beyond question the
validity and point out the general purposes of the Act of 1866.
"It 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
Pensacola Telegraph Co. v. West. Un. Tel. Co.,
96 U. S. 1
96 U. S. 11
state has no authority to say that a telegraph company may not
operate lines constructed over postal routes within its borders,
West. Un. Tel. Co. v. Massachusetts, 125 U.
, 125 U. S. 554
A city may not arbitrarily exclude the wires and poles of a
telegraph company from its streets, but may impose reasonable
restrictions and regulations. St. Louis v. West. Un. Tel.
Co., 148 U. S. 92
148 U. S. 105
West. Un. Tel. Co. v. Richmond, 224 U.
, 224 U. S. 170
See also West. Un. Tel. Co. v. Pennsylvania R. Co.,
195 U. S. 540
United States v. Union Pacific Ry., 160 U. S.
, 160 U. S. 44
Postal Tel. Co. v. Chicopee,
207 Mass. 341, 343.
If the official records of the selectmen disclosed that,
Page 239 U. S. 321
responding to the petition of 1884, they gave a writing
"specifying where the posts may be located, the kind of posts, and
the height at which and the places where the wires may run," and if
thereafter the telegraph company had placed poles and strung wires
accordingly, plainly, we think, under the opinions cited above,
such lines would be protected by the Act of 1866 against exclusion
or other arbitrary action by the town.
With full knowledge of all circumstances, the town authorities
permitted the location and construction of lines along the
highways, and for more than twenty years acquiesced in their
maintenance and operation. The company has expended large sums of
money and perfected a great instrumentality of interstate and
foreign commerce, in the continued operation of which both the
general public and the government have an important interest. Under
similar circumstances it has been determined, upon broad principles
of equity, that an owner of land, occupied by a railroad without
his previous consent, will be regarded as having acquiesced therein
and be estopped from maintaining either trespass or ejectment
(Roberts v. Northern Pacific R. Co., 158 U. S.
, 158 U. S. 11
Northern Pacific R. Co. v. Smith, 171 U.
, 171 U. S. 271
171 U. S.
), and like reasons may demand similar protection to
the possession of a telegraph company. A municipal corporation,
under exceptional circumstances, may be held to have waived its
rights or to have estopped itself. Randolph County v.
Post, 93 U. S. 502
93 U. S. 513
Boone County v. Burlington &c. R. Co., 139 U.
, 139 U. S. 693
City Railway v. Citizens' Railroad, 166 U.
, 166 U. S. 566
Louisville v. Cumberland Telephone Co., 224 U.
, 224 U. S. 662
Dillon, Municipal Corporations, 5th ed., §§ 1194, 1227.
The streets and highways of Essex are undoubtedly post roads
within the meaning of the Act of 1866. West. Un. Tel. Co. v.
Act of March 1, 1884, c. 9, 23 Stat. 3. What
rights, if any, in respect of them
Page 239 U. S. 322
were immediately secured by the telegraph company through
acceptance of that act we need not consider. It entered upon those
now occupied notoriously, peacefully, and without objection, and
has developed there a necessary means of communication. The statute
must be construed and applied in recognition of existing conditions
and with a view to effectuate the purposes for which it was
enacted. Among the latter, as stated in Pensacola Tel. Co. v.
West. Un. Tel. Co.
and West. Un. Tel. Co. v.
are the extension and protection of
instrumentalities essential to commercial intercourse and the
efficient conduct of governmental affairs. In the circumstances,
appellee has acquired the same federal right to maintain and
operate its poles and wires along the ways in question that would
have attached had the selectmen granted a formal antecedent permit.
Commercial transactions and the orderly conduct of governmental
business have come to depend on the daily use of these lines, and
certainly would be as seriously hindered by their severance as if
they had been constructed after an official location. There is no
suggestion that ordinary travel is being interfered with, and,
having long acquiesced in appellee's peaceful possession, the town
may not now rely upon the claim that this was obtained without
compliance with prescribed regulations, and treat the company as a
naked trespasser. Its rights under the federal law would be
violated by the threatened arbitrary interference.
The further claim is here made for the first time that, in any
event, the injunction is too broad. In West. Un. Tel. Co. v.
it was pointed out that the Act of 1866 does
not deprive a municipality of the right to subject telegraph
companies occupying its streets to reasonable regulations. The
injunction as granted might interfere with action altogether
proper, and the decree below will be modified by the addition of
Page 239 U. S. 323
"Provided that nothing herein shall be so construed as to
prevent the Board of Selectmen or the Town of Essex from subjecting
the location and operation of the company's lines to reasonable
With this modification, it is affirmed. The costs will be
charged to appellant.
Modified and affirmed.