(dissenting). I am unable to reconcile my Colleagues’ decision regarding' the ultimate rights of the parties with their construction of the proviso found in section 8591, Rev. Code 1919. 'Such decision is also in conflict with the position taken by appellant, both in its complaint and in its brief-on this appeal; and yet appellant has contended throughout for the construction my Colleagues have given such proviso. Appellant, as appears from its brief, brought this action upon the theory that, inasmuch . as “at the times these lines were built there was no reason why they should not be built on the highways, and there was no reason why the lines should not be ground return lines” (appellant’s brief, p. 17), it had the right to continue ujsing its lines in the exact condition they were at the time respondent installed its high power system, and that it owed respondent no duty either to change or to allow, respondent to change such lines so as to bring them into harmony with the changed condition brought about by the installation and contemplated use of respondent’s high power system. If my Colleagues are right in their construction of the provisions, it necessarily follows that appellant’s theory was correct, and the only power of the court is to grant it the very relief prayed *458for in'its complaint — an .absolute and perpetual injunction against respondent, forbidding it to use its lines as high, power lines. Under my Colleagues’ construction of this proviso, it would not make any difference how the telephone line was constructed. No matter if, owing to faulty construction of the telephone system, the power line could not be operated without causing electric interference, both by conduction and induction, with the service, howsoever poor, rendered the patrons of the telephone system, yet, under their construction of the proviso, the power company would have no right (because there is no corresponding duty on the part of the telephone company) to even, at its own expense, put the telephone line into such a condition as would eliminate such interference. Equity must follow the law — it cannot act where there is neither legal right nor duty to support action. Suppose respondent had brought this action pleading that it had installed a high power system, perfect in every respect; that, owing to the law of electric induction, it could not operate such system without interferince with the service on appellant’s line; and that the law forbade such interference; and had then prayed that appellant be compelled, at respondent’s expense, to either put in the metallic return circuit and so transpose its wires that such interference would be eliminated, or to allow respondent to do so. A demurrer to such complaint, based 'upon appellant’s right, under said proviso, to maintan and operate its system as it then was, would, under my Colleagues’ construction of the proviso, have to be sustained, because of the absence of any duty on the part of appellant or right on the part of respondent upon which to base the prayer for relief. If A. has a piece of property in' lawful condition and u;se, it matters not how much such property may interfere with the use of B.’s property, nor of how great benefit to the public some contemplated use of B.’s property may be, nor how-much of a moral obligation there may be on A.’s part to make such changes in his property or its use as would permit of the contemplated use of B.’s property — B. cannot, except under the power of eminent domain, either acquire A.’s property or require him: to make any change in it or its use.
What, then, is the controlling question in this case ? It is: Does the proviso relieve appellant of the duty that it would *459otherwise owe respondent and. the public ? My Colleagues frankly concede that the authorities I have called to their attention and which they- have cited • give full support to respondent’s claim that there rested on appellant that duty which should be imposed upon every person or corporation allowed to occupy a highway for the purpose of serving the public; but they hold that the proviso relieves appellant of that duty. I can find nothing in the statute to warrant such holding. In my opinion the proviso protects telephone companies from all interference. that is not traceable to a failure on their part to meet the duty assumed by them; but it does not protect them from interference that would not exist if they had complied with such duty. In short, I ami of the opinion that any interference in. service traceable to a failure of a telephone company to construct and operate its line in full compliance with its duty to the state is not an interference under the quoted proviso.
What is the nature and extent of that duty that rests upon those to whom is given the right to occupy public highways and to construct thereon public service systems? The authorities cited by my Colleagues give full support to the thoughts I desire to suggest.
Just as the dedicator of the highway must be held to dedicate it for all purposes consistent w(ith its 'use as a highway— and this whether all of such purposes to which the state may thereafter desire to devote it are known at the time of the dedication — so a public service person or body, which occupies a highway for public service purposes, must be held to have placed its property thereon under the implied condition that it would so maintain and operate its property as to meet and conform to human progress; and therefore would, from time to time, make such changes in its property and; the use thereof as might be found necessary to meet changed conditions brought about by the occupancy of such highways by other public service persons or bodies. This is but requiring of public ^servants that which is required of the private individual. When the automobile came into use, the drivers thereof did not have to bring the horse and ox into adjustment with the new conditions any more than they had to give over half of the road to old “Dobbin.” The proper use of the automobile could never be held' an “interfer-
*460ence” with the rights of man or -beast — they must adjust themselves to the newi conditions. Primitive man did- not have to wait on the corner until the congestion of autos, ’trucks, and street cars ended and a way opened through which- he might dart across a street; but a man, woman, and child of to-day has to so wait. The use of the streets by pedestrians is limited and restricted on all hands, but there is no “interference” analogous to that which the Legislature sought to prevent by the proviso. -Here we have two public service corporations who have derived their franchises from- the same original source— the public. They both render most' important public services— it would be hard to say which service is of greater importance and certaintly but a short time will find each indispensable unless replaced by something better. The public, acting through the Legislature, intended that they should both exist and render service under conditions favorable thereto. No question of dominant and servient rights of occupancy is presented. Neither should allow any occasion for conflict of rights to árise if it can be avoided through a proper construction and use of its property, and such a conflict cannot and will not arise if each will but “exercise its power with that careful and prudent regard for the rights of the other which- the law enjoins,” not only upon corporations, but upon individuals. Cumberland T. & T. Co. v. United Electric Co., 93 Tenn. 492, 29 S. W. 104, 27 L. R. A. 236. The case of Lake Shore & M. S. Ry. Co. v. Chicago, L. S. & S. Ry. Co., 48 Ind. App. 584, 92 N. E. 989, 95 N. E. 596, presented facts very analogous to those before us. There the isssues raised the rights of a low power line, a telegraph line, as against those of a high power line, an electric railway of later construction. There, as here, the low power system had not been physically injured — the wrong complained of being “interference” through electroinduction. There, as here, the low power company was seeking- to restrain the operation of the high power system. The court said that there was not presented facts calling- for the application of the maxim, “-Sic utere tuo ut alienum non Ledas”; and it said: *461the exercise thereof, using care and caution regarding the rights of his neighbor, any inconvenience or incidental damage which may arise in the absence of any negligence from the reasonable use of his own property will be regarded as within the rule damnum aboque injuria.”
