■ (dissenting) :
This is an appeal from an order made at the Onondaga Special Term on the 20th of August, 1897, denying the defendant’s motion to vacate the injunction granted ex parte August 5, 1897, by a justice of this court, which injunction order was in the following lan*369guage: “ Ordered, That during the pendency of this action, and until the final determination thereof, or until the further order of the court, defendant and its officers, agents and employees be and they are and each of them is hereby enjoined and restrained from erecting any poles or stringing any wires, or placing any obstructions, or digging any holes in, upon or over the streets or sidewalks of the city of Utica without permission therefor by the duly constituted authorities of said city.” This action was commenced on the 2d of August, 1897.
Plaintiffs complaint alleges that its common council, on or about June 26, 1897, adopted a resolution, “declaring that no telephone or telegraph poles be set in any street in the city without the consent of the common council be first obtained.”
The complaint alleges that the defendant, prior to the 26th of June, 1897, and since, “entered upon the streets, sidewalks and public places of said city, and has erected and maintains, and continues to erect and maintain, poles and wires in said streets, public places and sidewalks in great numbers.”
The plaintiff’s complaint prays that the defendant be enjoined from “ further proceeding to erect its poles or string its wires upon any of the streets or sidewalks of the city of Utica, and from placing in any of said streets or sidewalks any obstruction or any pole or wire, without the permission of said common council and of the duly authorized agents and officers of plaintiff. * * * ”
Defendant’s answer alleges that it is incorporated under the Transportation Corporations Law, being chapter 566 of the Laws of 1890, and that the business of the defendant is “ the constructing, owning, establishing and maintaining lines of electric telephone for the transmission of messages by electricity over the same, within and through the city of Utica, its suburbs and adjoining communities ; * * * and this defendant has, in the pursuance of its said business, procured to be erected for it a large number of poles and fixtures for its telephonic system and wires being strung thereon, in, through and over the streets and sidewalks of the city of Utica, as by law it has the right to do, and it has connected the same with a large number of residences and business places of the inhabitants and business men of the said city of Utica.”
*370The answer further alleges that all the poles and wires are necessary and indispensable to the defendant “ and that each and all of them are so erected and placed as not to incommode or obstruct the use of the said streets or sidewalks by the public.”
The answer also alleges the incorporation of the Baxter Overland Telephone and Telegraph Company of Central New York, and that the same was organized under the laws of the State of New York for the purpose of constructing, owning, establishing and maintaining lines of electric telephone in the city of Utica, and that it “ established and maintained poles, fixtures and erections upon which it strung its wires and connected the same with a large number of residences and business places of the inhabitants and business men of the said city of Utica.”
It is further averred in the answer that in May, 1884, the plaintiff, “ through and by the action and resolution of its common council, then and there having the power therefor, duly granted to the said Baxter Overland Telephone and Telegraph Company of Central New York, a franchise, right and privilege to erect its said telephonic system, and string its wires over and across and through the streets of the said city of Uticaand that the company did erect a large number of poles and fixtures, and thereon strung its wires.
It is also further averred in the answer that “ afterwards, and before the commencement of this action, and while the said Baxter Overland Telephone.and Telegraph Company of Central New York was using the said poles and wires and the said franchise and privilege, and had fully exercised the same, the defendant above named, by negotiation and purchase and sale, for a valuable consideration by it paid, acquired and had assigned and transferred to it from the said Baxter Overland Telephone and Telegraph Company of Central New York, all its said poles, fixtures, erections and wires, and the said franchise and privilege from the city of Utica, and all its rights, privileges and franchise of establishing and maintaining and constructing a telephonic system, * * * and especially did it acquire those poles which had then and theretofore been erected in Main street, John street, Bleecker street, Columbia and Catharine streets in the said city of Utica, as well as those that were on the other streets of said city; and this defendant became the successor to the said Baxter Overland Telephone and Telegraph Company of *371Central New York, in and to the said business, and became the owner and still is the owner of all the said poles, fixtures, erections and wires, and of the aforesaid franchise, privilege and right to erect.”
In the affidavits used it appears that the defendant has procured from each and every one of the owners of the lots and premises abutting on the streets and sidewalks through and over which the defendant’s line is so constructed “ the consents and permission of the owners for the erection of the said poles and the construction of the said line except a very few poles where the ownership is in doubt.” And it is further said, viz.: “ That all of the said adjoining and abutting owners are willing, and have expressed their willingness, to have the said poles erected in front of their premises, and no owner has objected thereto.”
