268 HARVARD LAW REVIEW, change as to reverse completely the obligations of the parties. After describing the various devices which might be used by the railway and the telephone to obviate the difficulty, he cited cases in regard to nuisances and the obligation to use property so as jiot to injure the property of a neighbor, and said : — ' The substance of all the cases we have met with in our examination of this question — and we have cited but a small fraction of them — is that where a person is making a lawful use of his own property, or of a public franchise, in such 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 improve- ment, 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 himself of an effective and inexpensive method of prevention. . . . Unless we are to hold that the telephone company has a monopoly of the earth, and of all the earth within the city of Nash- ville, for its feeble current, not only as against the defendants, but as against all forms of electrical energy which, in the progress of science and invention, may hereafter require its use, we do not see how this bill can be maintained. There was also a decision in favor of the telephone company in the case of the Wichita and Suburban Railway Co., in the District Court of Sedgwick Co., Kansas, June 29, 1889. The same question came before the Supreme Court of New York, in Albany County, in Hudson River Telephone Co. v. The Watervliet Turnpike & Railroad Co., on application for preliminary injunction, and Mayhem, J., granted an injunction pendente lite without prejudging the merits of the case, and on the plaintiffs executing a bond for $10,000. On appeal to the General Term the injunction was continued on February 24, 1890, for thirty days, and until the defendants should stipulate that the court might determine, on the final hearing, what would be the necessary expense to the plaintiffs of preventing, by metallic circuit or other- wise, the injury to, or interference with, their telephone, and what damage the plaintiffs would sustain, and should give bond to pay the damages. An appeal from this order was taken to the Court of Appeals, and on June 3, 1890, this court, through Judge Andrews, delivered an opinion, declining to entertain the appeal, on the ground that the granting of an injunction pendente lite
