Western Union Telegraph Co. v. Guernsey & Scudder Electric Light Co. , 46 Mo. App. 120 ( 1891 )

Rombauer, P. J.

This is a suit in equity to enjoin the defendant from transmitting currents of electricity through certain wires which it has suspended in proximity to the telegraph wires of the plaintiff. At the hearing there was a decree denying the relief sought, and dismissing the petition as to a portion of the wires of the defendant, and granting the relief sought, in a modified form, as to the remainder. From this decree the defendant prosecutes this appeal.

The petition recites the incorporation of the plaintiff and its acquisition, under various acts of congress, and through its consolidation with the American Union Telegraph Company in pursuance of the laws of the state of New York, of the right to maintain its wires on any post-route, and pleads the act of congress of March 1, 1884, which makes all public roads and highways post-routes. It recites facts showing that a portion of Locust street, in the city of St. Louis, is a post-route within the meaning of this statute, and that that portion óf said street between Third and Fourth streets was, on of about the year 1880, occupied by the telegraph lines of the American Union Telegraph Company, which lines afterwards became, in pursuance of the consolidation already spoken of, the property of the plaintiff. It recites that the plaintiff had, for more than four years prior to the commencement of the suit, occupied and used those lines in its business as a telegraph company ; asserts its right to continue in the use of them free from interruption or disturbance ; recites facts showing the extensive character of the plaintiff ’ s business in transmitting messages to all parts of the United States, and the importance of such business, not only to individuals, but also to the public authorities of the city of St. Louis, the state of Missouri and the United States. It then states that more than fifty telegraph wires are strung and supported on the plaintiff’s poles on Locust street between Third and Fourth streets ; that each one is a conductor of electricity, and would, if brought in contact with any other body charged with a current of electricity, or with any other wire or conductor communicating with any other apparatus generating electricity, necessarily take up and transmit from such' other body, or such other conductor, any current of electricity with which the same was charged, or which was being transmitted thereby, and would conduct such electricity into the offices of the plaintiff and into such apparatus of the plaintiff in its offices as are connected with the plaintiff’s wires, endangering the plaintiff’s property by burning up its telegraph instruments, setting tire to the premises occupied by its main and branch offices, and destroying the lives of its employes.

The petition then recites the incorporation of the. defendant for the purpose of supplying light by means; of electricity to persons in the city of St. Louis from its; premises on number 306 Locust street in said city describes the manner by which the defendant, for the-purpose of producing electric lights, generates by means, of dynamo electric machines, and transmits by means, of wires, powerful and intense currents of electricity.

The petition then states that within the four weeks; preceding the institution of this suit the defendant, erected three poles on the south side of Locust street,, one hundred and fifty feet apart from each other, and higher than the plaintiff’s poles, and has strung upon the poles thus erected six wires, four of them directly above, and two directly below, the plaintiff’s wires; that all of the defendant’s wires are connected with its dynamos, and are used for the transmission of powerful currents of electricity to various parts of the city.

The petition also states that wires, such as are strung between the defendant’s poles, are at all times liable to be broken, and that it frequently happens (owing to causes which are enumerated) that wires strung between poles so far apart are broken ; that, in case the defendant’s upper wires are thus broken, they would unavoidably fall on the plaintiff’s wires, and in such event it would instantly and unavoidably result that the powerful currents of electricity, generated by the defendant and transmitted through its wires; would be transmitted through one or more of plaintiff’s telegraph wires, and be conducted into the plaintiff’s offices, and to the telegraphic instruments and apparatus there employed by plaintiff, to the interruption of the plaintiff’s business, and to the imminent danger of its property and the safety and lives of its employes.

The petition further states that the same result would follow in case the plaintiff’s wires broke and came in contact with the defendant’s wires strung immediately below them; that such accidents have repeatedly occurred and are dreaded by telegraph operators and repairers of wires, causing in many instances death and personal injuries.

