§ 303a. Telegraph and telephone - Additional burdenNew York - Distinction between urban streets and rural highways. The question as to the rights of abutting owners in the case of the use of streets by telegraph and telephone com the use of transmission of intelligence and consequently include as a proper use telegraph and telephones. We will quote from the court: "We think neither the State nor its corporation can appropriate any portion of the public highway permanently to its own special, continuous, and exclusive use by setting up poles therein, although the purpose to which they are to be applied is to string wires thereon and thus to transmit messages for all the public at a reasonable compensation. It may be at once admitted that the purpose is a public one, although for the private gain of a corporation; but the Constitution provides that private property shall not be taken for public use without compensation to the owner. Where land is dedicated for a public highway, the question is, What are the uses implied in such dedication or taking? Primarily, there can be no doubt that the use is for passage over the highway. The title to the fee of the highway remains in the adjoining owner, and he retains the ownership of the land, subject only to the public easement. If this easement does not include the right of a telegraph company to permanently appropriate any portion of the highway, however small it may be, to its own special, continuous, and exclusive use, then the defendant herein has no defense to the plaintiff's claim. Although the purpose of a public highway is for the passage of the public, it may be conceded that the land forming such highway was not taken for the pur pose of enabling the public to pass over it only in the then known vehicles, or for using it in the then known methods for the conveyance of property or the transmission of intelligence. Still the primary law of the highway is motion, and whatever vehicles are used or whatever method of transmission of intelligence is adopted, the vehicle must move and the intelligence be transmitted by some moving body which must pass along the highway, either on or over, or perhaps under it, but it cannot permanently appropriate any part of it. In the case at bar the fee in the highway at the point in controversy is in the plaintif, but I do not regard that fact as controlling upon the question of the proper use of the highway. Of course, the plaintiff could not recover in this form of action" (action of ejectment) "unless he owned the fee in the highway at this particular point, but I do not think the proper use of the highway de pends upon the question as to who owns the fee thereof. I think that the rights of the public in and to the highway remain the same wher ever the fee thereof may be placed. We cannot agree that this permanent appropriation and exclusive possession of a small portion of the highway can properly be regarded as any newly-discovered method of exercising the old public easement, for the very reason that this so-called new method is a permanent, continuous, and exclusive use and possession of some part of the public highway itself, and, * 47 panies is considered at length in Castle v. The Bell Telephone Company, which was an appeal from an injunction restraining the completion of a conduit for telephone wires. The court makes a distinction between urban streets and rural highways and, after reviewing many decisions in New York and also in other States which tend to support the conclusion reached by the court, declares that "We shall assume that it is now the settled law of this State that in circumstances such as surround the present case the rights of an abutting owner, even though his fee extends to the center of the street, are subject to the paramount right of the public to use such therefore, cannot be simply a new method of exercising such old public easement. It is a totally distinct and different kind of use from any heretofore known. It is not a mere difference in the kind of vehicle, or in their number or capacity, or in the manner, method, or means of locomotion. All these might be varied, increased as to number, capacity, or form, altered as to means or rapidity of locomotion, or transformed in their nature or character, and still the use of the highway might be substantially the same, a highway for passage and motion of some sort. Here, however, in the use of the highway by the defendant, is the fact of permanent and exclusive appropriation and possession, a fact which, as it seems to us, is wholly at war with that of the legitimate public easement in the highway. The argument is pressed upon us that the question to be decided in this case is new and that it ought to be decided with reference to the wants and customs of the advancing civilization which, it is alleged, is doing so much to render life more comfortable, attractive and beautiful. Courts are frequently addressed with such arguments, which are quite forcible, and they have in this case been very eloquently, plausibly, and aptly advanced. The answer to be made is that, although this particular phase of the question, strictly speaking, may itself be new, yet the principle which governs our decision is as old almost as the common law itself; and in deciding this appeal favorably to the defendants herein, we should be overturning and making nothing of cases which have been regarded as the law for generations past." Per Peckham, J. Upon the question generally as to compensation in such a case, the learned judge also said: "The use would frequently be but a technical encroachment upon the rights of the adjoining owner, and there would be but little fear that anything more than nominal damages would be allowed." See also Andrews V. Delhi & Stanford Tel. Co., 36 Misc. R. (N. Y.) 23, 72 N. Y. Supp. 50, affd. 66 App. Div. 616, 73 N. Y. Supp. 1129, holding that a telephone company authorized by the legislature to construct its lines on a public highway must make compensation to the abutting owners. 