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be, by the order and injunction of the court, restrained from intermeddling or in anywise interfering with the lines, wires, poles, and property of your orator on the said bridges or any of them, or its right of way, or with your orator's agents, employés, and officers, going or being upon the said bridges or right of way, to repair its lines, wires, poles, and appliances.

3. That on the final hearing hereof, said injunction be made perpetual.

4. That your orator have its cost of this suit, and all such other and further relief as the circumstances of the case require and is agreeable to equity and good conscience. May it please your honor to grant unto your orator not only the writ of injunction issuing out of and under the seal of this court, directed to the defendant, the Union Pacific Railroad Company, restraining and enjoining it as herein prayed, but also the writ of subpoena, issuing in like manner and directed to the said defendant, commanding it to be and appear before your honors in this honorable court, at a day therein to be inserted, and to stand to, abide, and perform the order and decree of your honors in the premises.

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James M. Woolworth, being duly sworn, says he is the attorney at law and in fact of the plaintiff in the above bill; that he has read the same, and knows the contents thereof, and the same is true of his own knowledge, except as to the matters stated therein on information and belief, and as to those matters he believes it to be true. JAMES M. WOOLWORTH.

Subscribed and sworn to before me this 1st day of March, 1880.

GEO. W. MCCRARY,
Circuit Judge.

(No. 8.)

PRELIMINARY INJUNCTION.

In the United States circuit court, district of Nebraska.

THE WESTERN UNION TELEGRAPH COMPANY

08.

THE UNION PACIFIC RAILWAY COMPANY.

On reading the within bill, it is ordered that the application for injunction therein prayed be heard before me at the United States circuit court room in Saint Louis, Mo., on the 6th of April, 1880; that the plaintiff file with the clerk its proofs in support of said application by the 10th of March, instant, and the defendant file its proofs in opposition thereto by 20th of March, 1880, and the plaintiff file its proofs in rebuttal by 25th of March, 1880; and in the mean time, and until the hearing of said application, it is ordered that the defendant be enjoined as in said bill prayed; and that the plaintiff give to the defendant a bond in the penal sum of $10,000, conditioned according to law, and with security to be approved by the clerk. Dated at chambers, in Keokuk, March 1, 1880.

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ANSWER OF THE UNION PACIFIC RAILWAY COMPANY.

In the circuit court of the United States for the district of Nebraska. In equity. The answer of the Union Pacific Railway Company, defendant, to the bill of complaint of the Western Union Telegraph Company, complainant.

This defendant, now and at all times saving and reserving to itself all manner of benefit and advantage of exception to the many errors and insufficiencies in complainant's bill of complaint contained, for answer thereto, or to so much and such parts

thereof as defendant is advised is material for them to make answer unto, answering, says:

That it has no knowledge, save as it is informed by plaintiff's bill, that plaintiff was, in 1860, incorporated under the laws of the State of New York, and had constructed and was maintaining lines into all the States east of the Missouri River, or that the Pacific Telegraph Company was, in 1860, incorporated by the legislative assembly of the State of Nebraska, with authority to construct a telegraph line from Omaha to Salt Lake City, or that in 1861 it had completed its construction and was operating the same, or that said two corporations have become consolidated into the said complainant, or that complainant has succeeded to the property and franchises of the said two corporations, and it therefore denies the same, and craves leave to refer the said complainant to such proof thereof as it may be able to produce.

Defendant denies that the said consolidation was in fact made, and also denies that the said companies, and each of them, had lawful authority to make such alleged consolidation.

That defendant admits the incorporation of the Union Pacific Railroad Company as in the second paragraph of said bill charged, that it has built and completed its railroad westerly from Council Bluffs, Iowa, to Ogden, Utah, and that recently the Union Pacific Railroad Company, the Kansas Pacific Railway Company, and the Denver Pacific Railroad and Telegraph Company have been consolidated under the name of the Union Pacific Railway Company, which has succeeded to the rights and franchises of said corporations.

That defendant denies that the Pacific Telegraph Company was authorized to remove, or did, in fact, remove its lines extending from Omaha to Salt Lake, to and upon the right of way of the Union Pacific Railroad Company. But, on the contrary, said last-named company built and constructed its own telegraph lines when it built and completed its road. Whether the complainant has accepted the provisions of the act of Congress to aid the construction of telegraph lines, and to secure to the Government the use of the same for postal, military, or other purposes, approved July 24, 1866, defendant has no knowledge save as he is informed by complainant's bill, and therefore denies the said allegations, and craves leave to refer the complainant to such proofs thereof as he may be able to produce.