■ The petition also States that the plaintiff has requested the defendant to either remove said wires, or else so place them as to avoid the dangers aforesaid ; but that the defendant refuses to comply with such request, and intends not only to continue the use of said wires in the manner aforesaid, but also to increase said dangers by placing additional wires on its poles for like purposes. The petition concludes with a prayer for an injunction restraining the defendant in the use of said wires for the purposes and in the manner aforesaid, and for general relief.

Due notice of the application for a temporary restraining order was given, and it was heard by the court on affidavits filed both in support and in opposition thereof, whereupon the court, upon the plaintiff’s giving bond in form and amount required, made a temporary restraining order, enjoining the defendant:

First. From transmitting any electric currents through its wires, strung below those of the plaintiff, because the transmission of such currents was dangerous to plaintiff’s employes, and prohibiting the defendant from stringing any more wires below the wires of plaintiff for the use of electric light wires.

Second. From placing for the purposes of its business any electric light wires above those of the plaintiff, nearer than three feet to plaintiff’s wires.

Third. And ordering the defendant to place below its wires already strung some net work or sufficient guard to prevent its wires, in case of breakage or sagging, from coming into contact with the plaintiff’s wires.

An order to that effect was served upon the defendant. More than one month after service of this order upon the defendant, the latter filed its answer, accompanied by a motion to dissolve the injunction. The answer consists first of a general denial. It then recites the incorporation of the defendant for the purpose of manufacturing and vending electric light that its chief office and place of business was, and had. for some time been, at the southwest corner of Third and. Locust streets in the city of St. Louis. It states that ih order to supply its customers with light it became, was. and is, necessary for it to stretch its wires on poles,, erected, and tobe erected, upon and along the streets of' St. Louis between the southwest corner of Third and: Locust streets, the place where its dynamo machines-used in manufacturing said light were and are located, and the places of business of its customers where the light was and is supplied for the illumination and lighting of their places of business. It then recites the language of an ordinance enacted by the municipal assembly of the city of St. Louis on the fifteenth of March, 1884, numbered 12723, “regulating the placing of wires, tubes or cables conveying electricity for the production of light and power along the streets, alleys and public places of the city of St. Louis.” This ordinance, which is embodied in the answer, will not be set out in full, but its provisions will be referred to, so far as may be necessary for the purpose of disposing of the questions arising upon this record. The answer •next recites that afterwards the board of public improvements of the city of St. Louis adopted a series of rules and regulations with respect to the matters contained in •said ordinance, which rules and regulations are also set jut in the answer. These in like manner will be omitted, but their provisions will be referred to, should it become necessary in the course of this opinion.

The answer then proceeds to state that the defendant applied to the board of public improvements for permission to erect its poles and stretch its wires on the north side of Locust street, which permission was denied ; that the defendant did obtain the permission of said board to erect its poles and stretch its wires on the south side of Locust street, and did so in strict conformity with the ordinances of the city, and the rules and regulations of the board, and under the supervision and control of the street commissioner; that its wires are stretched in the best practical way, are new and thoroughly insulated by asbestos and. fireproof material; that it is impossible for any of said wires to sag or sway so as to touch the wires of plaintiff, and that it is altogether improbable that any of said wares will break in any of the usual weather or condition of the elements in ’St. Louis.

The answer further states that, if said wires, or -either of them, should break asunder and fall so as to •come in contact with plaintiff’s wares, it would be harmless, as the fracture wrould necessarily break the current of electricity so that no damage would be done. The answer concludes with a prayer for a dissolution of the injunction, and judgment for costs.

The plaintiff replied, admitting the defendant’s incorporation as stated, and the enactment of the city Ordinance set out in the answer. The reply disclaimed information of the regulations of the board of public improvements, and of the fact whether thd defendant, in what it did, conformed to the provisions of the ordinance, and the regulations of the board, if there were any. The reply further stated,that neither the ■city, nor any municipal officer thereof, had power to authorize defendant to erect and maintain its poles and wires so as to interfere with the plaintiff’s rights under the act of congress, and averred that the alleged claim ■of right of the defendant under the statute of this state, the ordinances of the city and the regulations of the board, was contrary to, and a denial of, plaintiff’s rights ■under the act of congress and the constitution of the •United States.

