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 are granted."

This language and the distinctions imported by it were approved in Western U. Teleg. Co. v. Ann Arbor R. Co. 178 U. S. 239, 44 L. ed. 1052, 20 Sup. Ct. Rep. 867. It was a bill in equity filed in the circuit court of Benzie county, Michigan, by a telegraph 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 way 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, 61 U. S. App. 741, 90 Fed. 379. The Western Union Telegraph Com

Waite, that the act of 1866 was an exercise | If private property is required, it must, so of the power of Congress over interstate far as the present legislation is concerned, commerce, and the power to establish postoffices 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 or-pany brought the case here. The decrees of ganized under the laws of one state for constructing and operating telegraph lines shall not be excluded by another 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 powers 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:

"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:

"No question arises as to the authority of Congress to provide for the appropriation of private property to the uses of the telegraph, for no such attempt has been made. The use of public property alone is granted.

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, it 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 the specific performance of a contract. "It is not argued," we said, 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 companies 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 occupation of post roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges."

And further: "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 dicto, 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.

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 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 Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1, 11, 24 L. ed. 708, 711."

We need not dissent from these views, or qualify the general language by which they were amplified and supported. Whatever rights were granted by the act of 1866 were

One of the cases which is relied on (Western U. Teleg. Co. v. Atty. Gen. 125 U. S. 530, 31 L. ed. 790, 8 Sup. Ct. Rep. 961, as-granted to all telegraph companies, and serted 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 receives 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 act, 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.

could not be defeated by a binding contract with some one company; nor could such an agreement be used to evade or escape the commands of the statute constituting the Union Pacific Railway, passed in 1862 [12 Stat. at L. 489, chap. 120], or the supplementary act of 1888 [25 Stat. at L. 382, chap. 772, U. S. Comp. Stat. 1901, p. 3583], 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 lan- 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.

So also must be limited the language in Western U. Teleg. Co. v. Texas, 105 U. S. 460, 26 L. ed. 1067, and United States v. Union P. R. Co. 160 U. S. 1, 40 L. ed. 319, 16 Sup. Ct. Rep. 190. In the first the distinction which was necessary to make was between intra- and inter-state 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 more, as far as the act of 1866 was concerned. Such an agreement was set up, and

St. Louis v. Western U. Teleg. Co. 148 U. S. 93, 37 L. ed. 381, 13 Sup. Ct. Rep. 485, 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 was that it exempted the telegraph company from a payment of any

compensation. But compensation was de- | sence of a provision for it has been regardcreed 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, to hold that 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 nonconsent of the owner is a factor to be dealt with. Nonconsent, 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 we 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 ab

ed as important in determining the intention of the legislature when a grant of such power is claimed. 1 Lewis, Em. Dom. § 240, and cases cited. We said in Sweet v. Rechel, 159 U. S. 399, 40 L. ed. 196, 16 Sup. Ct. Rep. 48, 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 Cherokee Nation v. Southern Kansas R. Co. 135 U. S. 641, 34 L. ed. 295, 10 Sup. Ct. Rep. 965. 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: "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 v. United States, 91 U. S. 367, 23 L. ed. 449, 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: "The authority here given [the first act] was to purchase. If that were all, it might be

doubted whether the right of eminent do- | so much beneath as may be necessary for main was intended to be invoked. support. But whatever it may be called, it is, in substance, an interest in the land, special and exclusive in its nature." Pennsylvania S. Valley R. Co. v. Reading Paper Mills, 149 Pa. 18, 4 Atl. 205; Philadelphia v. Ward, 174 Pa. 45, 34 Atl. 458; Pittsburgh, Ft. W. & C. O. R. Co. v. Peet, 152 Pa. 488, 19 L. R. A. 467, 25 Atl. 612.

That Congress intended more than this is evident, however, in view of the subsequent and amendatory act passed June 10, 1872 [17 Stat. at L. 352, chap. 415, U. S. Comp. Stat. 1901, p. 2457], which made an appropriation 'for the purchase, at private sale or by condemnation, of the ground for a site' for the building."

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

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 owner-protection of the Constitution, and in the ship 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."

precise manner in which protection is given. It can only be taken by the exercise 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 R. Co.

In Sweet v. Rechel, Cherokee Nation v. A few words more may be necessary to Southern Kansas R. Co., and Kohl v. Unit-avoid all possible misunderstanding of the ed States, the property to which the consti-purpose for which we have cited those cases tutional protection was applied was prop- and Kohl v. United States. We have cited erty in private use. Their doctrine applies them, not as tests of the validity of the as well to private property devoted to a pub- act of 1866, but as tests of its meaning, suplic use. There is no difference whatever in porting the authority of the Pensacola Case principle arising from the difference in the and Ann Arbor Case. We have no occasion uses. A railroad right of way is a very sub- to consider the validity of the act of 1866 stantial thing. It is more than a mere right as an attempt to grant the power of emiof passage. It is more than an easement. nent domain. We decide the act to be an We discussed its character in New Mexico exercise by Congress of its power to withv. United States Trust Co. 172 U. S. 171, draw from state interference interstate com43 L. ed. 407, 19 Sup. Ct. Rep. 128. We merce by telegraph. We merce by telegraph. As such, of course, there said that if a railroad's right of way the act is an efficient and constitutional enwas an easement it was "one having the at- actment. tributes 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 In Postal Teleg. Cable Co. v. Oregon Short the rights of way in the case at bar are sit-Line R. Co. 104 Fed. 623, and Postal Teleg. uated. We quoted New York, S. & W. R. Co. v. Trimmer, 53 N. J. L. 1, 3, 20 Atl. 761, as follows: "Unlike the 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 & R. R. Co. v. Hummell, 44 Pa. 375, 84 Am. Dec. 457. It is "a fee in the surface and

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

Cable Co. v. Oregon Short Line R. Co. 114 Fed. 787, there were views expressed favorable to the contentions made in the case at bar by the telegraph company, but the judg ments 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. 49 C. C. A. | expressly created them "public highways," 663, 111 Fed. 843.