The defendant was incorporated.under the act of 1848 (Laws of 1848, chap. 265, as .amd.j, and is entitled to- all the rights and privileges given telephone companies by the Transportation Corporations Law. It was duly incorporated in 1882, and shortly thereafter acquired the exchange, poles, wires and fixtures of the Watertown Telephone Company in the village of Carthage, and has ever since maintained a system there, together with lines connecting that village with other towns and villages. The defendant ever since its organization maintained its. telephone system in the village of Carthage by means of poles set in the ground in the streets of the village, without hindrance or objection of the village or any of its officers,- until about the month of December, 1904, when an" application was made by the defendant to the board of trustees that it take some action with reference to the location in *630the streets oj poles which the defendant' desired to erect for the ■ purpose of extending its telephone system. The representatives of the defendant, upon such application, claimed that the. defendant had the right to erect poles in and along the streets of the village; The board of trustees declined to allow the defendant tolextend its telephone'system in the village unless .the wires were placed' beneath the surface of the streets,, arid,xat a regular meeting of the board, adoptéd resolutions to the effect that the defendant be allowed to • maintain an exchange in the village by means of conduits, under the streets only, the location of which to be under the direction of the board, and further resolved that no more poles be erected in said streets by the defendant, and that it be required/to remove all of its poles erected since January 1, 1905. , The defendant refused to comply therewith and proceeded with the erection of its poles and crossarms and the stringing, of wires thereon in the streets, of the ■ village until restrained by the service of the temporary injunction.
The action is brought to restrain the defendant from extending its telephone system in the manner proposed; the complaint demands •judgment that a permanent injunction issue enjoining the defendant from setting any more poles in the public streets of - the village, and that the defendant be compelled to remove from such streets all poles, crossarms and wires attached thereto which it or its agents or servants have set or placed in the above said streets since January 1, 1905. '
The question here is whether the plaintiff is entitled to such permanent relief wliiclp if granted, will enable the. plaintiff to exclude the defendant from the further use of the streets for the purpose of extending.its telephone system in said village. The contention of the plaintiff is that the village has' power to restrict the defendant to ' Underground extension.
Among the powers conferred upon villages’ by the' Village Law (Laws of 189J, chap. 414), the one which bears most directly upon the matter at issue is the power given by subdivision 9- of section 89' of said statute “to regulate the erection of telegraph, telephone or electric light poles, or. the stringing of wires in, over or upon the streets or public grounds, or upon, over or in front of any building.” ' The plaintiff contends “ that this power alone marries the police power to, do just what the village did do in preventing further *631erection of poles and wires in its streets.” The power to regulate cannot with reason be regarded as conferring the power to prohibit. The power thus conferred by the Village Law is simply to regulate the erection of poles and the stringing of wires, matters which cannot possibly have any reference to the laying of wires in conduits under ground.
The Legislature has in express terms given to telegraph, and telephone corporations the right to occupy the streets of villages for the purpose of constructing and maintaining their lines. Section 102 of the Transportation Corporations Law (Laws of 1890, chap. 566) provides that any “ such corporation may erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the pnblic 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.”
By this section the right of telegraph and telephone corporations to use the public streets or highways for the construction and maintenance of their lines is given in unmistakable language, and the consent of the local body is not required. Its franchise comes directly from the Legislature to the corporation. (Barhite v. Home Telephone Co., 50 App. Div. 25 ; City of Rochester v. Bell Telephone Co., 52 id. 6.) Whenever a corporation of this kind avails itself of the legislative grant, the manner of its exercise, the location of its poles, the stringing of its wires, etc., are within the scope and regulation of the local legislative body.- “ This right of regulation is, however, entirely distinct from the original granting of the privilege, and is subordinate thereto.” (White Corp. [6th ed.] 248.) In other words, the local- legislative body may in the exercise of the. police power regulate the erection of poles and the stringing of wires so as to prevent the erection or placing of poles and wires where, or in such manner .that, the property will be in danger in case of fire, or otherwise be an injury to or endanger property or the use of the streets by the public, and generally to make such rules and regulations as will prevent or abate nuisances.'
The complaint alleges that the defendant in erecting its poles and crossarms and stringing its wires has done so in such a manner as to greatly impede travel on said streets and impair their usefulness to *632the public, and' it is now doing so, to the annoyance of the residents thereon, and that the requirement that the defendant construct its. system in said village by means of conduits under ground is entirely practical and will best subserve the interests of tlie public and its rights upon the said streets. -
There are no. allegations of the complaint by which it is made to-appear that a nuisance has been or will be created, or that any property will be endangered by the erection of the poles and the st-ringing of wires by the defendant in -any of the streets or places in the village.
The action, is not brought to enforce regulations or rules made by. the local legislative body for the protection'of the rights of the village or its inhabitants in respect to the location of the poles and wires of the defendant, but to compel the defendant to conform .in the extension of its telephone system to the resolutions of the plaintiffs board of trustees, requiring that the defendant maintain its exchange in said village by means of- conduits under the streets.
The court below held that when the village assumed to require one telephone- company to place its wires under ground in the. same streets in xvhich another is permitted to use poles and open air construction, it does, an act which cannot be justified, even assuming that the matter is within its jurisdiction, and placed the- decision upon that ground. •
We concur in the opinion of the court below,.placing the decision-upon that ground, but prefer- to dispose of the matter upon the question -of right rather than upon'that of an illegal discrimination. •• The. order should be affirmed. • -
McLennan, P. J., concurred.
Order reversed,, with ten dollars costs andMisbursements.