POLES AND WIRES FOR ELECTRIC RAILWAY. 269 rests in the sound discretion of the court of original jurisdiction. The court said, however, — We have examined with care the questions involved in this case, and we are compelled to say that we entertain grave doubts whether, upon the facts stated in the complaint and affidavits, any cause of action exists in favor of the plaintiff, and whether the plaintiff has any remedy for the injury of which it complains, except through a readjustment of its methods, to meet the new condition created by the use of electricity by the defendant under the system it has adopted. A decision on the merits was reserved until after the final hear- ing. All concurred except Finch and Peckham, JJ., who were in favor of a reversal of the orders. The report of the referee, Mr. Isaac Lawson, was made on August 6, 1890, and his decision was in favor of the defendants. He found as matters of fact that the plaintiffs could obviate the difficulty to some extent, but not wholly, by adopting the McCluer system ; that it could obviate the diflficulty entirely by making each of its circuits a metallic one; that the defendants could obviate all the damage by adopting the double trolley or the storage battery, and that this would cost less than it would cost the plaintiff to adopt the complete metallic circuit; and yet he held as a matter of law that the plaintiffs had failed to establish a cause of action against the defendants. It appears from this review of the cases that the contest be- tween the electric railway and the telephone companies over the use of the streets has not yet been definitely settled by the courts, and it seems likely that the settlement will be made through the ingenuity of inventors rather than by the efforts of the lawyers and judges. It is quite certain that public convenience will demand that the streets shall be used for both purposes, and that some way will be found by which this may be done. In the mean time, it is the duty of the courts to protect existing property from unnecessary injury without needlessly obstructing the appli- cation of such a valuable force as electricity to new uses for the public benefit. It is certainly true, as the courts generally have held, that no one mode of public service has the right to a monopoly of the earth or the air in the line of the streets in the use of electricity, and the power of injunction will only be exercised so as to avoid present injury to existing property until practical men have found a way for all to work together in