That it denies that at Omaha, and for great distances above and below, the Missouri River is from 1 to 2 miles wide, or that the character of the stream or its variability in channel or velocity of current constitute any obstacle to the maintenance of masts and poles on which to stretch and maintain the telegraph wires of complainant, but, on the contrary, alleges the truth to be that the true channel of said river is narrow, and not exceeding 500 feet in width; and that the velocity of the flow of water in such channel is nearly uniform throughout the year; that only in the usual spring rise does the river widen, and then by overspreading a wide stretch of bottom land lying between Omaha and Council Bluffs with a shallow and sluggish current, and in no way interferes with the maintenance of masts and poles on which to support telegraph wires; that from the time of the erection of telegraph wires across said Missouri River, which was many years since, said company maintained its lines upon masts set on the banks of said river at a point where the channel thereof has not materially changed in width or position for twenty-five years, and so maintained them until some time in or about the year 1872; and that during all said time said line was, as deponent believes, as safe and free from interruptions as since the same was carried onto defendant's bridge at Omaha; and defendant says that said complainant's wires were not strung upon the bridges of the defendant on their completion, or under any claim of right to place the same thereon, and that they were never so strung on said bridges until 1872, and then only by virtue of a contract dated June 20, 1872, which provided that it should be terminable upon six months' notice, which notice was given by the said railway company, and the said contract wholly ended and determined long before this suit was commenced, and prior to the year 1875, a copy of which contract is herewith filed, marked A.

This defendant avers that said complainant has no lawful right to the use and occupancy of the defendant's right of way, or of the said Omaha bridge, or any other of the bridges of defendant, for the maintenance and support of its telegraph lines or wires, and that defendants should not be enjoined from requiring and enforcing the removal thereof from said bridges and right of way.

And defendant, further answering, saith: That the use and occupancy of defendant's right of way, and Omaha bridge especially, by said complainant, and the entry upon it by the employés of said complainant for repairs and other alleged purposes, not subject to the orders or control of defendant, but solely subject to the order and direction of a hostile corporation, is attended with great risk and danger to the property of defendant and to the carriage of freight and passengers for the public and the Government over its road from Council Bluffs to Ogden; that its possession and control of said right of way and bridges is and ought to be solely in defendant, and

that no other person or corporation can lawfully be, or can safely be, intrusted with any authority or control of the same.

And defendant, further answering, saith: That it denies that persons in control of defendant's corporation have formed a telegraph company which they design to make a rival and competitor of complainant, or that defendant or any one in its interest or under its direction have caused complainant's telegraph wires to be cut in different parts of the country, and its offices severed therefrom, and the lines run into the offices of another company and connected with its line. Defendant admits that on or about the 1st of March instant the president of defendant gave notice to the Western Union Telegraph Company to quit the possession and cease to occupy or use the bridges, right of way, track, and other property of the defendant, but the defendant denies that it has ever proposed, or now proposes, threatens, or intends by the exercise of force, or in any unlawful manner, to remove the said lines claimed by the complainant from its bridges or right of way, or in any manner injure, destroy, or damage the said lines or property claimed by complainant on the right of way or bridges of the defendant, or that it has any intention or purpose of maintaining or permitting on its right of way or bridges any telegraph line or lines save and except those required to be built, maintained, and operated by the act of Congress chartering this defendant, approved July 1, 1862, and the act amendatory thereof; but, on the contrary, says that the charges, statements, and allegations in the seventh paragraph of complainant's bill of complaint, in that behalf contained, are untrue in every particular, and defendant denies each and every allegation in said paragraph contained. And defendant, further answering, says that it denies the right, power, or authority of the complainant or any telegraph company or line, except by express permission or license or agreement of defendant, to enter upon, use, or occupy its right of way or bridges for the purpose of erecting or maintaining its lines, or for any other purpose, and insists that it is entitled to the sole and exclusive use of said right of way and bridges for the coustruction, maintenance, and operation of its railroad, telegraph line, appurtenances, and property, as required by the act of Congress chartering defendant, to wit, the act July 1, 1862, and acts amendatory thereof, and that it has the right to proceed in any lawful way to exclude the complainant therefrom.

