erect poles upon the streets of Baltimore, the court held that where the fee of the streets was in the abutting owner, then the erection of a telephone pole in front of his property constituted an additional servitude upon his land, which entitled him to compensation; and that where the fee was in the city, the erection of such poles would also entitle the abutting owner to compensation where his means of ingress and egress were unreasonably abridged. In case, however, of the fee being in the municipality the court stated that there was some diversity of opinion as to whether the erection of poles would of itself be an additional servitude in the absence of special injury to the rights of egress and ingress.33 In Minnesota 34 it has been held that where the abutting owner holds the fee to the streets, the erection of telegraph and telephone poles therein, though done under proper authority, is an encroachment upon his rights.35 So, also, the same rule is held to prevail in Mississippi.36 § 301a. Telegraph and telephone - Additional burdenNebraska. In a case in Nebraska this question arose in a proceeding by an abutting owner for an injunction to restrain the defendant, a telephone company, from mutilating or injuring certain trees which she had planted in the street along and adjacent to her property. The court declared that it became necessary for a proper determination of the question, to decide whether telegraph and telephone poles and wires, which permanently and exclusively occupy portions of a public street or highway, constitute an additional burden for which an abutting owner is entitled to compensation in case he is Co., of Baltimore, v. Mackenzie, 74 33 In this case a telephone pole was erected in front of a warehouse and it was claimed that it obstruct ed and prevented "the comfortable and reasonable and beneficial enjoyment of the use of said premises." The measure of damages in this case was held to be either first the diminution in the rental or usable value of the property; or, secondly, the difference in the value of the property before and after the construction of the pole it the depreciation had been caused by the erection and maintenance of same. 34 Willis v. Erie Teleg. & Teleph. Co., 37 Minn. 247, 34 N. W. 337. 35 But see § 310, herein, where contrary is held in this State in a later case. 36 Stowers v. Postal Teleg. Cable Co., 68 Miss. 559, 9 So. 356, 3 Am. Elec. Cas. 855. injured thereby, and in this connection it was said that the adjudicated cases are ranged not very unequally on both sides. The court however reached the conclusion that telegraph and telephone poles and wires are an additional burden.37 § 302. Telegraph and telephone - Additional burden - New Jersey. In New Jersey the first case which we find as bearing upon this question was an action by an abutting owner to restrain the stringing of wires in front of his premises. There did not appear to be any default on the part of the company as to compliance with the statute in reference to the incorporation of telegraph companies. A preliminary injunction was refused on the ground that there must be urgent necessity, and the damage threatened must be of an irreparable character to warrant the court in ordering it.38 So the case of Broome 37 Bronson V. Albion Telephone Co., 67 Neb. 111, 93 N. W. 201, 8 Am. Elec. Cas. 177. The court said: "We are of opinion on independent grounds, however, that such is the sounder view. When we recall the forest of poles, with their clumsy appurtenances, and the net work of wires, and even cables, with which some of our city streets are incumbered, it seems hard to say that an owner whose light is cut off, who has the safety of his buildings and their occupants in case of fire endangered, and access to his property impeded, by these permanent obstructions, is less entitled to complain than one whose easement by adjacency is impaired by a steam railway. Of course, in the greater number of cases, the poles and wires work no substantial injury, and the owner has no ground of objection; but, because the damage in most cases is trivial or nominal, we should not be blind to the substantial and considerable damage that often exists," per Pound, C. 38 Roake v. American Teleph. & * + Teleg. Co., 41 N. J. Eq. 35, 2 Atl. 618, 2 Am. Elec. Cas. 218. There was no erection of poles in front of complainant's premises, it being simply the suspension of some wires attached to poles in front of adjoining premises. The court did not undertake to decide the question as to whether there was an additional servitude, and said: "A complainant is not in a position to ask for such an injunction when the right on which he founds his claim is, as a matter of law, unsettled. I do not intend to express any opinion at this time upon the merits of the controversy. If the company has not the right which it claims, its action in the premises will be taken at its peril. It will gain no right by the refusal of this court to prohibit it at this stage of the suit, and this court will be able to protect the complainant in his right." This case has sometimes been cited as supporting right of telegraph companies, but we can hardly so consider it from the above. v. New York & New Jersey Telephone Company, 39 sometimes referred to in this connection, was simply the granting of an injunction restraining a telephone company from constructing its line without first complying with the requirements of the statute, and does not consider the question of additional servitude. From an obiter dictum in a later case it could be inferred that the courts of this State would be in harmony with the cases holding that telegraph and telephone poles in a street are an additional burden.40 And in a recent case in this State it is decided that, where the fee to a street is in the abutting owner, the use of the street without the consent of such owner for the erection of poles and the placing of apparatus thereon, constitute an additional servitude upon the fee and is a taking of property for which the abutting owner is entitled to compensation. In this case the novel contention was made that such use was within the easement for which the street was granted and that it was a mere adaptation of the road to the passage of the electric current, which thus travels along the highway, but the court declared that the resemblance between that use and the ordinary use of the street for the purposes of travel and passage was not very close and that they were essentially distinct.41 39 42 N. J. Eq. 141, 7 Atl. 851, 2 Am. Elec. Cas. 259. 