Direct United States Cable Company v Anglo-American Telegraph Company

APPEAL from an interlocutory order (April 5, 1875) of the Supreme Court of Newfoundland, and in effect from two prior interlocutory orders of the said Court (August 28, 1874, and January 15, 1875). Under the said orders the Appellants were restrained by injunction until the hearing of the cause, or until further order, from constructing, laying, or extending any telegraphic cable in or to the Island of Newfoundland, or any place within the jurisdiction of the government of the colony of Newfoundland.

The above-named New York, Newfoundland, and London Telegraph Company (hereafter referred to as the Newfoundland Company), was incorporated by an Act of the Legislature of Newfoundland (17 Vict. c. 2) intituled, “An Act to incorporate a company under the style and title of ‘The New York, Newfoundland, and London Telegraph Company.’” By that Act (sect. 6) they were required to construct, maintain, and operate a line of telegraphs, therein described as “a main or trunk line,” from St. John's to or towards Cape Ray, and also from St. John's to or towards Trepassey, and any other line or lines from any point in Newfoundland to any other point or points therein or elsewhere, and were further empowered to construct, maintain, and operate such other lines of telegraph (described in the said Act as “branch lines”) in Newfoundland, as therein mentioned.

Various other special powers, privileges, obligations and restrictions were by the said Act granted to and imposed on the Newfoundland Company. By sect. 10 and also by sect. 22 provision was made for the grant to the Newfoundland Company, in the events and mode therein prescribed, of so much and such parts of the ungranted lands in Newfoundland as in such sections respectively mentioned. The grants of land so authorized to be made might be applied for, and required by the Newfoundland Company, as to those provided for under sect. 10, “so soon as the said line of telegraph shall be completed from St. John's to Cape Ray or any other points on the west coast of Newfoundland,” and as to those provided for under sect. 22, “so soon as the said company shall have actually established a communication across the Atlantic Ocean by means of sub-marine cable or wire from that island.” By sect. 12 it was enacted that unless 2500 shares of the capital or joint stock of the said company should be subscribed “and effective operations commenced for the establishment of the said line of telegraph within one year after the passing of this Act,” such Act and everything therein contained should be null and void.

By sect. 14 it was enacted as follows:— “The corporation hereby created shall have the sole and exclusive right to build, make, occupy, take, or work the said line of telegraph between St. John's and Cape Ray, or between any other points in this island (excepting only the existing line between St. John's and Carbonear) for the full period of fifty years from the passing of this Act, subject, nevertheless, to the right of pre-emption by the Government of the said colony as hereinafter provided, and during the said period of fifty years no other person or persons, body or bodies politic or corporate, shall be permitted to construct, purchase, take, or operate any line or lines of telegraph on this island, or to extend, to enter upon, or touch any part of this island or the coast thereof, or of the islands or places within the jurisdiction of the Government of this colony with any telegraph cable wires or other means of telegraph communication from any other island, country, or place whatsoever: provided, however, that if the said line of telegraph shall not have been completed from St. John's to Cape Ray, or other point on the western coast of Newfoundland, and a communication by telegraph across Prince Edward Island, or the Island of Cape Breton, or otherwise established with the continent of America within five years from the passing of this Act, the exclusive privileges granted by this section shall cease”.

By sect. 15 it was enacted that:— “If at any time after twenty years from the passing of this Act it shall be deemed advisable by the governor in council that the lines of telegraph and the property of the said company shall be transferred to and vested in the Government of this island, it shall be lawful for the governor to cause a written notice to be given to the said company, which shall be served upon the president, or director, or manager in the said island, which notice shall state that the government has decided upon becoming holders of the said lines or other property;” and provision was made that upon such notice being given and such appraisement made as thereby provided for of the “telegraph lines, wires, cables, apparatus, utensils and all other property connected therewith,” and after such payment or tender being made as thereby provided for or authorized, all the property so appraised should become the property of Her Majesty for her benefit and public use of the said island; and it was further provided as follows:— “But this section shall not apply to any lands granted to the said company by virtue of the 10th and 22nd section of this Act, nor the proceeds thereof, or any land or property purchased with such proceeds, nor to the bonuses to be paid to the company, or to any land or property purchased with the same, or any part thereof, nor to any mines or minerals or the property connected with the management or working of such mines or minerals.”

By sect. 18 it was enacted as follows:— “The said company shall have power to establish, construct, and work a line or lines of telegraph between Newfoundland and Ireland, or any other island, place, or places in the Atlantic Ocean, or in Europe, or in the United States, and to construct, purchase and work any telegraph line or lines, or means of communication in Canada, Prince Edward Island, Cape Breton, Nova Scotia, New Brunswick, and the United States, and in the water adjacent to or between the said islands, provinces, or states, and between any of them and Newfoundland.” Another colonial statute of 1857 (20 Vict. c. 1) empowered (sect. 1) the Newfoundland Company to consent that the Atlantic Telegraph Company, Limited, might extend their submarine cable to and touch and enter upon the island of Newfoundland on such terms as the two companies might agree upon, and enacted that when such cable should be so extended the same should be deemed in law to have been made in compliance with the provisions of the said Act of 1854. Sects. 2 and 3 of the same Act empowered the Newfoundland Company to effect a consolidation of that company with the Atlantic Telegraph Company, Limited, or any other company, upon such terms as might be agreed on by the companies, and enacted that upon such consolidation being effected, there should be thenceforward one consolidated company, into which the Newfoundland Company should be merged, and that such consolidated company should have all the rights of the Newfoundland Company.

The above-named Anglo-American Telegraph Company, Limited (hereinafter called the Anglo-American Company) is a joint stock company duly constituted since the passing of 20 Vict. c. 1, and registered in England under the provisions of the Companies Acts of 1862 and 1867, and all the undertaking, property, rights and privileges of the Atlantic Telegraph subsequently became vested in the Anglo-American Company.

The amalgamation of the Newfoundland and Anglo-American Companies, empowered by 20 Vict. c. 1, was effected, and the Respondents thereupon possessed, maintained, and worked several sub-marine telegraphic cables which have been laid across the Atlantic from Ireland to Newfoundland and thence to the continent of America.

The Appellant company was constituted in the month of March, 1873, for the purpose of establishing and working telegraphs...