And this defendant denies all unlawful combination and confederacy in said bill charged; without that any other matter or thing, material or necessary to be answered, and not herein sufficiently answered, confessed or avoided, traversed or denied, is true to the knowledge of this defendant.

All which matters and things defendants are ready to aver, maintain, or prove, as the court shall direct, and prays to be hence dismissed with costs. This answer is made under and attested by the defendant's corporate seal. [SEAL.] THE UNION PACIFIC RAILWAY COMPANY, By SIDNEY DILLON,

Attest:

A. H. CALIF,

Assistant Secretary.

STATE OF NEW YORK,

County of Kings, 88:

President.

On this 19th day of March, A. D. 1880, before me personally appeared Sidney Dillon, and made oath that he for several years past has been the president of the Union Pacific Railroad Company, which corporation has lately been consolidated with the Kansas Pacific Railway Company and the Denver Pacific Railway and Telegraph Company, under the corporate name of the Union Pacific Railway Company, and that he is now president of said consolidated company; that by reason of said office he has acquired and possesses knowledge in respect to the matters and things stated and alleged in the foregoing answer; that he has read the above answer, subscribed by him, and knows the contents thereof, and that the same is true of his own knowledge, except those matters which are therein stated upon information and belief, and as to those he believes it to be true. [SEAL.]

JAMES M. HAM,
Notary Public.

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A.

This agreement, made between the Western Union Telegraph Company and the Union Pacific Railroad Company this 20th day of June, A. D. 1872, witnesseth:

In consideration of the assignment by the Western Union Telegraph Company to the Union Pacific Railroad Company of the exclusive use of one first-class through telegraph wire between Chicago and Omaha, to be kept and maintained by the Western Union Telegraph Company, and at their own expense, in as good working order

as their other through wires, for the use of the Union Pacific Railroad Company and for the business of the Atlantic and Pacific Telegraph Company, the Union Pacific Railroad Company agree to give the Western Union Telegraph Company the right to erect and maintain its telegraph lines upon the Omaha, Dale Creek, and other bridges on said road, and the right of free transportation over the road between Omaha and the junction with the Central Pacific Railroad for their telegraph material necessary to be used on the line of the Union Pacific Railroad; and that the said Union Pacific Railroad Company will, on the application of the president of the Western Union Telegraph Company, from time to time issue passes to the officers and employés of the Western Union Telegraph Company, for the purpose of the maintenance and repair of their telegraph line or lines and offices along the route of the Union Pacific Railroad; and that the Western Union Telegraph Company may, for the purpose of maintenance and repairs, enjoy the use of the hand-cars of the Union Pacific Railroad Company, to be operated by the employés of sail Union Pacific Railroad Company, under such regulations and restrictions as shall from time to time be established by the superintendent of the Union Pacific Railroad Company; and that the Western Union Telegraph Company may, under like regulations and restrictions, ran their wires into the railroad telegraph offices of the Union Pacific Railroad Company along the route for testing purposes, but such testing to be performed by the telegraph operators of the railroad company in such mauner as can be done without moneyed expense or material interference with the regular duties of such telegraph operators. The Union Pacific Railroad Company and the Atlantic and Pacific Telegraph Company, or either of them, have the right to open two offices between Chicago and Omaha upon the aforesaid through wire, at such points as they or either of them may select, to assist in the transmission of their business between Chicago and Omaha, but for no other purposes, and no local telegraph business shall be done at such offices, except the business for the Union Pacific Railroad Company.

This agreement to continue until six months' previous notice of the termination thereof shall be given by either party. It is understood, however, that no notice to terminate this agreement is to be given by either party until after the 1st day of July, 1873.

In witness whereof the parties hereto have executed this agreement the day and year first above written. WESTERN UNION TELEGRAPH COMPANY,

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In the United States circuit court for the district of Kansas.

THE WESTERN UNION TELEGRAPH COMPANY, PLAINTIFF,

v8.

THE UNION PACIFIC RAILWAY COMPANY, THE KANSAS In equity.
Pacific Railway Company, and the American Union
Telegraph Company, defendants.

Motion to dissolve injunction.

OPINION OF MR. JUSTICE MILLER.

The suit in this case was brought by the Western Union Telegraph Company in one of the State courts of Kansas, and, on application to a probate judge of the proper county, an injunction was allowed which it is the purpose of the present motion to dissolve. The laws of Kansas make the indorsement of the county judge, on the petition that an injunction is allowed, to have the same effect as in the courts of the United States in equity proceedings is allowed to a writ of injunction regularly issued under the seal of the court.