It must be noticed in this connection that, while the defendant was fully advised both by the plaintiff’s petition and by the order of court that it had strung its wires both above and below those of the plaintiff, and was charged with the intention of not only continuing ■the use of its wires as thus strung, but also of stringing ■additional wires, regardless of any intervening space both above and below, the defendant did not disclaim ■either in its answer; or in the motion to dissolve, or, as far as the record shows, in the affidavits accompanying it, the intention thus charged.

Upon the final hearing the court modified the preliminary restraining order by removing the restraint as to defendant’s lower wires altogether. This decision was not placed on the ground that the operation of such wires, if continued, would be less dangerous to the plaintiff’s business or employes than the operation of the upper wires, but upon the sole ground that, prior to the institution of the suit, the plaintiff was advised that these wires were strung merely for a temporary purpose. The residue of the injunction, the court modified by ■enlarging the space which was to intervene between the defendant’s and the plaintiff’s wires, from three to ■eight feet. The injunction, as thus modified, was made perpetual.

The defendant assigns for error, in substance, that the court erred in granting to plaintiff a temporary injunction and in making it perpetual, and particularly in restraining defendant from stretching its wires nearer than eight feet to plaintiff’s wires, when the evidence failed to show, except by remote inference, any design' on part of the defendant to stretch its wires nearer than ten feet to those of the plaintiff.

The city of St. Louis under its charter has power to “ construct and keep in repair all bridges, streets, sewers and drains, and to regulate the use thereof” (Charter, art, 3, sec. 24, clause 2), and, also, to pass all such ordinances, not inconsistent with the provisions of the charter, or the laws of this state, as may be expedient in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures, and to enforce the same.” Clause 14. “The power to regulate theuse,” says Black, J., in Ferrenbach v. Turner, 86 Mo. 416, “is hot limited to amere right of way, but it extends to all beneficial uses which the public good and convenience may from time to time require, as for laying gas, water and sewer pipes, and the like. New uses are constantly arising. All these, and many others, may be made of the streets without the consent of the lot-owners. Private rights must yield to them.” In Julia Building Ass'n v. Tel. Co., 13 Mo. App. 477, we held that the dedication or condemnation of public streets in a city does not limit their use to the purpose of passways for persons and vehicles, but extends to every use' which may advance the public comfort and convenience within the legitimate sphere of municipal regulation. This decision was affirmed by the supreme court (88 Mo. 258), that court holding that “as civilization advances, new uses may be found expedient.” The first of these cases was the case of a licensee, and the last that of an adjoining owner. We are, therefore, justified in assuming that there is no substantial difference in principle between the case of a licensee and that of an adjoining owner, and that the rights of each are subject to additional legitimate uses, which the city may make of the streets, even though such uses cause inconvenience to either, so long as they do not amount to a substantial subversion of private rights.

If then the streets of the city of St. Louis may lawfully be subjected to the servitude which the defendant claims, the power to regulate such a use is directly conferred by the provision of the charter above quoted. The servitude which the defendant claims being a proper municipal use, it is equally evident that the power is properly exercised under the charter by the board of public improvements under the ordinance set out. Courts cannot undertake to exercise a general superintendence over this matter, because they possess neither the technical knowledge nor the knowledge of detail which the subject requires, and because the delays, which necessarily attend judicial proceedings, would of themselves furnish a conclusive argument against such exercise. When, therefore, the defendant has shown by its answer and evidence that it has erected its poles and wires in the places and manner prescribed by the municipal authorities, and that the purpose for which the same are used is a proper municipal use to which the street may be subjected, it has made a prima facie case that its occupation of the street to the extent and in the manner aforesaid is lawful, and it is upon the plaintiff to overthrow such case. All this, the defendant has shown by its answer and evidence.