40 Halsey v. Rapid Transit St. Ry. Co., 47 N. J. Eq. 380, 3 Am. Elec. Cas. 296, 20 Atl. 859. The court, stating in reference to the motive power of street railways that it was the use and not the motive which decided the question as to additional servitude, said: "And this principle exhibits in a very clear light the reason why it has been held that the placing of telegraph and telephone poles in a street imposes an additional servitude on the land. They are not placed in the street to aid the public in exercising their right of free passage, nor to facilitate the use of the street as a public way, but to aid in the transmission of intelligence. Although our public highways have al ways been used for carrying the mails and for the promotion of other like means of communication, yet the use of them for a like purpose, by means of the telegraph and telephone, differs so essentially, in every material respect, from their general and ordinary uses, that the general current of judicial authority has declared that it was not within the public easement." Per Van Fleet, V. C. This is from an opinion in reference to poles and wires of a trolley company and whether they constituted an additional burden upon the highway. So these remarks were simply obiter dicta. This case will be considered in the section as to street railways. 41 Nicoll v. New York & New Jersey Teleph. Co., 62 N. J. L. 733, 42 § 303. Telegraph and telephone - Additional burden - New York. In People v. Metropolitan Telephone & Telegraph Company,42 the latter being a corporation organized under a statute respecting telegraph companies, and authorizing them to erect poles and construct their lines, an action was brought by the people to have the poles declared a nuisance. The court, however, held that they could not be so adjudged. A later decision 43 distinguishes this case as being an action in Atl. 583, 7 Am. Elec. Cas. 277. The court said: "The public easement, as interpreted in this State, is primarily a right of passage over the surface of the highway, and of so using and occupying the land within it as to facilitate such passage. In this primary right are included the grading, paving, cleaning, and lighting of the highway, the construction and maintenance of streetrailways, with the apparatus proper for their use, and the maintenance of appliances conducive to the protection and convenience of travelers while using the way. Secondarily, the easement Covers uses which though their relation to the right of passage is remote, or even fanciful, are so generally advantageous to the owners of the fee the owners of abutting property that, rather by common consent and custom than by logical deduction from the primary design, they are now recognized as legitimate. Such are the construction and maintenance of sewers, water pipes, and gas pipes for the convenience of persons occupying neighboring lands. State v. Laverack, 34 N. J. L. 201. The argument to support the proposition that the right to construct and maintain a telephone line for common public use is within this easement is that the structures required for the exercise of the right are mere adaptations of the road to the passage of the electric current, which thus travels along the highway. But the resemblance be tween this use and that ordinarily enjoyed under the easement scarcely goes beneath the words by which it may be described. In reality, the electric current does not use the highway for passage. It uses the wire and would be as well accom modated if the wire were placed in the fields or over the houses. The highway is used only as a standing place for the structures. Such a use seems to be so different from the primary right of passage as to be essentially distinct. Nor does it rest on the same footing as those secondary uses to which allusion has been made. Telephone lines in a street do not afford to the occuparts of neighboring property such general convenience, nor have they been permitted with such common and continued acquiescence, as sanction the other uses mentioned. We therefore think that the right now under consideration is not within the public easement, and can be ac quired, against the consent of the private owner of the fee, only by condemnation under the power of eminent domain," per Dixon, J. 42 31 Hun (N. Y.), 604 11 Abb. N. C. 304, 64 How. 66, 1 Am. Elec. Cas. 604. 43 Metropolitan Teleph. & Teleg. Co v. Colwell Lead Co., 67 How. which the people were objecting to the use of the streets by the company, where the company had the consent of the people for such use. In this later case, which was an action by the company to restrain an abutting owner from interference with its telephone lines in one of the streets of New York city, the court said, in reference to the poles used for its wires, "I am clearly of the opinion that such a use of the streets is not a street use, and does not come within the terms of the trust upon which the city holds the fee of the streets, and that so far as the rights of abutting owners are involved, the legislature has no power to authorize plaintiffs to use the streets for such a purpose." to this land was vested in the city in trust for a specified use, that use being for a public street to be kept open "in like manner as the streets in said city are, and of right ought to be," and that the erection of poles for a telegraph or telephone line, not being a proper street use, the legislature had no power to authorize such use in violation of the terms of the trust. These cases were followed by that of Blashfield v. The Empire State Telephone & Telegraph Company,45 which held that the construction of telephone lines upon a rural highway imposed an additional burden for which the abutting owner was entitled to compensation. And again it was decided by the Court of Appeals in a well considered opinion that telegraph poles were an additional burden upon a rural highway. The basis of this decision is that the fee 46 (N. Y.) 365, 50 N. Y. Super. 488, 1 Am. Elec. Cas. 664, per Ingraham, J. 44 Per Ingraham, J. The trust referred to by Judge Ingraham in the above was that created by the Act of 1813, under which the street in question was taken for a public street. It provided that "the said mayor, aldermen and commonalty of the city of New York shall become and be seized in fee of the said lands, etc., in the report mentioned, that shall or may be required for the purpose of opening the said street, etc., in trust, nevertheless, that the same be appropriated and kept open for or as part of a public street, etc., forever, in like manner as the public streets in said city are and of right ought to be." 45 71 Hun (N. Y.), 532, 54 N. Y. St. R. 917, 24 N. Y. Supp. 1006, 4 Am. Elec. Cas. 146, affd., 147 N. Y. 520, 70 N. Y. St. R. 88, 42 N. E. 2. 46 Eels V. American Teleph. & Teleg. Co., 143 N. Y. 133, 62 N. Y. St. R. 138, 38 N. E. 202, 5 Am. Elec. Cas. 92. There is a thorough discussion in the opinion of the prin ciples involved and the answer to the argument that highways are for |