The county judge made such an indorsement, allowing the injunction as prayed for by the bill. The prayer of the bill was in substance to restrain the Union Pacific

Railway Company, the Kansas Pacific Railroad Company, and the American Union Telegraph Company from interfering in any manner with the telegraph wires and other appurtenant apparatus of the Western Union Telegraph Company. The allegation on which the allowance was made was to the effect that the defendants were about to sever the connection between the wires of the Western Union Telegraph Company and its batteries, so that they could not be worked by the telegraph company, and to connect those wires with the batteries of the American Union Telegraph Company and with batteries of the Union Pacific Railroad Company, and thus destroy the utility of those wires for the purposes of the Western Union Telegraph Company, which would be thereby excluded from the use of them for 500 or 600 miles, along which they now enjoy that use. There is no denial on the part of either of the defendants that they had such purpose, and it is a part of the case shown by the record, that after the granting of this injunction by the probate judge these parties did sever the wires as threatened, and did connect them or attempt to connect them with the American Union Telegraph Company. An application was made to the probate judge after the allowance of this order to dissolve the injunction. This being refused, the case was removed into the circuit court of the United States for the district of Kansas, and there an application was made to Judge Foster to dissolve the injunction, which was overruled by him. A similar application was made to the circuit court in session before Judges McCrary and Foster; and in that case, while the presiding judge held that there were certain inherent defects in the contract between the Kansas Pacific Railroad Company and the Western Union Telegraph Company, under which the latter erected its wires and was operating them, which would probably authorize a dissolution of the injunction, he declined to dissolve it at the time in order to give the plaintiff an opportunity, by amended bill, to make a case which would remove those defects. The plaintiffs accordingly filed an amended bill. A demurrer to the amended bill was overruled by Judge McCrary at chambers, whereupon defendants answered; and on that amended bill and answer and the original papers another application was made before Judge McCrary at chambers, in Keokuk, for a dissolution of the injunction, and was by him set down to be heard before us at this time in Saint Louis. This application has been heard before Judge McCrary and myself on all the original papers in the case-the amended bill and answer, and a very large number of documents and affidavits now introduced for the first time. After a week of argument and a very careful consideration of the case, I propose to give the result of that consideration in the present opinion.

The line of telegraph which is the subject of the present controversy extends from Kansas City, in Missouri, to Denver City, in Colorado, and consists of three wires, the requisite poles, batteries, and other machinery necessary to the successful working of those wires erected along the line and on the right of way of the Kansas branch of the Pacific Railway Company. That branch has become consolidated with the Union Pacific Railroad Company, and they are both worked and held as one corporation under the style of the Union Pacific Railway Company. The contract was made in the year 1866 between the Kansas Pacific Railway Company, on the one part, and the Western Union Telegraph Company, on the other, under which this telegraph line has been mainly erected and operated since it was erected. By that contract, about the construction of which the parties differ somewhat, there is no disagreement as to the following matters: Poles were to be erected on ground embraced within the right of way of the railroad company. That company was either to furnish the poles or to pay the price of them if furnished by the Western Union Telegraph Company, and to furnish one wire or pay the cost of that wire. The telegraph company was to furnish the batteries, and to furnish any other wire beyond that one, as it should become necessary, at their own cost. The erection of the poles, the attachment of the wires to them, and the expense of placing the batteries in position connecting them with the wires was to be borne jointly and equally by the parties. The lines of these wires were both to be operated by operators appointed by the railroad company, and paid for jointly. The railroad company was to have the exclusive control and use of the first wire put up. The telegraph company was to have the exclusive use of the other wires until, in the opinion of the railroad company, the first wire should be insufficient for the demands of the business of the road, in which event, by a proper compensation, the railroad company was to have the use of another one of the wires pnt up by the telegraph company. It was one of the provisions of this contract that the railroad company should not send over its wire any commercial messages or any paid messages, or messages for any other person than for its own business, the purposes of which evidently was to leave the exclusive right to convey such messages to the telegraph company; and it was to enforce this clause of the contract that the injunction was obtained by the Western Union Telegraph Company in the State court; and it is to get rid of this provision and permit the railroad company to convey such messages, and to unite the wires of the telegraph company with the American Union Telegraph Company, that messages may be conveyed brought by the American Union Telegraph

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