We take these preliminary observations in view of the claim made in the plaintiff’s reply, that neither the city, nor any municipal officer thereof, had power to authorize the defendant to erect and maintain its poles and wires so as to interfere with the plaintiff’s rights under the acts of congress. If, by this claim, the proposition is sought to be asserted, that because the plaintiff has occupied the south side of Locust street between Third and Fourth streets with its telegraph wires, it could by such prior occupation exclude the city and its licensees from using said part of the street for other municipal uses, even if by so doing the plaintiff was subjected to some inconvenience, the claim must be denied. If on the other hand by such claim nothing further is sought to be asserted than the. proposition that, the plaintiff being a prior licensee on the street, and as such in the exercise of legal rights and duties, its rights could not be substantially invaded by a subsequent licensee of the city, the claim is correct. The plaintiff ’ s rights and duties under national and state laws have indeed a material bearing in the determination of the question as to what interference is substantial enough to warrant the interposition of a court of equity, but have no bearing whatever in determining the exclusiveness of the plaintiff’s right of occupation. As far as the exclusiveness of the right is concerned the-plaintiff occupies simply the position of a prior licensee,, and as such its rights cannot be of an exclusive character.

The evidence shows that, at the time of the commencement of this action, plaintiff had on the south side of Locust street five telegraph poles, one at the corner of Third and Locust streets, one at the corner of Fourth and Locust streets, and three intervening ; that these poles-were not exactly the same distance apart, the distance varying from forty to sixty feet ;that, including the parts which were inserted in the ground, they were forty-one or forty-two feet in length ; that upon each pole there were four cross-arms, commencing fifteen or eighteen inches below the top of the pole, and. being placed at about that distance apart downwards; that there were eight pins-of w.ood on each cross-arm for the support of wires, four on each side of the pole ; and that on each there was-screwed a glass insulator to which a wire was fastened. To the cross-arms were attached more than fifty wires, employed by the plaintiff in the conduct of its telegraph business. This business consisted in transmitting by •electricity, for hire, messages of all kinds to many parts of the United States, and to foreign telegraph lines.

After the plaintiff had placed these poles and wires thus in position and use, the defendant, acting under a permit procured from the board of public improvements, which was granted to it in pursuance of the ordinance set out in the defendant’s answer, and the regulations of the board of public improvements also there set out, — and after giving bond to the city in the sum of §20,000, as required by section 10 of the ordinance, — erected three poles on the south side of Locust street for the purpose of conducting electric light wires from its dynamos, which were situated in the basement of its building at number 306 Locust street. These poles were sixty feet- in length, and were inserted seven feet in the ground. The first was erected at the corner •of Third and Locust streets, and may be laid out of view, because no electric light wires were attached to it. The second was erected near the middle of the block, and near the defendant’s building, number 306 Locust street, and the third was erected on the corner of Fourth and Locust streets, a distance of one hundred and twenty-six feet west of the second. These poles were erected substantially in line with the poles of the plaintiff. They rose up through the plaintiff’s wires and extended upward much higher than the plaintiff’s poles. They were mortised for cross-arms,, the mortises beginning a foot below the top of the poles and running, with intervals of less than eighteen inches, three feet below the plaintiff’s lowest cross-arms. At the commencement of this action the defendant had stretched four wires from the second' of these poles, which stood near the middle of the block, westward to the third, which stood at the intersection with Fourth street. These wires were stretched on the highest cross-arm, and were fourteen or fifteen feet above the highest wire of the plaintiff. The defendant had also stretched two wires running on brackets below the plaintiff’s wires. All these wires were copper wires, known in the trade and to electricians as “number 6.underwriters’ wire.” They were insulated by a covering of cotton, and outside of that a coating of asbestos paint. The testimony tends to show that while this is not a perfect insulator, because there are no perfect insulators, yet it is the best practicable one which had been brought into use. Over these wires the defendant sent - powerful curi’ents of electricity to supply certain light to its customers, by means of two electrical machines called dynamos, established in the basement of its building. These dynamos were of unequal power, one of them being capable of generating and transmitting a current of electricity of twelve hundred and fifty volts, while the other was capable of generating and transmitting one thousand volts. The evidence tends to show that, if a current of the intensity of one thousand volts were to pass through the body of a man, it would kill him ; that a current of half this intensity might in some cases have the same effect; and that if such a current were communicated to one of the plaintiff’s wires, it would probably burn the electric instrumenfs with which the wire connected, and possibly set fire to the contrivance of the plaintiff called the switch-board, with which its wires are connected on entering its offices; but we do not understand the testimony as showing that this would necessarily endanger the plaintiff’s employes, engaged in manipulating its telegraph instruments, although it might possibly do so. Several instruments belonging to the plaintiff had been burned by electric light wires coming in contact with its telegraph wires; but no damage of this kind had accrued from the defendant’s wires, which were in use but a comparatively short time. These casualties had generally arisen from accidental contact between electric light wires and the plaintiff’s telegraph wires, where they crossed each other in very close proximity, — but a few inches apart. Evidence was given by the plaintiff of two accidents, which were probably traceable to currents communicated by electric light wires. One of them was the burning of the Bell Telephone Company’s exchange in the fifth story of the Third National Bank building in the city of St. Louis. The other resulted in the death of one of the plaintiff’s linemen in the city of Pitts-burg. The evidence concerning these two accidents was hypothetically stated to various expert witnesses, eliciting various opinions and theories. The sum of this class of evidence adduced by the plaintiff is, that there is undoubtedly danger, and very considerable danger, from the improper use of electric light wires in connection with telegraph wires, or from a contact between the two, or from an electric light wire coming in contact with a man. That the destruction of plaintiff’s, wires or instruments would cause a material interruption of its business, is substantially conceded by all the testimony, as well as the fact that the plaintiff’s employes, in repairing plaintiff’s wires, were liable to come into contact with the defendant’s lower wires, and thereby incur great bodily risk.