*460“It seems to be the consensus of opinion, both in England and in this country, that w|here one is acting under legislative authority, and within the right thus given, and reasonably within
*461In support of the above many cases were cited. It also noted) the , fact that the low power system was in operation before the high power one, and said:
“But this fact can have no legal bearing upon the -question here involved, for,' as said by Thompson in his work on Electricity, p. 57: ‘In both of these cases the one having' the prior right must yield his right and submit to damage and inconvenience to some extent for the good of his neighbor and of society.”
In other words, the court held there was no “interference” with any legal right, because if they had been the law would have given a remedy. We believe the law to be that which the court in Cumberland, etc., Co. v. United Electric Co. (C. C.), 42 Fed. 281, 12 L. R. A. 544, said was the “substance of all the cases we have met with in our examination of this question,” to wit:
“Where a person- is making lawful use. of his own property, or of a public franchise, in such a manner as to occasion injury to another, the question of his liability will depend upon the fact -whether he has made use of the means which, in the progress of science and improvement, have been shown by experience to be the best; but he is not bound to experiment with recent inventions, not generally known, or to adopt expensive devices, when it lies in the power of the person injured to make use himseflf of an effective and inexpensive method of prevention.”
The above holding fully recognizes that, under the conditions named, there is no “interference” with the rights of the person who might avoid the injury; and certainly, if respondent herein could! not be required to “experiment with recent inventions, not generally known, or to adopt expensive devices,” its right to use a properly constructed system cannot be conditioned upon its supplying' appellant with some device which is within the power of appellant to itself make use of. While, in the *462case of Cincinnati Inclined Plane R. Co. v. City & Suburban Teleg. Asso., 48 Ohio St. 390, 27 N. E. 890, 12 L. R. A. 534, 29 Am. St. Rep. 559, there was a low power sj^stem whose occupation of the .street the court held to be “inferior and subservient to the dominant easement of the public for highway purposes,” and therefore subservient to that of the particular high power system, yet the following from the opinion therein is equally applicable to systems whose occupancies are, because of the purposes thereof, of like rank:
“Conceding that the mode adopted by the railway company of propelling its cars by electricity is an interruption to the telephone service of the defendant in error, and calculated to impair its franchise in the manner contended, the inquiry is suggested whether the railway company must yield up a useful franchise that the same may be exclusively enjoyed by the telegraph association, or whether the association shall adapt its system to existing conditions.’
Appellant company received its franchise from the public, the state; it holdp- such franchise in trust for the benefit of those communities it undertakes to serve; it has no right, simply because, at the time it first occupies a highway, there may be nothing to prevent the operation of its line without a return metallic circuit, to say that it becomes vested with a right to thus operate for all times and thereby to deny to the very communities it has undertaken to serve the enjoyment of public utilities that are open to the enjoyment of other communities that may not have already been blqssed by appellant’s presence. The Legislature never intended to allow it thus to throw a wrench into the wheels of human progress. I apprehend that appellant would be in court, crying aloud for relief if, perchance, it desired to install one of its low power lines along a highway already occupied by respondent, and it found respondent had so constructed or was so operating its line that, through faulty construction, unbalancing of loads, or failure to properly transpose wires, a condition existed under which, even with a metallic return circuit, appellant could not operate a low power line along such highway. If it would be the duty of respondent, if it had been first in the field', to make necessary changes to permit' of the adv,ent of appellant into the *463same field, there • is a like duty -on appellant’s part. There can be no “interference” while this duty remains -unperformed if its performance would eliminate the trouble.
In short, I hold the law to be that, when a public service body obtains a right or franchise to operate upon the highways of our state, it takes such right of franchise subject to the right of the state to permit the occupancy of such highways for other proper purposes; and it takes such right or franchise knowing that, when- the state doe,s permit such other occupancy of the highway, it must, and at its own expense, conform its system and the use thereof to the new conditions thus created. Where it has done this the new occupant must so construct and operate its system- as not to “interfere” with the service of the old occupant.
It follows from the above that the relief granted in the majority opinion is unwarranted under the facts and the law. To warrant such relief there must exist that -duty on the part of appellant which my Colleagues concede would exist were it not for the proviso; but to warrant such relief there must be found somewhere warrant for holding that such duty is conditioned upon. respondent’s standing the expense of its performance. The Legislature has not so provided, hut has left appellant burdened with the duty it assumed -when it occupied the highway and has guaranteed to it freedom from- interference in its service when it has complied with- the duty so assumed.