47 49 App. Div. (N. Y.) 437. * * * * street for any purpose which the enjoyment, comfort and convenience of the locality may require; and thus we come finally to what we deem the controlling question in this case, viz.: Is this newly discovered method of transmitting intelligence a public convenience; and, if so, is it one to the use of which a street in a populous city may be devoted consistently with the general purpose for which that street was originally designed? So far as the first branch of this inquiry is concerned we assume that it may be unhesitatingly answered in the affirmative; for of all the discoveries of modern science the telephone is one of the most wonderful, as it is one of the most useful, and its convenience is more specially appreciated by the residents of large cities whose homes are generally at a great distance from their places of business. * There are a thousand ways in which it can be used to such advantage as to render it well nigh indispensable to an urban resident. And this being the case, why is its maintenance a purpose for which a city street may not properly be used? * We have seen that the transmission of intelligence by electricity is not only a public convenience, but a public necessity, and where, as in the present instance, the means employed for such communication neither disfigures the surface of the street nor inter feres in any degree with its use by travelers upon foot or in vehicles, no good reason suggests itself to our mind why it should be regarded as an additional burden entitling the owner of the fee to further compensation." This case is cited with appoval in a later decision in this State wherein it is said that passing upon the right of a telephone company to place its wires in a public street in a city this court has fully held and decided that such right was within the limits of the public easement in a city street.*8 The question involved in this case was the right of a telephone company to erect its poles in and string its wires through a street of an incorporated village without the consent of the abutting property owner, who held title to the middle of the street. The court recognized the distinction made in prior cases in this State between city streets and rural highways and declared that village streets were more analogous to city 48 Johnson v. New York & Pennsylvania T. & T. Co., 76 App. Div. (N. Y.) 564, 78 N. Y. Supp. 598. 66 streets than to rural highways, and said in conclusion that we do not feel disposed to hold as a matter of law that the use of the street for the erection of a telephone system under the direction and control of the board of trustees of said vil lage is not proper and lawful." 49 And in another case in this State it is decided that an abutting owner who has no title whatever to the highway is not entitled to maintain an action to compel the removal of a telephone pole in the highway where it has caused no substantial damage to his easement of light, air and access.50 The court said that this case must be disposed of in view of the fact that the plaintiff had no title whatever to the highway "and he has no other or different right to it than has any one of the public except so far as being an abutting owner it is necessary for him to use the highway as a means of access to his premises. An encroachment which does not interfere with the right of passage over the highway gives no right to a citizen, who is not to some extent inconvenienced by it, to interfere with it. It certainly gives him no right to require its removal." 51 Outside of this last case it is rather difficult to reconcile these decisions in the appellate division with the opinion in Eels v. American Telephone & Telegraph Company,52 wherein it is said, in reply to the argument that the question is a new one and ought to be decided with reference to the wants and customs of the advancing civilization, that although this phase of the question may itself be new the principle which governs the decision is as old almost as the common law itself and that in deciding the appeal favorable to the defendants the court would be overturning and making nothing of cases which have been regarded as law for generations past. And the court also said: "We cannot agree that this permanent appropriation and exclusive possession of a small portion of the highway can properly be regarded as any newly discovered method of exercising the old public easement, for the very reason that this so-called new method is a permanent, continuous, and exclusive use Telephone 49 Per Hiscock, J. 50 Halleran V. Bell Company, 64, App. Div. (N. Y.) 41, 71 N. Y. Supp. 685, 7 Am. Elec. Cas. 253. 51 Per Rumsey, J. 52 143 N. Y. 133, 62 N. Y. St. R. 138, 38 N. E. 202, 5 Am. Elec. Cas. 92; see § 303, herein. and possession of some part of the public highway itself, and, therefore, cannot be simply a new method of exercising some old public easement." These principles, it would seem, are equally applicable whether the proposed line be constructed over city streets or country highways. $ 303b. Telegraph and telephone-Additional burden North Dakota. This question is considered in a case in North Dakota which was an action by an abutting owner to permantly enjoin a telephone company from erecting its poles in front of his property, and the court in an opinion which shows a careful and thorough examination and consideration of the question and of the decisions made in reference thereto, reaches the conclusion that the use of the streets for such purposes constituted an additional servitude or burden.53 This case is followed in a later decision in this State in which it is held that a telegraph or telephone line upon a rural highway constitutes an additional servitude for which the abutting owner is entitled to compensation, and it is declared by the court that 53 Donovan v. Allert, 11 N. D. 289, 91 N. W. 441, 58 L. R. A. 775, 8 Am. Elec. Cas, 183. The court in this case after a review of the decisions and of the opinions of text writers, including Joyce on Electric Law, § 321, says: We are not convinced by the argument advanced that the rights of the public and of abutting owners should be subjected to the occupancy of the streets for all public purposes under the new appliances of modern inventions, which greatly facilitate communication between citizens of the same city or citizens of different cities. If the persons utilizing these new appliances were the only ones whose rights and interests were to be considered, there could be but one answer to the demand for a liberal construction of the terms of the grant for public use. But on the one hand are the interests of those asking for the unrestricted use of the streets for intercommunication, and the unlimited use of the streets for all such purposes without compensation. On the other hand is the demand of the abutting property owner that his property be not sacrificed to such uses without compensation. We think the plaintiff's rights are within the provisions of the Constitution. We are aware that plaintiff's damages cannot be large in the present case. But if two poles may be erected on this street in front of his residence why not twenty? We cannot sanetion the violation of a constitutional provision because the damages may seem insignificant. The constitutional protection is not to be meted out in cases where pecuniary damages are large, and denied if they are small. The protection should follow a violation of any right therein defined," per Morgan, J. |