The decree of the court, it will be perceived, relates entirely to such wires as the defendant may be supposed to have intended to stretch abone the wires of the plaintiff. As to those which were temporarily stretched below, and as to any which the defendant may be supposed to have intended to stretch below, the decree grants no relief. As to any wires of the defendant abone the plaintiff’s wires, the decree contains two prohibitions: First. Against extending any wires nearer to the plaintiff’s wires than eight feet. Second. Against maintaining any wires above the plaintiff’s wires, without placing thereunder a wire net work, or other safe and suitable guard, to prevent defendant’s wires from sagging or falling on the wires of the plaintiff, or coming nearer thereto than eight feet.

The dangers which the plaintiff seeks to avoid are threefold : First. The transmission of powerful curents of electricity from defendant’s wires to plaintiff’s wires by actual contact, in consequence of the sagging or breaking of the defendant’s wires. Second. The disturbance of the electric current upon the plaintiff ’ s-wires, by induction from the defendant’s wires. Third. The dangers to the plaintiff’s employes by coming into actual contact with the defendant’s lower wires.

Touching the danger of actual contact by sagging, the defendant gave evidence tending to show that it was not its intention to string its wires closer than ten feet to plaintiff’s wires from above, and that, with wires strung at such distance, a contact by sagging is next to impossible. It was shown that the defendant’s-employes, as well as those of the city, were charged with a continuous duty of inspection, rendering such a contact highly improbable. In reply to the argument it may be said that as to defendant’s intention the plaintiff had a right to act on appearances, unless other-, wise advised, when it applied for the relief. The-defendant’s poles, as shown above, were mortised for cross-arms at close intervals where they passed through "the plaintiff ’ s wires. While such mortising may have been done rather in compliance with the regulations of the municipal board, than with any intention of actual use of the cross-arms which might be inserted for electric light wires, the answer makes no disclaimer of the-defendant’s intention to use them according to appearances. In view of the fact that no such disclaimer was made, the decree of the court, prohibiting the defendant from stringing its wires nearer than eight feet above those of the plaintiff, if tenable on other grounds, was warranted. It is not apparent how the defendant can complain of that part of the decree, since it simply gives a binding effect to its intention in that behalf. The question at most is a question of costs, which the defendant could easily have avoided by filing a formal disclaimer.