In the appeal papers it appears that in July, 1897, the common council applied to the corporation counsel for an opinion in the premises, which he prepared, in which he cited chapter 265 of the Laws of 1848, chapter 471, Laws of 1853, and chapter 566 of the Laws of 1890, and quoted section 102 of that chapter, which provides as follows : “ Such corporation may erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways; and through, across or under any of the waters within the limits of this State, and upon, through or over any other land, subject to the right of tlie owner thereof to full compensation for the same.” He concludes his opinion in the following language : “ I, therefore, hold that if the Utica Telephone Company is incorporated under article 8 of chapter 566 of the Laws of 1890, and that if the fixtures it lias constructed in the streets of the city of Utica are necessary for its lines of telephone, then it has the right without any permit, license or franchise from this common council to construct its telephone lines within the streets of the city of Utica, subject at all times to the private property right in the street of abutting owners. 1 believe, however, that said company will be subject to any reasonable local regulations made by the proper local authorities for the purpose of keeping its streets in a safe condition, but such regulations must not be prohibitory.
“ THOS. D. WATKINS,
“ Corp. Counsel"
*372Apparently the defendant has encountered the opposition of a rival company, the Central New York Telegraph and Telephone Company.
In article 8 of the Transportation Corporations Law, in section 100, provision is made for the incorporation of electric telegraph and telephone companies, and in section 101 it is provided that any such corporation “ may construct, own, use and maintain any line of electric telegraph or telephone not described in its original certificate of incorporation.” Section 102 is as follows: “ Such corporation may erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways ; and through, across or under any of the waters within the limits of this State, and upon, through or over any other land, subject to the right of the owners thereof to full compensation for the same. If any such corporation cannot agree with such owner or owners upon the compensation to be paid therefor, such compensation shall be ascertained in the manner provided in the condemnation law.” (2 R. S. [9th ed.] 1363.)
In People v. Metropolitan Telephone Company (31 Hun, 600) the acts of 1848 and 1853 were under consideration, as the defendant in that case had erected its poles and lines under those statutes, and it was assumed in that case that they conferred authority upon a corporation to make such erections; and in the course of the opinion it was said : “ But in doing so, it was restricted to those which were necessary for that purpose, and they were required to be so constructed as not to incommode the public use of the street. * * * That is the extent of the right which the Legislature has conferred upon such a corporation. And if it has been exceeded, and the public have been incommoded thereby, then so far as that excess has extended, an unlawful appropriation of the street has been made by it, and that would constitute such a purpresture as would authorize the interference of this court for its correction.” And it is further said in the opinion in that case, viz.: “ To the extent to which the poles were necessary, either in size or height, the right to erect and maintain them was given by the Legislature, and so far as they were within that authority they could not be alleged to be a nuisance or an unlawful obstruction of the street by the people. * * * To that extent the right to erect and maintain the poles was legalized, but *373wherever that was exceeded in their size or height, the defendant’s act was unauthorized. This, as has already been stated, violated the implied restraint created by the statute, and was the legal subject of an- action for redress. * * * To authorize the court to interfere with the existence of the poles there should have been a finding in some form showing which of them, and to what extent they exceeded the necessary bounds prescribed by the statute. * * * In no possible view of the result of this trial can so much of the judgment be sustained as directed and required the removal of the defendant’s telegraph poles from the street.” And it was further said near the close of the opinion, viz.: “ The right to remove either of the poles has in no form been secured to the plaintiff.”
The validity of the acts of 1848 and 1853 was assumed in Amer. Rapid Transit Co. v. Hess (125 N. Y. 641), and in that case it was said: “ The Legislature in the exercise of its police powers may regulate the use of the streets of a city, and may prohibit their use for any purpose inconsistent with general street purposes; it may also authorize their use for public purposes not inconsistent with their use as streets.” In that case it was said that the statutes under consideration did not grant to a corporation “ any interest in the streets of a city; at most it simply confers an authority or license to enter upon such streets for its purposes, subject to certain conditions.” In further considering the act of 1853 it is said: “ By said act the Legislature, in effect, determines that the erection of poles and stringing of wires for the business of telegraph is a public use not inconsistent with the use of the streets for general street purposes, and said act having been passed in the exercise of the police power of the state, was not beyond the reach of future legislation; the license so granted, although acted' upon, may be revoked or modified by the Legislature at any time when the public interest demands it.”
