CONFLICTING RIGHTS OF TELEPHONE LINES. 497 of the court of original jurisdiction, and such discretion could only be reviewed by the General Term. The Court of Appeals, how- ever, gave an intimation of its opinion on the merits as follows : '* We have examined with care the questions involved in this case, and we are compelled to say that we entertain very 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 conditions created by the use of electricity by the defendant, under the system it has adopted." ^ The court, however, gave no intima- tion of the reason for this view. In the mean time the trial of the case on its merits was being rapidly pushed forward. It went first to a referee to take evidence and find the facts. Numerous experts were examined before him by both parties, with the usual result of conflicting expert testi- mony in mixing up the case almost beyond comprehension. The referee then proceeded to make a decision which was somewhat unintelligible (Nov. 21, 1890), finding all the material facts in favor of the telephone company ; as, for instance, that it would cost much less to change the railway equipment from the single trolley to the double trolley system than it would to change the telephone to an all-metallic circuit, and also that the double trolley system was quite practicable, and yet holding that on the pleadings and the proof the telephone company had not established a cause of action. Why it had not, the referee also left in profound mystery, and on appeal to the General Term of the Supreme Court that court promptly reversed the judgment, discharged the referee, and ordered a new trial. The leading idea of the General Term in taking this action was the maxim. Sic utere tuo ut alieiium non Icedas. The court says, "The sound and just elementary principle still prevails, that a party must so use his own property as not to injure his neighbor." ^ Meanwhile street railways all over the United States were being equipped with the single trolley electric system, and it became evident that, whatever the courts might decide, the railway had come to stay and was a great pubHc benefit. It was not long, as time is measured in lawsuits, before the Court of Appeals (Oct., 1892) gave a final and authoritative statement of the law 1 121 N. Y. 405, June 3, 1890. 2 61 Hun, 152, Sept., 1891.