The danger of contact by breakage, as appears from the evidence, may be caused either by the defendant’s wires breaking and falling on those of the plaintiff strung below, or by the plaintiff ’ s wires breaking and falling on those of the defendant below. The latter is far more likely to happen than the former, since the plaintiff’s wires are of iron, of slight dimensions and subject to-rust, while the defendant’s wires are copper, are thoroughly insulated, and are thicker and stronger. While the danger of the breakage of the defendant’s wires is not excluded by the testimony, it is doubtful whether such a contingency is sufficiently proximate to warrant that part of the decree, which requires a net work or other-protection to be placed below the defendant’s upper wires to prevent their contact with the plaintiff’s wires in case of breakage. On that question, for the reason, hereinafter stated, we need express no opinion, as,, under the existing facts of this case, the question is not as to the form of relief actually granted, but as to whether the plaintiff was entitled to equitable relief by injunction’ at the date of the institution of the suit.

As to the results which would follow in case of a. breakage and contact between an electric light and a telegraph wire, the testimony is far from satisfactory. The expert testimony of the defendant tends to establish the theory that, if an electric light wire breaks, the current at once ceases to flow over it, unless the separate parts should fall so as to form two grounds;, that if both of the broken wires, not protected by the insulated covering, should touch the ground the current would continue to flow, but, if one end only should touch the ground, the only consequence would be the cessation of the flow of the current from the dynamo. The attention of a number of these witnesses was, on cross-examination, called to occurrences which were testified to by eye-witnesses, and which they could not satisfactorily explain on the two-ground theory. It is manifest from all of the evidence that either the theory itself is not thoroughly sound, or else that the conditions which bring about the formation of a second ground are so little known, that they constitute a hidden danger which cannot be guarded against. In view of the notorious fact that hundreds of fatal accidents have happened by contact with electric light wires during the comparatively short time they are in use, many of them by breakage, and many of them in this city ; and in view of the further fact that such dangers are generally recognized by scientists, it avails little that expert testimony can be found to the effect, that the danger is opposed to a certain theory, and, therefore, is nominal and remote. Expert testimony is at most advisory, and its weight is determined by the experience and knowledge, however acquired, which the triers of the fact have of the subject-matter under consideration. Weighing the evidence in light of all these facts, we must conclude that, even as to the danger which might arise from a probable breakage of wires, the circumstances at the date of the issue of the restraining order were such as to justify the equitable interposition of the court.

It is in this connection that, the plaintiff’s rights and. duties as fixed by law become material. The plaintiff is a carrier in the service of the public, and its duties as such are regulated by law and enforced by the severest penalties. It is answerable in these penalties for any neglect in the speedy and accurate transmission of messages intrusted to its care. The fact that such messages are delayed or inaccurately transmitted, owing to an interruption of the electric current over its own wires, by causes over which it has no control, may be a defense, but it is one which in many cases it would be impossible for it to establish to the satisfaction of the triers of the fact. The plaintiff, therefore, has a right to insist that a rigid protection of the 'law should be' thrown aronnd the instrumentalities, which are essential to the faithful performance of its duties. The defendant is a mere volunteer. It makes whatever contracts it pleases with customers of its own selection, and even in cases of breach is. answerable for ordinary damages only,