In referring to that case and the statute under consideration in People ex rel. Western Union Tel. Co. v. Dolan (126 N. Y. 176) it was said : "In the language of the act, it is an authority to construct lines along and upon the public roads and highways. This license may also be revoked by legislative enactment. * * * Therefore, the value of the interest in the land in which a pole is placed in a public street by a telegraph company must be arrived at in consideration of the important fact that such interest is a mere license and revo*374cable at the pleasure of the Legislature. It must also be observed that any other telegraph company organized under the general law may avail itself of the same license to enter upon the public streets. * * * This right or license is one which any company may avail itself of if incorporated under the general act, and it costs nothing.”
The power of the Legislature over streets was adverted to in D., L. & W. R. R. Co. v. City of Buffalo (65 Hun, 467) in the following language: “ It is the Legislature alone that has the power to confer such rights in the streets of cities, as in the other highways of the State, and over them, so far as public rights alone are concerned, the control of the Legislature is supreme. (People v. Kerr, 27 N. Y. 188; Story v. N. Y. El. R. R. Co., 90 id. 122.) ”
That case was before this court as reported in 4 Appellate Division, 567, and the uses and purposes of a highway were adverted to in the opinion of Adams, J., and he said: “ But such use is subject, of course, to legislative abridgment and restriction.” The same doctrine was alluded and to reasserted in Potter v. Collis (19 App. Div. 395 et seq.)
It seems to follow from the statute, and from the interpretation that has been given of the power of the Legislature, that the defendant was rightfully in the streets of the city of Utica at the time of the commencement of this action.
It is insisted, however, in behalf of the respondent, that the city, by its ordinances and through the action of its common council, had “ the right to control the use of its streets and prohibit the obstruction thereof, and if there be any possible conflict between them, the court will so construe them that, if possible, both shall stand.”
To support such contention, the learned counsel for the respondent calls our attention to Eels v. American Telephone, etc., Co. (65 Hun, 516; S. C. affd., 143 N. Y. 133). The case differs from the one in hand. That was an action brought by an owner of land fronting on a rural public highway against a telephone company that had set up its poles in the highway for the purpose of supporting telegraph and telephone wires, and, as the defendant had done so without having acquired the right by condemnation proceedings, it was held that the owner might maintain an action of ejectment against it.
*375As we have already intimated, the abutting owners in the case in hand have consented to the erection of the defendant’s poles and lines, and their rights, therefore, are not now before us for consideration.
It is insisted in behalf of the respondent that the Legislature, in the charter given to the city (Laws of 1862, chap. 18), has given to the common council the care, management and control of the property of the city, and power to malee ordinances for the government of the city and for the benefit of trade and commerce, and to make such rules and regulations, as may be necessary to cony out such power. If we turn to section 35 of the charter (Laws of 1862, p. 39), we find the following language: “The common council shall have the care, management and control of the property of the city and its finances; it shall have power to ordain, alter, modify and repeal ordinances not repugnant to the Constitution and laws of this State.” It seems that an ordinance which should prohibit the use of the plaintiff’s streets for telephone lines and poles would be repugnant to section 102 of the Transportation Act, already quoted.
It may be conceded that the plaintiff has power to regulate and to prescribe rules for the erection of poles and the use of lines in the street, and yet that would not give it the power to prohibit the use of streets in the manner in which the Legislature has declared.
The license given by section 102, already alluded to, is to the effect that the defendant “ may erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways;” and the enjoyment of that license must be reasonable and without any acts which will “ incommode the public use of the street.” If the defendant has,-or shall exceed that right given to it by the license, and the public become incommoded thereby, then the defendant may be guilty of u an unlawful appropriation of the street.” Such unlawful appropriation “ would constitute such a purpresture as would authorize the interference of this court for its correction.”
As there is a conflict in the affidavits used upon the motion as to some of the essential facts, precisely what relief the plaintiff, if any, will be entitled to is not easily determined upon this appeal. It seems, however, that the injunction, in so far as it enjoined and *376restrained the defendant “ from erecting any poles or stringing any wires,” was too broad, and in that respect should be modified, and allowed to remain so as to restrain placing any obstructions or digging any holes in or upon or over the streets or sidewalks of the city which might “ incommode the public use of the street.” (People v. Met. Tel. Co., 31 Hun, 601.)
In volume 25, American and English Encyclopaedia of Law, 755, in a note, it is said: “ As a rule, however, the courts are slow to compel the removal of a public work or the suspension of its operation. If an injunction is granted at all it is usually conditioned to be inoperative, provided the company makes proper compensation within a reasonable time.”
The injunction order should be modified in accordance with the foregoing views, and as modified sustained.