The argument has been advanced, and has been strongly pressed on our attention, that this .'danger to the plaintiff’s instruments and operators might be avoided by inserting a device known as a fusible plug* in the plaintiff’s wires, where the same enter into the plaintiff’s office. It is shown that such a plug melts if acted upon by an intense electric current, and that the plaintiff, by the insertion of such plugs, might guard against the danger of such intense currents passing by contact from the defendant’s wires over its own, and entering its offices to the danger of its instrumen fcs and employes. It is evident, however, that such a device, even if it accomplished all that the defendant claims for it, could be only a partial remedy. It might protect the plaintiff ’ s employes and instruments, but it would at the same time cause an interruption of the plaintiff ’ s business by severing its wires at every place where the plug has melted. We must add in this connection however that the equity rule, recognized in some of the states, that a plaintiff is not entitled to relief by injunction against a mischief, when he can guard against it at a slight expense, has not met with the approval of our supreme court. In Paddock s. Somes, 14 S.W.Rep. 749, that court approvingly cites the following passage from Wood on Nuisances [2 Ed.] 506 : “It is the duty of every person or public body to prevent a nuisance, and the fact that the person injured could, but does not, prevent damages to his property therefrom is no defense either to an action at law or in equity.” The trial court in that case instructed the jury that the plaintiff could not recover, if he could have prevented the injury by a reasonable exertion and at a trifling expense, and its judgment was reversed for error, one of the grounds being the giving of this instruction.

Our statute provides (R. S. 1879, sec. 2722): “ The remedy by writ of injunction or prohibition shall exist in all cases, where an injury to real or personal property is threatened, and the doing of any legal wrong what■ever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action of damages.”

Judge Hougii in Carpenter v. Grisham, 59 Mo. 251, says that, even in respect of nuisances, “the modern ■doctrine of courts of equity is much more liberal than the ancient, and that the rule requiring the right to be first established at law prevails only where the right itself is in dispute, or is doubtful,” citing High on Injunctions, section 516. Judge Henry in State Savings Bank v. Kercheval, quoting the statute, says : “ Would .an action for damages here have afforded an adequate remedy, is the question, and not whether the threatened injury would have been irreparable.” In Overall v. Ruenzi, 67 Mo. 207, Judge Napton says : “Itis quite apparent that of late years, whether by reason of our statute in regard to injunctions first introduced in the revised code of 1865, or upon general grounds of expediency, this court has been disposed to regard with favor proceedings which are preventive in their character, rather than compel the injured party to seek redress after the damage is accomplished.” So in Parks v. People's Bank, 97 Mo. 132, Judge Barclay holds that the remedy by injunction exists, even though the plaintiff have a legal remedy, if the remedy is not as full and adequate as that afforded by injunction. In fact quite a number of decisions, both of the supreme court and of this court of late years, whether in view of our statute or for other reasons, have so extended the remedy by injunction, that decisions of English courts and those of other states are of very little value, in determining in what cases it does or does not exist.

Upon a review of the entire evidence we find that the case is not one wherein, in the language of some of the courts, the injury is so doubtful, eventual or contingent, as to furnish no ground for relief by injunction. The plaintiff’s right is unquestioned, and the evidence shows a fair probability of a substantial interference with that right, so as to justify the plaintiff in invoking the protection of equity before the threatened dangers have culminated. The circumstances sufficiently show that, in the latter event, an adequate remedy would not be afforded by an action of damages. Whether the decree finally rendered is one which should be upheld in all its parts, or whether it might advantageously undergo modifications, is an inquiry which, under existing circumstances, is of a mere speculative character. While we are not officially advised that the conditions under which the decree was rendered have changed since its date, it is a notorio us fact, well known to each member of this court, that since said date both the plaintiff’s and defendant’s buildings and the •defendant’s dynamos have been destroyed by fire ; that the defendant has ceased to do business, and that the plaintiff’s main office has been removed to a different .street. Under these circumstances, a modification of the injunction would be a mere brutum fulmen sub-serving'no useful purpose.

As far as the questions involved in the proceeding-are concerned, they have been fully discussed in the opinion ; and, as far as the question of costs is concerned, which now seems tobe the only questionneeding ■adjudication, it is sufficiently disposed of by our holding, that the plaintiff was entitled to injunctive relief when the decree was rendered. Without committing ourselves to the propriety of the decree in all its parts, if it were still an issue in the case, we are of opinion that justice is best subserved by affirming it. Judgment affirmed;

Judge Biggs concurs ; Judge Thompson dissents.